PLEDGE AGREEMENT
AIRGATE SERVICE COMPANY, INC.
This PLEDGE AGREEMENT, dated as of October 25, 2004 (this
"Agreement"), is made by AIRGATE PCS, INC., a Delaware corporation (the
"Pledgor"), in favor of THE BANK OF NEW YORK TRUST COMPANY, N.A., a national
banking association (in such capacity, "Collateral Agent" and the "Pledgee").
W I T N E S S E T H :
WHEREAS, the Pledgor is the sole owner of all of the issued and
outstanding capital stock of AirGate Service Company, Inc., a Delaware
corporation ("Company");
WHEREAS, the Pledgor is issuing $175,000,000 aggregate principal
amount of its First Priority Senior Secured Floating Rate Notes due 2011
(together with any additional First Priority Senior Secured Floating Rate Notes
due 2011 of the Pledgor issued pursuant to the Indenture (as defined below)
including, without limitation, in exchange for outstanding notes, the "Notes")
and each of the Pledgor's restricted subsidiaries (the "Guarantors" and together
with the Pledgor, the "Issuers") have guaranteed the Notes, in each case
pursuant to an indenture (the "Indenture") dated as of October 25, 2004 among
the Issuers and The Bank of New York Trust Company, N.A., as trustee on behalf
of the holders of the Notes (the "Noteholders"); and
WHEREAS, to secure the due and prompt payment and performance by
the Pledgor of the Obligations under the Indenture, the Noteholders required the
Pledgor to execute and deliver a pledge agreement (the "Agreement") to the
Pledgee and to pledge the security therein referred to;
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions; Interpretation.
(a) Defined Terms. Capitalized terms which are used herein
without definition and which are defined in the Indenture shall have the same
meaning herein as in the Indenture, and the following terms shall have the
following meanings:
"Acknowledgement of Pledge" shall mean the Acknowledgement of
Pledge substantially in the form of Exhibit A hereto.
"Agreement" shall have the meaning ascribed thereto in the
preamble hereto.
"Capital Stock" shall mean any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation or a limited liability company and any and all
warrants or options to purchase any of the foregoing.
"Certificate of Incorporation" shall mean the Certificate of
Incorporation of the Company, as the same may be amended, supplemented
or otherwise modified from time to time.
"Collateral Agent" shall have the meaning ascribed thereto in the
preamble hereto.
"Company" shall have the meaning ascribed in the recitals hereto.
"Company By-Laws" shall mean any By-Laws of the Company, as the
same may be amended, supplemented or otherwise modified from time to
time.
"Guarantors" shall have the meaning ascribed thereto in the
recitals hereto.
"Indenture" shall have the meaning ascribed thereto in the
recitals hereto.
"Intercreditor Agreement" means the Intercreditor Agreement,
dated as of October 25, 2004, among the Pledgor, the Guarantors, The
Bank of New York Trust Company, N.A., in its capacity as trustee for
Pledgor's existing 9?% Senior Subordinated Notes due 2009 and the
Collateral Agent, as amended, supplemented or otherwise modified from
time to time.
"Issuers" shall have the meaning ascribed thereto in the recitals
hereto.
"Notes" shall have the meaning ascribed thereto in the recitals
hereto.
"Obligations" means the Obligations (as defined in the Indenture)
of the Issuers with respect to the Notes, the Indenture and the Security
Documents and shall include, without limitation, the unpaid principal of
and interest owing under the Notes and all other obligations and
liabilities of the Company or any Guarantor thereunder and under the
Indenture and the Security Documents (including, without limitation,
interest accrued at the then applicable rate provided in the Notes after
the filing of a petition in bankruptcy or the commencement of any
Proceeding, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection
with, the Indenture and the Security Documents, in each case whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise, including, without
limitation, all fees and disbursements of counsel to the Collateral
Agent and fees, expenses and indemnities of the Collateral Agent that
are required to be paid pursuant to the terms of the Indenture or any
other Security Document. To the extent any payment with respect to the
Obligations (whether by or on behalf of the Company, as proceeds of
security, enforcement of any right of setoff or otherwise) is declared
to be fraudulent or preferential in any respect, set aside or required
to be paid to a debtor in possession, trustee, receiver or similar
Person, then the obligation or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such
payment had not occurred.
"Person" means any natural person, individual, corporation,
limited liability company, limited liability partnership, trust,
business trust, joint venture, association, company, sole
proprietorship, unincorporated association, joint stock corporation,
partnership, Governmental Authority or other entity.
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"Pledged Collateral" has the meaning ascribed thereto in Section
2 hereof.
"Pledged Stock" has the meaning ascribed thereto in Section 2
hereof.
"Pledgee" shall have the meaning ascribed thereto in the preamble
hereto.
"Pledgor" shall have the meaning ascribed thereto in the preamble
hereto.
"Proceeding" shall mean any voluntary or involuntary case or
proceeding under the Bankruptcy Code with respect to the Company or any
of the Guarantors and any other voluntary or involuntary insolvency,
bankruptcy, receivership, custodianship, liquidation, dissolution,
reorganization, assignment for the benefit of creditors, appointment of
a custodian, receiver, trustee or other officer with similar powers or
any other proceeding for the liquidation, dissolution or other winding
up of the Company or any of the Guarantors.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Security Interest" has the meaning ascribed thereto in Section 2
hereof.
"Subordinated Pledge Agreement" shall mean the pledge agreement,
dated as of February 20, 2004, between Pledgor and The Bank of New York,
as amended, supplemented or otherwise modified from time to time.
"Termination Date" shall mean the date on which all of the
Obligations have been paid in full and the Indenture shall have been
discharged.
"Trustee" means The Bank of New York Trust Company, N.A., as
trustee under the Indenture, and any successor thereto.
"UCC" means the Uniform Commercial Code in effect in any
applicable jurisdiction.
(b) Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (i) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (ii) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (iii) the words "herein", "hereof" and "hereunder", and words of
similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof, (iv) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this Agreement and (v)
the words "asset" and "property" shall be construed to have the same
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meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, securities, accounts, contract rights, licenses
and intellectual property.
(c) Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Pledgor notifies the Pledgee that the Pledgor requests an amendment
to any provision hereof to eliminate the effect of any change occurring after
the date hereof in GAAP or in the application thereof on the operation of such
provision (or if the Pledgee requests of the Pledgor an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
2. Grant of Security Interest. As collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations of the Pledgor, the
Pledgor hereby delivers, pledges, sets over, transfers, assigns and hypothecates
and grants a general first priority continuing security interest (the "Security
Interest") and lien in favor of the Pledgee in all right, title and interest of
the Pledgor, whether now owned or hereafter acquired, in the equity interests of
the Company (collectively referred to as the "Pledged Collateral"), including:
(a) all of the Capital Stock of the Company now owned or
hereafter owned by the Pledgor, including, without limitation, the
Capital Stock described in Annex 1 hereto (the "Pledged Stock");
(b) all shares of Capital Stock of the Company which the Pledgor
receives by reason of any stock split, bonus, dividend, distribution or
other form of issue, with respect to or arising from the Pledged Stock;
(c) all warrants, options or rights to acquire, or securities
convertible into, any interest in or Capital Stock of the Company, now
existing or hereafter issued to or acquired by the Pledgor;
(d) all dividends or distributions of cash or other property
declared, paid or payable with respect to the Pledged Stock or other
interest described above;
(e) all increases and profits of the foregoing and all proceeds,
replacements and substitutions thereof; and
(f) all proceeds of the foregoing including, without limitation,
all securities or other property acquired with any proceeds.
The Pledgor shall have delivered to the Pledgee all certificates
representing the Pledged Stock and undated stock powers in form and substance
satisfactory to the Pledgee duly endorsed in blank or other instruments of
transfer with respect to such certificates. The Pledgor will hold in trust for
the Pledgee and forthwith cause to be delivered to the Pledgee or its desig-
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nated agent any certificates, documents or other instruments representing the
Pledged Collateral hereafter coming into existence.
3. Representations and Warranties of the Pledgor. The Pledgor
represents and warrants that, except as otherwise disclosed by the Pledgor to
the Pledgee:
(a) Title; Liens. All of the Pledged Stock is fully paid,
non-assessable, validly issued and validly owned by the Pledgor. Except
for the Security Interest and the lien created pursuant to the
Subordinated Pledge Agreement, the Pledgor owns each item of the Pledged
Collateral free and clear of any and all liens or claims of others. No
security agreement, financing statement or other public notice with
respect to all or any part of the Pledged Collateral is on file or of
record in any public office, except for the Security Interest;
(b) Perfected First Priority Security Interest. The Security
Interest and lien constitute and will continue to constitute a valid,
perfected first priority security interest in such Pledged Collateral in
favor of the Pledgee, enforceable as such against all creditors of and
purchasers from the Pledgor;
(c) Power and Authority. The Pledgor has full power and authority
to pledge any or all of its rights and interests in the Pledged
Collateral, and the Pledgor has full power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and this
Agreement constitutes the valid and legally binding obligation of the
Pledgor, enforceable in accordance with its terms and conditions (except
as such enforcement may be limited by applicable bankruptcy, insolvency,
moratorium or similar state or federal laws affecting enforcement of
creditors' rights and remedies generally and except for the
enforceability of provisions providing for injunctive relief, specific
performance or other equitable remedies, regardless of whether such
enforcement is sought in a proceeding in equity or at law);
(d) No Conflict. The execution and delivery by the Pledgor of,
and performance by the Pledgor of its obligations under, this Agreement
do not and will not result in any violation of or conflict with the
terms of:
(i) any requirement of law applicable to the Company or the
Pledgor;
(ii) the Certificate of Incorporation or the Company By-Laws; or
(iii) any other material agreement, indenture, instrument or
license applicable to or binding upon the Company or the Pledgor and not
covered by clauses (i) and (ii) above;
(e) Pledged Stock. The Pledged Stock constitutes and at all times
will constitute all of the issued and outstanding capital stock of the
Company and the Pledged Collateral will at all times constitute all of
the equity and ownership interests of the Company;
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(f) Options, Etc. There is no option, warrant, call or other
right or commitment of any character giving any Person the right to
purchase any or all of the Pledged Stock or other Pledged Collateral
from the Pledgor or the Company;
(g) Stock Powers. The instruments of transfer delivered with the
Pledged Collateral are duly executed;
(h) Voting Rights. There are no restrictions on the voting rights
associated with the Pledged Collateral or upon the transfer of any of
the Pledged Collateral (other than the restrictions contained in this
Agreement) that have not been waived by the party having the right to
enforce such restrictions; and
(i) No Consent. Except for the Acknowledgement of Pledge executed
and delivered by the Company to, and in form and substance satisfactory
to, the Pledgee, no other consent or acknowledgement of any other Person
in any form whatsoever and no authorization, approval or other action
by, and no notice to or filing with, any Governmental Authority or
regulatory body or other third party is or will be required either (i)
for the grant by the Pledgor of the Security Interest or the first
priority lien or pledge granted hereby or for the execution, delivery or
performance of this Agreement by the Pledgor, (ii) for the perfection or
maintenance of the pledge and the Security Interest and the first
priority lien created hereby (including the first priority nature of
such pledge and security interest) or (iii) for the exercise by the
Pledgee of its rights provided for in this Agreement or the remedies in
respect of the Pledged Collateral pursuant to this Agreement (except as
may be required in connection with the disposition of any portion of the
Pledged Collateral by laws affecting the offering and sale of securities
generally), other than consents, authorizations, approvals and other
actions which have already been obtained (copies of which have been
delivered to Pledgee).
4. Covenants of the Pledgor. The Pledgor covenants and agrees
with the Pledgee that, from and after the date hereof, the Pledgor:
(a) Adverse Claims. Shall warrant and defend the Pledged
Collateral against the claims and demands of all other parties and keep
the Pledged Collateral free from all security interests or other
encumbrances, except as otherwise permitted under this Agreement;
(b) Assignment. Shall not sell, transfer, assign, deliver, convey
or otherwise dispose of any Pledged Collateral or any interest therein
or right thereunder or grant to any Person any option, warrant or other
right to acquire any of the Pledged Collateral or any interest therein
or right thereunder, except as otherwise permitted hereunder or under
the Indenture;
(c) Pledge. Shall not pledge, hypothecate, grant a security
interest or lien in or otherwise encumber in any manner any of the
Pledged Collateral except pursuant to the Subordinated Pledge Agreement;
(d) Certificate of Incorporation; Company By-Laws. Shall not,
except upon the Pledgee's request or with the Pledgee's prior written
consent, cause, permit or
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consent to any amendment or modification to the Certificate of
Incorporation or the Company By-Laws; provided however, that if such
amendment does not materially lessen the rights granted to the Pledgee
by this Agreement, only prior notice to the Pledgee shall be required;
(e) Certificates, Etc. Shall not seek or take delivery of any
additional certificate, instrument or other written document
constituting or evidencing any Pledged Collateral unless the Pledgor
immediately delivers such certificate, instrument or document to the
Pledgee, duly endorsed as the Pledgee requests or accompanied by an
appropriate instrument of transfer executed in blank; and
(f) Taxes. Shall pay or reimburse the Pledgee for all taxes,
assessments and other charges of every nature that may be imposed,
levied or assessed on the Pledgee in respect of the Pledged Collateral
other than taxes on net income or any tax in lieu thereof.
(g) Additional Documents. Shall cause the Company to execute and
deliver to the Pledgee the Acknowledgment of Pledge, substantially in
the form of Exhibit A attached hereto, and shall cause the Company to
execute and deliver to the Pledgee such financing statements,
assignments, registrations and other documents requested by the Pledgee,
and shall cause the Company to do such other things relating to the
Pledged Collateral and the Pledgee's Security Interest and first
priority lien as the Pledgee may request, and the Pledgor shall pay all
costs of lien searches and filing of financing statements, assignments
and other documents in all public offices reasonably requested by the
Pledgee.
5. Voting Rights. During the term of this Agreement, so long as
there shall not occur and be continuing any Event of Default, the Pledgor shall
have the right to vote the Pledged Collateral on all matters for all purposes
not inconsistent with the terms of this Agreement or the Indenture. Upon the
occurrence of an Event of Default so long as such Event of Default shall be
continuing, the Pledgee shall thereafter have, at its discretion, the option to
exercise all voting powers and other rights pertaining to the Pledged
Collateral. The Pledgee may, upon or at any time after the occurrence of an
Event of Default so long as such Event of Default shall be continuing, at its
option, transfer or register the Pledged Collateral or any part thereof into its
own or its nominee's name.
6. Distributions and Other Income from Pledged Collateral.
(a) Any and all:
(i) Cash distributions paid in respect of the Pledged Collateral;
(ii) Distributions paid or payable other than in cash in respect
of the Pledged Collateral; and
(iii) Instruments, Capital Stock, securities and other property
received, receivable or otherwise distributed in respect of, upon the
subdivision or combination of, or in exchange for, any Pledged
Collateral,
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shall constitute Pledged Collateral, and shall forthwith be paid or delivered
directly to the Pledgee to hold as Pledged Collateral; provided, however, that
if no Event of Default shall have occurred and be continuing, the Pledgor shall
be entitled to receive and retain any and all cash distributions (including any
interest paid) made in respect of the Pledged Collateral to the extent such
payments are not prohibited by the Indenture.
(b) Any and all distributions paid or payable in cash in respect
of any Pledged Collateral in connection with a partial or total liquidation or
dissolution, and any and all cash paid, payable or otherwise distributed in
respect to redemption of, or in exchange for, any Pledged Collateral, shall be
paid or delivered directly to the Pledgee, which, at the Pledgee's sole
election, shall be held as Pledged Collateral or applied to the Obligations in
the order and manner specified in the Indenture.
(c) If, notwithstanding the foregoing, the Pledgor receives any
distribution or other property that should have been paid or delivered directly
to the Pledgee as provided in this Section 6, or that was paid to the Pledgor in
violation of Section 6 hereof, the Pledgor shall:
(i) Receive such distribution or property, as the case may be, in
trust for the benefit of the Pledgee;
(ii) Segregate such distribution or property from the other
property or funds of the Pledgor; and
(iii) Deliver such distribution or property immediately to the
Pledgee in the form received (with any necessary endorsement).
7. Remedies.
(a) Generally. During the existence of an Event of Default, the
Pledgee shall have, and may exercise with respect to the Pledged Collateral, in
such order and manner as it determines, all rights and remedies of a secured
party under the Uniform Commercial Code and under any other applicable law, as
well as those rights granted herein and in any other agreement now or hereafter
in effect between the Pledgor and the Pledgee. Without limiting the generality
of the foregoing, during the existence of an Event of Default, the Pledgee may
sell or otherwise dispose of all or any part of the Pledged Collateral upon
prior notice to the Pledgor, by public or private sale, in one or more
transactions, and in such order as the Pledgee determines. Proceeds realized
from such sales and dispositions shall be applied as provided in the
Intercreditor Agreement.
(b) Private Sales. The Pledgor recognizes that the Pledgee may be
unable to effect a public sale of all or a part of the Pledged Collateral by
reason of certain provisions contained in the Securities Act and the securities
laws of various states, and may be compelled to resort to one or more private
sales to a restricted group of purchasers that will be obliged to agree, among
other things, to acquire the Pledged Collateral for their own account, for
investment and without a view to the distribution or resale thereof. The Pledgor
understands that private sales so made may be at prices and other terms less
favorable than if the Pledged Collateral were sold at public sales, and agrees
that the Pledgee has no obligation to delay the sale of the Pledged Collateral
for the period of time necessary to permit the Pledgee to register
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the Pledged Collateral for sale under the Securities Act or such state laws. The
Pledgor agrees that private sales under the foregoing circumstances shall be
deemed to have been made in a commercially reasonable manner.
(c) Notice of Sale. Without in any way requiring notice to be
given in the following time and manner, the Pledgor agrees that any notice by
the Pledgee of a sale, disposition or other intended action hereunder or in
connection herewith, whether required by the UCC or otherwise, shall constitute
reasonable notice to the Pledgor if such notice is: (i) Mailed by registered or
certified mail, return receipt requested, postage prepaid;
(ii) Delivered personally against receipt;
(iii) Sent by a recognized overnight delivery service; or
(iv) Sent via telecopy, telex or cable,
in each case at least ten days prior to such action, to the Pledgor's address
specified in Section 10(f) hereof.
(d) Right to Purchase the Pledged Collateral. The Pledgee shall
have the right upon any such public sale and, to the extent permitted by law,
upon any such private sale, to purchase the whole or any part of the Pledged
Collateral so sold, free of any right or equity of redemption in the Pledgor,
which right or equity is hereby waived and released.
(e) Costs. All costs and expenses incurred by the Pledgee in
enforcing this Agreement, in realizing upon or protecting any Pledged Collateral
and in enforcing and collecting any Obligations or any guaranty thereof
(including, if the Pledgee retains counsel for advice, suit, appeal, insolvency
or other proceedings under the federal Bankruptcy Code or otherwise, or for any
of the above purposes, the actual attorneys' and paralegals' fees incurred by
the Pledgee), shall constitute part of the Obligations, and all such costs and
expenses are secured by the Pledged Collateral, as well as by all other property
serving as security for the Obligations.
(f) Transfer of Pledged Collateral. During the existence of an
Event of Default, the Pledgee is authorized to transfer the Pledged Collateral
or any part thereof into its own name or that of its nominee on the books of the
Company so that the Pledgee or its nominee may appear of record as the sole
owner thereof.
(g) No Limitation on the Pledgee's Rights. The rights of the
Pledgee hereunder shall not be conditioned or contingent upon the pursuit by the
Pledgee of any right or remedy against the Pledgor or against any other Person
that may be or become liable in respect of all or any part of the Obligations or
against any collateral security therefor, guarantee thereof or right of offset
with respect thereto.
(h) Duties of the Pledgor. During the existence of any Event of
Default, the Pledgor shall:
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(i) Use its best efforts to assist and cooperate in obtaining all
approvals that are then required by applicable law or contract for or in
connection with any transaction contemplated by the UCC;
(ii) Consent to (and not challenge) the transfer of control or
assignment of the Pledged Collateral to a receiver, trustee, transferee
or similar official or to any purchaser of any of the Pledged Collateral
pursuant to any public or private sale, judicial sale, foreclosure or
exercise of other remedies available to the Pledgee as permitted herein
and by applicable law;
(iii) Assist and cooperate (and use its best efforts to cause
others to assist and cooperate) with the Pledgee to ensure that the
Company continues:
(A) To operate in the normal course of business;
(B) To fulfill all of its legal, regulatory and contractual
obligations; and
(C) To otherwise be properly and professionally managed;
such assistance and cooperation may include the employment of one or
more qualified and independent consultants and/or professional managers
acceptable to the Pledgee to assist in the interim operations of the
Company, all of which the Pledgor agrees not to challenge;
(iv) At the request of the Pledgee, cooperate in effecting the
transfer of any and all of the Pledged Collateral to a transferee
acceptable to the Pledgee; and
(v) Not accept (or permit the Company to accept) any offer to buy
all or any part of the Pledged Collateral or the Company operations
pursuant to this Section 7 without the Pledgee's prior written consent.
8. Further Assurances; Waivers; Etc.
(a) Further Assurances. At any time and from time to time, upon
the written request of the Pledgee, and at the sole expense of the Pledgor
(including all costs for lien searches and filing fees of every kind), the
Pledgor shall promptly and duly execute and deliver such further instruments and
documents and take such further actions as the Pledgee may reasonably request
for the purpose of obtaining or preserving the full benefits of this Agreement
and of the rights and powers herein granted, including, but not limited to, the
filing of any financing statements, assignments, continuations or other
documents under the UCC in effect in any jurisdiction with respect to the liens
created hereby. The Pledgor hereby authorizes the Pledgee to file any such
financing or continuation statement without the signature of the Pledgor to the
extent permitted by applicable law. If any amount payable in connection with any
of the Pledged Collateral shall be or become evidenced by any instrument, such
instrument shall be promptly delivered to the Pledgee, duly endorsed in a manner
reasonably satisfactory to the Pledgee, to be held as Pledged Collateral
pursuant to this Agreement.
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(b) Authorizations. The Pledgor authorizes the Pledgee, without
notice or demand and without affecting any Obligation hereunder in accordance
with the terms of the Indenture, from time to time:
(i) To renew, extend, increase, accelerate or otherwise change
the time of payment or the terms of, or the interest on, the Obligations
or any part thereof;
(ii) To take from any Person and hold collateral (other than the
Pledged Collateral) for the payment of the Obligations or any part
thereof, and to exchange, enforce or release such collateral or any part
thereof;
(iii) To accept and hold any endorsement or guaranty of the
Obligations or any part thereof and to release or substitute any such
endorser or guarantor or any Person that has given any security interest
in any other collateral as security for the payment of the Obligations
or any part thereof or any other party in any way obligated to pay the
Obligations or any part thereof; and
(iv) To direct the order or manner of the disposition of the
Pledged Collateral and any and all other collateral for any of the
Obligations and the enforcement of any and all endorsements and
guaranties relating to the Obligations or any part thereof as the
Pledgee, in its sole discretion, may determine.
(c) Attorney-in-Fact. The Pledgor hereby appoints the Pledgee as
the Pledgor's attorney-in-fact (without requiring the Pledgee) and authorizes
the Pledgee to act as the Pledgor's attorney-in-fact, from time to time, upon
the occurrence of an Event of Default and during the continuance thereof:
(i) To perform all acts that the Pledgee deems appropriate in
accordance with this Agreement to perfect and continue its interests
hereunder in the Pledged Collateral;
(ii) To protect, preserve and realize upon the Pledged
Collateral; and
(iii) To execute such orders and receipts for payment of the
Pledged Collateral in accordance with this Agreement as the Pledgee
deems appropriate in its sole discretion.
The foregoing power of attorney is coupled with an interest and shall be
irrevocable and is given to secure performance by the Pledgor of the
Obligations. Subject to the terms of this Agreement, effective upon the
occurrence of an Event of Default and during the continuance thereof, the
Pledgee may demand, collect and ▇▇▇ on the Pledged Collateral (in either its or
the Pledgor's name, at the Pledgee's sole option), and enforce, compromise,
settle or discharge the Pledged Collateral, without discharging the Obligations
or any part thereof and whether or not any such action results in the imposition
of any penalty. The Pledgor authorizes and directs the Company to make any
payments in respect of the Pledged Collateral as the Pledgee may direct,
effective upon the occurrence of an Event of Default and during the continuance
thereof, and hereby releases the Company from any liability to the Pledgor for
making such payments.
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(d) Performance by the Pledgee. Upon the Pledgor's failure to
perform any of its duties hereunder, the Pledgee may, but shall not be obligated
to, perform any or all such duties, and the cost thereof shall constitute
Obligations and be secured by the Pledged Collateral.
(e) Care of the Pledged Collateral. The Pledgee shall be deemed
to have exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if such Pledged Collateral is accorded treatment
substantially equal to the care that the Pledgee accords its own property, it
being understood that the Pledgee shall not have responsibility for:
(i) Ascertaining or taking action with respect to any matter
relative to any Pledged Collateral, whether or not the Pledgee has or is
deemed to have knowledge of such matters; or
(ii) Taking any step to preserve rights against any Person with
respect to any of the Pledged Collateral.
The Pledgor shall have the sole responsibility for taking any and all steps to
preserve rights against any and all Persons to any of the Pledged Collateral,
whether or not in the Pledgee's possession. The Pledgee shall not be responsible
for loss or damage resulting from the Pledgee's failure to enforce or collect
any of the Pledged Collateral or to collect any moneys due or to become due
thereunder. The Pledgor shall be responsible for filing or re-filing any
financing or continuation statement in order to maintain the Security Interest
as a fully perfected and first security interest in the Pledged Collateral.
(f) Waivers. The Pledgor waives notice of any action taken by the
Pledgee, other than those actions taken by the Pledgee for which notice is
required under this Agreement.
(g) Reinstatement. If after receipt of any payment of, or
proceeds of, any of the Pledged Collateral applied to the payment of any of the
Obligations, the Pledgee is required to surrender or return such payment or
proceeds to any Person for any reason, then any such obligations intended to be
satisfied by such payment or proceeds shall be reinstated and continue and this
Agreement shall continue in full force and effect as if such payment or proceeds
had not been received by the Pledgee. This Section 8(g) shall:
(i) Remain effective notwithstanding any contrary action that may
be taken by the Pledgee in reliance upon such payment or proceeds; and
(ii) Survive the termination or revocation of this Agreement.
(h) Consequential Damages. To the extent permitted by applicable
law, the Pledgor shall not assert, and hereby waives, any claim against the
Pledgee, or any Affiliate thereof, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages other than damages waived hereunder) arising out of, in connection with,
or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Indenture, the Notes or the use of proceeds thereof
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9. Termination. When all of the Obligations shall have been paid
in full and the Indenture has been discharged, this Agreement shall terminate,
and the Pledgee shall forthwith assign, transfer and deliver to the Pledgor,
against its receipt, the Pledged Collateral then held by the Pledgee hereunder
and release the lien of the Pledgee hereunder and release the Pledgor from its
obligations hereunder.
10. Miscellaneous.
(a) Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or make unenforceable
such provision in any other jurisdiction. The parties shall endeavor in good
faith negotiations to replace the invalid, illegal or unenforceable provision
with valid provisions the economic effect of which is as close as possible to
that of the invalid, illegal or unenforceable provision.
(b) Amendments, Waivers, Etc. None of the terms or provisions of
this Agreement may be waived, amended, supplemented or otherwise modified except
by a written instrument executed by the Pledgor and the Pledgee; provided that
any provision of this Agreement may be waived by the Pledgee in writing.
(c) No Waiver. The Pledgee shall not by any act (except by a
written instrument pursuant to Section 10(b) hereof), delay, indulgence,
omission or otherwise (including any failure to exercise any right, remedy or
option under this Agreement) be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Event of Default or any breach of any of
the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Pledgee, any right, power or privilege hereunder
shall operate as a waiver thereof. No single or partial exercise of any right,
power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. No waiver by the
Pledgee shall affect its right to require strict performance of this Agreement.
A waiver by the Pledgee of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy that the Pledgee would
otherwise have on any future occasion.
(d) Cumulative Remedies. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not exclusive of
any right or remedy provided by law.
(e) Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns permitted by the Indenture, except that the Pledgor may not assign
or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of the Pledgee (and any attempted assignment or transfer
by the Pledgor without such consent shall be null and void).
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(f) Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications hereunder
shall be duly given or made. If sent in writing and shall be deemed to have been
duly given or made:
(i) If sent by fax, upon the transmittal thereof;
(ii) If sent by nationally recognized overnight courier, on the
following Business Day; and
(iii) If sent by first-class mail, on the fifth Business Day
following the deposit thereof in the mail, postage prepaid,
in each case addressed to the Person to which such notice is requested or
permitted to be given or made hereunder at the following address (or such other
address as may hereafter be designated, in writing, by the relevant Person in
accordance with this Section 10(f)):
(A) If to the Pledgee:
The Bank of New York Trust Company, N.A.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Royal
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to the Pledgor:
AirGate PCS, Inc.
▇▇▇▇▇▇ Tower, Suite 1700
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Secretary
(g) Integration. This Agreement represents the agreement of the
Pledgor with respect to the subject matter hereof, and there is no promise,
undertaking, representation or warranty by the Pledgee relative to the subject
matter hereof not expressly set forth or referred to herein.
(h) Governing Law. This Agreement shall for all purposes be
governed by, and construed and interpreted in accordance with, the laws of the
State of New York, excluding (to the greatest extent permissible by law) any
rule of law that would cause the application of the laws of any jurisdiction
other than the State of New York.
(i) Submission To Jurisdiction; Waivers. The Pledgor hereby
irrevocably and unconditionally:
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(i) Submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive
general jurisdiction of the courts of the State of New York, the courts
of the United States of America for the Southern District of New York,
and the appellate courts from any thereof;
(ii) Consents that any such action or proceeding may be brought
in any such court and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(iii) Agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Pledgor at its address set forth in Section 10(f) hereof
or at such other address of which the Pledgee shall have been notified
pursuant thereto; and
(iv) Agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction.
(j) Waiver of Jury Trial. The Pledgor and, by its acceptance
hereof, the Pledgee, hereby irrevocably and unconditionally waive trial by jury
in any legal action or proceeding relating to the Company By-laws or any
counterclaim arising therefrom.
(k) Acknowledgements. The Pledgor hereby acknowledges that:
(i) It has been advised by counsel in the negotiation, execution
and delivery of this Agreement;
(ii) The Pledgee has no fiduciary relationship to the Pledgor;
and
(iii) No joint venture exists between the Pledgor and the
Pledgee.
(l) Security Documents: This Agreement shall be a Security
Document (as defined in the Indenture).
[Signatures follow on next page.]
-15-
IN WITNESS WHEREOF, the undersigned has caused this Agreement to
be duly executed and delivered as of the date first above written.
AIRGATE PCS, INC.
By:
----------------------------------------
Name:
Title:
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
a national banking association, as
Collateral Agent for the Noteholders
By:
----------------------------------------
Name:
Title:
ANNEX 1
-------
DESCRIPTION OF SHARES
---------------------
1000 Shares of Common Stock of AirGate Service Company, Inc.
EXHIBIT A
---------
AIRGATE SERVICE COMPANY INC.
▇▇▇▇▇▇ Tower, Suite 1700
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ACKNOWLEDGEMENT
---------------
__________ __, ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ Trust Company, N.A.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Royal
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Re: Pledge of Shares
Ladies and Gentlemen:
Reference is made to the Pledge Agreement, dated as of October
25, 2004 (the "Pledge Agreement"), between AirGate PCS, Inc. (the "Pledgor") and
The Bank of New York Trust Company, N.A., a national banking association, as
collateral agent (the "Pledgee") on behalf of the Noteholders (as defined in the
Pledge Agreement). Capitalized terms used herein but not defined herein shall
have the meanings ascribed thereto in the Pledge Agreement.
We are aware that the Pledgor has pledged to the Pledgee, for the
benefit of and on behalf of the Noteholders, and granted the Pledgee, for the
benefit of and on behalf of the Noteholders, a first priority security interest
in the Pledgor's shares in AirGate Service Company, Inc. (the "Company") and in
certain other property described therein constituting the Pledged Collateral. In
connection therewith, we hereby acknowledge and agree, for the benefit of the
Pledgee and the Pledgor, as follows:
1. We hereby acknowledge that the Pledgor has pledged to the
Pledgee and granted to the Pledgee a first priority security interest in the
Pledged Collateral.
2. Until the Pledgee notifies us in writing to the contrary, we
shall:
(a) Pay directly to the Pledgee when due and payable:
(i) If there is an Event of Default, all cash distributions paid
in respect of the Pledged Collateral;
(ii) If there is an Event of Default, all distributions paid or
payable other than in cash in respect of the Pledged Collateral; and
(iii) All instruments, Capital Stock, securities and other
property received, receivable or otherwise distributed in respect of,
upon the subdivision or combination of, or in exchange for, any Pledged
Collateral; and
(b) Deliver directly to the Pledgee any certificate, instrument
or other tangible evidence of any Pledged Collateral, including, without
limitation, any additional securities or Capital Stock or any warrant,
right or option to acquire, or any security convertible into, any of the
Company's Capital Stock, to the extent at any time issued or assumable
to the Pledgor.
3. Upon the written instruction of the Pledgee at any time, we
shall register the Pledged Collateral, or any part thereof, in the name of the
Pledgee or any of its designees, successors, endorsees, transferees or assigns
and promptly undertake and complete to the satisfaction of the Pledgee all
actions, and execute and deliver all documents in form and substance
satisfactory to the Pledgee requested in writing by the Pledgee at any time and
from time to time for the purposes of further perfecting or enhancing the
Pledgee's security interest in the Pledged Collateral or enforcing the Pledgee's
rights, powers, privileges and benefits under the Pledge Agreement and
applicable laws, and shall accord to the Pledgee or such designee, successor,
endorsee, transferee or assign all of the rights, powers, privileges and
benefits of ownership of such Pledged Collateral.
4. We shall not, without the Pledgee's prior written consent,
give effect to any transfer of the Pledged Collateral or any pledge thereof,
security interest therein or other encumbrance thereon.
5. We shall send to the Pledgee a copy of each notice, report, or
other communication that we receive from, send or are required to send to the
Pledgor in connection with any of the Pledged Collateral, at the same time that
we receive from, send or are required to send to the Pledgor any such notice,
report, or other communication.
6. We agree that none of the terms of this letter may be modified
in any respect without the prior written consent of the Pledgee, and we further
agree that such terms shall continue in full force and effect until the Pledgee
otherwise notifies us in writing.
7. We agree to promptly undertake and complete to the
satisfaction of the Pledgee all actions, and execute and deliver all documents
in form and substance satisfactory to the Pledgee, requested in writing by the
Pledgee at any time and from time to time for the purposes of perfecting or
enforcing the Pledgee's security interest in the Pledged Shares and the other
Pledged Collateral and enforcing or exercising the rights, powers, benefits and
privileges of the Pledgee under the Pledge Agreement, this letter and all
applicable laws.
8. We appoint the Pledgee as the Company's attorney-in-fact, and
authorize the Pledgee to, at any time and from time to time undertake and
complete on the Company's behalf to the satisfaction of the Pledgee any action
and to execute on the Company's behalf any document required by the Pledgee for
the purposes of perfecting or enforcing the Pledgee's
-2-
security interest in the Pledged Shares and the other Pledged Collateral and
enforcing or exercising its rights, powers, benefits and privileges under the
Pledge Agreement for the benefit of and on behalf of the Noteholders, this
letter and all applicable laws.
9. The Pledgor and the Company hereby agree that the Company
shall comply with the terms of this letter without any obligation to inquire
into the propriety or validity of any action taken or omitted by the Pledgee and
without any liability to the Pledgor whatsoever for any action or inaction
hereunder on our part.
10. This letter shall be governed by and construed and enforced
in accordance with the domestic laws of the State of New York. This letter may
be signed in counterparts, each of which shall be an original and all of which
together constitute one agreement.
-3-
Very truly yours,
AIRGATE SERVICE COMPANY, INC.
By:
---------------------------------------
Name:
Title:
Accepted and Agreed:
AIRGATE PCS, INC., as the Pledgor
By:
--------------------------------------
Name:
Title: