AIRGATE PCS, INC.
AGW LEASING COMPANY, INC.
AIRGATE NETWORK SERVICES, LLC
AIRGATE SERVICE COMPANY, INC.
______________________________
$175,000,000 AGGREGATE PRINCIPAL AMOUNT
FIRST PRIORITY SENIOR SECURED FLOATING RATE NOTES DUE 2011
______________________________
INDENTURE
DATED AS OF OCTOBER 25, 2004
______________________________
The Bank of New York Trust Company, N.A.
Trustee
CROSS-REFERENCE TABLE*
Trust Indenture Section
Act Section Indenture
310 (a)(1)............................................... 7.10
(a)(2)............................................... 7.10
(a)(3)............................................... N.A.
(a)(4)............................................... N.A.
(a)(5)............................................... 7.10
(b).................................................. 7.3; 7.10
(c).................................................. N.A.
311 (a).................................................. 7.11
(b).................................................. 7.11
(c).................................................. N.A.
312 (a).................................................. 2.5
(b).................................................. 12.3
(c).................................................. 12.3
313 (a).................................................. 7.6
(b)(1)............................................... 7.6
(b)(2)............................................... 7.6; 7.7
(c).................................................. 7.6; 12.2
(d).................................................. 7.6
314 (a).................................................. 4.3; 12.5
(b).................................................. 10.2
(c)(1)............................................... 12.4
(c)(2)............................................... 12.4
(c)(3)............................................... N.A.
(d).................................................. 9.1, 10.4, 10.5
(e).................................................. 12.5
(f).................................................. N.A.
315 (a).................................................. 7.1
(b).................................................. 7.5; 12.2
(c).................................................. 7.1
(d).................................................. 7.1
(e).................................................. 6.11
316 (a) (last sentence).................................. 2.9
(a)(1)(A)............................................ 6.5
316 (a)(1)(B)............................................ 6.4
(a)(2)............................................... N.A.
(b).................................................. 6.7
(c).................................................. 2.13
317 (a)(1)............................................... 6.8
(a)(2)............................................... 6.9
(b).................................................. 2.4
318 (a).................................................. 12.1
(b).................................................. N.A.
(c).................................................. 12.1
____________________________
N.A. means not applicable.
* This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions..............................................1
SECTION 1.2 Other Definitions.......................................17
SECTION 1.3 Incorporation by Reference of Trust Indenture Act.......18
SECTION 1.4 Rules of Construction...................................18
ARTICLE II
THE NOTES
SECTION 2.1 Form and Dating........................................18
SECTION 2.2 Execution and Authentication...........................20
SECTION 2.3 Registrar, Paying Agent................................20
SECTION 2.4 Paying Agent to Hold Money in Trust....................21
SECTION 2.5 Holder Lists...........................................21
SECTION 2.6 Book-Entry Provisions for Global Securities............21
SECTION 2.7 Replacement Notes......................................23
SECTION 2.8 Outstanding Notes......................................23
SECTION 2.9 Treasury Notes.........................................23
SECTION 2.10 Temporary Notes........................................24
SECTION 2.11 Cancellation...........................................24
SECTION 2.12 Defaulted Interest.....................................24
SECTION 2.13 Record Date............................................24
SECTION 2.14 Computation of Interest................................24
SECTION 2.15 CUSIP Number...........................................24
SECTION 2.16 Special Transfer Provisions............................25
SECTION 2.17 Issuance of Additional Notes...........................26
ARTICLE III
REDEMPTION AND PREPAYMENT
SECTION 3.1 Notices to Trustee......................................26
SECTION 3.2 Selection of Notes to be Redeemed.......................27
SECTION 3.3 Notice of Redemption....................................27
SECTION 3.4 Effect of Notice of Redemption..........................28
SECTION 3.5 Deposit of Redemption of Purchase Price.................28
SECTION 3.6 Notes Redeemed in Part..................................28
SECTION 3.7 Optional Redemption.....................................28
SECTION 3.8 Mandatory Redemption....................................29
SECTION 3.9 Repurchase Offers.......................................29
ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Notes........................................30
SECTION 4.2 Maintenance of Office or Agency.........................31
SECTION 4.3 Commission Reports......................................31
SECTION 4.4 Compliance Certificate..................................32
SECTION 4.5 Taxes; Insurance........................................32
SECTION 4.6 Stay, Extension and Usury Laws..........................32
SECTION 4.7 Limitation on Restricted Payments.......................33
SECTION 4.8 Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries..................36
SECTION 4.9 Limitation on Incurrence of Indebtedness
and Issuance of Preferred Stock......................37
SECTION 4.10 Asset Sales.............................................38
SECTION 4.11 Limitation on Transactions with Affiliates..............40
SECTION 4.12 Limitation on Liens.....................................40
SECTION 4.13 Limitation on Sale and Leaseback Transactions...........41
SECTION 4.14 Offer to Purchase upon Change Of Control................41
SECTION 4.15 Corporate Existence.....................................42
SECTION 4.16 Limitation on Issuances and Sales of Equity
Interests in Wholly Owned Restricted Subsidiaries.......42
SECTION 4.17 Business Activities.....................................42
SECTION 4.18 Payment for Consents....................................42
SECTION 4.19 Limitation on Amendment, Etc. of Second Priority Notes..42
SECTION 4.20 Additional Guarantees...................................43
SECTION 4.21 Designation of Restricted and Unrestricted Subsidiaries.43
SECTION 4.22 Further Instruments and Acts............................43
SECTION 4.23 Event of Loss...........................................43
ARTICLE V
SUCCESSORS
SECTION 5.1 Merger, Consolidation or Sale of Assets.................44
SECTION 5.2 Successor Corporation Substituted.......................45
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 Events Of Default.......................................45
SECTION 6.2 Acceleration............................................47
SECTION 6.3 Other Remedies..........................................47
SECTION 6.4 Waiver of Past Defaults.................................47
SECTION 6.5 Control by Majority.....................................48
SECTION 6.6 Limitation on Suits.....................................48
SECTION 6.7 Rights of Holders of Notes to Receive Payment...........48
SECTION 6.8 Collection Suit by Trustee..............................48
SECTION 6.9 Trustee May File Proofs of Claim........................48
SECTION 6.10 Priorities..............................................49
SECTION 6.11 Undertaking for Costs...................................49
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee.......................................50
SECTION 7.2 Rights of Trustee.......................................50
SECTION 7.3 Individual Rights of Trustee............................51
SECTION 7.4 Trustee's Disclaimer....................................51
SECTION 7.5 Notice of Defaults......................................52
SECTION 7.6 Reports by Trustee to Holders of the Notes..............52
SECTION 7.7 Compensation and Indemnity..............................52
SECTION 7.8 Replacement of Trustee..................................53
SECTION 7.9 Successor Trustee by ▇▇▇▇▇▇, ▇▇▇........................53
SECTION 7.10 Eligibility; Disqualification...........................53
SECTION 7.11 Preferential Collection of Claims Against Airgate.......54
SECTION 7.12 Trustee's Application for Instructions from Airgate.....54
SECTION 7.13 Limitation of Liability.................................54
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1 Option to Effect Legal Defeasance or Covenant Defeasance.54
SECTION 8.2 Legal Defeasance and Discharge..........................55
SECTION 8.3 Covenant Defeasance.....................................55
SECTION 8.4 Conditions to Legal or Covenant Defeasance..............55
SECTION 8.5 Deposited Money and Government Securities to be Held
in Trust; Other Miscellaneous Provisions...............56
SECTION 8.6 Repayment to Airgate....................................57
SECTION 8.7 Reinstatement...........................................57
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.1 Without Consent of Holders of the Notes.................57
SECTION 9.2 With Consent of Holders of Notes........................58
SECTION 9.3 Compliance with Trust Indenture Act.....................59
SECTION 9.4 Revocation and Effect of Consents.......................59
SECTION 9.5 Notation on or Exchange of Notes........................59
SECTION 9.6 Trustee to Sign Amendments, Etc.........................60
ARTICLE X
SECURITY DOCUMENTS
SECTION 10.1 Security Documents......................................60
SECTION 10.2 Recording and Opinions..................................60
SECTION 10.3 Possession, Use and Release of Collateral...............61
SECTION 10.4 Certificates of the Company.............................62
SECTION 10.5 Execution of Release by Trustee.........................64
SECTION 10.6 Authorization of Actions to be Taken by the Trustee
Under the Security Documents.........................64
SECTION 10.7 Authorization of Receipt of Funds by the Trustee
Under the Security Documents.........................64
SECTION 10.8 Collateral Agent........................................64
SECTION 10.9 Security Documents......................................64
ARTICLE XI
GUARANTEES
SECTION 11.1 Guarantees..............................................65
SECTION 11.2 Execution and Delivery of Guarantee.....................66
SECTION 11.3 Severability............................................66
SECTION 11.4 Limitation of Guarantors' Liability.....................66
SECTION 11.5 Guarantors May Consolidate, Etc., on Certain Terms......66
SECTION 11.6 Releases Following Sale of Assets.......................67
SECTION 11.7 Release of a Guarantor..................................67
SECTION 11.8 Benefits Acknowledged...................................68
SECTION 11.9 Future Guarantors.......................................68
ARTICLE XII
MISCELLANEOUS
SECTION 12.1 Trust Indenture Act Controls............................68
SECTION 12.2 Notices.................................................68
SECTION 12.3 Communication by Holders of Notes with Other
Holders of Notes........................................69
SECTION 12.4 Certificate and Opinion as to Conditions Precedent......69
SECTION 12.5 Statements Required in Certificate or Opinion...........69
SECTION 12.6 Rules by Trustee and Agents.............................70
SECTION 12.7 No Personal Liability of Directors, Officers,
Employees and Stockholders...........................70
SECTION 12.8 Governing Law...........................................70
SECTION 12.9 No Adverse Interpretation of Other Agreements...........70
SECTION 12.10 Successors..............................................70
SECTION 12.11 Severability............................................71
SECTION 12.12 Counterpart Originals...................................71
SECTION 12.13 Table of Contents, Headings, Etc........................71
SECTION 12.14 Acts of Holders.........................................71
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF GUARANTEE
Exhibit C FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS
PURSUANT TO RULE 144A
Exhibit D FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
Exhibit E FORM OF PLEDGE AGREEMENT
Exhibit F FORM OF INTERCREDITOR AGREEMENT
This Indenture, dated as of October 25, 2004, is by and among AirGate
PCS, Inc., a Delaware corporation ("AirGate"), AGW Leasing Company, Inc., a
Delaware corporation ("AGW"), AirGate Network Services, LLC, a Delaware limited
liability company ("ANS"), AirGate Service Company, Inc., a Delaware corporation
("ASC" and, together with AGW and ANS, the "Guarantors"), and The Bank of New
York Trust Company, N.A., a national banking association, as trustee (the
"Trustee").
AirGate, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the holders of
(i) AirGate's First Priority Senior Secured Floating Rate Notes due 2011 issued
on the date hereof (the "Initial Notes") and (ii) Additional Notes (together
with the Initial Notes, the "Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"13 1/2% Notes" means the 13 1/2% Senior Subordinated Discount Notes
due 2009 of AirGate outstanding on the Closing Date.
"Acquired Debt" means, with respect to any specified Person:
(a) Indebtedness of any other Person existing at the time such
other Person is merged with or into or became a Subsidiary of such
specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging with
or into, or becoming a Subsidiary of, such specified Person; and
(b) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"Additional Notes" means Notes (other than the Initial Notes) issued
pursuant to Article II hereof and otherwise in compliance with the provisions of
this Indenture.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" shall have correlative meanings.
"After Acquired Real Property Interest" means a fee interest in any
individual or contiguous parcels of owned real property having a fair market
value (as determined in good faith by the Board of Directors) in excess of $2.0
million individually or in a series of one or more related transactions.
"Agent" means any Registrar, Paying Agent or co-registrar and the
Calculation Agent.
"AirGate" or the "Company" means AirGate PCS, Inc., a Delaware
corporation.
"Asset Sale" means:
(a) the sale, lease, conveyance or other disposition of any
assets or rights, other than sales of inventory, accounts receivable
and sales of surplus or obsolete property or equipment in the ordinary
course of business consistent with industry practices; provided that
the sale, conveyance or other disposition of all or substantially all
of the assets of AirGate and its Restricted Subsidiaries taken as a
whole will be governed by Section 4.14 and/or Section 5.1 and not by
Section 4.10; and
(b) the issuance of Equity Interests by any of AirGate's
Restricted Subsidiaries or the sale of Equity Interests in any of its
Restricted Subsidiaries,
Notwithstanding the preceding, the following items shall not be deemed
to be Asset Sales:
(a) any single transaction or series of related transactions
that: (i) involves assets having a fair market value of less than $1.0
million; or (ii) results in net proceeds to AirGate and its Restricted
Subsidiaries of less than $1.0 million;
(b) a transfer of assets between or among AirGate and its
Wholly Owned Restricted Subsidiaries;
(c) an issuance of Equity Interests by a Wholly Owned
Restricted Subsidiary to AirGate or to another Wholly Owned Restricted
Subsidiary;
(d) a Restricted Payment that is permitted by Section 4.7; and
(e) any transfer by AirGate or a Subsidiary of property or
equipment with a fair market value of less than $5.0 million to a
Person who is not an Affiliate of AirGate in exchange for property or
equipment that has a fair market value at least equal to the fair
market value of the property or equipment so transferred; provided
that, in the event of a transfer described in this clause (e), AirGate
shall deliver to the Trustee an Officers' Certificate certifying that
such exchange complies with this clause (e); provided further that if
the property or equipment exchanged constituted Collateral and had a
fair market value of $3.0 million or more, the property or equipment so
acquired also constitutes Collateral.
"Asset Sale Offer" means an offer, required to be made by AirGate when
the aggregate amount of Excess Proceeds exceeds the amount specified in the
third paragraph of Section 4.10 to all Holders and to holders of other First
Priority Indebtedness containing provisions similar to those set forth in
Section 4.10 with respect to offers to purchase or redeem with the proceeds of
sales of assets, to purchase the maximum principal amount of Notes and such
other First Priority Indebtedness that may be purchased out of the Excess
Proceeds.
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, at the time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such sale and leaseback transaction including any period for which such lease
has been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person," as such term is used in Section 13(d)(3)
of the Exchange Act, such "person" shall be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire, whether such
right is currently exercisable or is exercisable only upon the occurrence of a
subsequent condition.
"Board of Directors" means the board of directors of AirGate or any
authorized committee of such board of directors.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of AirGate to have been duly adopted by the
Board of Directors, unless the context specifically requires that such
resolution be adopted by a majority of the disinterested directors, in which
case by a majority of such directors, and to be in full force and effect on the
date of such certification and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, as of any date of determination, the
amount of the liability in respect of a capital lease that would at that time be
required to be capitalized on a balance sheet in accordance with GAAP.
"Capital Stock" means:
(a) in the case of a corporation, corporate stock;
(b) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents,
however designated, of corporate stock;
(c) in the case of a partnership or limited liability company,
partnership or membership interests, whether general or limited; and
(d) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Cash Equivalents" means:
(a) United States dollars;
(b) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality thereof, provided that the full faith and credit of the
United States is pledged in support thereof, having maturities of less
than one year from the date of acquisition;
(c) certificates of deposit and eurodollar time deposits with
maturities of less than one year from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case, with any commercial bank, including the
Trustee, having capital and surplus in excess of $500 million and a
▇▇▇▇▇▇▇▇ Bank Watch Rating of "B" or better,
(d) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (b)
and (c) above entered into with any financial institution meeting the
qualifications specified in clause (c) above;
(e) commercial paper having the highest rating obtainable from
a Rating Organization and in each case maturing prior to one year after
the date of acquisition; and
(f) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (a)
through (e) of this definition.
"Certificated Notes" means Notes that are in the form of Exhibit A
attached hereto (but without including the text referred to in footnote 1
thereto).
"Change of Control" means the occurrence of any of the following:
(a) the sale, transfer, conveyance or other disposition, other
than by way of merger or consolidation, in one or a series of related
transactions, of all or substantially all of the assets of AirGate and
its Subsidiaries taken as a whole to any "person," as such term is used
in Section 13(d)(3) of the Exchange Act;
(b) the adoption of a plan relating to the liquidation or
dissolution of AirGate;
(c) the consummation of any transaction, including, without
limitation, any merger or consolidation, the result of which is that
any "person," as defined above, becomes the Beneficial Owner, directly
or indirectly, of more than 50% of the Voting Stock of AirGate,
measured by voting power rather than number of shares;
(d) the first day on which a majority of the members of the
Board of Directors of AirGate are not Continuing Directors; or
(e) AirGate consolidates with, or merges with or into, any
Person, or any Person consolidates with, or merges with or into,
AirGate, in any such event pursuant to a transaction in which any of
the outstanding Voting Stock of AirGate is converted into or exchanged
for cash, securities or other property, other than any such transaction
where the Voting Stock of AirGate outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock, other than
Disqualified Stock, of the surviving or transferee Person constituting
a majority of the outstanding shares of such Voting Stock of such
surviving or transferee Person immediately after giving effect to such
issuance.
Notwithstanding the foregoing, a "Change of Control" shall not occur
under clause (e) above in the event AirGate merges or consolidates with a Sprint
PCS Affiliate, if
(a) after announcement of the merger or consolidation but
before consummation thereof,
(i) there shall not have occurred any downgrading nor
shall any notice have been given (that is not subsequently
removed prior to the consummation thereof) of any potential or
intended downgrading of any rating of the Notes to a rating
that is lower than the rating that existed or was indicated
prior to the announcement of the merger or consolidation, in
any case by a Rating Organization, that is not subsequently
removed prior to such consummation;
(ii) there shall not have occurred any suspension or
withdrawal of, nor shall any notice have been given of any
potential or intended suspension or withdrawal of, any review
(or of any potential or intended review) for a possible change
that does not indicate the direction of the possible change
in, any rating of the Notes (including, without limitation,
the placing of any of the Notes on credit watch with negative
or developing implications or under review with an uncertain
direction) by any Rating Organization, in each case that is
not subsequently removed prior to the consummation of such
merger or consolidation;
(iii) there shall not have occurred any change, nor
shall any notice have been given of any potential or intended
change, in the outlook for any rating of the Notes to a rating
that is lower than the rating that existed or was indicated
prior to the announcement of the merger or consolidation, in
any case by any Rating Organization, that is not subsequently
removed prior to the consummation of such merger or
consolidation; and
(iv) no Rating Organization shall have given notice
that it has assigned (or is considering assigning) a rating to
the Notes that is lower than the rating that existed or was
indicated prior to the announcement of the merger or
consolidation, that is not subsequently removed prior to such
consummation;
(b) the Beneficial Owners of Voting Stock of AirGate prior to
the merger or consolidation continue to be the Beneficial Owners of at
least 35% of the outstanding Voting Stock of AirGate or the surviving
Person after the merger or consolidation; and
(c) a majority of the members of the Board of Directors and
the Chief Executive Officer, Chief Financial Officer and one additional
"named executive officer" (as defined in Item 402(a)(3) of Regulation
S-K under the Securities Act of 1933, as amended) of AirGate
immediately prior to the merger or consolidation shall continue to
serve in the same capacity or hold the same office, as the case may be,
for AirGate or the surviving Person after the merger or consolidation.
"Closing Date" means October 25, 2004, the date on which the Initial
Notes were originally issued under this Indenture.
"Collateral" means, collectively, all of the property and assets that
are from time to time subject to or required to be subject to the Liens created
under the Security Documents.
"Collateral Agent" means the agent for the Trustee and any Holders
under the Security Documents.
"Commission" means the Securities and Exchange Commission.
"Consolidated Debt" means the aggregate amount of Indebtedness of
AirGate and its Restricted Subsidiaries on a Consolidated basis outstanding at
the date of determination.
"Consolidated Debt to Operating Cash Flow Ratio" means, at any date of
determination, the ratio of (i) Consolidated Debt to (ii) the Operating Cash
Flow for the period of the latest four fiscal quarters for which consolidated
financial statements of AirGate are available.
"Consolidated Interest Expense" of any Person means, for any period,
(1) the aggregate interest expense and fees and other financing costs in respect
of Indebtedness (including amortization of original issue discount and non-cash
interest payments and accruals), (2) the interest component in respect of
Capital Lease Obligations and any deferred payment obligations of such Person
and its Restricted Subsidiaries determined on a consolidated basis in accordance
with GAAP, (3) all commissions, discounts, other fees and charges owed with
respect to letters of credit and bankers' acceptance financing and net costs
(including amortization of discounts) associated with interest rate swap and
similar agreements and with foreign currency hedge, exchange and similar
agreements and (4) the product of (a) all dividend payments, whether or not in
cash, on any series of Preferred Capital Stock of such Person or any of its
Restricted Subsidiaries, other than dividend payments on Capital Stock payable
solely in Capital Stock of AirGate (other than Disqualified Stock) or to AirGate
or its Restricted Subsidiaries, times (b) a fraction, the numerator of which is
one and the denominator of which is one minus the then current combined federal,
state and local statutory tax rate of such Person, expressed as a decimal, in
each case, on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any specified Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that:
(a) the Net Income, but not loss, of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of
dividends or distributions paid in cash to the specified Person or a
Wholly Owned Subsidiary thereof;
(b) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income
is not at the date of determination permitted without any prior
governmental approval that has not been obtained or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its
stockholders;
(c) the Net Income, but not loss, of any Unrestricted
Subsidiary shall be excluded, whether or not distributed to the
specified Person or one of its Subsidiaries; and
(d) the cumulative effect of a change in accounting principles
shall be excluded.
"Consolidated Net Worth" means, with respect to any Person as of any
date of determination, the sum of:
(a) the consolidated equity of the common stockholders of such
Person and its consolidated Subsidiaries as of such date; plus
(b) the respective amounts reported on such Person's balance
sheet as of such date with respect to any series of preferred stock,
other than Disqualified Stock, that by its terms is not entitled to the
payment of dividends unless such dividends may be declared and paid
only out of net earnings in respect of the year of such declaration and
payment, but only to the extent of any cash received by such Person
upon issuance of such preferred stock.
"Consolidation" means the consolidation of the accounts of each of the
Restricted Subsidiaries with those of AirGate, if and to the extent that the
accounts of each such Restricted Subsidiary would normally be consolidated with
those of AirGate in accordance with generally accepted accounting principles;
provided, however, that "Consolidation" shall not include consolidation of the
accounts of any Unrestricted Subsidiary, but the interest of AirGate or any
Restricted Subsidiary in any Unrestricted Subsidiary shall be accounted for as
an investment. The term "Consolidated" has a correlative meaning.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of AirGate who:
(a) was a member of such Board of Directors on the date of
this Indenture; or
(b) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors
who were members of such Board at the time of such nomination or
election.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 12.2 hereof or such other address as to which the
Trustee may give notice to the Company.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.3 hereof as
the Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to Section 2.6 hereof, and, thereafter,
"Depositary" shall mean or include such successor.
"Determination Date," with respect to an Interest Period, means the
second London Banking Day preceding the first day of such Interest Period.
"Disqualified Stock" means any Capital Stock that, by its terms, or by
the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder thereof, or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days after the
date on which the Notes mature. Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely because the
holders thereof have the right to require AirGate to repurchase such Capital
Stock upon the occurrence of a Change of Control or an Asset Sale shall not
constitute Disqualified Stock if the "asset sale" or "change of control"
provisions applicable to such Capital Stock are no more favorable to the holders
of such Capital Stock than the provisions contained in Sections 4.10 and 4.14
and such Capital Stock specifically provides that such Person will not
repurchase or redeem any such stock pursuant to such provision prior to
AirGate's repurchase of the Notes as are required pursuant to Sections 4.10 and
4.14 of this Indenture.
"DTC" means The Depository Trust Company (▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇).
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock, but excludes any debt security that is
convertible into, or exchangeable for, Capital Stock.
"Equity Offering" means either (a) an underwritten public offering of
Qualified Capital Stock of the Company pursuant to a registration statement
filed with the Commission in accordance with the Securities Act or (b) the sale
of Qualified Capital Stock of the Company to one or more accredited or
institutional investors.
"Event of Loss" means, with respect to any property, any (i) loss,
destruction or damage of or to such property or (ii) condemnation, seizure or
taking, by exercise of the power of eminent domain or otherwise, of such
property, or confiscation or requisition of the use of such property.
"Event of Termination" means any of the events described in (1) Section
11.3 of the Management Agreement, (2) Section 13.2 of the Trademark Agreement or
(3) Section 13.2 of the Spectrum Trademark Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer" means an offer that may be made by the Issuer pursuant
to the Registration Rights Agreement to exchange Notes bearing the Restricted
Notes Legend for the Exchange Notes.
"Exchange Offer Registration Statement" has the meaning given to such
term in the Registration Rights Agreement.
"Existing Indebtedness" means the $159.0 million in aggregate
principal amount of Indebtedness of AirGate and its Restricted Subsidiaries in
existence on the date of this Indenture.
"First Priority Indebtedness" means the Notes, the Guarantees and any
other Indebtedness of AirGate and the Guarantors that is secured by a Lien
permitted by clause (o) of the definition of Permitted Liens.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Global Notes" means the Notes that are in the form of Exhibit A hereto
(including the text referred to in footnote 1 thereto).
"Global Note Legend" means the legend identified as such in Exhibit A
hereto.
"Government Securities" means (1) any security which is (a) a direct
obligation of the United States of America for the payment of which the full
faith and credit of the United States of America is pledged or (b) an obligation
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation of the United
States of America, which, in either case, is not callable or redeemable at the
option of the issuer thereof, and (2) any depository receipt issued by a bank,
as defined in the Securities Act, as custodian with respect to any Government
Securities and held by such bank for the account of the holder of such
depository receipt, or with respect to any specific payment of principal of or
interest on any Government Securities which is so specified and held, provided
that, except as required by law, such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Securities or
the specific payment of principal or interest evidenced by such depository
receipt.
"Guarantee" means any guarantee of the Notes by any Guarantor pursuant
to this Indenture.
"Guarantors" means each of AGW, ANS, ASC and any future subsidiary that
guarantees the Notes in accordance with the provisions of this Indenture and
their respective successors and assigns.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under:
(a) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements; and
(b) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates. "Holder" means a Person
in whose name a Note is registered.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(1) the principal of and premium (if any) in respect of (i)
debt of such Person for money borrowed, and (ii) debt evidenced by
notes, debentures, bonds or other similar instruments for the payment
of which such Person is responsible or liable;
(2) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale and Leaseback Transactions entered
into by such Person;
(3) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations
of such Person and all obligations of such Person under any title
retention agreement (but excluding trade accounts payable arising in
the ordinary course of business);
(4) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar
credit transactions (other than obligations with respect to letters of
credit securing obligations (other than obligations described in (1)
through (3) above) entered into in the ordinary course of business of
such Person to the extent such letters of credit are not drawn upon or,
if and to the extent drawn upon, such drawing is reimbursed no later
than the third business day following receipt by such Person of a
demand for reimbursement following payment on the letter of credit);
(5) the amount of all obligations of such Person with respect
to the repayment of any Disqualified Stock or, with respect to any
Subsidiary of such Person, any Preferred Capital Stock (but excluding,
in each case, any accrued dividends);
(6) all obligations of the type referred to in clauses (1)
through (5) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including
by means of any Guarantee;
(7) all obligations of the type referred to in clauses (1)
through (6) of other Persons secured by any Lien on any property of
such Person (whether or not such obligation is assumed by such Person),
the amount of such obligation begin deemed to be the lesser of the
value of such property or the amount of the obligation so secured; and
(8) to the extent not otherwise included in this definition,
Hedging Obligations of such Person.
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such date. The amount
of Indebtedness represented by a Hedging Obligation shall be equal to (i) zero
if such Hedging Obligation has been incurred pursuant to clause (6) of the
second paragraph of Section 4.9 of this Indenture; or (ii) the notional amount
of such Hedging Obligation if not incurred pursuant to such clause.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indirect Participant" means a Person who holds an interest through a
Participant.
"Intercreditor Agreement" means the intercreditor agreement, dated as
of the Closing Date, between the Collateral Agent and the collateral agent for
the Second Priority Notes, and consented to by AirGate and the Guarantors and as
the same may be amended, supplemented, restated, replaced or otherwise modified
from time to time.
"Interest Period" means the period commencing on and including an
interest payment date and ending on and including the day immediately preceding
the next succeeding interest payment date, with the exception that the first
Interest Period shall commence on and include the Closing Date with respect to
the Notes and end on and include January 14, 2005.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons, including Affiliates, in the forms of direct or
indirect loans, including guarantees of Indebtedness or other obligations,
advances or capital contributions, excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business,
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If AirGate or any Restricted Subsidiary of AirGate sells or otherwise disposes
of any Equity Interests of any direct or indirect Restricted Subsidiary of
AirGate such that, after giving effect to any such sale or disposition, such
Person is no longer a Restricted Subsidiary of AirGate, AirGate shall be deemed
to have made an Investment on the date of any such sale or disposition equal to
the fair market value of the Equity Interests of such Restricted Subsidiary not
sold or disposed of in an amount determined as provided in the final paragraph
of Section 4.7.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the principal Corporate
Trust Office of the Trustee is located or at a place of payment are authorized
by law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday, payment shall be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
"LIBOR," with respect to an Interest Period, will be the rate
(expressed as a percentage per annum) for de-posits in U.S. dollars for a
three-month period beginning on the second London Banking Day after the
Determination Date that appears on Telerate Page 3750 as of 11:00 a.m., London
time, on the Determination Date. If Telerate Page 3750 does not include such a
rate or is unavailable on a Determination Date, the Calculation Agent will
request the principal London office of each of four major banks in the London
interbank market, as selected by the Calculation Agent, to provide such bank's
offered quotation (expressed as a percentage per annum), as of approximately
11:00 a.m., London time, on such Determination Date, to prime banks in the
London interbank market for deposits in a Representative Amount in U.S. dollars
for a three-month period beginning on the second London Banking Day after the
Determination Date. If at least two such offered quotations are so provided, the
rate for the Interest Period will be the arithmetic mean of such quotations. If
fewer than two such quotations are so provided, the Calculation Agent will
request each of three major banks in New York City, as selected by the
Calculation Agent, to provide such bank's rate (expressed as a percentage per
annum), as of approximately 11:00 a.m., New York City time, on such
Determination Date, for loans in a Representative Amount in U.S. dollars to
leading European banks for a three-month period beginning on the second London
Banking Day after the Determination Date. If at least two such rates are so
provided, the rate for the Interest Period will be the arithmetic mean of such
rates. If fewer than two such rates are so provided, then the rate for the
Interest Period will be the rate in effect with respect to the immediately
preceding Interest Period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code, or equivalent statutes, of any jurisdiction.
"London Banking Day" is any day on which dealings in U.S. dollars are
transacted or, with respect to any future date, are expected to be transacted in
the London interbank market.
"Management Agreement" means the Management Agreement between
SprintCom, Inc. and AirGate, dated as of July 22, 1998, and any exhibits,
schedules or addendum thereto, as such may be amended, modified or supplemented
from time to time.
"Net Income" means, with respect to any Person, the net income (loss)
of such Person and its Restricted Subsidiaries, determined in accordance with
GAAP and before any reduction in respect of preferred stock dividends,
excluding, however:
(a) any gain, but not loss, together with any related
provision for taxes on such gain (but not loss), realized in connection
with: (i) any Asset Sale; or (ii) the disposition of any securities by
such Person or any of its Restricted Subsidiaries or the extinguishment
of any Indebtedness of such Person or any of its Restricted
Subsidiaries; and
(b) any extraordinary gain, but not loss, together with any
related provision for taxes on such extraordinary gain, but not loss.
"Net Loss Proceeds" means the aggregate cash proceeds received by
AirGate or any of its Restricted Subsidiaries in respect of any Event of Loss,
including, without limitation, insurance proceeds from condemnation awards or
damages awarded by any judgment, net of the direct costs of recovery of such Net
Loss Proceeds (including, without limitation, legal, accounting, appraisal and
insurance adjuster fees and any relocation expenses incurred as a result
thereof), amounts required to be applied to the repayment of Indebtedness
secured by a Permitted Lien on the property subject to such Event of Loss
ranking senior to the Lien securing the Notes (provided, that in case of any
Event of Loss involving Collateral, such Lien constitutes a Permitted Lien of
the type described in clauses (b), (c), (e), (h) or (i) of the definition of
Permitted Liens that is permitted to be senior to the Liens granted to the
Collateral Agent pursuant to the Security Documents on the property that was the
subject of such Event of Loss), and any taxes attributable to such Event of Loss
paid or payable as a result thereof.
"Net Proceeds" means the aggregate cash proceeds received by AirGate or
any of its Restricted Subsidiaries in respect of any Asset Sale, including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale, net of the direct costs
relating to such Asset Sale, including, without limitation, legal, accounting
and investment banking fees, and sales commissions, and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof, in each
case after taking into account any available tax credits or deductions and any
tax sharing arrangements and amounts required to be applied to the repayment of
Indebtedness secured by a Permitted Lien of the type described in clauses (b),
(c), (e), (h) or (i) of the definition of Permitted Liens on the asset or assets
that were the subject of such Asset Sale ranking senior to the Liens securing
the Notes and appropriate amounts to be provided by AirGate or any Restricted
Subsidiary, as the case may be, as a reserve required in accordance with GAAP
against any liabilities associated with such Asset Sale and retained by AirGate
or any Restricted Subsidiary, as the case may be, after such Asset Sale,
including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale.
"Non-Recourse Debt" means Indebtedness:
(a) as to which neither AirGate nor any of its Restricted
Subsidiaries (i) provides credit support of any kind, including any
undertaking, agreement or instrument that would constitute
Indebtedness, (ii) is directly or indirectly liable as a guarantor or
otherwise, or (iii) constitutes the lender;
(b) no default with respect to which, including any rights
that the holders thereof may have to take enforcement action against an
Unrestricted Subsidiary, would permit upon notice, lapse of time or
both any holder of any other Indebtedness, other than the Notes, of
AirGate or any of its Restricted Subsidiaries to declare a default on
such other Indebtedness or cause the payment thereof to be accelerated
or payable prior to its stated maturity; and
(c) as to which the lenders have been notified in writing that
they will not have any recourse to the stock or assets of AirGate or
any of its Restricted Subsidiaries.
"Note Custodian" means the Trustee when serving as custodian for the
Depositary with respect to the Global Notes, or any successor entity thereto.
"Notes" has the meaning set forth in the preamble to this Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities of any kind
payable under the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice-President, and by the Treasurer, an Assistant
Treasurer, the Secretary, or an Assistant Secretary, of AirGate, and delivered
to the Trustee.
"Operating Cash Flow" means, for any period, AirGate's Consolidated Net
Income (Loss) plus, to the extent deducted in calculating Consolidated Net
Income (Loss) for such period, (i) depreciation, amortization and other non-cash
charges, (ii) all amounts in respect of Consolidated Interest Expense, and all
income taxes, whether or not deferred, applicable to such income period, all as
determined on a consolidated basis in accordance with generally accepted
accounting principles, (iii) amounts actually incurred in pursuit of claims
against, or disputing claims by, Sprint PCS or any of its Affiliates, in an
aggregate amount not to exceed $2 million in any one fiscal year period,
provided that any portion of such amount not expended in any such one-year
period may be carried forward into the succeeding one-year period but not in any
subsequent year, (iv) amounts not in excess of $5 million in start-up costs
actually incurred in connection with the provision of billing and customer care
services and any similar services by AirGate or an Affiliate that had been
provided to AirGate pursuant to the Sprint Agreements, and (v) any restructuring
costs or charges incurred in connection with the restructuring transactions
described in AirGate's offering memorandum, dated October 7, 2004. For purposes
of calculating Operating Cash Flow for the four fiscal quarters most recently
completed for which financial statements are available prior to any date on
which an action is taken that requires a calculation of the Operating Cash Flow
to Consolidated Interest Expense Ratio or Consolidated Debt to Operating Cash
Flow Ratio, (1) any Person that is a Restricted Subsidiary on such date (or
would become a Restricted Subsidiary in connection with the transaction that
requires the determination of such ratio) will be deemed to have been a
Restricted Subsidiary at all times during such period, (2) any Person that is
not a Restricted Subsidiary on such date (or would cease to be a Restricted
Subsidiary in connection with the transaction that requires the determination of
such ratio) will be deemed not to have been a Restricted Subsidiary at any time
during such period and (3) if AirGate or any Restricted Subsidiary shall have in
any manner acquired (including through commencement of activities constituting
such operating business) or disposed of (including through termination or
discontinuance of activities constituting such operating business) any operating
business during or subsequent to the most recently completed four fiscal
quarters, such calculation will be made on a pro forma basis on the assumption
that such acquisition or disposition had been completed on the first day of such
completed period.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to AirGate or any Subsidiary of AirGate.
"Participant" means, with respect to DTC, a Person who has an account
with DTC.
"Paying Agent" means any Person authorized by AirGate to pay the
principal of, premium, if any, or interest on any Notes on behalf of AirGate.
"Permitted Business" means the business primarily involved in (a) the
ownership, design, construction, development, acquisition, installation,
integration, management and/or provision of communications systems, (b) the
delivery or distribution of communications, voice, data or video services, (c)
the provision of management, billing or customer care services or (d) any
business or activity reasonably related or ancillary thereto, including, without
limitation, any business conducted by AirGate or any Restricted Subsidiary on
the Closing Date.
"Permitted Investments" means:
(a) any Investment in AirGate or in a Wholly Owned Restricted
Subsidiary of AirGate that is a Guarantor;
(b) any Investment in Cash Equivalents;
(c) any Investment by AirGate or any Restricted Subsidiary of
AirGate in a Person, if as a result of such Investment:
(i) such Person becomes a Wholly Owned Restricted
Subsidiary of AirGate; or
(ii) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into,
AirGate or a Wholly Owned Restricted Subsidiary of AirGate;
(d) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.10;
(e) any acquisition of assets solely in exchange for the
issuance of Equity Interests, other than Disqualified Stock, of
AirGate;
(f) Investments, the payment of which consists only of Equity
Interests, other than Disqualified Stock;
(g) Investments of up to $7.5 million during the period from
the Closing Date to December 31, 2004 less the amount of any
Investments made prior to the Closing Date and during fiscal 2004 (but
not less than zero), $10 million in fiscal 2005, $12.5 million in
fiscal 2006 and $15 million in fiscal 2007, in the aggregate, in one or
more transactions in one or more entities that
(i) will engage in a related telecommunications
service business,
(ii) will bid on, own or lease spectrum or
(iii) will provide management, billing or customer care
services;
provided that, at the time of such Investment, AirGate could have
incurred $1.00 of additional debt under the first paragraph of Section
4.9 of this Indenture; provided further, that such amounts will be
included in the calculation of subsequent Restricted Payments under
Section 4.7 of this Indenture;
(h) Investments in one or more transactions, not to exceed an
aggregate of $5.0 million, in one or more entities that will provide
management, billing or customer care services; and
(i) other Investments in any Person having an aggregate fair
market value, measured on the date each such Investment was made and
without giving effect to subsequent changes in value, when taken
together with all other Investments made pursuant to this clause (i)
since the Closing Date, not to exceed $5.0 million.
"Permitted Liens" means:
(a) Liens in favor of AirGate or the Guarantors;
(b) Liens on property of a Person existing at the time such
Person is merged with or into, or consolidated with, AirGate or any
Restricted Subsidiary of AirGate; provided that such Liens (1) were in
existence prior to the contemplation of such merger or consolidation,
(2) are not incurred in anticipation of or in connection with such
merger or consolidation, and (3) do not extend to any assets other than
those of the Person merged into or consolidated with AirGate or the
Restricted Subsidiary;
(c) Liens on property existing at the time of acquisition
thereof by AirGate or any Restricted Subsidiary of AirGate, provided
that such Liens (1) were in existence prior to the contemplation of
such acquisition, (2) are not incurred in anticipation of or in
connection with the acquisition of such property and (3) do not extend
to any assets other than those of the property acquired;
(d) Liens and deposits made to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds,
letters of credit or other obligations of a like nature incurred in the
ordinary course of business;
(e) Liens to secure Indebtedness, including Capital Lease
Obligations, permitted by clause (4) of the second paragraph of Section
4.9 hereof covering only the assets acquired with such Indebtedness;
(f) Liens existing on the date of this Indenture including
Liens securing the Second Priority Notes outstanding on the Closing
Date; provided that any Liens securing the Second Priority Notes are
subordinated to the Lien of the Security Documents pursuant to the
terms of the Intercreditor Agreement;
(g) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently
concluded, provided that any reserve or other appropriate provision as
shall be required in conformity with GAAP shall have been made
therefor;
(h) Liens incurred in the ordinary course of business of
AirGate or any Restricted Subsidiary of AirGate with respect to
obligations that do not exceed $5.0 million at any one time
outstanding;
(i) Liens on property or shares of stock of a Person at the
time such Person becomes a Subsidiary; provided, however, that any such
Lien may not extend to any other property owned by AirGate or any
Restricted Subsidiary; provided further that such Liens are not
incurred in anticipation of or in connection with the transaction or
series of related transactions pursuant to which such Person became a
Restricted Subsidiary;
(j) Liens securing the Notes and the Guarantees outstanding on
the Closing Date;
(k) Liens to secure any refinancing, refunding, extension,
renewal or replacement (or successive refinancings, refundings,
extensions, renewals or replacements) as a whole, or in part, of any
Indebtedness secured by any Lien referred to in the foregoing clauses
(b), (c) and (f); provided that if the Liens securing the obligations
being refinanced, refunded, extended, renewed or replaced are junior to
the Liens securing the Notes and the Guarantees, such replacement Liens
are junior to the Liens securing the Notes and the Guarantees to at
least the same extent;
(l) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens, in each case for sums not yet due or being
contested in good faith by appropriate proceedings, or other Liens
arising out of judgments or awards against such Person not giving rise
to an Event of Default so long as any appropriate legal proceeding that
may have been duly initiated for the review of such judgment or award
shall have been finally determined, or the period within which such
proceeding may be initiated shall not have expired;
(m) Liens on assets of AirGate or any Restricted Subsidiary
arising as a result of a sale and leaseback transaction with respect to
such assets; provided that the proceeds from such sale and leaseback
transaction are applied in accordance with Section 4.10 of this
Indenture;
(n) Liens to secure Indebtedness (and any guarantees of such
Indebtedness) permitted to be incurred under (i) clause (11) of Section
4.9 hereof and (ii) the first paragraph of Section 4.9 hereof;
provided, that such Liens shall be junior to the Liens securing the
Notes to at least the same extent as the Liens securing the Second
Priority Notes; and
(o) Liens on the Collateral ranking pari passu with the Liens
securing the Notes securing Indebtedness incurred pursuant to the first
paragraph of Section 4.9, including any Additional Notes, not to exceed
$50 million in aggregate principal amount at any time outstanding.
"Permitted Refinancing Indebtedness" means any Indebtedness of AirGate
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of AirGate or any of its Restricted Subsidiaries,
other than intercompany Indebtedness; provided that:
(a) the principal amount, or accreted value, if applicable, of
such Permitted Refinancing Indebtedness does not exceed the principal
amount of, or accreted value, if applicable, plus the amount of any
premium required to be paid in connection with such refinancing
pursuant to the terms of the Indebtedness refinanced or the amount of
any premium reasonably determined by AirGate as necessary to accomplish
such refinancing plus accrued interest on, the Indebtedness so
extended, refinanced, renewed, replaced, defeased or refunded, plus the
amount of reasonable expenses incurred in connection therewith;
(b) such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded;
(c) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to
the Notes, such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and is subordinated in
right of payment to, the Notes on terms at least as favorable to the
Holders as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; and
(d) such Indebtedness is incurred either by AirGate or by the
Restricted Subsidiary who is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, trust, unincorporated organization or government or
any agency or political subdivision thereof or other entity of any nature.
"Preferred Capital Stock," as applied to the Capital Stock of any
Person, means Capital Stock of such Person of any class or classes, however
designated, that ranks prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Stock.
"Rating Organization" means Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies Inc., or ▇▇▇▇▇'▇ Investors Service, Inc.
and their respective successors.
"Registration Rights Agreement" means (i) the Registration Rights
Agreement dated as of the Closing Date among AirGate, the Guarantors and the
initial purchasers of the Initial Notes and (ii) any other registration rights
agreement entered into in connection with an issuance of Additional Notes in a
private offering after the Closing Date.
"Representative Amount" means a principal amount of not less than
$1,000,000 for a single transaction in the relevant market at the relevant time.
"Responsible Officer" means, when used with respect to the Trustee, any
officer assigned to the Corporate Trust Office of the Trustee, including any
vice president, assistant vice president, assistant treasurer, or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Indenture, and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"Restricted Notes Legend" means the legend identified as such in
Exhibit A hereto.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Sale and Leaseback Transaction" means any arrangement with any Person
(other than AirGate or a Subsidiary), or to which any such Person is a party,
providing for the leasing, pursuant to a capital lease that would at such time
be required to be capitalized on a balance sheet in accordance with GAAP, to
AirGate or a Restricted Subsidiary of any property or asset which has been or is
to be sold or transferred by AirGate or such Restricted Subsidiary to such
Person or to any other Person (other than AirGate or a Subsidiary) to which
funds have been or are to be advanced by such Person.
"Second Priority Notes" means $159.0 million aggregate principal amount
of Senior Subordinated Secured Notes due September 1, 2009 issued under an
indenture dated as February 4, 2004 by and among The Bank of New York as
trustee, AirGate and the subsidiary guarantors named therein.
"Second Priority Notes Closing Date" means the date upon which the
Second Priority Notes were first issued.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Documents" means, collectively, the security agreements,
pledge agreements, mortgages, deeds of trust, pledges, collateral assignments
and other agreements or instruments, as amended, supplemented, replaced or
otherwise modified from time to time, that evidence or create a security
interest in any or all of the Collateral in favor of the Trustee and any
Holders.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Act, as such Regulation is in effect on the date
hereof.
"Spectrum Trademark Agreement" means the Sprint Trademark and Service
Mark License Agreement between Sprint Spectrum L.P. and AirGate, dated as of
July 22, 1998, and any exhibits, schedules or addendum thereto, as such may be
amended, modified or supplemented from time to time.
"Sprint Agreements" means the (1) Management Agreement; (2) Sprint PCS
Services Agreement between Sprint Spectrum L.P. and AirGate, dated as of July
22, 1998, and any exhibits, schedules or addendum thereto, as such may be
amended, modified or supplemented from time to time; (3) Trademark Agreement;
and (4) Spectrum Trademark Agreement.
"Sprint PCS Affiliate" means any Person whose sole or predominant
business is operating a personal communications services business pursuant to
arrangements with Sprint Spectrum L.P. and/or its Affiliates, or their
successors, similar to the Sprint Agreements.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person:
(a) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of Capital
Stock entitled, without regard to the occurrence of any contingency, to
vote in the election of directors, managers or trustees thereof is at
the time owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of that Person, or a combination
thereof; and
(b) any partnership (i) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of
such Person or (ii) the only general partners of which are such Person
or of one or more Subsidiaries of such Person, or any combination
thereof.
"Telerate Page 3750" means the display designated as "Page 3750" on the
Moneyline Telerate service (or such other page as may replace Page 3750 on that
service).
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ▇▇.▇▇.
77aaa-77bbbb), as amended, as in effect on the date hereof.
"Trademark Agreement" means Sprint Trademark and Service Mark License
Agreement between Sprint Communications Company, L.P. and AirGate, dated as of
July 22, 1998, and any exhibits, schedules or addendum thereto, as such may be
amended, modified or supplemented from time to time.
"Transfer Restricted Notes" means Notes that bear or are required to
bear the Restricted Notes Legend.
"Trustee" has the meaning set forth in the preamble to this Indenture.
"Unrestricted Subsidiary" means any Subsidiary of AirGate that is
designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a
Board Resolution, but only to the extent that such Subsidiary:
(a) has no Indebtedness other than Non-Recourse Debt;
(b) is not party to any agreement, contract, arrangement or
understanding with AirGate or any Restricted Subsidiary of AirGate
unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to AirGate or such Restricted
Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of AirGate;
(c) is a Person with respect to which neither AirGate nor any
of its Restricted Subsidiaries has any direct or indirect obligation
(i) to subscribe for additional Equity Interests or (ii) to maintain or
preserve such Person's financial condition or to cause such Person to
achieve any specified levels of operating results;
(d) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of AirGate or any of its
Restricted Subsidiaries; and
(e) has at least one director on its board of directors that
is not a director or executive officer of AirGate or any of its
Restricted Subsidiaries and has at least one executive officer that is
not a director or executive officer of AirGate or any of its Restricted
Subsidiaries.
Any designation of a Subsidiary of AirGate as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with the Trustee the
Board Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the preceding conditions and was
permitted by Section 4.7. If, at any time, any Unrestricted Subsidiary would
fail to meet the preceding requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture
and any Indebtedness of such Subsidiary shall be deemed to be incurred by a
Restricted Subsidiary of AirGate as of such date and, if such Indebtedness is
not permitted to be incurred as of such date under Section 4.9, AirGate shall be
in default of Section 4.9. The Board of Directors of AirGate may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of AirGate of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (1) such
Indebtedness is permitted under Section 4.9, calculated on a pro forma basis as
if such designation had occurred at the beginning of the four-quarter reference
period; and (2) no Default or Event of Default would be in existence following
such designation.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date of determination, the number of years obtained by
dividing:
(a) the sum of the products obtained by multiplying (i) the
amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment at
final maturity, in respect thereof, by (ii) the number of years,
calculated to the nearest one-twelfth, that will elapse between such
date and the making of such payment; by
(b) the then outstanding principal amount of such
Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which, other than directors' qualifying shares, shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person.
SECTION 1.2 Other Definitions.
Term Defined in Section
------------------------------------------ ----------------------
"Affiliate Transaction" 4.11
"Agent Members" 2.6
"Calculation Agent" 2.3
"Change of Control Offer" 4.14
"Change of Control Payment" 4.14
"Change of Control Payment Date" 4.14
"Covenant Defeasance" 8.3
"Custodian" 6.1
"Event of Default" 6.1
"Excess Proceeds" 4.10
"Excess Proceeds Offer 3.9
"Excess Proceeds Offer Triggering Event" 4.10
"Legal Defeasance" 8.2
"Offer Amount" 3.9
"Offer Period" 3.9
"Payment Default" 6.1
"Permitted Debt" 4.9
"Purchase Date" 3.9
"QIB" 2.1
"QIB Global Note" 2.1
"Registrar" 2.3
"Regulation S" 2.1
"Regulation S Global Note" 2.1
"Released Collateral" 11.5
"Repurchase Offer" 3.9
"Restricted Payment" 4.7
"Rule 144A" 2.1
"Surviving Entity" 5.1
SECTION 1.3 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes and any Guarantee;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means AirGate and any successor obligor upon the
Notes or any Guarantor.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by the Commission rule
under the TIA have the meanings so assigned to them therein.
SECTION 1.4 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein;
(2) an accounting term not otherwise defined herein has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include the
singular;
(5) unless otherwise specified, any reference to Section or Article refers
to such Section or Article of this Indenture;
(6) provisions apply to successive events and transactions; and
(7) references to sections of or rules under the Securities Act or the
Exchange Act shall be deemed to include substitute, replacement or
successor sections or rules adopted by the Commission from time to
time.
ARTICLE II
THE NOTES
SECTION 2.1 Form and Dating.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A attached hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes
initially shall be issued only in denominations of $1,000 and integral multiples
thereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and AirGate and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby. However, to the extent any provision of
any Note conflicts with the express provisions of this Indenture, the provisions
of this Indenture shall govern and be controlling.
(a) The Notes shall be issued initially in the form of one or more
Global Notes substantially in the form attached as Exhibit A hereto,
which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee as custodian for the Depositary,
and registered in the name of the Depositary or a nominee of the
Depositary, duly executed by AirGate and authenticated by the Trustee
as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes
as shall be specified therein and each shall provide that it shall
represent the aggregate amount of outstanding Notes from time to time
endorsed thereon and that the aggregate amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions and transfers of
interests. Any endorsement of a Global Note to reflect the amount of
any increase or decrease in the amount of outstanding Notes represented
thereby shall be made by the Trustee or the Note Custodian, at the
direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.6 hereof.
Except as set forth in Section 2.6 hereof, the Global Notes
may be transferred, in whole and not in part, only to another nominee
of the Depositary or to a successor of the Depositary or its nominee.
(b) The Initial Notes are being issued by AirGate only
(i) to "qualified institutional buyers" (as defined in Rule 144A under
the Securities Act ("Rule 144A")) ("QIBs") and (ii) in reliance on
Regulation S under the Securities Act ("Regulation S"). After such
initial offers, Initial Notes that are Transfer Restricted Notes may be
transferred to QIBs, in reliance on Rule 144A outside the United States
pursuant to Regulation S or to the Company, in accordance with certain
transfer restrictions. Initial Notes that are offered in reliance on
Rule 144A shall be issued in the form of one or more permanent Global
Notes substantially in the form set forth in Exhibit A (the "QIB Global
Note") deposited with the Trustee, as Notes Custodian, duly executed by
the Company and authenticated by the Trustee as hereinafter provided.
Initial Notes that are offered in offshore transactions in reliance on
Regulation S shall be issued in the form of one or more Global Notes
substantially in the form set forth in Exhibit A (the "Regulation S
Global Note") deposited with the Trustee, as Notes Custodian, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The QIB Global Note and the Regulation S Global Note shall
each be issued with separate CUSIP numbers. The aggregate principal
amount of each Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as Notes
Custodian. Transfers of Notes between QIBs and to or by purchasers
pursuant to Regulation S shall be represented by appropriate increases
and decreases to the respective amounts of the appropriate Global
Notes, as more fully provided in Section 2.16.
(c) Section 2.1(b) shall apply only to Global Notes
deposited with or on behalf of the Depositary.
AirGate shall execute and the Trustee shall, in accordance
with Sections 2.1(b) and this 2.1(c), authenticate and deliver the
Global Notes that (i) shall be registered in the name of the Depositary
or the nominee of the Depositary and (ii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's instructions
or held by the Trustee as custodian for the Depositary.
Participants shall have no rights either under this Indenture
with respect to any Global Note held on their behalf by the Depositary
or by the Note Custodian as custodian for the Depositary or under such
Global Note, and the Depositary may be treated by AirGate, the Trustee
and any agent of AirGate or the Trustee as the absolute owner of such
Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent AirGate, the Trustee or any Agent or other
agent of AirGate or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Participants, the
operation of customary practices of such Depositary governing the
exercise of the rights of an owner of a beneficial interest in any
Global Note.
The Trustee shall have no responsibility or obligation to any
Holder that is a member of (or a participant in) DTC or any other
Person with respect to the accuracy of the records of DTC (or its
nominee) or of any participant or member thereof, with respect to any
ownership interest in the Notes or with respect to the delivery of any
notice (including any notice of redemption) or the payment of any
amount or delivery of any Notes (or other security or property) under
or with respect to the Notes. The Trustee may rely (and shall be fully
protected in relying) upon information furnished by DTC with respect to
its members, participants and any beneficial owners in the Notes.
(d) Notes issued in certificated form shall be
substantially in the form of Exhibit A attached hereto (but without
including the text referred to in footnote 1 thereto).
SECTION 2.2 Execution and Authentication.
An Officer shall sign the Notes for AirGate by manual or facsimile
signature. AirGate's seal shall be reproduced on the Notes and may be in
facsimile form.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of a Responsible Officer of the Trustee. The signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of AirGate signed by one
Officer directing the Trustee to authenticate the Notes and certifying that all
conditions precedent to the issuance of the Notes contained herein have been
complied with, authenticate Notes for original issue up to the aggregate
principal amount stated in paragraph 4 of the Notes. The aggregate principal
amount of Notes outstanding at any time may not exceed such amount except as
provided in Section 2.8 hereof.
The Trustee may appoint an authenticating agent reasonably acceptable
to AirGate to authenticate Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as an Agent to deal with Holders or AirGate or an Affiliate of AirGate.
SECTION 2.3 Registrar, Paying Agent.
AirGate shall maintain (i) an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar"), (ii) an
office or agency where Notes may be presented for payment to a Paying Agent and
(iii) an office or agency responsible for determining LIBOR (the "Calculation
Agent"). The Registrar shall keep a register of the Notes and of their transfer
and exchange. AirGate may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent. AirGate may change any
Paying Agent, Calculation Agent or Registrar without notice to any Holder.
AirGate shall notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture. If AirGate fails to appoint or maintain another
entity as Registrar, Calculation Agent or Paying Agent, the Trustee shall act as
such. AirGate or any of its Subsidiaries may act as Paying Agent or Registrar,
but not as Calculation Agent.
AirGate shall notify the Trustee and the Trustee shall notify the
Holders of the name and address of any Agent not a party to this Indenture.
AirGate or any Guarantor may act as Paying Agent or Registrar. AirGate shall
enter into an appropriate agency agreement with any Agent not a party to this
Indenture, which shall incorporate the provisions of the TIA. The agreement
shall implement the provisions of this Indenture that relate to such Agent.
AirGate shall notify the Trustee of the name and address of any such Agent. If
AirGate fails to maintain a Registrar, Calculation Agent or Paying Agent, or
fails to give the foregoing notice, the Trustee shall act as such, and shall be
entitled to appropriate compensation in accordance with Section 7.7 hereof.
AirGate initially appoints the Trustee to act as the Registrar,
Calculation Agent and Paying Agent.
AirGate initially appoints DTC to act as the Depositary with respect to
the Global Notes.
SECTION 2.4 Paying Agent to Hold Money in Trust.
AirGate shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent shall hold in trust for the benefit of Holders
or the Trustee all money held by the Paying Agent for the payment of principal,
premium, if any, or interest on the Notes, and shall notify the Trustee of any
Default by AirGate in making any such payment. While any such Default continues,
the Trustee may require a Paying Agent to pay all money held by it to the
Trustee. AirGate at any time may require a Paying Agent to pay all money held by
it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than AirGate or a Subsidiary) shall have no further liability for the money. If
AirGate or a Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon the occurrence of events specified in Sections 6.1(ix), (x)
and (xi) hereof, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.5 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, AirGate shall furnish to the Trustee at least seven (7)
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders,
including the aggregate principal amount of the Notes held by each Holder
thereof, and AirGate shall otherwise comply with TIA ss. 312(a).
SECTION 2.6 Book-Entry Provisions for Global Securities.
(a) Each Global Note shall (i) be registered in the name of the
Depositary for such Global Notes or the nominee of such Depositary, (ii) be
delivered to the Trustee as custodian for such Depositary and (iii) bear legends
as set forth in Section 2.6(g).
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Note, and the Depositary may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Note.
(b) Transfers of a Global Note shall be limited to transfers of
such Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in a Global Note may
be transferred in accordance with Section 2.16 and the rules and procedures of
the Depositary. In addition, Certificated Notes shall be transferred to all
beneficial owners in exchange for their beneficial interests if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for the Global Notes or the Depositary ceases to be a "clearing
agency" registered under the Exchange Act and a successor depositary is not
appointed by the Company within ninety (90) days of such notice or (ii) an Event
of Default of which a Responsible Officer of the Trustee has actual notice has
occurred and is continuing and the Registrar has received a request from the
Depositary to issue such Certificated Notes.
(c) In connection with the transfer of the entire Global Note to
beneficial owners pursuant to clause (b) of this Section, such Global Note shall
be deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in such Global Note an equal aggregate principal amount of Certificated
Notes of authorized denominations.
(d) The registered holder of a Global Note may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interest through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
(e) A Certificated Note may not be transferred or exchanged for a
beneficial interest in a Global Note.
(f) If at any time:
(i) the Depositary for the Notes notifies AirGate that the Depositary is
unwilling or unable to continue as Depositary for the Global Notes and
a successor Depositary for the Global Notes is not appointed by AirGate
within ninety (90) days after delivery of such notice; or
(ii) AirGate, at its sole discretion, notifies the Trustee in writing that
it elects to cause the issuance of Certificated Notes under this
Indenture, then AirGate shall execute, and the Trustee shall, upon
receipt of an authentication order in accordance with Section 2.2
hereof, authenticate and deliver, Certificated Notes in an aggregate
principal amount equal to the principal amount of the Global Notes in
exchange for such Global Notes.
(g) Each Global Note shall bear the Global Note Legend on the
face thereof.
(h) At such time as all beneficial interests in Global Notes have
been exchanged for Certificated Notes, redeemed, repurchased or cancelled, all
Global Notes shall be returned to or retained and cancelled by the Trustee in
accordance with Section 2.11 hereof. At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for Certificated Notes,
redeemed, repurchased or cancelled, the principal amount of Notes represented by
such Global Note shall be reduced accordingly and an endorsement shall be made
on such Global Note, by the Trustee or the Note Custodian, at the direction of
the Trustee, to reflect such reduction.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, AirGate shall execute
and the Trustee shall authenticate Global Notes and Certificated Notes at the
Registrar's request.
(ii) No service charge shall be made to a Holder for any registration of
transfer or exchange, but AirGate may require payment of a sum sufficient to
cover any stamp or transfer tax or similar governmental charge payable in
connection therewith (other than any such stamp or transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections 2.2,
2.10, 3.6, 4.10, 4.14, 4.23 and 9.5 hereto).
(iii) All Global Notes and Certificated Notes issued upon any registration of
transfer or exchange of Global Notes or Certificated Notes shall be the valid
obligations of AirGate, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Global Notes or Certificated Notes
surrendered upon such registration of transfer or exchange.
(iv) The Registrar shall not be required: (A) to issue, to register the transfer
of or to exchange Notes during a period beginning at the opening of fifteen (15)
days before the day of any selection of Notes for redemption under Section 3.2
hereof and ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part, or (C) to register the transfer of or to exchange a Note between a record
date and the next succeeding interest payment date.
(v) Prior to due presentment for the registration of a transfer of any Note,
the Trustee, any Agent and AirGate may deem and treat the Person in whose name
any Note is registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Notes and for all other
purposes, and neither the Trustee, any Agent nor AirGate shall be affected by
notice to the contrary.
(vi) The Trustee shall authenticate Global Notes and Certificated Notes in
accordance with the provisions of Section 2.2 hereof. Except as provided in
Section 2.6(b) and 2.6(f), neither the Trustee nor the Registrar shall
authenticate or deliver any Certificated Note in exchange for a Global Note.
(vii) Each Holder agrees to provide reasonable indemnity to AirGate and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such ▇▇▇▇▇▇'s Note in violation of any provision of this Indenture
and/or applicable United States federal or state securities law.
(viii) The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Note (including any transfers between or among Agent Members or
beneficial owners of interests in any Global Note) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
SECTION 2.7 Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or AirGate and the
Trustee receives evidence to their satisfaction of the destruction, loss or
theft of any Note, AirGate shall issue and the Trustee, upon the written order
of AirGate signed by an Officer of AirGate, shall authenticate a replacement
Note if the Trustee's requirements are met. If required by the Trustee or
AirGate, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and AirGate to protect AirGate, the Trustee, any
Agent and any authenticating agent from any loss that any of them may suffer if
a Note is replaced. AirGate and the Trustee may charge for their expenses in
replacing a Note.
Every replacement Note is an additional obligation of AirGate and shall
be entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
SECTION 2.8 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section 2.8 as not outstanding. Except as set forth in Section 2.9 hereof, a
Note does not cease to be outstanding because AirGate or an Affiliate of AirGate
holds the Note.
If a Note is replaced pursuant to Section 2.7 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.1 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than AirGate, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Notes payable on that date, then on and after that date such Notes shall
be deemed to be no longer outstanding and shall cease to accrue interest.
SECTION 2.9 Treasury Notes.
In determining whether the Holders of the required aggregate principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by AirGate, or by any Affiliate of AirGate shall be considered as though not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes shown on the register as being owned shall be so disregarded.
Notwithstanding the foregoing, Notes that are to be acquired by AirGate or an
Affiliate of AirGate pursuant to an exchange offer, tender offer or other
agreement shall not be deemed to be owned by such entity until legal title to
such Notes passes to such entity.
SECTION 2.10 Temporary Notes.
Until Certificated Notes are ready for delivery, AirGate may prepare
and the Trustee shall authenticate temporary Notes upon a written order of
AirGate signed by two Officers of AirGate. Temporary Notes shall be
substantially in the form of Certificated Notes but may have variations that
AirGate considers appropriate for temporary Notes. Without unreasonable delay,
AirGate shall prepare and the Trustee shall upon receipt of a written order of
AirGate signed by two Officers authenticate Certificated Notes in exchange for
temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
SECTION 2.11 Cancellation.
AirGate at any time may deliver to the Trustee for cancellation any
Notes previously authenticated and delivered hereunder or which AirGate may have
acquired in any manner whatsoever, and all Notes so delivered shall be promptly
cancelled by the Trustee. All Notes surrendered for registration of transfer,
exchange or payment, if surrendered to any Person other than the Trustee, shall
be delivered to the Trustee. The Trustee and no one else shall cancel all Notes
surrendered for registration of transfer, exchange, payment, replacement or
cancellation. Subject to Section 2.7 hereof, AirGate may not issue new Notes to
replace Notes that it has redeemed or paid or that have been delivered to the
Trustee for cancellation. All cancelled Notes held by the Trustee shall be
disposed of in accordance with its customary practice, and certification of
their disposal delivered to AirGate, unless by a written order, signed by an
Officer of AirGate, AirGate shall direct that cancelled Notes be returned to it.
SECTION 2.12 Defaulted Interest.
If AirGate defaults in a payment of interest on the Notes, it shall pay
the defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, which date shall be at the earliest practicable
date but in all events at least five (5) Business Days prior to the payment
date, in each case at the rate provided in the Notes and in Section 4.1 hereof.
AirGate shall fix or cause to be fixed each such special record date and payment
date, and shall promptly thereafter, notify the Trustee of any such date. At
least fifteen (15) days before the special record date, AirGate (or the Trustee,
in the name and at the expense of AirGate) shall mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.
SECTION 2.13 Record Date.
The record date for purposes of determining the identity of Holders
entitled to vote or consent to any action by vote or consent authorized or
permitted under this Indenture shall be determined as provided for in TIA ss.
316 (c).
SECTION 2.14 Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
SECTION 2.15 CUSIP Number.
AirGate in issuing the Notes may use a "CUSIP" number, and if it does
so, the Trustee shall use the CUSIP number in notices of redemption or exchange
as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes and that reliance may be placed only on
the other identification numbers printed on the Notes. AirGate shall promptly
notify the Trustee of any change in the CUSIP number.
SECTION 2.16 Special Transfer Provisions.
Unless and until a Transfer Restricted Note is transferred or exchanged
under an effective registration statement under the Securities Act, the
following provisions shall apply:
(a) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Transfer Restricted
Note (other than pursuant to Regulation S):
(i) The Registrar shall register the transfer of a Transfer
Restricted Note by a Holder to a QIB if such transfer is being made by
a proposed transferor who has provided the Registrar with (a) an
appropriately completed certificate of transfer in the form attached to
the Note and (b) a letter substantially in the form set forth in
Exhibit C hereto.
(ii) If the proposed transferee is an Agent Member and the
Transfer Restricted Note to be transferred consists of an interest in
the Regulation S Global Note, upon receipt by the Registrar of (x) the
items required by paragraph (i) above and (y) instructions given in
accordance with the Depository's and the Registrar's procedures
therefor, the Registrar shall reflect on its books and records the date
and an increase in the principal amount of the QIB Global Note in an
amount equal to the principal amount of the beneficial interest in the
Regulation S Global Note to be so transferred, and the Registrar shall
reflect on its books and records the date and an appropriate decrease
in the principal amount of such Regulation S Global Note.
(b) Transfers Pursuant to Regulation S. The Registrar shall register
the transfer of any Permanent Regulation S Global Note without requiring any
additional certification. The following provisions shall apply with respect to
registration of any proposed transfer of a Transfer Restricted Note pursuant to
Regulation S:
(i) The Registrar shall register any proposed transfer of a
Transfer Restricted Note pursuant to Regulation S by a Holder upon
receipt of (a) an appropriately completed certificate of transfer in
the form attached to the Note and (b) a letter substantially in the
form set forth in Exhibit D hereto from the proposed transferor.
(ii) If the proposed transferee is an Agent Member holding a
beneficial interest in a QIB Global Note and the Transfer Restricted
Note to be transferred consists of an interest in a QIB Global Note,
upon receipt by the Registrar of (x) the letter, if any, required by
paragraph (i) above and (y) instructions in accordance with the
Depository's and the Registrar's procedures therefor, the Registrar
shall reflect on its books and records the date and an increase in the
principal amount of the Regulation S Global Note in an amount equal to
the principal amount of the beneficial interest in the QIB Global Note
to be transferred, and the Registrar shall reflect on its books and
records the date and an appropriate decrease in the principal amount of
the QIB Global Note.
(c) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Issuer shall issue and,
upon receipt of an authentication order in accordance with Section 2.2, the
Trustee shall authenticate one or more Global Notes not bearing the Restricted
Notes Legend in an aggregate principal amount equal to the principal amount of
the beneficial interests in the Global Notes that are Transfer Restricted Notes
tendered for acceptance in accordance with the Exchange Offer and accepted for
exchange in the Exchange Offer.
Concurrently with the issuance of such Global Notes, the Registrar
shall cause the aggregate principal amount of the applicable Transfer Restricted
Notes to be reduced accordingly, and the Registrar shall deliver to the Persons
designated by the Holders of Transfer Restricted Notes so accepted Global Notes
not bearing the Restricted Notes Legend in the appropriate principal amount.
(d) Restricted Notes Legend. Upon the transfer, exchange or replacement
of Notes not bearing the Restricted Notes Legend, the Registrar shall deliver
Notes that do not bear the Restricted Notes Legend. Upon the transfer, exchange
or replacement of Notes bearing the Restricted Notes Legend, the Registrar shall
deliver only Notes that bear the Restricted Notes Legend unless either (i) the
circumstances contemplated by paragraph (a) or (b) of this Section exist or (ii)
there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to AirGate and the Trustee to the effect that neither such legend
nor the related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act.
(e) General. By its acceptance of any Note bearing the Restricted Notes
Legend, each Holder of such a Note acknowledges the restrictions on transfer of
such Note set forth in this Indenture and in the Restricted Notes Legend and
agrees that it shall transfer such Note only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to this Section 2.16.
SECTION 2.17 Issuance of Additional Notes.
The Company shall be entitled to issue Additional Notes under this
Indenture that shall have identical terms as the Initial Notes, other than with
respect to the date of issuance, issue price and amount of interest payable on
the first interest payment date applicable thereto (and, if such Additional
Notes shall be issued in the form of Transfer Restricted Notes, other than with
respect to transfer restrictions, any Registration Rights Agreement and
additional interest with respect thereto); provided that such issuance is not
prohibited by Section 4.9. The Initial Notes and any Additional Notes and all
Exchange Notes shall be treated as a single class for all purposes under this
Indenture.
With respect to any Additional Notes, the Company shall set forth in a
resolution of its Board of Directors and in an Officers' Certificate, a copy of
each of which shall be delivered to the Trustee, the following information:
(1) the aggregate principal amount of such Additional Notes to be
authenticated and delivered pursuant to this Indenture;
(2) the issue price, the Closing Date, the CUSIP number of such Additional
Notes, the first interest payment date and the amount of interest
payable on such first interest payment date applicable thereto and the
date from which interest shall accrue; and
(3) whether such Additional Notes shall be Transfer Restricted Notes.
ARTICLE III
REDEMPTION AND PREPAYMENT
SECTION 3.1 Notices to Trustee.
If AirGate elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.7 hereof, it shall furnish to the Trustee, at least
forty-five (45) days before a redemption date, an Officers' Certificate setting
forth (i) the section of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.
If AirGate is required to make an offer to purchase Notes pursuant to
Section 4.10, 4.14 or 4.23 hereof, it shall furnish to the Trustee, at least
forty-five (45) days before the scheduled purchase date, an Officers'
Certificate setting forth (i) the section of this Indenture pursuant to which
the offer to purchase shall occur, (ii) the terms of the offer, (iii) the
principal amount of Notes to be purchased, (iv) the purchase price, (v) the
purchase date and (vi) further setting forth a statement to the effect that (a)
AirGate or one its Subsidiaries has effected an Asset Sale and there are Excess
Proceeds aggregating more than $10.0 million, (b) a Change of Control has
occurred, as applicable or (c) AirGate or one of its Subsidiaries has suffered
an Event of Loss and there are Excess Loss Proceeds aggregating more than $10.0
million.
AirGate will also provide the Trustee with any additional information
that the Trustee reasonably requests in connection with any redemption or offer.
SECTION 3.2 Selection of Notes to be Redeemed.
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed among the Holders in compliance
with the requirements of the principal national securities exchange, if any, on
which the Notes are listed or, if the Notes are not so listed, on a pro rata
basis, by lot or by such method as the Trustee shall deem fair and appropriate
(and in a manner that complies with applicable legal requirements); provided
that no Notes of $1,000 or less shall be redeemed in part. Notices of redemption
shall be mailed by first class mail at least 30 but not more than 60 days before
the redemption date to each Holder of Notes to be redeemed at its registered
address. Notices of redemption may not be conditional. If any Note is to be
redeemed in part only, the notice of redemption that relates to such Note shall
state the portion of the principal amount thereof to be redeemed. A new Note in
principal amount equal to the unredeemed portion of the original Note will be
issued in the name of the Holder thereof upon cancellation of the original Note.
Notes called for redemption become due on the date fixed for redemption. On and
after the redemption date, interest ceases to accrue on Notes or portions of
them called for redemption. The Trustee shall make the selection from the Notes
outstanding and not previously called for redemption and shall promptly notify
AirGate in writing of the Notes selected for redemption. The Trustee may select
for redemption portions (equal to $1,000 or any integral multiple thereof) of
the principal of the Notes that have denominations larger than $1,000.
SECTION 3.3 Notice of Redemption.
Subject to the provisions of Section 3.9, at least 30 days but not more
than 60 days before a redemption date, AirGate shall mail or cause to be mailed
by first class mail, a notice of redemption to each Holder whose Notes are to be
redeemed.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the principal
amount of such Notes to be redeemed and that, after the redemption
date, upon surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(4) the name, telephone number and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(6) that, unless AirGate defaults in making such redemption payment,
interest, if any, on Notes called for redemption ceases to accrue on
and after the redemption date;
(7) the paragraph of the Notes and/or section of this Indenture pursuant to
which the Notes called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the
Notes.
At AirGate's request, the Trustee shall give the notice of redemption
in AirGate's name and at AirGate's expense; provided, however, that AirGate
shall have delivered to the Trustee, at least 45 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in the notice as provided in the
preceding paragraph. The notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Note shall not affect the validity of the
proceeding for the redemption of any other Note.
SECTION 3.4 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.3
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price plus accrued and unpaid interest, if
any, to such date. A notice of redemption may not be conditional.
SECTION 3.5 Deposit of Redemption of Purchase Price.
On or before 10:00 a.m. (New York City time) on each redemption date or
the date on which Notes must be accepted for purchase pursuant to Section 4.10,
4.14 or 4.23, AirGate shall deposit with the Trustee or with the Paying Agent
(other than AirGate or an Affiliate of AirGate) money sufficient to pay the
redemption price of and accrued and unpaid interest, if any, on all Notes to be
redeemed or purchased on that date. The Trustee or the Paying Agent shall
promptly return to AirGate any money deposited with the Trustee or the Paying
Agent by AirGate in excess of the amounts necessary to pay the redemption price
of (including any applicable premium), and accrued interest, if any, on, all
Notes to be redeemed or purchased.
If Notes called for redemption or tendered in an Asset Sale Offer or
Change of Control Offer are paid or if AirGate has deposited with the Trustee or
Paying Agent money sufficient to pay the redemption or purchase price of, and
unpaid and accrued interest, if any, on, all Notes to be redeemed or purchased,
on and after the redemption or purchase date, interest, if any, shall cease to
accrue on the Notes or the portions of Notes called for redemption or tendered
and not withdrawn in an Asset Sale Offer, Change of Control Offer or Event of
Loss Offer (regardless of whether certificates for such securities are actually
surrendered). If a Note is redeemed or purchased on or after an interest record
date but on or prior to the related interest payment date, then any accrued and
unpaid interest, if any, shall be paid to the Person in whose name such Note was
registered at the close of business on such record date. If any Note called for
redemption shall not be so paid upon surrender for redemption because of the
failure of AirGate to comply with the preceding paragraph, interest shall be
paid on the unpaid principal from the redemption or purchase date until such
principal is paid, and to the extent lawful on any interest not paid on such
unpaid principal, in each case, at the rate provided in the Notes and in Section
4.1 hereof.
SECTION 3.6 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, AirGate shall issue
and, upon the written request of an Officer of AirGate, the Trustee shall
authenticate for the Holder at the expense of AirGate a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.7 Optional Redemption.
(a) Except as set forth in Section 3.7(b) hereof, the Notes will not be
redeemable at AirGate's option prior to October 15, 2006. Thereafter, the Notes
will be subject to redemption at any time at the option of AirGate, in whole or
in part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest thereon, if any, to the applicable redemption date
(subject to the right of holders of record on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the twelve-month period beginning on October 15 of the years indicated below:
Year Percentage
---- ----------
2006............................. 102.000%
2007............................. 101.000%
2008 and thereafter.............. 100.000%
(b) At any time, or from time to time, on or prior to October 15, 2006,
AirGate may, at its option, use the net cash proceeds of one or more Equity
Offerings to redeem up to 35% of the principal amount of the Notes issued under
this Indenture at a redemption price equal to 100% of the principal amount so
redeemed plus a premium equal to the interest rate per annum applicable on the
date on which the notice of redemption is given, plus accrued and unpaid
interest thereon, if any, to the date of redemption; provided that:
(1) at least 65% of the principal amount of Notes issued under
this Indenture remains outstanding immediately after any such
redemption; and
(2) AirGate makes such redemption not more than 90 days after
the consummation of any such Equity Offering.
SECTION 3.8 Mandatory Redemption.
Except as set forth under Sections 3.9, 4.10, 4.14 and 4.23 hereof,
AirGate shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
SECTION 3.9 Repurchase Offers.
In the event that AirGate shall be required to commence an offer to all
Holders to repurchase Notes (a "Repurchase Offer") pursuant to an Asset Sale
Offer, a Change of Control Offer or an Event of Loss Offer, AirGate shall follow
the procedures specified below.
A Repurchase Offer shall commence no later than 30 days after a Change
of Control (unless AirGate is not required to make such offer pursuant to
Section 4.14 hereof), an Excess Proceeds Offer Triggering Event (as defined in
Section 4.10 or an Event of Loss Offer Triggering Event (as defined in Section
4.23), as the case may be, and remain open for a period of twenty (20) Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later than
five (5) Business Days after the termination of the Offer Period (the "Purchase
Date"), AirGate shall purchase the aggregate principal amount of Notes required
to be purchased pursuant to Section 4.10 hereof, in the case of an Asset Sale
Offer, Section 4.14 hereof, in the case of a Change of Control Offer or Section
4.23 in the case of an Event of Loss Offer (the "Offer Amount") or, if less than
the Offer Amount has been tendered, all Notes tendered in response to the
Repurchase Offer. Payment for any Notes so purchased shall be made in the same
manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest, if
any, shall be paid to the Person in whose name a Note is registered at the close
of business on such record date, and no additional interest, if any, shall be
payable to Holders who tender Notes pursuant to the Repurchase Offer.
Upon the commencement of a Repurchase Offer, AirGate shall send, by
first class mail, a notice to the Trustee and each of the Holders. The notice
shall contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to such Repurchase Offer. The Repurchase Offer shall be
made to all Holders. The notice, which shall govern the terms of the Repurchase
Offer, shall describe the transaction or transactions that constitute the Change
of Control, Excess Proceeds Offer Triggering Event or Event of Loss Offer
Triggering Event, as the case may be and shall state:
(a) that the Repurchase Offer is being made pursuant to this
Section 3.9 and Section 4.10, 4.14 or 4.23 hereof, as the case may be,
and the length of time the Repurchase Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase
Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrete or accrue interest;
(d) that, unless AirGate defaults in making such payment, any
Note accepted for payment pursuant to the Repurchase Offer shall cease
to accrete or accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to
a Repurchase Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note duly completed, or transfer by book-entry transfer, to
AirGate, the Depositary, or the Paying Agent at the address specified
in the notice not later than the close of business on the last day of
the Offer Period;
(f) that Holders shall be entitled to withdraw their election
if AirGate, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such ▇▇▇▇▇▇ is withdrawing
his election to have such Note purchased;
(g) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Trustee shall
select the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Trustee so that only
Notes in denominations of $1,000, or integral multiples thereof, shall
be purchased); and
(h) that Holders whose Notes were purchased only in part shall
be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
On or before 10:00 a.m. (New York City time) on each Purchase Date,
AirGate shall irrevocably deposit with the Trustee or Paying Agent (other than
AirGate or an Affiliate of AirGate) in immediately available funds the aggregate
purchase price equal to the Offer Amount, together with accrued and unpaid
interest, if any, thereon, to be held for payment in accordance with the terms
of this Section 3.9. On the Purchase Date, AirGate shall, to the extent lawful,
(i) accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Notes or portions thereof tendered pursuant to the Repurchase Offer,
or if less than the Offer Amount has been tendered, all Notes tendered, (ii)
deliver or cause the Paying Agent or depositary, as the case may be, to deliver
to the Trustee Notes so accepted and (iii) deliver to the Trustee an Officers'
Certificate stating that such Notes or portions thereof were accepted for
payment by AirGate in accordance with the terms of this Section 3.9. AirGate,
the Depositary or the Paying Agent, as the case may be, shall promptly (but in
any case not later than three (3) Business Days after the Purchase Date) mail or
deliver to each tendering Holder an amount equal to the purchase price of the
Notes tendered by such Holder and accepted by AirGate for purchase, plus any
accrued and unpaid interest, if any, thereon, and AirGate shall promptly issue a
new Note, and the Trustee, at the written request of AirGate, shall authenticate
and mail or deliver at the expense of AirGate such new Note, to such Holder,
equal in principal amount to any unpurchased portion of such ▇▇▇▇▇▇'s Notes
surrendered. Any Note not so accepted shall be promptly mailed or delivered by
AirGate to the Holder thereof. AirGate shall publicly announce in a newspaper of
general circulation or in a press release provided to a nationally recognized
financial wire service the results of the Repurchase Offer on the Purchase Date.
Other than as specifically provided in this Section 3.9, any purchase
pursuant to this Section 3.9 shall be made pursuant to the provisions of
Sections 3.1 through 3.6 hereof.
ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Notes.
(a) AirGate shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and interest, shall be considered paid for
all purposes hereunder on the date the Paying Agent, if other than AirGate or a
Subsidiary thereof, holds, as of 10:00 a.m. (New York City time), money
deposited by AirGate in immediately available funds and designated for and
sufficient to pay all such principal, premium, if any, and interest then due.
(b) AirGate shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
SECTION 4.2 Maintenance of Office or Agency.
AirGate shall maintain in the Borough of Manhattan, the City of New
York an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee or Registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon AirGate in
respect of the Notes and this Indenture may be served. AirGate shall give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time AirGate shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
AirGate may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve AirGate of
its obligation to maintain an office or agency in the Borough of Manhattan, the
City of New York for such purposes. AirGate shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
AirGate hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of AirGate in accordance with Section 2.3 hereof.
SECTION 4.3 Commission Reports.
Whether or not required by the rules and regulations of the Commission,
so long as any Notes are outstanding, AirGate shall furnish to the Trustee and
the Holders of Notes (i) all quarterly and annual financial information that is
required to be filed with the Commission on Forms 10-Q and 10-K to the extent
AirGate does not file such Forms with the Commission, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and,
with respect to the annual information only, a report on the annual financial
statements by AirGate's independent accountants and (ii) all current reports
that are required to be filed with the Commission on Form 8-K to the extent
AirGate does not file such reports with the Commission.
If AirGate has designated any of its Subsidiaries as Unrestricted
Subsidiaries, then the quarterly and annual financial information required by
the preceding paragraph shall include a reasonably detailed presentation, either
on the face of the financial statements or in the footnotes thereto, and in
Management's Discussion and Analysis of Financial Condition and Results of
Operations, of the financial condition and results of operations of AirGate and
its Restricted Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of AirGate.
In addition, whether or not required by the Commission, AirGate shall
file a copy of all of the information and reports referred to in clauses (i) and
(ii) above with the Commission for public availability unless the Commission
will not accept such a filing, within the time periods specified in the
Commission's rules and regulations, and make such information available to
securities analysts and prospective investors upon request. AirGate shall at all
times comply with TIA ss. 314(a).
To the extent AirGate does not publicly file such financial information
with the Commission, the financial information shall be filed with the Trustee
and mailed to the Holders at the expense of AirGate at their addresses appearing
in the register of Notes maintained by the Registrar, within 90 days after the
end of AirGate's fiscal years and within 45 days after the end of each of the
first three quarters of each such fiscal year.
AirGate shall provide the Trustee with a sufficient number of copies of
all reports and other documents and information and, if requested by AirGate,
the Trustee will deliver such reports to the Holders under this Section 4.3.
SECTION 4.4 Compliance Certificate.
AirGate shall deliver to the Trustee, within 90 days after the end of
each fiscal year, an Officers' Certificate stating that a review of the
activities of AirGate and its Subsidiaries during the preceding fiscal year has
been made under the supervision of the signing Officers with a view to
determining whether each has kept, observed, performed and fulfilled its
obligations under this Indenture (including, with respect to any Restricted
Payments made during such year, the basis upon which the calculations required
by Section 4.7 hereof were computed, which calculations may be based on
AirGate's latest available financial statements), and further stating, as to
each such Officer signing such certificate, that, to the best of his or her
knowledge, each entity has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action AirGate is taking or proposes to take with respect thereto) and
that, to the best of his or her knowledge, no event has occurred and remains in
existence by reason of which payments on account of the principal of, premium,
if any, or interest on the Notes is prohibited or if such event has occurred, a
description of the event and what action AirGate is taking or proposes to take
with respect thereto.
AirGate shall, so long as any of the Notes are outstanding, deliver to
the Trustee, forthwith upon any Officer becoming aware of any Default or Event
of Default, an Officers' Certificate specifying such Default or Event of Default
and what action AirGate is taking or proposes to take with respect thereto.
SECTION 4.5 Taxes; Insurance.
(a) AirGate shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency all material taxes, assessments and governmental levies,
except such as are contested in good faith and by appropriate proceedings and
with respect to which appropriate reserves have been taken in accordance with
GAAP or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Notes.
(b) (i) The Company will, and will cause each of its Restricted
Subsidiaries to maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks (including fire,
business interruption and other risks insured by extended coverage) as are
customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations (as determined by the Board of
Directors), including public liability insurance against claims for personal
injury, death or property damage occurring upon, about or in connection with the
use of any properties owned, occupied or controlled by it as well as such other
insurance as may be required by law.
(ii) All polices of casualty insurance maintained by or for
the benefit of the Company or any Restricted Subsidiary shall be
endorsed or otherwise amended to include a "standard" or "New York"
lender's loss payable endorsement, in favor of and satisfactory to the
Collateral Agent, which endorsement shall provide that if the insurance
carrier shall have received written notice from the Collateral Agent of
the occurrence of an Event of Default, then the insurance carrier shall
pay all proceeds otherwise payable to the Company or any Restricted
Subsidiary under such policies directly to the Collateral Agent;
provided that if all Events of Default have been cured, the Collateral
Agent shall, upon written request from the Company, return any such
insurance proceeds to the Company.
SECTION 4.6 Stay, Extension and Usury Laws.
AirGate covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and AirGate and each of the Guarantors (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
SECTION 4.7 Limitation on Restricted Payments.
AirGate shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly:
(1) declare or pay any dividend on, or make any distribution to the holders
of, any shares of its Equity Interests, other than dividends or
distributions payable solely in its Equity Interests, other than
Disqualified Stock, or in options, warrants or other rights to purchase
any such Equity Interests, other than Disqualified Stock;
(2) purchase, redeem or otherwise acquire or retire for value, other than
value consisting solely of Equity Interests of AirGate that is not
Disqualified Stock or options, warrants or other rights to acquire such
Equity Interests that is not Disqualified Stock, any Equity Interests
of AirGate, including options, warrants or other rights to acquire such
Equity Interests;
(3) redeem, repurchase, defease or otherwise acquire or retire for value,
other than value consisting solely of Equity Interests of AirGate that
is not Disqualified Stock or options, warrants or other rights to
acquire such Equity Interests that is not Disqualified Stock, more than
one year prior to any scheduled maturity, scheduled repayment or
scheduled sinking fund payment, any Indebtedness that is subordinate,
whether pursuant to its terms or by operation of law, in right of
payment to the Notes; or
(4) make any Investment that is not a Permitted Investment
(each of the foregoing actions set forth in clauses (1) through (4), other than
any such action that is a Permitted Investment, being referred to as a
"Restricted Payment"), unless, at the time thereof, after giving effect thereto,
(a) no Default or Event of Default shall have occurred and be
continuing;
(b) AirGate would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had been made at
the beginning of the applicable period, have been permitted to incur at least
$1.00 of additional Indebtedness pursuant to the first paragraph of Section 4.9
hereof; and
(c) after giving effect to such Restricted Payment on a pro forma
basis, the aggregate amount of all Restricted Payments made on or after the
Closing Date shall not exceed:
(i) the amount of (x) the Operating Cash Flow of AirGate after
June 30, 2003 through the end of the latest full fiscal quarter for
which consolidated financial statements of AirGate are available
preceding the date of such Restricted Payment, treated as a single
accounting period, less (y) 150% of the cumulative Consolidated
Interest Expense of AirGate after June 30, 2003 through the end of the
latest full fiscal quarter for which consolidated financial statements
of AirGate are available preceding the date of such Restricted Payment
treated as a single accounting period, plus
(ii) the aggregate Net Proceeds, including the fair market
value of property other than cash, as determined:
(A) in the case of any property other than cash with
a value less than $25 million, by the Board of Directors,
whose good-faith determination shall be conclusive and as
evidenced by a Board Resolution, or
(B) in the case of any property other than cash with
a value equal to or greater than $25 million, by an
accounting, appraisal or investment banking firm of national
standing and evidenced by a written opinion of such firm,
received by AirGate from the issuance and sale, other than to
a Restricted Subsidiary, on or after the Second Priority Notes
Closing Date of shares of its Equity Interests other than
Disqualified Stock, or any options, warrants or other rights
to purchase such Equity Interests, other than Disqualified
Stock, plus
(iii) the aggregate Net Proceeds, including the fair market
value of property other than cash, as determined:
(A) in the case of any property other than cash with
a value less than $25 million, by the Board of Directors,
whose good-faith determination shall be conclusive and as
evidenced by a Board Resolution, or
(B) in the case of any property other than cash with
a value equal to or greater than $25 million, by an
accounting, appraisal or investment banking firm of national
standing and evidenced by a written opinion of such firm
received by AirGate from the issuance or sale, other than to a
Restricted Subsidiary, after the Second Priority Notes Closing
Date of any Equity Interests of AirGate, other than
Disqualified Stock, or any options, warrants or other rights
to purchase such Equity Interests, other than Disqualified
Stock, upon the conversion of, or exchange for, Indebtedness
of AirGate or a Restricted Subsidiary, plus
(iv) the aggregate Net Proceeds received by AirGate or any
Restricted Subsidiary from the sale, disposition or repayment, other
than to AirGate or a Restricted Subsidiary, of any Investment made
after the Second Priority Notes Closing Date and constituting a
Restricted Payment in an amount equal to the lesser of (x) the return
of capital with respect to such Investment and (y) the initial amount
of such Investment previously made (and treated as a Restricted
Payment), in either case, less the cost of disposition of such
Investment.
The foregoing limitations in this Section 4.7 do not limit or restrict
the making of any Permitted Investment, and a Permitted Investment shall not be
counted as a Restricted Payment for purposes of clause (c), except that a
Permitted Investment made pursuant to clause (g) of the definition of Permitted
Investment shall be counted as a Restricted Payment for the purposes of clause
(c). In addition, so long as no Default or Event of Default shall have occurred
and be continuing, the foregoing limitations do not prevent AirGate from:
(5) the payment of a dividend on Equity Interests of AirGate within 60 days
after the declaration thereof if, on the date when the dividend was
declared, AirGate could have paid such dividend in accordance with the
provisions of this Indenture;
(6) the repurchase of Equity Interests of AirGate, including options,
warrants or other rights to acquire such Equity Interests, from former
employees or directors of AirGate or any Subsidiary thereof for
consideration not to exceed $2.0 million in the aggregate in any fiscal
year; provided that any unused amount in any 12-month period may be
carried forward to one or more future periods; provided, further, that
the aggregate amount of all such repurchases made pursuant to this
clause (2) does not exceed $10.0 million in the aggregate;
(7) the redemption, repurchase, defeasance or other acquisition or
retirement for value of Indebtedness that is subordinated in right of
payment to the Notes, including premium, if any, and accrued and unpaid
interest, with the proceeds of, or in exchange for:
(a) the proceeds of a capital contribution or a substantially
concurrent offering of, shares of Equity Interests, other than
Disqualified Stock, of AirGate or options, warrants or other rights to
acquire such Equity Interests, or
(b) Indebtedness that (i) is at least as subordinated in right
of payment to the Notes, including premium, if any, and accrued and
unpaid interest, as the Indebtedness being purchased and (ii) has a
final maturity date later than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the Weighted
Average Life to Maturity of, the Indebtedness being repurchased, with
Restricted Payments pursuant to this clause (3) not being counted as
Restricted Payments for purposes of clause (c) above;
(8) the repurchase, redemption or other acquisition of Equity Interests of
AirGate, or options, warrants or other rights to acquire such Equity
Interests, in exchange for, or out of the proceeds of a capital
contribution or a substantially concurrent offering of, shares of
common stock, other than Disqualified Stock, of AirGate or options,
warrants or other rights to acquire such Equity Interests;
(9) the repurchase of 13 1/2% Notes as described in the offering memorandum
dated as of October 7, 2004 under "Use of Proceeds";
(10) the payment of any dividend (or, in the case of any partnership or
limited liability company, any similar distribution) by a Restricted
Subsidiary of AirGate to the holders of its Equity Interests on a pro
rata basis; or
(11) other Restricted Payments not to exceed $5.0 million in the aggregate
at any time outstanding, with Restricted Payments pursuant to this
clause not being counted as Restricted Payments for purposes of clause
(c) above.
Restricted Payments made pursuant to clause (1) of the immediately
preceding paragraph will be included in the calculation of subsequent Restricted
Payments. In addition, if any Person in which an Investment is made, which
Investment constitutes a Restricted Payment when made, thereafter becomes a
Restricted Subsidiary, all such Investments previously made in such Person shall
no longer be counted as Restricted Payments for purposes of calculating the
aggregate amount of Restricted Payments pursuant to clause (c) of this Section
4.7 to the extent such Investments would otherwise be so counted.
For purposes of clauses (3) and (4) above, the net proceeds received by
AirGate from the issuance or sale of its Equity Interests either upon the
conversion of, or exchange for, Indebtedness of AirGate or any Restricted
Subsidiary shall be deemed to be an amount equal to (a) the sum of (1) the
principal amount or accreted value, whichever is less, of such Indebtedness on
the date of such conversion or exchange and (2) the additional cash
consideration, if any, received by AirGate upon such conversion or exchange,
less any payment on account of fractional shares, minus (b) all expenses
incurred in connection with such issuance or sale. In addition, for purposes of
clauses (3) and (4) above, the net proceeds received by AirGate from the
issuance or sale of its Equity Interests upon the exercise of any options or
warrants of AirGate or any Restricted Subsidiary shall be deemed to be an amount
equal to (a) the additional cash consideration, if any, received by AirGate upon
such exercise, minus (b) all expenses incurred in connection with such issuance
or sale.
For purposes of this Section 4.7, if a particular Restricted Payment
involves a noncash payment, including a distribution of assets, then such
Restricted Payment shall be deemed to be an amount equal to the cash portion of
such Restricted Payment, if any, plus an amount equal to the fair market value
of the noncash portion of such Restricted Payment, as determined by the Board of
Directors, whose good-faith determination shall be conclusive and evidenced by a
Board Resolution.
Not later than the date of making any Restricted Payment, AirGate shall
deliver to the Trustee an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which the calculations
required by this Section 4.7 were computed, together with a copy of any fairness
opinion or appraisal required by this Indenture.
The amount of any Investment outstanding at any time shall be deemed to
be equal to the amount of such Investment on the date made, less the return of
capital, repayment of loans and return on capital, including interest and
dividends, in each case, received in cash, up to the amount of such Investment
on the date made.
SECTION 4.8 Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries.
AirGate will not, and will not permit any of its Restricted
Subsidiaries, directly or indirectly, to create or permit to exist or become
effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to
AirGate or any of AirGate's Restricted Subsidiaries, or with respect to
any other interest or participation in, or measured by, its profits, or
pay any Indebtedness owed to AirGate or any of its Restricted
Subsidiaries;
(2) make loans or advances to AirGate or any of AirGate's Restricted
Subsidiaries; or
(3) transfer any of its properties or assets to AirGate or any of AirGate's
Restricted Subsidiaries.
However, the preceding restrictions will not apply to encumbrances or
restrictions existing under, or by reason of:
(1) Existing Indebtedness as in effect on the date of this Indenture and
any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings thereof, provided
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are no more
restrictive, taken as a whole, with respect to such dividend and other
payment restrictions than those contained in such Existing
Indebtedness, as in effect on the date of this Indenture;
(2) this Indenture, the Notes and the Security Documents;
(3) applicable law;
(4) any instrument governing Indebtedness or Capital Stock of a Person
acquired by AirGate or any of its Restricted Subsidiaries as in effect
at the time of such acquisition, except to the extent such Indebtedness
was incurred in connection with or in contemplation of such
acquisition, which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the
Person, or the property or assets of the Person, so acquired, provided
that, in the case of Indebtedness, such Indebtedness was permitted by
the terms of this Indenture to be incurred;
(5) customary non-assignment provisions in leases entered into in the
ordinary course of business and consistent with past practices;
(6) purchase money obligations for property acquired in the ordinary course
of business that impose restrictions on the property so acquired of the
nature described in clause (3) of the preceding paragraph of this
Section 4.8;
(7) any agreement for the sale or other disposition of a Restricted
Subsidiary that restricts distributions by such Restricted Subsidiary
pending its sale or other disposition;
(8) Permitted Refinancing Indebtedness, provided that the restrictions
contained in the agreements governing such Permitted Refinancing
Indebtedness are no more restrictive, taken as a whole, than those
contained in the agreements governing the Indebtedness being
refinanced;
(9) Liens relating to Indebtedness otherwise permitted to be incurred and
secured pursuant to the provisions of Sections 4.9 and 4.12 hereof that
limit the right of AirGate or any of its Restricted Subsidiaries to
dispose of the assets securing such Indebtedness;
(10) provisions with respect to the disposition or distribution of assets or
property in joint venture agreements and other similar agreements
entered into in the ordinary course of business; and
(11) restrictions on cash or other deposits or net worth imposed by
customers or vendors under contracts entered into in the ordinary
course of business.
SECTION 4.9 Limitation on Incurrence of Indebtedness
and Issuance of Preferred Stock.
AirGate shall not, and shall not permit any Restricted Subsidiary to,
incur any Indebtedness, including Acquired Debt, other than Permitted Debt, and
AirGate shall not issue any Disqualified Stock unless immediately after giving
effect to the incurrence of such Indebtedness or the issuance of such
Disqualified Stock and the receipt and application of the net proceeds
therefrom, including, without limitation, the application or use of the net
proceeds therefrom to repay Indebtedness or make any Restricted Payment, the
Consolidated Debt to Operating Cash Flow Ratio would be less than 6.5 to 1.0.
So long as no Default or Event of Default shall have occurred and be
continuing or would be caused thereby, the first paragraph of this covenant will
not prohibit the incurrence of any of the following items of Indebtedness
(collectively, "Permitted Debt"):
(1) the incurrence by AirGate and its Subsidiaries of Existing
Indebtedness;
(2) the incurrence by AirGate and the Guarantors of Indebtedness
represented by the Notes issued on the Closing Date and the related
Guarantees;
(3) the incurrence by AirGate or any of its Restricted Subsidiaries of
Indebtedness represented by Capital Lease Obligations, mortgage
financings or purchase money obligations, in each case, incurred for
the purpose of leasing or financing all or any part of the purchase
price or cost of construction or improvement of inventory, property,
plant or equipment used in the business of AirGate or such Restricted
Subsidiary, including telephone and computer systems and operating
facilities, in an aggregate principal amount not to exceed $5.0 million
at any time outstanding and the aggregate principal amount of such
Indebtedness does not exceed the fair market value (on the date of
incurrence thereof) of the property so leased or financed;
(4) the incurrence by AirGate or any of its Restricted Subsidiaries of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds
of which are used to refund, refinance or replace, Indebtedness, other
than intercompany Indebtedness, that was permitted by the first
paragraph of this Section 4.9 or clause (1), (2) or (11) of this
paragraph;
(5) the incurrence by AirGate or any of its Restricted Subsidiaries of
intercompany Indebtedness between or among AirGate and any of its
Wholly Owned Restricted Subsidiaries that are Guarantors; provided,
however, that:
(a) if AirGate or any Guarantor is the obligor on such
Indebtedness, such Indebtedness, other than intercompany Obligations
owed by AirGate to AGW Leasing Company, Inc. relating to tower leases
or licenses and leases of real property, must be expressly subordinated
to the prior payment in full in cash of all Obligations with respect to
the Notes, in the case of AirGate, or the Guarantee of such Guarantor,
in the case of a Guarantor; and
(b) (1) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a Person
other than AirGate or a Wholly Owned Restricted Subsidiary thereof that
is a Guarantor and (2) any sale or other transfer of any such
Indebtedness to a Person that is not either AirGate or a Wholly Owned
Restricted Subsidiary thereof that is a Guarantor, shall be deemed, in
each case, to constitute an incurrence of such Indebtedness by AirGate
or such Restricted Subsidiary, as the case may be, that was not
permitted by this clause (5);
(6) the incurrence by AirGate or any of its Restricted Subsidiaries of
Hedging Obligations that are incurred for the purpose of fixing or
hedging interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to be
outstanding;
(7) the guarantee by AirGate or any of the Guarantors of Indebtedness of
AirGate or a Restricted Subsidiary of AirGate that was permitted to be
incurred by another provision of this covenant;
(8) the incurrence by AirGate's Unrestricted Subsidiaries of Non-Recourse
Debt; provided, however, that if any such Indebtedness ceases to be
Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be
deemed to constitute an incurrence of Indebtedness by a Restricted
Subsidiary of AirGate that was not permitted by this clause (8);
(9) the accrual of interest, accretion or amortization of original issue
discount, the payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms, and the payment of
dividends on Disqualified Stock in the form of additional shares of the
same class of Disqualified Stock;
(10) Indebtedness (A) in respect of performance, surety or appeal bonds or
bankers' acceptances provided in the ordinary course of business; and
(B) arising from agreements providing for indemnification, adjustment
of purchase price or similar obligations, or from guarantees or letters
of credit, surety bonds or performance bonds securing any obligations
of AirGate or any Restricted Subsidiary pursuant to such agreements, in
any case incurred in connection with the disposition of any business,
assets or Restricted Subsidiary (other than guarantees of Indebtedness
incurred by a person acquiring all or any portion of such business,
assets or Restricted Subsidiary for the purpose of financing such
acquisition), in a principal amount not to exceed the gross proceeds
actually received by AirGate or any Restricted Subsidiary in connection
with such disposition; and
(11) the incurrence by AirGate or any of its Restricted Subsidiaries of
additional Indebtedness in an aggregate principal amount, or accreted
value, as applicable, at any time outstanding, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (11), not to exceed $75.0
million.
For purposes of determining compliance with this Section 4.9, in the
event that an item of proposed Indebtedness meets the criteria of more than one
of the categories of Permitted Debt described in clauses (1) through (11) above,
or is entitled to be incurred pursuant to the first paragraph of this Section
4.9, AirGate will be permitted to classify such item of Indebtedness on the date
of its incurrence, or later reclassify all or a portion of such item of
Indebtedness, in any manner that complies with this Section 4.9.
SECTION 4.10 Asset Sales.
AirGate, will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) AirGate, or the Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair
market value of the assets or Equity Interests issued or sold or
otherwise disposed of;
(2) such fair market value is determined by AirGate's Board of Directors
and, if such fair market value exceeds $5.0 million, is evidenced by a
resolution of the Board of Directors set forth in an Officers'
Certificate delivered to the Trustee;
(3) at least 75% of the consideration therefor received by AirGate or such
Restricted Subsidiary is in the form of cash or Cash Equivalents. For
purposes of this provision, each of the following shall be deemed to be
cash:
(a) any liabilities, as shown on AirGate's or such
Restricted Subsidiary's most recent balance sheet, of AirGate
or any Restricted Subsidiary, other than contingent
liabilities and liabilities that are by their terms
subordinated to the Notes or any Guarantee, that are assumed
by the transferee of any such assets pursuant to a customary
novation agreement that releases AirGate or such Restricted
Subsidiary from further liability; and
(b) any securities, Notes or other obligations
received by AirGate or any such Restricted Subsidiary from
such transferee that are contemporaneously, subject to
ordinary settlement periods, converted by AirGate or such
Restricted Subsidiary into cash, to the extent of the cash
received in that conversion; and
(4) if such Asset Sale involves the transfer of Collateral, (a) such Asset
Sale complies with the applicable provisions of the Security Documents
and (b) all consideration (other than cash) received in such Asset Sale
shall be expressly made subject to the Lien under the Security
Documents.
Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, AirGate may apply such Net Proceeds at its option:
(5) to acquire all or substantially all of the assets of, or a majority of
the Voting Stock of, another Permitted Business which becomes part of,
or which is or becomes, a Restricted Subsidiary;
(6) to make a capital expenditure in assets that are used or useful in a
Permitted Business; or
(7) to acquire other long-term assets that are used or useful in a
Permitted Business;
provided that if the assets disposed of in such Asset Sale were Collateral and
had a fair market value of $3.0 million or more, the assets acquired pursuant to
clauses (1) through (3) above are also Collateral. Pending the final application
of any such Net Proceeds, AirGate may temporarily reduce revolving credit
borrowings or otherwise invest such Net Proceeds in any manner that is not
prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as provided
in the preceding paragraph will constitute "Excess Proceeds." When the aggregate
amount of Excess Proceeds exceeds $10.0 million (an "Excess Proceeds Triggering
Event"), AirGate will make an Asset Sale Offer to all Holders of Notes and all
holders of other First Priority Indebtedness containing provisions similar to
those set forth in this Indenture with respect to offers to purchase or redeem
with the proceeds of sales of assets to purchase the maximum principal amount of
Notes and other First Priority Indebtedness that may be purchased out of the
Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100%
of the principal amount, plus accrued and unpaid interest, if any, to the date
of purchase and will be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, AirGate may use such Excess Proceeds for
any purpose not otherwise prohibited by this Indenture and the Security
Documents. If the aggregate principal amount of Notes and other First Priority
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes and the other First Priority
Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset
Sale Offer, the amount of Excess Proceeds shall be reset at zero.
AirGate will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the Asset Sale
provisions of this Indenture, AirGate will comply with the applicable securities
laws and regulations and will not be deemed to have breached its obligations
under the Asset Sale provisions of this Indenture by virtue of such conflict.
SECTION 4.11 Limitation on Transactions with Affiliates.
AirGate will not, and will not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each, an "Affiliate Transaction"), unless:
(1) such Affiliate Transaction is on terms that are no less
favorable to AirGate or the relevant Restricted Subsidiary
than those that would have been obtained in a comparable
transaction by AirGate or such Restricted Subsidiary with an
unrelated Person; and
(2) AirGate delivers to the Trustee:
(a) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $1.0 million, a resolution of the
Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with this
covenant and that such Affiliate Transaction has been approved
by a majority of the disinterested members of the Board of
Directors; provided, however, AirGate need not deliver such
Officers' Certificate to the Trustee with respect to any
Affiliate Transaction or series of related Affiliate
Transactions that involve (i) aggregate consideration not in
excess of $5.0 million and (ii) an Affiliate that (x) engages
in a related telecommunication services business, (y) bids on,
owns or leases spectrum or (z) provides management, billing or
customer care services; and
(b) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $25.0 million, an opinion as to the
fairness to the Holders of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal or
investment banking firm of national standing.
The following items shall not be deemed to be Affiliate Transactions
and, therefore, will not be subject to the provisions of the prior paragraph:
(1) any employment agreement, including payments made thereunder in
securities or cash, entered into by AirGate or any of its Restricted
Subsidiaries in the ordinary course of business of AirGate or such
Restricted Subsidiary;
(2) transactions between or among AirGate and/or its Restricted
Subsidiaries;
(3) payment of reasonable directors' fees, expenses and indemnification
(whether such payment is made pursuant to AirGate's charter or by-laws
or a written agreement with any director or officer) to Persons who are
not otherwise Affiliates of AirGate;
(4) Restricted Payments that are permitted by Section 4.7; and
(5) sales of Equity Interests, other than Disqualified Stock, and the grant
of registration rights with respect thereto, to Affiliates of AirGate.
SECTION 4.12 Limitation on Liens.
AirGate will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, incur any Lien of any kind, other than Permitted Liens,
on or with respect to any property or assets now owned or hereafter acquired or
any interest therein or any income or profits therefrom.
SECTION 4.13 Limitation on Sale and Leaseback Transactions.
AirGate will not, and will not permit any of its Restricted
Subsidiaries to, enter into any Sale and Leaseback Transaction; provided that
AirGate or any Restricted Subsidiary of AirGate that is a Guarantor may enter
into a Sale and Leaseback Transaction if:
(1) AirGate or that Guarantor, as applicable, could have (a) incurred
Indebtedness in an amount equal to the Attributable Debt relating to
such Sale and Leaseback Transaction under the first paragraph of
Section 4.9 hereof and (b) incurred a Lien to secure such Indebtedness
pursuant to Section 4.12 hereto;
(2) the gross cash proceeds of that Sale and Leaseback Transaction are at
least equal to the fair market value of the property that is the
subject of such Sale and Leaseback Transaction, as determined in good
faith by the Board of Directors and, if the aggregate consideration
received in the Sale and Leaseback Transaction exceeds $1.0 million, is
set forth in an Officers' Certificate delivered to the Trustee; and
(3) the transfer of assets in that Sale and Leaseback Transaction is
permitted by, and AirGate applies the proceeds of such transaction in
compliance with, Section 4.10 hereof.
SECTION 4.14 Offer to Purchase upon Change Of Control.
Upon the occurrence of a Change of Control, each Holder will have the
right to require AirGate to repurchase all or any part, equal to $1,000 or an
integral multiple thereof, of such Holder's Notes pursuant to the offer
described below (the "Change of Control Offer") at an offer price in cash equal
to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest thereon, if any, to the date of purchase (subject to the right of
holders of record on the relevant date to receive interest due on the relevant
interest payment date) (the "Change of Control Payment"). Within 30 days
following any Change of Control, AirGate will mail a notice to each Holder
describing the transaction or transactions that constitute the Change of Control
and offering to repurchase Notes on the date specified in such notice, which
date shall be no earlier than 30 days and no later than 60 days from the date
such notice is mailed (the "Change of Control Payment Date"), pursuant to the
procedures required by Section 3.9 hereof and described in such notice. AirGate
shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Notes as a
result of a Change of Control.
On the Change of Control Payment Date, AirGate shall, to the extent
lawful, (a) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (b) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and (c) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by
AirGate. The Paying Agent will promptly mail to each Holder of Notes so tendered
the Change of Control Payment for such Notes, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder
a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any; provided that each such new Note will be in a principal
amount of $1,000 or an integral multiple thereof. AirGate will publicly announce
the results of the Change of Control Offer on or as soon as practicable after
the Change of Control Payment Date.
The Change of Control provisions described above will be applicable
whether or not any other provisions of this Indenture are applicable. Except as
described above with respect to a Change of Control, this Indenture does not
contain provisions that permit the Holders to require that AirGate repurchase or
redeem the Notes in the event of a takeover, recapitalization or similar
transaction.
AirGate shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
herein applicable to a Change of Control Offer made by AirGate and purchases all
Notes validly tendered and not withdrawn under such Change of Control Offer.
To the extent that the provisions of any securities laws or regulations
conflict with the Change of Control provisions of this Indenture, AirGate will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under the Change of Control provisions
of this Indenture by virtue of such conflict.
SECTION 4.15 Corporate Existence.
Subject to Section 4.14 and Article V hereof, as the case may be,
AirGate shall do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence and the corporate, partnership
or other existence of each of its Subsidiaries in accordance with the respective
organizational documents (as the same may be amended from time to time) of
AirGate or any such Subsidiary and the rights (charter and statutory), licenses
and franchises of AirGate and its Subsidiaries; provided that AirGate shall not
be required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Subsidiaries, if the Board of
Directors of AirGate shall determine that the preservation thereof is no longer
desirable in the conduct of the business of AirGate and its Subsidiaries, taken
as a whole, and that the loss thereof is not adverse in any material respect to
the Holders.
SECTION 4.16 Limitation on Issuances and Sales of Equity Interests in
Wholly Owned Restricted Subsidiaries.
AirGate will not, and will not permit any of its Restricted
Subsidiaries to, transfer, convey, sell, lease or otherwise dispose of any
Equity Interests in any Wholly Owned Restricted Subsidiary of AirGate to any
Person, other than AirGate or a Wholly Owned Restricted Subsidiary of AirGate,
unless:
(1) such transfer, conveyance, sale, lease or other disposition is of all
the Equity Interests in such Wholly Owned Restricted Subsidiary; and
(2) such transfer, conveyance, sale, lease or other disposition is effected
in accordance with Section 4.10.
In addition, AirGate will not permit any Wholly Owned Restricted
Subsidiary of AirGate to issue any of its Equity Interests, other than, if
necessary, shares of its Capital Stock constituting directors' qualifying
shares, to any Person other than to AirGate or a Wholly Owned Restricted
Subsidiary of AirGate.
SECTION 4.17 Business Activities.
AirGate shall not, and shall not permit any Restricted Subsidiary to,
engage in any business other than Permitted Businesses.
SECTION 4.18 Payment for Consents.
AirGate will not, and will not permit any of its Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration to or for the
benefit of any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Notes
unless such consideration is offered to be paid and is paid to all Holders that
consent, waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
SECTION 4.19 Limitation on Amendment, Etc. of Second Priority Notes.
AirGate shall cause the Notes to be designated as "Designated Senior
Debt" under the indenture governing the Second Priority Notes and will not amend
the terms of the indenture or security documents governing the Second Priority
Notes in any manner that would affect the ranking of the Second Priority Notes
or the Liens on the Collateral securing the Second Priority Notes in a manner
materially adverse to the Holders of Notes.
SECTION 4.20 Additional Guarantees.
If AirGate or any of its Restricted Subsidiaries acquires or creates
another Restricted Subsidiary after the date of this Indenture, then that newly
acquired or created Restricted Subsidiary must become a Guarantor and (i)
execute a supplemental indenture satisfactory to the Trustee making such
Restricted Subsidiary a party to this Indenture, (ii) execute an endorsement of
Guarantee substantially in the form of Exhibit B attached hereto, (iii) deliver
an Opinion of Counsel, which shall state in addition to the other matters
required herein, that such Guarantee has been duly authorized and is validly
binding and enforceable subject to customary exceptions, to the Trustee and (iv)
become a party to the Security Documents, in each case within 10 Business Days
of the date on which it was acquired or created.
SECTION 4.21 Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors may designate any Restricted Subsidiary as an
Unrestricted Subsidiary if that designation would not cause a Default. If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary, all
outstanding Investments owned by AirGate and its Restricted Subsidiaries in the
Subsidiary so designated will be deemed to be an Investment made as of the time
of such designation and will reduce the amount available for Restricted Payments
under clause (c) of Section 4.7 or Permitted Investments, as applicable. All
such outstanding Investments will be valued at their fair market value at the
time of such designation. That designation will only be permitted if such
Restricted Payment would be permitted at that time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The
Board of Directors may redesignate any Unrestricted Subsidiary to be a
Restricted Subsidiary if the redesignation would not cause a Default.
SECTION 4.22 Further Instruments and Acts.
Upon request by the Trustee, AirGate shall execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purposes of this Indenture.
SECTION 4.23 Event of Loss.
In the event of an Event of Loss with respect to any Collateral with a
fair market value (or replacement cost, if greater) in excess of $1.0 million,
AirGate or the affected Guarantor, as the case may be, will apply any Net Loss
Proceeds from such Event of Loss to the rebuilding, repair, replacement or
construction of improvements to the affected Property (the "Subject Property"),
with no concurrent obligation to make any purchase of any Notes if AirGate
delivers to the Trustee within 90 days of such Event of Loss:
(1) a written opinion from a reputable contractor that the Subject Property
can be rebuilt, repaired, replaced or constructed and operating within
360 days from the date of such certification; and
(2) an Officers' Certificate certifying that AirGate or the affected
Guarantor has available from Net Loss Proceeds (including amounts
collectible from the applicable insurance carrier) or other sources
sufficient funds to complete the rebuilding, repair, replacement or
construction described in clause (1) above.
Any Net Loss Proceeds that are not reinvested or not permitted to be
reinvested as provided in the first sentence of this Section 4.23 will
constitute Excess Loss Proceeds. When the aggregate amount of Excess Loss
Proceeds received by AirGate and its Restricted Subsidiaries exceeds $10.0
million (and "Event of Loss Offer Triggering Event"), AirGate will make an
offer, on a pro rata basis (an "Event of Loss Offer"), to all holders of Notes
and all holders of other First Priority Indebtedness containing provisions
similar to those set forth in this Indenture with respect to offers to purchase
or redeem with the proceeds resulting from an Event of Loss to purchase the
maximum principal amount of Notes and such other First Priority Indebtedness
that may be purchased out of the Excess Loss Proceeds. The offer price in any
Event of Loss Offer will be equal to 100% of the principal amount plus accrued
and unpaid interest, if any, to the purchase date and will be payable in cash.
If any Excess Loss Proceeds remain after consummation of any purchase
contemplated by an Event of Loss Offer, AirGate may use such Excess Loss
Proceeds for any purpose not otherwise prohibited by this Indenture and the
Security Documents. Upon completion of any such Event of Loss Offer, the amount
of Excess Loss Proceeds shall be reset to zero.
AirGate will comply, to the extent applicable, with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws or regulations
in connection with the repurchase of Notes pursuant to an Event of Loss Offer.
To the extent that the provisions of any securities laws or regulations conflict
with provisions of this Section 4.23, AirGate will comply with the applicable
securities laws and regulations and will be deemed not to have breached its
obligations under this Section 4.23 by virtue of such conflict.
ARTICLE V
SUCCESSORS
SECTION 5.1 Merger, Consolidation or Sale of Assets.
AirGate shall not, in any transaction or series of related
transactions, merge or consolidate with or into, or sell, assign, convey,
transfer or otherwise dispose of its properties and assets substantially as an
entirety to, any Person, and shall not permit any of its Restricted Subsidiaries
to enter into any such transaction or series of transactions if such transaction
or series of transactions, in the aggregate, would result in a sale, assignment,
conveyance, transfer or other disposition of the properties and assets of
AirGate and its Restricted Subsidiaries, taken as a whole, substantially as an
entirety to any Person, unless, at the time and after giving effect thereto:
(1) either: (A) if the transaction or series of transactions is a
consolidation of AirGate with or a merger of AirGate with or into any
other Person, AirGate shall be the surviving Person of such merger or
consolidation, or (B) the Person formed by any consolidation with or
merger with or into AirGate, or to which the properties and assets of
AirGate or AirGate and its Restricted Subsidiaries, taken as a whole,
as the case may be, substantially as an entirety are sold, assigned,
conveyed or otherwise transferred (any such surviving Person or
transferee Person referred to in this clause (B) being the "Surviving
Entity"), shall be a corporation, partnership, limited liability
company or trust organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia and
shall expressly assume by a supplemental indenture executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of AirGate under the Notes, this Indenture and the Security
Documents and, in each case, this Indenture and the Security Documents,
as so supplemented, shall remain in full force and effect;
(2) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis including
any Indebtedness incurred or anticipated to be incurred in connection
with or in respect of such transaction or series of transactions, no
Default or Event of Default shall have occurred and be continuing; and
(3) AirGate or the Surviving Entity will, at the time of such transaction
and after giving pro forma effect thereto as if such transaction had
occurred at the beginning of the applicable period, (A) have
Consolidated Net Worth immediately after the transaction equal to or
greater than the Consolidated Net Worth of AirGate immediately
preceding the transaction and (B) be permitted to Incur at least $1.00
of additional Indebtedness pursuant to the first paragraph of Section
4.9 hereof; provided, however, that the foregoing requirements shall
not apply to any transaction or series of transactions involving the
sale, assignment, conveyance, transfer or other disposition of the
properties and assets by any Restricted Subsidiary or AirGate to any
other Restricted Subsidiary or AirGate, or the merger or consolidation
of any Restricted Subsidiary with or into any other Restricted
Subsidiary or AirGate.
AirGate may not, directly or indirectly, lease all or substantially all
of its properties or assets, in one or more related transactions, to any other
Person.
In connection with any consolidation, merger, sale, assignment,
conveyance, transfer or other disposition contemplated by this Section 5.1,
AirGate shall deliver, or cause to be delivered, to the Trustee, in form and
substance reasonably satisfactory to the Trustee, an Officers' Certificate,
which shall set forth the manner of determination of AirGate's compliance with
clause (3) of this Section 5.1 stating that such consolidation, merger, sale,
assignment, conveyance, transfer, or other disposition and the supplemental
indenture in respect thereof, required under clause (1)(B) of the preceding
paragraph, comply with the requirements of this Indenture and an Opinion of
Counsel.
For all purposes of this Indenture and the Notes, including the
provisions described in the two immediately preceding paragraphs and Sections
4.9 and 4.21 hereof, Subsidiaries of any Surviving Entity will, upon such
transaction or series of transactions, become Restricted Subsidiaries or
Unrestricted Subsidiaries as provided pursuant to Section 4.21 hereof and all
Indebtedness of the Surviving Entity and its Subsidiaries that was not
Indebtedness of AirGate and its Subsidiaries immediately prior to such
transaction or series of transactions shall be deemed to have been incurred upon
such transaction or series of transactions.
The Surviving Entity shall succeed to, and be substituted for, and may
exercise every right and power of AirGate under this Indenture and the Security
Documents, and the predecessor company shall be released from all its
obligations and covenants under this Indenture, the Security Documents and the
Notes.
SECTION 5.2 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of AirGate in accordance with Section 5.1 hereof, the successor corporation
formed by such consolidation or into or with which AirGate is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to AirGate), and shall exercise every right
and power of AirGate under this Indenture with the same effect as if such
successor Person had been named as AirGate herein.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 Events Of Default.
Each of the following constitutes an "Event of Default":
(i) default for 30 days in the payment when due of interest on the
Notes;
(ii) default in payment when due of principal of or premium, if
any, on the Notes;
(iii) failure by AirGate or any of its Restricted Subsidiaries to
comply with the provisions of Sections 4.10, 4.14 or 4.23
hereof;
(iv) failure by AirGate or any of its Restricted Subsidiaries for
60 days after notice to comply with the provisions of any
other agreement in this Indenture;
(v) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by AirGate or
any of its Restricted Subsidiaries or the payment of which is
guaranteed by AirGate or any of its Restricted Subsidiaries
whether such Indebtedness or guarantee now exists, or is
created after the date hereof, which default:
(a) is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness
on the date of such default (a "Payment Default") or
(b) results in the acceleration of such Indebtedness
prior to its express maturity,
and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under
which there has been a Payment Default or the maturity of which has
been so accelerated, aggregates $10.0 million or more;
(vi) failure by AirGate or any of its Restricted Subsidiaries to pay final
judgments aggregating in excess of $10.0 million, which judgments are
not paid, discharged or stayed for a period of 60 days;
(vii) any Security Document or the Intercreditor Agreement is held to be
unenforceable or invalid for any reason, the security interests
purported to be created by the Security Documents are held to be
unenforceable, invalid or impaired with respect to a material portion
of the Collateral, AirGate or any Guarantor defaults in the performance
of the terms of any of the Security Documents or the Intercreditor
Agreement in a manner which adversely affects the enforceability or
validity of the security interest on a material portion of the
Collateral or in a manner which adversely affects the condition or
value of a material portion of the Collateral, or AirGate or any
Guarantor repudiates or disaffirms any of its obligations under any of
the Security Documents or the Intercreditor Agreement;
(viii) except as permitted by this Indenture, any Guarantee shall be held in
any judicial proceeding to be unenforceable or invalid or shall cease
for any reason to be in full force and effect or any Guarantor, or any
Person acting on behalf of any Guarantor, shall deny or disaffirm its
obligations under its Guarantee;
(ix) AirGate, any Restricted Subsidiary that is a Significant Subsidiary or
any group of Restricted Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary, pursuant to or within the meaning
of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in an
involuntary case,
(c) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(d) makes a general assignment for the benefit of its creditors,
or
(e) generally is not paying its debts as they become due;
(x) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(a) is for relief against AirGate or any Restricted Subsidiary
that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a
Significant Subsidiary, in an involuntary case;
(b) appoints a Custodian of AirGate or any Restricted Subsidiary
that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a
Significant Subsidiary or for all or substantially all of the
property of the Company or any of its Restricted Subsidiaries;
or
(c) orders the liquidation of AirGate or any Restricted Subsidiary
that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a
Significant Subsidiary and the order or decree remains
unstayed and in effect for 60 consecutive days; and
(xi) any event occurs that causes, subject to any applicable grace period,
an Event of Termination under any of the Sprint Agreements; and
(xii) the occurrence of any Event of Default as defined in the indenture
governing the Second Priority Notes; provided that an Event of Default
as defined in the indenture governing the Second Priority Notes that,
in accordance with its terms, (x) requires the passage of a period of
time shall not be an Event of Default with respect to the Notes prior
to the passage of such period of time and/or (y) requires the giving of
notice shall not be an Event of Default with respect to the Notes
unless the Trustee or the holders of Notes shall provide notice in
accordance with the provisions of this Indenture generally applicable
to the giving of notices of default, but shall not require that the
holders of Second Priority Notes provide any comparable notice.
The term "Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
SECTION 6.2 Acceleration.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately. Upon such declaration,
the principal of, premium, if any, and accrued and unpaid interest on the Notes
shall be due and payable immediately. Notwithstanding the foregoing, in the case
of an Event of Default as described in clause (ix) or (x) of Section 6.1 hereof,
all outstanding Notes will become due and payable without further action or
notice. Holders may not enforce this Indenture or the Notes except as provided
in this Indenture.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of AirGate with the
intention of avoiding payment of the premium that AirGate would have had to pay
if AirGate then had elected to redeem the Notes pursuant to Section 3.7 hereof,
an equivalent premium shall also become and be immediately due and payable to
the extent permitted by law upon the acceleration of the Notes. If an Event of
Default occurs prior to October 15, 2006 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of AirGate with the intention of
avoiding the prohibition on redemption of the Notes prior to October 15, 2006,
then the amount payable in respect of such Notes for purposes of this paragraph
shall be equal to 102% of the aggregate principal amount.
SECTION 6.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium, if any,
interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
SECTION 6.4 Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes waive any existing Default or Event of Default and its consequences
under this Indenture except a continuing Default or Event of Default in the
payment of interest on, or the principal of, the Notes (other than as a result
of an acceleration), which shall require the consent of all of the Holders of
the Notes then outstanding.
SECTION 6.5 Control by Majority.
The Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust power conferred on it. However, (i) the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that the Trustee determines
may be unduly prejudicial to the rights of other Holders or that may involve the
Trustee in personal liability, and (ii) the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction. In
case an Event of Default shall occur (which shall not be cured), the Trustee
will be required, in the exercise of its power, to use the degree of care of a
prudent man in the conduct of his own affairs. Notwithstanding any provision to
the contrary in this Indenture, the Trustee is under no obligation to exercise
any of its rights or powers under this Indenture at the request of any Holder,
unless such Holder shall offer to the Trustee security and indemnity
satisfactory to it against any loss, liability or expense.
SECTION 6.6 Limitation on Suits.
A Holder may pursue a remedy with respect to this Indenture or the
Notes only if:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default or the Trustee receives such notice from
AirGate;
(b) the Holders of at least 25% in aggregate principal amount
of the then outstanding Notes make a written request to the Trustee to
pursue the remedy;
(c) such Holder or Holders offer and, if requested, provide to
the Trustee indemnity or security reasonably satisfactory to the
Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of such indemnity or security; and
(e) during such 60-day period the Holders of a majority in
aggregate principal amount of the then outstanding Notes do not give
the Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
SECTION 6.7 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal, premium, if any, and interest on or
after the respective due dates expressed in the Note (including in connection
with an offer to purchase), or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 6.8 Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(i) or (ii) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against AirGate for the whole amount
of principal of, premium and interest remaining unpaid on the Notes and interest
on overdue principal and, to the extent lawful, interest and such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
SECTION 6.9 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to AirGate (or any other
obligor upon the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other securities or
property payable or deliverable upon the conversion or exchange of the Notes or
on any such claims and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.7 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money pursuant to this Article VI, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.7 hereof, including payment of all reasonable
compensation, expense and liabilities incurred, and all advances made,
by the Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, and interest ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any, and interest
respectively;
Third: without duplication, to the Holders for any other
Obligations owing to the Holders under this Indenture and the Notes;
and
Fourth: to AirGate or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.7 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture or the TIA and the Trustee need perform
only those duties that are specifically set forth in this Indenture or
the TIA and no others, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture (but
need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
However, the Trustee shall examine the certificates and opinions furnished to it
to determine whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section 7.1;
(ii) the Trustee shall not be liable for any error of judgment made in good
faith by an officer of the Trustee, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by
it pursuant to Section 6.5 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b) and (c) of this Section 7.1.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with AirGate. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.2 Rights of Trustee.
(a) The Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting on any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. Prior to taking, suffering or
admitting any action, the Trustee may consult with counsel of the Trustee's own
choosing and the Trustee shall be fully protected from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
conclusive reliance on the advice or opinion of such counsel.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any attorney or agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture. Any request or direction of AirGate
mentioned herein shall be sufficiently evidenced by an Officers' Certificate and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution. Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from AirGate or a Guarantor shall be
sufficient if signed by an Officer of AirGate or such Guarantor.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction.
(g) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or documents, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine
during normal business hours the books, records and premises of AirGate,
personally or by agent or attorney at the sole cost of AirGate and shall incur
no liability or additional liability of any kind by reason of such inquiry or
investigation.
(h) The rights, privileges, protections and benefits given to the
Trustee, including, without limitation, its rights to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Persons employed to act
hereunder.
(i) The Trustee may request that AirGate deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
SECTION 7.3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with AirGate or any Affiliate
of AirGate with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the Commission for permission
to continue as Trustee or resign. Any Agent may do the same with like rights and
duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.4 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for AirGate's use of the proceeds from the Notes or any money paid
to AirGate or upon AirGate's direction under any provision of this Indenture, it
shall not be responsible for the use or application of any money received by any
Paying Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes, any statement or
recital on any Officers' Certificate delivered to the Trustee under Article IV
or Sections 8.4 or 10.4 hereof, or any other document in connection with the
sale of the Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.5 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
actually known to an officer of the Trustee directly responsible for the
administration of this Indenture, the Trustee shall mail to Holders a notice of
the Default or Event of Default within 90 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal of, premium, if
any, or interest on any Note, the Trustee may withhold the notice if and so long
as the Trustee in good faith determines that withholding the notice is in the
interests of the Holders.
SECTION 7.6 Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders a brief report dated as of such reporting date
that complies with TIA ss. 313(a) (but if no event described in TIA ss. 313(a)
has occurred within the twelve months preceding the reporting date, no report
need be transmitted). The Trustee also shall comply with TIA ss. 313(b). The
Trustee shall also transmit by mail all reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the Holders shall
be mailed to AirGate and filed with the Commission and each stock exchange on
which AirGate has informed the Trustee in writing the Notes are listed in
accordance with TIA ss. 313(d). AirGate shall promptly notify the Trustee when
the Notes are listed on any stock exchange and of any delisting thereof.
SECTION 7.7 Compensation and Indemnity.
AirGate shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. AirGate shall reimburse the Trustee promptly upon
request for all reasonable disbursements, advances and expenses incurred or made
by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
AirGate shall indemnify the Trustee (which for purposes of this Section
7.7 shall include its officers, directors, employees and agents) against any and
all claims, damage, losses, liabilities or expenses incurred by it arising out
of or in connection with the acceptance or administration of its duties under
this Indenture, including the costs and expenses of enforcing this Indenture
against AirGate (including this Section 7.7) and defending itself against any
claim (whether asserted by AirGate or any Holder or any other person) or
liability in connection with the exercise or performance of any of its powers or
duties hereunder except to the extent any such loss, claim, damage, liability or
expense may be attributable to its negligence or bad faith. The Trustee shall
notify AirGate promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify AirGate shall not relieve AirGate of its obligations
hereunder. AirGate shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and AirGate shall pay the
reasonable fees and expenses of such counsel. AirGate need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
The obligations of AirGate under this Section 7.7 shall survive the
satisfaction and discharge of this Indenture or the resignation or removal of
the Trustee.
To secure AirGate's payment obligations in this Section 7.7, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal or
interest, if any, on particular Notes. Such Lien shall survive the satisfaction
and discharge of this Indenture and the resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1 (ix), (x) or (xi) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to
the extent applicable.
SECTION 7.8 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.8.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying AirGate. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and AirGate in writing. AirGate may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, AirGate shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by AirGate.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, AirGate, or the
Holders of at least 10% in principal amount of the then outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10 hereof, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to AirGate. Thereupon, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and the duties of the Trustee under
this Indenture. The successor Trustee shall mail a notice of its succession to
the Holders. The retiring Trustee shall promptly transfer all property held by
it as Trustee to the successor Trustee, provided that all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in Section
7.7 hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.8, AirGate's obligations under Section 7.7 hereof shall continue for the
benefit of the retiring Trustee.
SECTION 7.9 Successor Trustee by ▇▇▇▇▇▇, Etc.
If the Trustee or any Agent consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee or any Agent, as applicable.
SECTION 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power and that is subject to supervision or examination by federal or
state authorities. The Trustee together with its affiliates shall at all times
have a combined capital surplus of at least $50.0 million as set forth in its
most recent annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss.ss.310(a)(l), (2) and (5). The Trustee is subject to TIA
ss. 310(b) including the provision in ss. 310(b)(1); provided that there shall
be excluded from the operation of TIA ss. 310(b)(1) any indenture or indentures
under which other securities, or conflicts of interest or participation in other
securities, of AirGate or the Guarantors are outstanding if the requirements for
exclusion set forth in TIA ss. 310(b)(1) are met.
SECTION 7.11 Preferential Collection of Claims Against Airgate.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
SECTION 7.12 Trustee's Application for Instructions from Airgate.
Any application by the Trustee for written instructions from AirGate
may, at the option of the Trustee, set forth in writing any action proposed to
be taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than five Business
Days after the date any officer of AirGate actually receives such application,
unless any such officer shall have consented in writing to any earlier date)
unless prior to taking any such action (or the effective date in the case of an
omission), the Trustee shall have received written instructions in response to
such application specifying the action to be taken or omitted.
SECTION 7.13 Limitation of Liability.
It is understood by the parties hereto other than The Bank of New York
Trust Company, N.A. (the "Bank") that the sole recourse of the parties hereto
other than the Bank in respect of the obligations of the Trust hereunder and
under the other documents contemplated thereby and related thereto to which it
is a party shall be to the parties hereto other than the Bank. In addition, the
Bank is entering into this Indenture and the other documents contemplated
thereby and related thereto to which it is a party solely in its capacity as
trustee under this Indenture and not in its individual capacity (except as
expressly stated herein) and in no case shall the Bank (or any Person acting as
successor trustee under this Indenture) be personally liable for or on account
of any of the statements, representations, warranties, covenants or obligations
stated to be those of AirGate hereunder or thereunder, all such liability, if
any, being expressly waived by the parties hereto and any person claiming by,
through or under such party, provided, however, that the Bank (or any such
successor trustee) shall be personally liable hereunder and thereunder for its
own negligence or willful misconduct or for its material breach of its
covenants, representations and warranties contained herein or therein, to the
extent expressly covenanted or made in its individual capacity. In no event
shall the Trustee, in its capacity as Paying Agent, Registrar or in any other
capacity hereunder, be liable under or in connection with this Indenture for
indirect, special, incidental, punitive or consequential losses or damages of
any kind whatsoever, including but not limited to lost profits, whether or not
foreseeable, even if the Trustee has been advised of the possibility thereof and
regardless of the form of action in which such damages are sought. The
provisions of this Section shall survive the termination of this Indenture and
the resignation or removal of the Trustee.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1 Option to Effect Legal Defeasance or Covenant Defeasance.
AirGate may, at the option of its Boards of Directors evidenced by a
Board Resolution set forth in an Officers' Certificate, at any time, elect to
have either Section 8.2 or 8.3 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article VIII.
SECTION 8.2 Legal Defeasance and Discharge.
Upon AirGate's exercise under Section 8.1 hereof of the option
applicable to this Section 8.2, AirGate shall, subject to the satisfaction of
the conditions set forth in Section 8.4 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that AirGate shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.5 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all of its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of AirGate, shall execute proper instruments acknowledging
the same), except for the following provisions which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive payments in respect of the principal of, premium,
if any, and interest, if any, on such Notes when such payments are due from the
trust referred to in Section 8.4(a); (b) AirGate's obligations with respect to
such Notes under Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.10 and 4.2 hereof; (c)
the rights, powers, trusts, benefits and immunities of the Trustee, including
without limitation thereunder, under Section 7.7, 8.5 and 8.7 hereof and
AirGate's obligations in connection therewith and (d) the provisions of this
Article VIII. Subject to compliance with this Article VIII, AirGate may exercise
its option under this Section 8.2 notwithstanding the prior exercise of its
option under Section 8.3 hereof.
SECTION 8.3 Covenant Defeasance.
Upon AirGate's exercise under Section 8.1 hereof of the option
applicable to this Section 8.3, AirGate shall, subject to the satisfaction of
the conditions set forth in Section 8.4 hereof, be released from its obligations
under the covenants contained in Sections 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13,
4.14, 4.15, 4.16, 4.17, 4.18, 4.19, 4.20, 4.21, 4.23 and 5.1 hereof with respect
to the outstanding Notes on and after the date the conditions set forth below
are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
AirGate or any of its Subsidiaries may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.1
hereof, but, except as specified above, the remainder of this Indenture and such
Notes shall be unaffected thereby. In addition, upon AirGate's exercise under
Section 8.1 hereof of the option applicable to this Section 8.3, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, Sections
6.1(iii) and (iv) hereof shall not constitute Events of Default.
SECTION 8.4 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.2 or 8.3 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) AirGate must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as shall be sufficient, in the written opinion of a nationally
recognized firm of independent public accountants, to pay the principal
of, premium and interest on the outstanding Notes on the stated
maturity or on the applicable redemption date, as the case may be, and
AirGate must specify whether the Notes are being defeased to maturity
or to a particular redemption date;
(b) in the case of an election under Section 8.2 hereof,
AirGate shall have delivered to the Trustee an Opinion of Counsel
reasonably acceptable to the Trustee confirming that (A) AirGate has
received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date hereof, there has been a change
in the applicable federal income tax law, in either case to the effect
that, and based thereon such opinion of counsel shall confirm that, the
Holders of the outstanding Notes shall not recognize income, gain or
loss for federal income tax purposes as a result of such Legal
Defeasance and shall be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.3 hereof,
AirGate shall have delivered to the Trustee an Opinion of Counsel
reasonably acceptable to the Trustee confirming that Holders of the
outstanding Notes shall not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and shall
be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing either: (i) on the date of such deposit (other than a
Default or Event of Default resulting from the borrowing of funds to be
applied to such deposit); or (ii) insofar as Events of Default from
bankruptcy or insolvency events are concerned, at any time in the
period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under this
Indenture or any material agreement or instrument other than this
Indenture to which AirGate or any of its Restricted Subsidiaries is a
party or by which AirGate or any of its Restricted Subsidiaries is
bound;
(f) AirGate must deliver to the Trustee an Opinion of Counsel
to the effect that, assuming no intervening bankruptcy of AirGate
between the date of deposit and the 91st day following the deposit and
assuming that no holder is an ``insider'' of AirGate under applicable
bankruptcy law, after the 91st day following the deposit, the trust
funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(g) AirGate must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by AirGate with the
intent of preferring the Holders over the other creditors of AirGate or
with the intent of defeating, hindering, delaying or defrauding
creditors of AirGate or others; and
(h) AirGate must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance
have been complied with as contemplated by this Section 8.4.
SECTION 8.5 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.6 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.5, the
"Trustee") pursuant to Section 8.4 hereof in respect of the outstanding Notes
shall be held in trust, shall not be invested, and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including AirGate or any Subsidiary
acting as Paying Agent) as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
AirGate shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.4 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding, the
Trustee shall deliver or pay to AirGate from time to time upon the written
request of AirGate and be relieved of all liability with respect to any money or
non-callable Government Securities held by it as provided in Section 8.4 hereof
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.4(a) hereof), are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.6 Repayment to Airgate.
Any money deposited with the Trustee or any Paying Agent, or then held
by AirGate, in trust for the payment of the principal of, premium, if any, or
interest, if any, on any Note and remaining unclaimed for one year after such
principal, and premium, if any, or interest has become due and payable shall be
paid to AirGate on its written request or (if then held by AirGate) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as an
unsecured general creditor, look only to AirGate for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of AirGate as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of AirGate cause to be published
once, in the New York Times and The Wall Street Journal (national edition),
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such notification
or publication, any unclaimed balance of such money then remaining shall be
repaid to AirGate.
SECTION 8.7 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.2 or
8.3 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations of AirGate under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.2 or 8.3 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.2 or 8.3 hereof,
as the case may be; provided, however, that, if AirGate makes any payment of
principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, AirGate shall be subrogated to the rights of
the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.1 Without Consent of Holders of the Notes.
Notwithstanding Section 9.2 of this Indenture, without the consent of
any Holder, AirGate, the Guarantors and the Trustee (and if applicable, the
Collateral Agent) may amend or supplement this Indenture, the Notes, the
Intercreditor Agreement or any Security Document:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(c) to provide for the assumption of AirGate's obligations to
the Holders under this Indenture, the Intercreditor Agreement or any
Security Document, in the case of a merger, or consolidation or sale of
all or substantially all of AirGate's assets in accordance with this
Indenture;
(d) to make any change that would provide any additional
rights or benefits to the Holders or that does not adversely affect the
legal rights hereunder of any Holder;
(e) to secure the Notes under this Indenture, to add
Guarantees with respect to the Notes, or to confirm and evidence the
release, termination or discharge of any such security or Guarantee
when such release, termination or discharge is permitted by this
Indenture and the Security Documents;
(f) to add or release Collateral as permitted under the terms
of this Indenture, the Intercreditor Agreement or the Security
Documents;
(g) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA or
otherwise in obtaining an exemption from, or interpretation of, or in
elaborating on, the requirements of Section 314(d) of the TIA or to
enable AirGate to rely on existing interpretations of the Commission
regarding the requirements of Section 314(d) of the TIA; or
(h) to equally and ratably secure First Priority Indebtedness
incurred in compliance with this Indenture.
Upon the request of AirGate accompanied by a resolution of the Board of
Directors authorizing the execution of any such amendment to this Indenture, the
Guarantees, the Intercreditor Agreement, the Security Documents or the Notes,
and upon receipt by the Trustee of the documents described in Sections 9.6 and
13.4 hereof, the Trustee shall join with AirGate and the Guarantors in the
execution of any amendment to this Indenture, the Guarantees, the Intercreditor
Agreement, the Security Documents or the Notes authorized or permitted by the
terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amendment to this Indenture, the Guarantees, the
Intercreditor Agreement, the Security Documents or the Notes that affects its
own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.2 With Consent of Holders of Notes.
Except as provided below in this Section 9.2, this Indenture, the
Notes, the Guarantees, the Intercreditor Agreement or any Security Document may
be amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes (it being
understood that the provisions of the Intercreditor Agreement and the Security
Documents that may by their terms be amended or supplemented without the consent
of the Holders do not require the consent of the Holders contemplated hereby),
including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer, for Notes, and any existing default or
compliance with any provision of this Indenture, the Notes, the Guarantees, the
Intercreditor Agreement or any Security Document may be waived with the consent
of the Holders of a majority in aggregate principal amount of the then
outstanding Notes (it being understood that the provisions of the Intercreditor
Agreement and the Security Documents that may by their terms be waived without
the consent of the Holders do not require the consent of the Holders
contemplated hereby), including, without limitation, consents obtained in
connection with a purchase of, or a tender offer or exchange offer for, Notes.
Upon the request of AirGate accompanied by a Board Resolution
authorizing the execution of any such amendment to this Indenture, the
Guarantees, the Intercreditor Agreement, the Security Documents or the Notes,
and upon receipt by the Trustee of the documents described in Sections 9.6 and
13.4 hereof, the Trustee shall join with AirGate and the Guarantors in the
execution of any amendment to this Indenture, the Guarantees, the Intercreditor
Agreement, the Security Documents or the Notes authorized or permitted by the
terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amendment to this Indenture, the Guarantees, the
Intercreditor Agreement, the Security Documents or the Notes that affects its
own rights, duties or immunities under this Indenture or otherwise.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.2 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof. After an amendment, supplement or waiver under this Section 9.2 becomes
effective, AirGate shall mail to the Holders of each Note affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
AirGate to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amended or supplemental indenture
or waiver.
Subject to Sections 6.2, 6.4 and 6.7 hereof, the Holders of a majority
in aggregate principal amount of the Notes then outstanding may amend or waive
compliance in a particular instance by AirGate with any provision of this
Indenture or the Notes. However, without the consent of each Holder adversely
affected, an amendment or waiver may not (with respect to any Note held by a
non-consenting Holder):
(a) reduce the aggregate principal amount of Notes whose
Holders must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of
any Note or alter the provisions with respect to the redemption of the
Notes (other than provisions relating to Sections 4.10 and 4.14
hereof);
(c) reduce the rate of or change the time for payment of
interest on any Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Notes (except a
rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the Notes and a waiver of the
payment default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in
the Notes;
(f) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders to
receive payments of principal of or premium, if any, or interest on the
Notes;
(g) waive a redemption or repurchase payment with respect to
any Note (other than a payment required by Section 4.10 or 4.14
hereof); or
(h) make any change in the amendment and waiver provisions of
this Article IX.
SECTION 9.3 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall be
set forth in an amended or supplemental indenture that complies with the TIA as
then in effect.
SECTION 9.4 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder and every
subsequent Holder of that Note or portion of the Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on the Note. However, any such Holder or subsequent Holder may revoke the
consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. When an
amendment, supplement or waiver becomes effective in accordance with its terms,
it thereafter binds every Holder.
AirGate may, but shall not be obligated to, fix a record date for
determining which Holders consent to such amendment, supplement or waiver. If
AirGate fixes a record date, the record date shall be fixed at (i) the later of
30 days prior to the first solicitation of such consent or the date of the most
recent list of Holders furnished for the Trustee prior to such solicitation
pursuant to Section 2.5 hereof or (ii) such other date as AirGate shall
designate.
SECTION 9.5 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. AirGate in exchange
for all Notes may issue and the Trustee shall authenticate new Notes that
reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.6 Trustee to Sign Amendments, Etc.
The Trustee shall sign any amended or supplemental indenture authorized
pursuant to this Article IX if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. AirGate and
the Guarantors may not sign an amendment or supplemental indenture until their
respective Boards of Directors approve it. In signing or refusing to sign any
amendment or supplemental indenture the Trustee shall be entitled to receive and
(subject to Section 7.1 hereof) shall be fully protected in relying upon an
Officers' Certificate and an Opinion of Counsel stating that the execution of
such amendment or supplemental indenture is authorized or permitted by this
Indenture, that all conditions precedent thereto have been met or waived, that
such amendment or supplemental indenture is not inconsistent herewith, and that
it will be valid and binding upon AirGate in accordance with its terms.
ARTICLE X
SECURITY DOCUMENTS
SECTION 10.1 Security Documents.
The due and punctual payment of the principal and premium, if any, of
and interest on the Notes when and as the same shall be due and payable, whether
on an interest payment date, at Stated Maturity, by acceleration, repurchase,
redemption, special redemption or otherwise, and interest on the overdue
principal of and interest on the Notes and performance of all other obligations
of AirGate and the Guarantors to the Holders or the Trustee under this
Indenture, the Security Documents or the Notes, according to the terms hereunder
or thereunder, shall be secured as provided in the Security Documents.
Each Holder, by its acceptance of the Notes, consents and agrees to the
terms of the Intercreditor Agreement and the Security Documents (including,
without limitation, the provisions providing for foreclosure and release of
Collateral pursuant to the terms set forth in the Intercreditor Agreement) as
the same may be in effect or may be amended from time to time in accordance with
their terms and authorizes and directs the Collateral Agent to enter into such
Security Documents and Intercreditor Agreement and to perform its obligations
and exercise its rights thereunder in accordance therewith.
AirGate shall deliver to the Trustee copies of all documents delivered
to the Collateral Agent pursuant to the Intercreditor Agreement and the Security
Documents, and shall do or cause to be done all such acts and things as may be
necessary or proper, or as may be required by the provisions of the
Intercreditor Agreement and the Security Documents, to assure and confirm to the
Trustee and the Collateral Agent the security interest in the Collateral
contemplated hereby, by the Intercreditor Agreement, the Security Documents or
any part thereof, as from time to time constituted, so as to render the same
available for the security and benefit of this Indenture and of the Notes
secured thereby, according to the intent and purposes herein and ▇▇▇▇▇▇▇
expressed.
AirGate shall take any and all actions reasonably required to cause the
Security Documents to create and maintain, as security for the obligations of
AirGate hereunder, a valid and enforceable perfected lien on and security
interest in all the Collateral, in favor of the Collateral Agent for the benefit
of the Holders and other Persons for whose benefit the Collateral Agent or
Trustee, as applicable, acts pursuant to the Security Documents, subject to the
provisions of the Intercreditor Agreement.
SECTION 10.2 Recording and Opinions.
(a) As required by the provisions of Section 314(b) of the TIA, AirGate
and, if applicable, the Guarantors shall take or cause to be taken all action
required to perfect, maintain, preserve and protect the Lien on and security
interest in the Collateral granted by the Security Documents (subject only to
Permitted Liens), including without limitation, the filing of financing
statements, continuation statements, mortgages and any instruments of further
assurance, in such manner and in such places as may be required by law fully to
preserve and protect the rights of the Holders and the Trustee under this
Indenture and the Security Documents to all property comprising the Collateral.
AirGate and the Guarantors shall from time to time promptly pay all financing
statement, continuation statement and mortgage recording, registration and/or
filing fees, charges and taxes relating to this Indenture and the Security
Documents, any amendments thereto and any other instruments of further assurance
required hereunder or pursuant to the Security Documents. The Trustee shall have
no obligation to, nor shall it be responsible for any failure to, so register,
file or record.
(b) As required by the provisions of Section 314(b) of the TIA, AirGate
shall furnish to the Trustee within three months after each anniversary of the
Closing Date, an Opinion of Counsel, dated as of such date, stating either that
(i) in the opinion of such counsel, all action has been taken (and stating what
actions, if any, are necessary to be taken within the next calendar year) with
respect to the recording, registering, filing, re-recording, re-registering and
refiling of this Indenture and the Security Documents, financing statements,
continuation statements or other instruments of further assurance as is
necessary to maintain the Liens intended to be created by the Security Documents
and reciting the details of such action or (ii) in the opinion of such counsel,
no such action is necessary to maintain such Liens, which Opinion of Counsel
also shall state what actions it then believes are necessary to maintain the
effectiveness of such Liens during the next two years.
SECTION 10.3 Possession, Use and Release of Collateral.
(a) Subject to the rights of the Trustee under the Security Documents,
and subject to the terms and conditions in any agreements governing this
Indenture and the Security Documents, AirGate and the Guarantors will have the
right to remain in possession and retain control of the Collateral, to freely
operate the Collateral and to collect, invest and dispose of any income
therefrom.
(b) AirGate and the Guarantors, as the case may be, shall have the
right to obtain a release of items of Collateral subject to a sale or
disposition from the Lien of the Security Documents (the "Released Collateral"),
and the Collateral Agent shall release such Released Collateral from the Lien of
the relevant Security Document and reconvey the Released Collateral to AirGate
or the applicable Guarantor if AirGate delivers to the Collateral Agent the
following:
(1) a notice from AirGate requesting the release of Released Collateral,
(i) specifically describing the proposed Released Collateral, (ii)
stating that such Released Collateral is to be sold and that the
consideration to be received in respect of the Released Collateral is
at least equal to the fair market value of the Released Collateral and
that such consideration is also to be made subject to the Lien of the
Security Documents to the extent required by this Indenture, (iii)
confirming the sale of, or an agreement to sell, such Released
Collateral in a bona fide sale to a person that is not an Affiliate of
AirGate or, in the event that such sale is to a person that is an
Affiliate, confirming that such sale is made in compliance with Section
4.11 and (iv) certifying that if the sale of such Released Collateral
constitutes an Asset Sale, such Asset Sale complies with the terms and
conditions of this Indenture with respect thereto, including, without
limitation, the applicable provisions of Section 4.10; and
(2) an Officers' Certificate stating that (i) such sale covers only the
Released Collateral or such other property that does not constitute
Collateral subject to the sale or disposition, (ii) after giving effect
to such sale or disposition, there is no Default or Event of Default in
effect or continuing on the date thereof and the release of the
Collateral will not result in a Default or Event of Default under this
Indenture, and (iii) all conditions precedent in this Indenture, the
Security Documents and the indenture and security documents governing
the Second Priority Notes relating to the release in question have been
complied with by AirGate and, in the event that there is to be a
substitution of property for the Released Collateral subject to an
Asset Sale, all documentation necessary to effect the substitution of
such new Collateral and to subject such new Collateral to the Lien of
the relevant Security Documents have been provided to the Collateral
Agent.
Upon compliance by AirGate with the conditions precedent set forth
above, the Collateral Agent shall cause to be released and reconveyed to AirGate
or the applicable Guarantor the Released Collateral without recourse by
executing a release in the form provided by AirGate or the applicable Guarantor
and reasonably acceptable to the Collateral Agent.
(c) AirGate and the Guarantors, as the case may be, shall be entitled
to obtain a release of, and the Collateral Agent shall release from the Lien of
the Security Documents, items of Collateral subject to an Event of Loss, upon
compliance with the conditions precedent that AirGate shall have delivered to
the Collateral Agent the following:
(1) an Officers' Certificate of AirGate certifying that (A) such
Collateral is the subject of an Event of Loss and the amount of
the Net Loss Proceeds, and (B) all conditions precedent to such
release have been complied with; and
(2) an Opinion of Counsel substantially to the effect:
(i) if applicable, that such property has been taken by
eminent domain, or has been sold pursuant to the exercise of a right
vested in a governmental authority to purchase, or to designate a
purchaser or order a sale of, such property in lieu of the exercise of
the right of condemnation or eminent domain;
(ii) in the case of a taking by eminent domain, that the award
for the property so taken has become final and that an appeal from such
award is not advisable in the interests of AirGate, which opinion as to
factual matters may rely on a certificate of an officer of AirGate or a
Guarantor, as applicable; and
(iii) that the instrument or instruments and the award or
payment of such taking which have been or are therewith delivered to
and deposited with the Collateral Agent conform to the requirements of
the applicable Security Documents and that, upon the basis of such
application, the Collateral Agent is permitted by the terms hereof and
of the Security Documents to execute and deliver the release requested,
and that all conditions precedent herein and in the Security Documents
provided for relating to such release have been complied with.
In any proceedings for the taking of any part of the Collateral, the
Collateral Agent may be represented by counsel acceptable to the Collateral
Agent.
Upon compliance by AirGate with the conditions precedent set forth
above, the Collateral Agent shall cause to be released and reconveyed to AirGate
or the applicable Guarantor without recourse the aforementioned items of
Collateral which are the subject of such Event of Loss by executing a release in
the form provided by AirGate or the Guarantor acceptable to the Collateral
Agent.
(d) Collateral may (and, as applicable, shall) be released or
substituted only in accordance with the terms of the Intercreditor Agreement and
the Security Documents or this Section 10.3. Upon any disposition of Collateral
pursuant to and in compliance with Sections 4.10, 10.4 and 10.5, or pursuant to
a transaction that does not constitute an "Asset Sale" or otherwise violate any
provision of this Indenture, such Collateral shall be sold free and clear of any
lien under the Security Documents and automatically released from the provisions
thereof.
(e) The release of any Collateral from the terms of this Indenture and
the Security Documents shall not be deemed to impair the security under this
Indenture in contravention of the provisions hereof if and to the extent the
Collateral is released pursuant to the terms of the Intercreditor Agreement, the
Security Documents or this Section 10.3.
(f) Any request by AirGate for the Trustee or the Collateral Agent to
execute a release of any Collateral from the terms of this Indenture shall be
made pursuant to the terms of Section 10.5 of this Indenture.
SECTION 10.4 Certificates of the Company.
(a) To the extent applicable, AirGate shall comply (or cause
compliance) with Section 313(b) of the TIA, relating to reports, and Section
314(d) of the TIA, relating to the release of property or securities from the
lien and security interest of the Security Documents and relating to the
substitution therefor of any property or securities to be subjected to the lien
and security interest of the Security Documents. Any certificate or opinion
required by Section 314(d) of the TIA may be made by an Officer of AirGate
except in cases where Section 314(d) of the TIA requires that such certificate
or opinion be made by an independent Person, which Person shall be an
independent engineer, appraiser or other expert selected or approved by the
Collateral Agent in the exercise of reasonable care.
(b) With respect to AirGate's obligations under Section 10.4(a)
relating to delivery of certificates or opinions required by Section 314(d) of
the TIA and AirGate's obligations under Section 10.3(b) relating to delivery of
Certificates, notices or opinions, AirGate and each Subsidiary, as the case may
be, may:
(1) abandon, sell, assign, transfer, lease, license or otherwise dispose of
in the ordinary course of business any personal property the use of
which is no longer necessary or desirable in the proper conduct of the
business of AirGate and is not material to the conduct of the business
of AirGate and its Subsidiaries taken as a whole;
(2) grant in the ordinary course of business, rights-of-way and easements
over or in respect of any of AirGate's or such Subsidiary's real
property, provided that such grant will not, in the reasonable opinion
of the Board of Directors, impair the usefulness of such property in
the conduct of AirGate's business;
(3) sell, transfer or otherwise dispose of inventory in the ordinary course
of business;
(4) sell, collect, liquidate, factor or otherwise dispose of accounts
receivable in the ordinary course of business;
(5) make cash payments (including for the scheduled repayment of
Indebtedness) from cash that is at any time part of the Collateral in
the ordinary course of business that are not otherwise prohibited by
this Indenture, the Security Documents and the Intercreditor Agreement;
and
(6) engage in any other release of any Collateral as to which release any
Commission regulation or interpretation (including any no-action letter
issued by the Staff of the Commission or exemption order issued by the
Commission or pursuant to its delegated authority, whether issued to
AirGate or any other Person) provides that delivery of such opinions or
certificates need not be made;
in each case, without the delivery of any such opinions or certificates upon any
such release; provided that AirGate shall deliver to the Trustee, within 15 days
after each of the six-month periods ended January 1 and July 1 in each year an
Officers' Certificate to the effect that all releases of Collateral as to which
such opinions or certificates were not delivered in reliance upon this Section
10.4(b) by AirGate or any Subsidiary, as the case may be, during the preceding
six-month period were in the ordinary course of AirGate's or such Subsidiary's
business and otherwise in accordance with Section 10.4(b)(1) through Section
10.4(b)(6) and that all proceeds therefrom were used by AirGate or such
Subsidiary as permitted herein.
(c) The fair value of Collateral released from the Liens of the
Security Documents as to which opinions or certificates are not delivered prior
to the applicable date of determination in reliance upon this Section 10.4(b)
shall not be considered in determining whether the aggregate fair value of
Collateral released from the Liens of the Security Documents in any calendar
year exceeds the 10% threshold specified in Section 314(d)(l) of the TIA;
provided that AirGate's right to rely on this sentence at any time is
conditioned upon AirGate having furnished to the Trustee the Officers'
Certificates described in Section 10.4(b) that were required to be furnished to
the Trustee at or prior to such time.
(d) It is expressly understood that Section 10.4(b) and Section 10.4(c)
relate only to AirGate's and each Subsidiary's obligations under the TIA and
shall not affect AirGate's and its Subsidiaries' rights or abilities to release
Collateral.
SECTION 10.5 Execution of Release by Trustee.
In the event that AirGate or any Guarantor wish the Trustee or the
Collateral Agent to execute a release of any Collateral from the lien of the
Security Documents in accordance with this Indenture, the Intercreditor
Agreement and the Security Documents, it shall furnish the Trustee and the
Collateral Agent an Officers' Certificate complying with Section 12.4(a)
certifying that all conditions precedent have been met and that no consent of
the Holders is required together with any documents required by Section 4.10,
Section 10.4 or any other provision of this Indenture and deliver as required by
this Indenture, an Opinion of Counsel to the effect that such accompanying
documents constitute all the documents required by this Indenture and by Section
314(d) of the TIA or that no such documents are so required. Upon the receipt of
such documents the Trustee shall execute, or shall cause the Collateral Agent to
execute, a release of the Collateral. The Trustee, however, shall have no duty
to confirm the legality or validity of such documents, its sole duty being to
certify that it has received such documentation which on its face conforms to
Section 314(d) of the TIA.
SECTION 10.6 Authorization of Actions to be Taken by the Trustee
Under the Security Documents.
Subject to the provisions of the Intercreditor Agreement and the
Security Documents, the Trustee may, in its sole discretion and without the
consent of the Holders (and shall, at the direction of Holders holding the
requisite principal amount of Notes), direct, on behalf of the Holders, the
Collateral Agent to take all actions it deems necessary or appropriate in order
to (a) enforce the terms of the Intercreditor Agreement and the Security
Documents and (b) collect and receive any and all amounts payable in respect of
the obligations of AirGate hereunder. The Trustee shall have the power to
institute and maintain such suits and proceedings as it may deem expedient to
prevent any impairment of the Collateral by any acts that may be unlawful or in
violation of the Intercreditor Agreement and the Security Documents or this
Indenture, and such suits and proceedings as the Trustee may deem expedient to
preserve or protect its interests and the interests of the Holders in the
Collateral (including the power to institute and maintain suits or proceedings
to restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair the security interest hereunder or be prejudicial to the interests
of the Holders or the Trustee).
SECTION 10.7 Authorization of Receipt of Funds by the
Trustee Under the Security Documents.
The Trustee is authorized to receive funds for the benefit of the
Holders distributed under the Security Documents or the Intercreditor Agreement,
and to make further distributions of such funds to the Holders according to the
provisions of this Indenture, the Intercreditor Agreement and the Security
Documents.
SECTION 10.8 Collateral Agent.
The Trustee shall act as Collateral Agent pursuant to the Intercreditor
Agreement and the Security Documents and shall be authorized to appoint
co-Collateral Agents as necessary in its sole discretion. Except as otherwise
explicitly provided herein or in the Intercreditor Agreement or the Security
Documents, neither the Collateral Agent nor any of its respective officers,
directors, employees or agents shall be liable for any failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of any other Person or to take any other action whatsoever with
regard to the Collateral or any part thereof. The Collateral Agent shall be
accountable only for amounts that it actually receives as a result of the
exercise of such powers, and neither the Collateral Agent nor any of its
officers, directors, employees or agents shall be responsible for any act or
failure to act hereunder, except for its own willful misconduct, gross
negligence or bad faith.
SECTION 10.9 Security Documents.
(a) Each of the other parties hereto and, by their acceptance of the
Notes, the Holders hereby authorize and instruct the Trustee, as Collateral
Agent, to (i) enter into the Security Documents, (ii) bind such parties and the
Holders on the terms set forth in the Security Documents and (iii) perform and
observe its obligations under the Security Documents.
(b) Each of the other parties hereto and, by their acceptance of the
Notes, the Holders hereby authorize and instruct the Trustee to (i) enter into
the Intercreditor Agreement, (ii) bind such parties and the Holders on the terms
set forth in the Intercreditor Agreement, and (iii) perform and observe its
obligations under the Intercreditor Agreement.
ARTICLE XI
GUARANTEES
SECTION 11.1 Guarantees.
(a) Each Guarantor hereby jointly and severally, fully, unconditionally
and irrevocably guarantees the Notes and obligations of AirGate hereunder and
thereunder, and guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee on behalf of such Holder, that: (i) the
principal of and premium, if any and interest on the Notes shall be paid in full
when due, whether at Stated Maturity, by acceleration, call for redemption or
otherwise (including, without limitation, the amount that would become due but
for the operation of the automatic stay under Section 362(a) of the Federal
Bankruptcy Code), together with interest on the overdue principal, if any, and
interest on any overdue interest, to the extent lawful, and all other
obligations of AirGate to the Holders or the Trustee hereunder or thereunder
shall be paid in full or performed, all in accordance with the terms hereof and
thereof; and (ii) in case of any extension of time of payment or renewal of any
Notes or of any such other obligations, the same shall be paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at Stated Maturity, by acceleration or otherwise. Each of the Guarantees shall
be a guarantee of payment and not of collection.
(b) Each Guarantor hereby agrees that its obligations hereunder shall
be unconditional, irrespective of the validity, regularity or enforceability of
the Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor.
(c) Each Guarantor hereby waives the benefits of diligence,
presentment, demand for payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company or any other Person, protest, notice and all demands
whatsoever and covenants that the Guarantee of such Guarantor shall not be
discharged as to any Note except by complete performance of the obligations
contained in such Note and such Guarantee or as provided for in this Indenture.
Each of the Guarantors hereby agrees that, in the event of a default in payment
of principal or premium, if any or interest on such Note, whether at its Stated
Maturity, by acceleration, call for redemption, purchase or otherwise, legal
proceedings may be instituted by the Trustee on behalf of, or by, the Holder of
such Note, subject to the terms and conditions set forth in this Indenture,
directly against each of the Guarantors to enforce such Guarantor's Guarantee
without first proceeding against the Company or any other Guarantor. Each
Guarantor agrees that if, after the occurrence and during the continuance of an
Event of Default, the Trustee or any of the Holders are prevented by applicable
law from exercising their respective rights to accelerate the maturity of the
Notes, to collect interest on the Notes, or to enforce or exercise any other
right or remedy with respect to the Notes, such Guarantor shall pay to the
Trustee for the account of the Holders, upon demand therefor, the amount that
would otherwise have been due and payable had such rights and remedies been
permitted to be exercised by the Trustee or any of the Holders.
(d) If any Holder or the Trustee is required by any court or otherwise
to return to AirGate or any Guarantor, or any custodian, trustee, liquidator or
other similar official acting in relation to either AirGate or any Guarantor,
any amount paid by any of them to the Trustee or such Holder, the Guarantee of
each of the Guarantors, to the extent theretofore discharged, shall be
reinstated in full force and effect. This paragraph (d) shall remain effective
notwithstanding any contrary action which may be taken by the Trustee or any
Holder in reliance upon such amount required to be returned. This paragraph (d)
shall survive the termination of this Indenture except as otherwise provided in
the Intercreditor Agreement.
(e) Each Guarantor further agrees that, as between each Guarantor, on
the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article VI hereof for the purposes of the Guarantee of such Guarantor,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in Article VI hereof,
such obligations (whether or not due and payable) shall forthwith become due and
payable by each Guarantor for the purpose of the Guarantee of such Guarantor.
SECTION 11.2 Execution and Delivery of Guarantee.
To evidence its Guarantee set forth in Section 11.1, each Guarantor
agrees that a notation of such Guarantee substantially in the form attached
hereto as Exhibit B shall be endorsed on each Note authenticated and delivered
by the Trustee. Such notation of Guarantee shall be signed on behalf of such
Guarantor by an officer of such Guarantor (or, if an officer is not available,
by a board member or director) on behalf of such Guarantor by manual or
facsimile signature. In case the officer, board member or director of such
Guarantor who shall have signed such notation of Guarantee shall cease to be
such officer, board member or director before the Note on which such Guarantee
is endorsed shall have been authenticated and delivered by the Trustee, such
Note nevertheless may be authenticated and delivered as though the Person who
signed such notation of Guarantee had not ceased to be such officer, board
member or director.
Each Guarantor agrees that its Guarantee set forth in Section 11.1
shall remain in full force and effect and apply to all the Notes notwithstanding
any failure to endorse on each Note a notation of such Guarantee. The delivery
of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of any Guarantee set forth in this Indenture on behalf
of the Guarantors.
SECTION 11.3 Severability.
In case any provision of any Guarantee 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.
SECTION 11.4 Limitation of Guarantors' Liability.
Each Guarantor and by its acceptance hereof each Holder confirms that
it is the intention of all such parties that the Guarantee of such Guarantor not
constitute a fraudulent transfer or conveyance for purposes of the Federal
Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law or the provisions of its local
law relating to fraudulent transfer or conveyance. To effectuate the foregoing
intention, the Trustee, the Holders and Guarantors hereby irrevocably agree that
the obligations of such Guarantor under its Guarantee shall be limited to the
maximum amount that will not, after giving effect to all other contingent and
fixed liabilities of such Guarantor and after giving effect to any collections
from, rights to receive contribution from or payments made by or on behalf of
any other Guarantor in respect of the obligations of such other Guarantor under
its Guarantee, result in the obligations of such Guarantor under its Guarantee
constituting a fraudulent transfer or conveyance.
SECTION 11.5 Guarantors May Consolidate, Etc., on Certain Terms.
Except as otherwise provided in Section 11.6 hereof, a Guarantor may
not sell or otherwise dispose of all or substantially all of its assets, or
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person unless:
(1) immediately after giving effect to such transactions, no
Default or Event of Default exists; and
(2) either:
(A) the Person acquiring the property in any such sale or
disposition or the Person formed by or surviving any such
consolidation or merger assumes all the obligations of that
Guarantor under this Indenture pursuant to a supplemental
indenture and supplements to the Security Documents
satisfactory to the Trustee; or
(B) the Net Proceeds of any such sale or other disposition of a
Guarantor are applied in accordance with the provisions of
Section 4.10 hereof.
In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the
Guarantee and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Guarantor, such successor
Person shall succeed to and be substituted for the Guarantor with the same
effect as if it had been named herein as a Guarantor. All the Guarantees so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Guarantees theretofore and thereafter issued in accordance with
the terms of this Indenture as though all such Guarantees had been issued at the
date of the execution hereof.
Except as set forth in Articles IV and V hereof, and notwithstanding
clauses (1) and (2) above, nothing contained in this Indenture or in any of the
Notes shall prevent any consolidation or merger of a Guarantor with or into
AirGate or another Guarantor, or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to
AirGate or another Guarantor.
SECTION 11.6 Releases Following Sale of Assets.
Any Guarantor shall be released and relieved of any obligations under
this Guarantee, (1) in connection with any sale or other disposition by AirGate
or any Subsidiary of AirGate of all or substantially all of the assets of that
Guarantor (including by way of merger or consolidation) to a Person that is not
(either before or after giving effect to such transaction) a Subsidiary, if
AirGate or the Guarantor applies the Net Proceeds of that sale or other
disposition in accordance with the provisions of Section 4.10 hereof; or (2) in
connection with any sale of all of the Capital Stock of a Guarantor by AirGate
or any Subsidiary of AirGate to a Person that is not (either before or after
giving effect to such transaction) a Subsidiary, if AirGate applies the Net
Proceeds of that sale in accordance with the provisions of Section 4.10 thereof.
Upon delivery to the Trustee of an Officers' Certificate and an Opinion of
Counsel to the effect that such sale or other disposition was made by AirGate in
accordance with the provisions of this Indenture, including without limitation
Section 4.10 hereof, the Trustee shall execute any documents reasonably required
in order to evidence the release of any Guarantor from its obligations under its
Guarantee.
Any Guarantor not released from its obligations under this Guarantee
shall remain liable for the full amount of principal of and interest on the
Notes and for the other obligations of any Guarantor under this Indenture as
provided in this Article XI.
SECTION 11.7 Release of a Guarantor.
Any Guarantor that is designated by the Board of Directors of the
Company as an Unrestricted Subsidiary in accordance with the terms of this
Indenture shall, at such time, be deemed automatically and unconditionally
released and discharged of its obligations under its Guarantee without any
further action on the part of the Trustee or any Holder. The Trustee shall
deliver an appropriate instrument evidencing such release upon receipt of the
Company's request for such release accompanied by an Officers' Certificate
certifying as to the compliance with this Section 11.8. Any Guarantor not so
released shall remain liable for the full amount of principal of and interest on
the Notes as provided in its Guarantee.
SECTION 11.8 Benefits Acknowledged.
Each Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
its guarantee and waivers pursuant to its Guarantee are knowingly made in
contemplation of such benefits.
SECTION 11.9 Future Guarantors.
Each future Restricted Subsidiary shall become a Guarantor. Within ten
(10) days of becoming a Restricted Subsidiary, such Subsidiary shall execute and
deliver to the Trustee a supplemental indenture and other agreements making such
Subsidiary a party to this Indenture and the security documents relating to the
Second Priority Notes.
ARTICLE XII
MISCELLANEOUS
SECTION 12.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA ss. 318(c), the imposed duties shall control.
SECTION 12.2 Notices.
Any notice or communication by AirGate, the Guarantors or the Trustee
to the others is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested), telecopier
or overnight air courier guaranteeing next day delivery, to the others address:
If to AirGate:
AirGate PCS, Inc.
▇▇▇▇▇▇ Tower
Suite ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Atlanta, Georgia 30303
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
With a copy to:
AirGate PCS, Inc.
▇▇▇▇▇▇ Tower
Suite ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Atlanta, Georgia 30303
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
and
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇
If to the Trustee:
The Bank of New York Trust Company, N.A.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
AirGate or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier promising next Business Day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail or by overnight air courier promising next Business Day delivery to its
address shown on the register kept by the Registrar. Any notice or communication
shall also be so mailed to any Person described in TIA ss. 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it, except in the case of notices or communications given to the
Trustee, which shall be effective only upon actual receipt.
If AirGate mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
SECTION 12.3 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. AirGate, the
Trustee, the Registrar and anyone else shall have the protection of TIA ss.
312(c).
SECTION 12.4 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by AirGate to the Trustee to take any
action under this Indenture (other than the initial issuance of the Notes),
AirGate shall furnish to the Trustee upon request:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.5 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied;
and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.5 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
SECTION 12.5 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA ss.
314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
SECTION 12.6 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 12.7 No Personal Liability of Directors, Officers,
Employees and Stockholders.
No director, officer, employee, incorporator or stockholder of AirGate
or any Guarantor, as such, shall have any liability for any obligations of
AirGate or the Guarantors under the Notes, this Indenture, the Guarantees, the
Intercreditor Agreement or any Security Document or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes. The waiver may not be
effective to waive liabilities under the federal securities laws.
SECTION 12.8 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES, IF ANY. The parties to
this Indenture each hereby irrevocably submits to the non-exclusive jurisdiction
of any New York State or federal court sitting in the Borough of Manhattan in
The City of New York in any action or proceeding arising out of or relating to
the Notes, the Guarantees or this Indenture, and all such parties hereby
irrevocably agree that all claims in respect of such action or proceeding may be
heard and determined in such New York State or federal court and hereby
irrevocably waive, to the fullest extent that they may legally do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES,
THE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 12.9 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of AirGate or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 12.10 Successors.
All agreements of AirGate and the Guarantors in this Indenture and the
Notes and the Guarantees, as applicable, shall bind their respective successors
and assigns. All agreements of the Trustee in this Indenture shall bind its
successors and assigns.
SECTION 12.11 Severability.
In case any provision in this Indenture or in the Notes 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.
SECTION 12.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 12.13 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
SECTION 12.14 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to AirGate. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of Holders signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and AirGate, if made in the
manner provided in this Section 12.14.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such officer the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Holder list
maintained under Section 2.05 hereunder.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or AirGate in
reliance thereon, whether or not notation of such action is made upon such Note.
(e) If AirGate shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, AirGate may, at
its option, by or pursuant to a Board Resolution, fix in advance a record date
for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but AirGate
shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
outstanding Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the outstanding Notes shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record
date.
[Signatures on following page]
SIGNATURES
Dated as of October 25, 2004 AIRGATE PCS, INC.
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
AGW LEASING COMPANY, INC.
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
AIRGATE NETWORK SERVICES, LLC
By:
Name:
Title:
AIRGATE SERVICE COMPANY, INC.
By:
Name:
Title:
The Bank of New York Trust Company, N.A.,
as Trustee
By:
Name:
Title:
A-13
A-1
EXHIBIT A
FORM OF NOTE
(Face of First Priority Senior Secured Note)
First Priority Senior Secured Floating Rate Notes due 2011
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OR
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY) ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE.
[Restricted Notes Legend]
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE ``SECURITIES ACT''), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED
STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE
SECURITIES ACT OR (b) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS
SET FORTH IN CLAUSE (A) ABOVE.
No. $ CUSIP NO.
AIRGATE PCS, INC.
promises to pay to or registered assigns, the principal sum of
Dollars on October 15, 2011.
Interest Payment Dates: January 15, April 15, July 15 and October 15,
beginning [ ]
Record Dates January 1, April 1, July 1 and October 1
AIRGATE PCS, INC.
By: ___________________________
Name:
Title:
This is one of the First Priority Senior Secured Floating Rate Notes referred to
in the within-mentioned Indenture:
Dated: _______________
The Bank of New York Trust Company, N.A., as
Trustee
By: _____________________
(Back of First Priority Senior Secured Floating Rate Note)
First Priority Senior Secured Floating Rate Notes due 2011
Capitalized terms used herein shall have the meanings assigned to them
in this Indenture referred to below unless otherwise indicated.
(1) Interest. AirGate PCS, Inc., a Delaware corporation, or its
successor ("AirGate"), promises to pay interest on the principal amount of this
First Priority Senior Secured Floating Rate Note at a rate per annum, reset
quarterly, equal to LIBOR plus 3.75%, as determined by the calculation agent
(the "Calculation Agent"). AirGate will pay interest in United States dollars
(except as otherwise provided herein) quarterly in arrears on January 15, April
15, July 15 and October 15, commencing on [ ], or if any such day is not a
Business Day, on the next succeeding Business Day (each an "Interest Payment
Date"). Interest on the First Priority Senior Secured Floating Rate Notes shall
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from [INSERT DATE WHEN INTEREST ACCRUAL COMMENCES];
provided that if there is no existing Default or Event of Default in the payment
of interest, and if this First Priority Senior Secured Floating Rate Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date (but after [INSERT DATE WHEN INTEREST ACCRUAL
COMMENCES]), interest shall accrue from such next succeeding Interest Payment
Date, except in the case of the original issuance of First Priority Senior
Secured Floating Rate Notes, in which case interest shall accrue from the date
of authentication. AirGate shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal at the rate
equal to 1% per annum in excess of the then applicable interest rate on the
First Priority Senior Secured Floating Rate Notes to the extent lawful; it shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful. Interest shall
be computed on the basis of a 360-day year comprised of twelve 30-day months.
The amount of interest for each day that the Notes are outstanding (the "Daily
Interest Amount") will be calculated by dividing the interest rate in effect for
such day by 360 and multiplying the result by the principal amount of the Notes.
The amount of interest to be paid on the Notes for each Interest Period will be
calculated by adding the Daily Interest Amounts for each day in the Interest
Period. All percentages resulting from any of the above calculations will be
rounded, if necessary, to the nearest one hundred thousandth of a percentage
point, with five one-millionths of a percentage point being rounded upwards
(e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)) and all
dollar amounts used in or resulting from such calculations will be rounded to
the nearest cent (with one-half cent being rounded upwards). The interest rate
on the Notes will in no event be higher than the maximum rate permitted by New
York law as the same may be modified by United States law of general
application. The Calculation Agent will, upon the request of the Holder of any
Note, provide the interest rate then in effect with respect to the Notes. All
calculations made by the Calculation Agent in the absence of manifest error will
be conclusive for all purposes and binding on the Company, the Guarantors and
the Holders of the Notes.
(2) Method of Payment. AirGate will pay interest on the First Priority
Senior Secured Floating Rate Notes (except defaulted interest) on the applicable
Interest Payment Date to the Persons who are registered Holders of First
Priority Senior Secured Floating Rate Notes at the close of business on the
January 1, April 1, July 1 and October 1 next preceding the Interest Payment
Date, even if such First Priority Senior Secured Floating Rate Notes are
cancelled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The First Priority Senior Secured Floating Rate Notes shall be payable
as to principal, premium and interest at the office or agency of AirGate
maintained for such purpose within or without the City and State of New York,
or, at the option of AirGate, payment of interest may be made by check mailed to
the Holders at their addresses set forth in the register of Holders; provided
that payment by wire transfer of immediately available funds shall be required
with respect to principal of, premium, if any, and interest on, all Global Notes
and all other First Priority Senior Secured Floating Rate Notes the Holders of
which shall have provided written wire transfer instructions to AirGate and the
Paying Agent. Such payment shall be in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
Any payments of principal of this First Priority Senior Secured Floating Rate
Note prior to Stated Maturity shall be binding upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not noted hereon. The amount due
and payable at the maturity of this Note shall be payable only upon presentation
and surrender of this Note at an office of the Trustee or the Trustee's agent
appointed for such purposes.
(3) Paying Agent and Registrar. Initially, The Bank of New York Trust
Company, N.A., the Trustee under the Indenture, shall act as Paying Agent and
Registrar. AirGate may change any Paying Agent or Registrar without notice to
any Holder. AirGate or any of its Subsidiaries may act in any such capacity.
(4) Indenture. AirGate issued the First Priority Senior Secured
Floating Rate Notes under an Indenture, dated as of October 25, 2004 (the
"Indenture"), among AirGate, AGW Leasing Company, Inc., AirGate Network
Services, LLC, AirGate Service Company, Inc. and the Trustee. The terms of the
First Priority Senior Secured Floating Rate Notes include those stated in the
Indenture and those made a part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code ss.ss.77aaa-77bbbb) (the "TIA").
To the extent the provisions of this First Priority Senior Secured Floating Rate
Note are inconsistent with the provisions of the Indenture, the Indenture shall
govern. The First Priority Senior Secured Notes are subject to all such terms,
and Holders are referred to the Indenture and such Act for a statement of such
terms. The First Priority Senior Secured Floating Rate Notes issued on the
Closing Date are senior secured Obligations of AirGate limited to $175,000,000
in aggregate principal amount, plus amounts, if any, sufficient to pay premium
and interest on outstanding First Priority Senior Secured Floating Rate Notes as
set forth in Paragraph 2 hereof. The Indenture permits the issuance of
Additional Notes subject to compliance with certain conditions.
The payment of principal and interest on the First Priority Senior
Secured Floating Rate Notes is unconditionally guaranteed on a senior secured
basis by the Guarantors.
(5) Optional Redemption. (a) The First Priority Senior Secured Floating
Rate Notes shall not be redeemable at AirGate's option prior to October 15,
2006. Thereafter, the First Priority Senior Secured Floating Rate Notes shall be
subject to redemption at the option of AirGate, in whole or in part, upon not
less than 30 nor more than 60 days' notice, at the redemption prices (expressed
as percentages of principal amount) set forth below together with accrued and
unpaid interest thereon to the applicable redemption date, if redeemed during
the twelve-month period beginning on October 15 of the years indicated below:
Year Percentage
2006................................. 102.000%
2007................................. 101.000%
2008 and thereafter.................. 100.000%
(b) At any time, or from time to time, on or prior to October 15, 2006,
AirGate may, at its option, use the net cash proceeds of one or more Equity
Offerings to redeem up to 35% of the principal amount of the Notes issued under
the Indenture at a redemption price equal to 100% of the principal amount so
redeemed plus a premium equal to the interest rate per annum applicable on the
date on which the notice of redemption is given, plus accrued and unpaid
interest thereon, if any, to the date of redemption; provided that:
(1) at least 65% of the principal amount of Notes issued under
the Indenture remain outstanding immediately after any such redemption;
and
(2) AirGate makes such redemption not more than 90 days after
the consummation of any such Equity Offering.
(6) Mandatory Redemption. AirGate shall not be required to make
mandatory redemption or sinking fund payments with respect to the First Priority
Senior Secured Floating Rate Notes.
(7) Repurchase at Option of Holder.
(a) Upon the occurrence of a Change of Control, each Holder will have
the right to require AirGate to repurchase all or any part (equal to $1,000 or
an integral multiple thereof) of such Holder's First Priority Senior Secured
Floating Rate Notes pursuant to the offer described below (the "Change of
Control Offer") at an offer price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest thereon to the date of
purchase. Within 30 days following any Change of Control, AirGate will mail a
notice to each Holder describing the transaction or transactions that constitute
the Change of Control setting forth the procedures governing the Change of
Control Offer required by the Indenture.
(b) Upon the occurrence of certain Asset Sales or Events of Loss, the
Company may be required to offer to purchase Notes.
(c) Holders of the First Priority Senior Secured Floating Rate Notes
that are the subject of an offer to purchase will receive notice of a Change of
Control Offer, Asset Sale Offer or Event of Loss Offer from AirGate prior to any
related purchase date and may elect to have such First Priority Senior Secured
Floating Rate Notes purchased by completing the form titled "Option of Holder to
Elect Purchase" appearing below.
(8) Notice of Redemption. Notice of redemption shall be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose First Priority Senior Secured Floating Rate Notes are to be redeemed at
its registered address. First Priority Senior Secured Floating Rate Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the First Priority Senior Secured Floating
Rate Notes held by a Holder are to be redeemed. On and after the redemption
date, interest ceases to accrue on the First Priority Senior Secured Floating
Rate Notes or portions hereof called for redemption.
(9) Security. The Indenture provides that the First Priority Senior
Secured Floating Rate Notes or Guarantees must be secured by Liens on Collateral
of AirGate or the Guarantors. Liens securing the First Priority Senior Secured
Floating Rate Notes or Guarantees may be released in various circumstances,
including in certain circumstances without the consent of Holders.
(10) Denominations, Transfer, Exchange. The First Priority Senior
Secured Floating Rate Notes are in registered form without coupons in initial
denominations of $1,000 and integral multiples of $1,000. The transfer of the
First Priority Senior Secured Floating Rate Notes may be registered and the
First Priority Senior Secured Floating Rate Notes may be exchanged as provided
in the Indenture. The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and
AirGate may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. AirGate need not exchange or register the transfer
of any First Priority Senior Secured Floating Rate Note or portion of a First
Priority Senior Secured Floating Rate Note selected for redemption, except for
the unredeemed portion of any First Priority Senior Secured Floating Rate Note
being redeemed in part. Also, it need not exchange or register the transfer of
any First Priority Senior Secured Floating Rate Notes for a period of 15 days
before a selection of First Priority Senior Secured Floating Rate Notes to be
redeemed or during the period between a record date and the corresponding
Interest Payment Date.
(11) Persons Deemed Owners. The registered holder of a First Priority
Senior Secured Floating Rate Note may be treated as its owner for all purposes.
(12) Amendment, Supplement and Waiver. Subject to the following
paragraphs, the Indenture and the First Priority Senior Secured Floating Rate
Notes may be amended or supplemented with the consent of the Holders of at least
a majority in aggregate principal amount of the then outstanding First Priority
Senior Secured Floating Rate Notes (it being understood that the provisions of
the Intercreditor Agreement and the Security Documents that may by their terms
be amended or supplemented without the consent of the Holders do not require the
consent of the Holders contemplated hereby), including, without limitation,
consents obtained in connection with a purchase of or, tender offer or exchange
offer for First Priority Senior Secured Floating Rate Notes, and any existing
Default or Event of Default or compliance with any provision of the Indenture or
the First Priority Senior Secured Floating Rate Notes may be waived with the
consent of the Holders of a majority in aggregate principal amount of the then
outstanding First Priority Senior Secured Floating Rate Notes (it being
understood that the provisions of the Intercreditor Agreement and the Security
Documents that may by their terms be waived without the consent of the Holders
do not require the consent of the Holders contemplated hereby), including
consents obtained in connection with a tender offer or exchange offer for First
Priority Senior Secured Floating Rate Notes.
Without the consent of any Holder, AirGate and the Trustee may amend or
supplement the Indenture, the First Priority Senior Secured Floating Rate Notes,
the Intercreditor Agreement or any Security Document to (i) cure any ambiguity,
defect or inconsistency, (ii) provide for uncertificated First Priority Senior
Secured Floating Rate Notes in addition to or in place of certificated First
Priority Senior Secured Floating Rate Notes, (iii) provide for the assumption of
AirGate's or a Guarantor's obligations to Holders under the Indenture, the
Intercreditor Agreement or any Security Document in the case of a merger or
consolidation or a sale of all or substantially all of AirGate's assets in
accordance with the Indenture, (iv) make any change that would provide any
additional rights or benefits to the Holders or that does not adversely affect
the legal rights under the Indenture of any such Holder, (v) secure the Notes
under the Indenture, to add Guarantees with respect to the Notes, or to confirm
and evidence the release, termination or discharge of any such security or
Guarantee when such release, termination or discharge is permitted by the
Indenture and the Security Documents, (vi) add or release Collateral as
permitted under the terms of the Indenture, the Intercreditor Agreement or the
Security Documents, (vii) comply with the requirements of the Commission in
order to effect or maintain the qualification of the Indenture under the TIA or
otherwise in obtaining an exemption from, or interpretation of, or in
elaborating on, the requirements of Section 314(d) of the TIA or to enable
AirGate to rely on existing interpretations of the Commission regarding the
requirements of Section 314(d) of the TIA or (viii) to confirm the automatic
amendment or waiver of the Security Documents pursuant to the terms of the
Intercreditor Agreement.
Without the consent of each Holder adversely affected, an amendment or
waiver to the Indenture or the First Priority Senior Secured Floating Rate Notes
may not, with respect to any First Priority Senior Secured Floating Rate Notes
held by a non-consenting Holder, (i) reduce the principal amount of First
Priority Senior Secured Floating Rate Notes whose Holders must consent to an
amendment, supplement or waiver, (ii) reduce the principal of or change the
fixed maturity of any First Priority Senior Secured Floating Rate Note or alter
the provisions with respect to the redemption of the First Priority Senior
Secured Floating Rate Notes, except for provisions relating to Sections 4.10 and
4.14 of the Indenture, (iii) reduce the rate of or change the time for payment
of interest on any First Priority Senior Secured Floating Rate Note, (iv) waive
a Default or Event of Default in the payment of principal of or premium, if any,
or interest on the First Priority Senior Secured Floating Rate Notes (except a
rescission of acceleration of the First Priority Senior Secured Floating Rate
Notes by the Holders of at least a majority in aggregate principal amount of the
First Priority Senior Secured Floating Rate Notes and a waiver of the payment
default that resulted from such acceleration), (v) make any First Priority
Senior Secured Floating Rate Note payable in money other than that stated in the
First Priority Senior Secured Floating Rate Notes, (vi) make any change in the
provisions of the Indenture relating to waivers of past Defaults or the rights
of Holders to receive payments of principal of or premium, if any, or interest
on the First Priority Senior Secured Floating Rate Notes, (vii) waive a
redemption payment with respect to any First Priority Senior Secured Floating
Rate Note, other than a payment required by Sections 4.10 and 4.14 of the
Indenture, and (viii) make any change in the preceding amendment and waiver
provisions.
(13) Defaults and Remedies. Events of Default include: (i) default for
30 days in the payment when due of interest on the First Priority Senior Secured
Floating Rate Notes; (ii) default in payment when due of the principal of or
premium, if any, on the First Priority Senior Secured Floating Rate Notes; (iii)
failure by AirGate or any Restricted Subsidiary to comply with the provisions
described in Sections 4.10, 4.14 and 4.23 of the Indenture; (iv) failure by
AirGate or any Restricted Subsidiary for 60 days after notice from the Trustee
or the Holders of at least 25% in principal amount of the First Priority Senior
Secured Floating Rate Notes then outstanding to comply with any of the other
provisions of the Indenture; (v) default under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by AirGate or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by AirGate or any
of its Restricted Subsidiaries) whether such Indebtedness or guarantee now
exists, or is created after the date of the Indenture, which default (A)(1) is
caused by a failure to pay any principal of or premium, if any, or interest on
such Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default") or (2) results in
the acceleration of such Indebtedness prior to its express maturity and (B) in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$10.0 million or more; (vi) failure by AirGate or any of its Restricted
Subsidiaries to pay final judgments aggregating in excess of $10.0 million,
which judgments are not paid, discharged or stayed for a period of 60 days;
(vii) certain events of bankruptcy or insolvency with respect to AirGate, any
Restricted Subsidiary that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary; (viii) any Security Document or the Intercreditor Agreement is held
to be unenforceable or invalid for any reason, the security interests purported
to be created by the Security Documents are held to be unenforceable, invalid or
impaired with respect to a material portion of the Collateral, AirGate or any
Guarantor defaults in the performance of the terms of any of the Security
Documents or the Intercreditor Agreement in a manner which adversely affects the
enforceability or validity of the security interest on a material portion of the
Collateral or in a manner which adversely affects the condition or value of a
material portion of the Collateral, or AirGate or any Guarantor repudiates or
disaffirms any of its obligations under any of the Security Documents or the
Intercreditor Agreement; (ix) except as permitted by the Indenture, any
Guarantee shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of any Guarantor, shall deny or
disaffirm its obligations under its Guarantee; (x) any event occurs that causes,
subject to any applicable grace period, an Event of Termination under any of the
Sprint Agreements and (y) the occurrence of any Event of Default as defined in
the indenture governing the Second Priority Notes; provided that an Event of
Default as defined in the indenture governing the Second Priority Notes that, in
accordance with its terms, (a) requires the passage of a period of time shall
not be an Event of Default with respect to the Notes prior to the passage of
such period of time and/or (b) requires the giving of notice shall not be an
Event of Default with respect to the Notes unless the Trustee or the holders of
Notes shall provide notice in accordance with the provisions of this Indenture
generally applicable to the giving of notices of default, but shall not require
that the holders of Second Priority Notes provide any comparable notice.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding First
Priority Senior Secured Floating Rate Notes may declare all the First Priority
Senior Secured Floating Rate Notes to be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, with respect to AirGate or any
Restricted Subsidiary that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary, all outstanding First Priority Senior Secured Floating Rate Notes
will become due and payable immediately without further action or notice.
Holders may not enforce the Indenture or the First Priority Senior Secured
Floating Rate Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
First Priority Senior Secured Floating Rate Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders notice of
any continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest.
(14) Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for AirGate, the Guarantors or their respective Affiliates, and may
otherwise deal with AirGate, the Guarantors or their respective Affiliates, as
if it were not the Trustee.
(15) No Recourse Against Others. No director, officer, employee,
incorporator or stockholder, of AirGate or any Subsidiary Guarantor, as such,
shall have any liability for any obligations of AirGate or any Subsidiary
Guarantor under the First Priority Senior Secured Floating Rate Notes or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a First Priority Senior
Secured Floating Rate Note waives and releases all such liability. The waiver
and release are part of the consideration for the issuance of the First Priority
Senior Secured Floating Rate Notes.
(16) Authentication. This First Priority Senior Secured Floating Rate
Note shall not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent.
(17) Abbreviations. Customary abbreviations may be used in the name of
a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
(18) Additional Rights of Holders of Restricted Global Notes and
Restricted Definitive Notes. Pursuant to, but subject to the exceptions in, the
Registration Rights Agreement, AirGate and the Guarantors shall be obligated to
consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Note for a First Priority Senior Secured
Floating Rate Note due 2011 of AirGate which shall have been registered under
the Securities Act, in like principal amount and having terms identical in all
material respects to this Note (except that such Note shall not be entitled to
Special Interest and shall not contain terms with respect to transfer
restrictions). The Holders shall be entitled to receive certain Special Interest
in the event such exchange offer is not consummated or the Notes are not offered
for resale and upon certain other conditions, all pursuant to and in accordance
with the terms of the Registration Rights Agreement.1
(19) CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, AirGate has caused
CUSIP numbers to be printed on the First Priority Senior Secured Floating Rate
Notes and the Trustee may use CUSIP numbers in notices of redemption as a
convenience to the Holders. No representation is made as to the accuracy of such
numbers either as printed on the First Priority Senior Secured Floating Rate
Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
AirGate shall furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
AirGate PCS, Inc.
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Atlanta, Georgia 30303
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Secretary
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1 This Section not to appear on Exchange Securities or Additional Notes
unless required by the terms of such Additional Notes.
ASSIGNMENT FORM
To assign this First Priority Senior Secured Floating Rate Note, fill
in the form below: (I) or (we) assign and transfer this First Priority Senior
Secured Floating Rate Note to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________________________________________
to transfer this First Priority Senior Secured Floating Rate Note on the books
of AirGate. The agent may substitute another to act for him.
Date: __________
Your Signature:
(Sign exactly as your name appears on the
face of this First Priority Senior Secured
Floating Rate Note)
Signature guarantee:
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this First Priority Senior Secured
Floating Rate Note purchased by AirGate pursuant to Section 4.10 4.14 or 4.23 of
the Indenture, check the box below:
[ ] Section 4.10 [ ] Section 4.14 [ ] Section 4.23
If you want to elect to have only part of the First Priority Senior
Secured Floating Rate Note purchased by AirGate pursuant to Section 4.10 or
Section 4.14 of the Indenture, state the amount you elect to have purchased: $
Date: __________ Your Signature: ____________________________________
(Sign exactly as your name appears on the
First Priority Senior Secured Floating
Rate Note)
Tax Identification No.:
Signature guarantee:
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED NOTES
AirGate PCS, Inc.
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Atlanta, Georgia 30303
Attention: Chief Financial Officer
The Bank of New York Trust Company, N.A.
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Attention: Corporate Trust Administration
Re: CUSIP # _________________
Reference is hereby made to that certain Indenture dated October 25, 2004 (the
"Indenture") among AirGate PCS, Inc. ("AirGate"), the Guarantors (as defined
therein) and The Bank of New York Trust Company, N.A., as trustee (the
"Trustee"). Capitalized terms used but not defined herein shall have the
meanings set forth in the Indenture.
This certificate relates to $_________ principal amount of Notes held in (check
applicable space) ____ book-entry or _____ definitive form by the undersigned.
The undersigned __________________ (transferor) (check one box below):
[ ] hereby requests the Registrar to deliver in exchange for its beneficial
interest in the Global Note held by the Depository a Note or Notes in
definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such
Global Note (or the portion thereof indicated above), in accordance
with Section 2.6 of the Indenture;
[ ] hereby requests the Trustee to exchange or register the transfer of a
Note or Notes to _____________ (transferee).
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the expiration of the periods referred to in Rule
144(k) under the Securities Act of 1933, as amended, the undersigned confirms
that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW:
(1) |_| to AirGate or any of its subsidiaries; or
(2) |_| pursuant to an effective registration statement under the
Securities Act of 1933, as amended; or
(3) |_| inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of
1933, as amended) that purchases for its own account or for
the account of a qualified institutional buyer to whom notice
is given that such transfer is being made in reliance on Rule
144A under the Securities Act of 1933, as amended, in each
case pursuant to and in compliance with Rule 144A thereunder.
(4) |_| outside the United States in an offshore transaction
within the meaning of Regulation S under the Securities Act of
1933, as amended, in compliance with Rule 904 thereunder.
Unless one of the boxes is checked, the Registrar will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
registered holder thereof.
_______________________________________________
Signature
Signature Guarantee:
(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended ("Rule 144A"), and is aware that the sale to it is being made
in reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
[Name of Transferee]
Dated: _________________________
NOTICE: To be executed by an executive
officer
SCHEDULE OF EXCHANGES OF SENIOR SECURED FLOATING RATE NOTES
The following exchanges of a part of this Global Note for other First
Priority Senior Secured Floating Rate Notes have been made:
Signature of
Principal Amount of Authorized Officer
this Global Note of Trustee or First
Amount of Decrease Amount of Increase in Following Such Priority Senior
in Principal Amount Principal Amount of Decrease (or Secured Floating
Date of Exchange of this Global Note this Global Note Increase) Rate Note Custodian
EXHIBIT B
FORM OF NOTATIONAL OF GUARANTEE
The Guarantor listed below (hereinafter referred to as the "Guarantor,"
which term includes any successors or assigns under that certain Indenture,
dated as of October 25, 2004, by and among AirGate, AGW Leasing Company, Inc.,
AirGate Network Services, LLC, AirGate Service Company, Inc. and the Trustee (as
amended and supplemented from time to time, the "Indenture") and any additional
Guarantors), has guaranteed the Notes and the obligations of AirGate under the
Indenture, which include (i) the due and punctual payment of the principal of,
premium, if any, and interest on the First Priority Senior Secured Floating Rate
Notes due 2011 (the "Notes") of AirGate PCS, Inc., a Delaware corporation
("AirGate"), whether at stated maturity, by acceleration or otherwise, the due
and punctual payment of interest on the overdue principal and premium, if any,
and (to the extent permitted by law) interest on any interest, if any, on the
Notes, and the due and punctual performance of all other obligations of AirGate
to the Holders or the Trustee all in accordance with the terms set forth in
Article XI of the Indenture, (ii) in case of any extension of time of payment or
renewal of any Notes or any such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise,
and (iii) the payment of any and all costs and expenses (including reasonable
attorneys' fees) incurred by the Trustee or any Holder in enforcing any rights
under this Guarantee or the Indenture.
The obligations of each Guarantor to the Holders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
XI of the Indenture and reference is hereby made to such Indenture for the
precise terms of this Guarantee.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future of each Guarantor shall have any liability under this
Guarantee by reason of his or its status as such stockholder, employee, officer,
director or incorporator.
This is a continuing Guarantee and shall remain in full force and
effect and shall be binding upon each Guarantor and its successors and assigns
until full and final payment of all of AirGate's obligations under the Notes and
Indenture or until released in accordance with the Indenture and shall inure to
the benefit of the successors and assigns of the Trustee and the Holders, and,
in the event of any transfer or assignment of rights by any Holder or the
Trustee, the rights and privileges herein conferred upon that party shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof. This is a Guarantee of payment and
not of collectibility.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Note upon which this Guarantee is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers. The Obligations of each Guarantor
under its Guarantee shall be limited to the extent necessary to insure that it
does not constitute a fraudulent conveyance under applicable law.
THE TERMS OF ARTICLE XI OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
Dated as of __________
[NAME OF GUARANTOR]
By:
Name:
Title:
(SEAL)
EXHIBIT C
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A]
AirGate PCS, Inc.
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Atlanta, Georgia 30303
Attention: Chief Financial Officer
The Bank of New York Trust Company, N.A.
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Attention: Corporate Trust Administration
Re: AirGate PCS, Inc. (the "Company")
First Priority Senior Secured Floating Rate Notes
due 2011 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate principal
amount at maturity of the Notes, we hereby certify that such transfer is being
effected pursuant to and in accordance with Rule 144A ("Rule 144A") under the
United States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, we hereby further certify that the Notes are being transferred to a
person that we reasonably believe is purchasing the Notes for its own account,
or for one or more accounts with respect to which such person exercises sole
investment discretion, and such person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such Notes are being transferred in compliance
with any applicable blue sky securities laws of any state of the United States.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:
Authorized Signature
EXHIBIT D
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S]
AirGate PCS, Inc.
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Atlanta, Georgia 30303
Attention: Chief Financial Officer
The Bank of New York Trust Company, N.A.
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Attention: Corporate Trust Administration
Re: AirGate PCS, Inc. (the "Company")
First Priority Senior Secured Floating Rate Notes
due 2011 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate principal
amount of the Notes, we confirm that such sale has been effected pursuant to and
in accordance with Regulation S under the United States Securities Act of 1933,
as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the
United States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we
nor any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are applicable
thereto, we confirm that such sale has been made in accordance with the
applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may be.
The Company and you are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
Authorized Signature
EXHIBIT E
FORM OF PLEDGE AGREEMENT
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 [ ], a Delaware limited liability company
("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.
"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 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 designated 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;
(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 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, 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 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:
(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.
(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 sue 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.
(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
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).
(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: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to the Pledgor:
AirGate PCS, Inc.
▇▇▇▇▇▇ Tower, Suite ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Atlanta, Georgia 30303
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:
(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 sue 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.]
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 MEMBERSHIP INTERESTS
100% of [ ] membership interests
EXHIBIT A
[ ]
▇▇▇▇▇▇ Tower, Suite ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Atlanta, Georgia 30303
ACKNOWLEDGEMENT
__________ __, 2004
The Bank of New York Trust Company, N.A.
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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 [ ] (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 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.
Very truly yours,
[ ]
By: _____________________________________
Name:
Title:
Accepted and Agreed:
AIRGATE PCS, INC., as the Pledgor
By:
Name:
Title:
EXHIBIT F
FORM OF INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT (this "Agreement") is dated as of
October 25, 2004, among The Bank of New York Trust Company, N.A., as trustee
(together with any successor thereto exercising substantially the same rights
and powers, the "Trustee" or the "First Priority Agent") under the First
Priority Indenture (as defined below) and the Security Documents (as defined in
the First Priority Indenture), AirGate PCS, Inc., a Delaware corporation (the
"Company"), and certain of the Company's subsidiaries that have guaranteed the
Notes (as defined below) (together with any future subsidiary guarantors, the
"Guarantors" and together with the Company, the "Issuers"), and The Bank of New
York (the "Second Priority Agent") as trustee under the indenture (the "Second
Priority Indenture") governing the $160.0 million aggregate principal amount of
Senior Subordinated Secured Notes due September 1, 2009 (the "Second Priority
Notes"), dated February 4, 2004 by and among the Company, the guarantors named
therein and The Bank of New York as trustee.
W I T N E S S E T H :
WHEREAS, the Company 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 Company issued pursuant to the First Priority Indenture
(as defined herein) including, without limitation, in exchange for outstanding
notes, the "Notes") and the Guarantors have guaranteed the Notes, in each case
pursuant to the First Priority Indenture. All of the Issuers' obligations under
the Notes and the other Indenture Documents (as defined below) are secured by
first priority liens on all of the now existing and hereafter acquired real and
personal property of the Issuers now or hereafter made subject to the Lien of
the Indenture Documents (the "Collateral");
WHEREAS, all of the Issuers' obligations under the Second
Priority Notes and the other Second Priority Note Documents (as defined below)
are secured by second priority liens on all of the now existing and hereafter
acquired real and personal property of the Issuers now or hereafter made subject
to the Lien of the Second Priority Note Documents;
WHEREAS, the Issuers have requested that the First Priority
Agent and the Second Priority Agent enter into this Agreement concerning their
respective rights with respect to the priority of their respective security
interests in and liens on the Collateral; and
WHEREAS, the terms of the First Priority Indenture authorize
the First Priority Agent to enter into an intercreditor agreement in the form of
this Agreement, and the terms of the Second Priority Indenture authorize the
Second Priority Agent to enter into an intercreditor agreement in the form of
this Agreement, in each case upon satisfaction by the Issuers of certain
conditions precedent, including without limitation, the conditions set forth in
Section 10.10 of the Second Priority Indenture.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto hereby agree as follows:
1. Definitions.
(a) Unless otherwise defined herein, terms defined in the
First Priority Indenture and under the Second Priority Indenture have the
meanings given to them in such documents.
(b) The following terms shall have the following meanings:
"Agreement" means this Intercreditor Agreement as amended,
supplemented or otherwise modified from time to time in accordance with
the terms hereof.
"Bankruptcy Code" shall mean Title 11 of the United States
Code, as amended from time to time and any successor statute and all
rules and regulations promulgated thereunder.
"Collateral" shall mean the assets of the Company and the
Guarantors now or hereafter owned or acquired and all proceeds thereof
subject to a security interest that secures payment or performance of
the Senior Obligations and the Second Priority Obligations.
"First Priority Indenture" means the Indenture, dated as of
October 25, 2004, by and between the Company, the Guarantors and the
Trustee, and shall include any indenture or similar document entered
into by the Company and any trustee to replace the First Priority
Indenture in whole or in part.
"Indenture Documents" means the First Priority Indenture and
the Senior Security Documents.
"Issuers" shall mean the Company and the Guarantors.
"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.
"Second Priority Guarantee" shall mean the guarantee of the
Second Priority Obligations by a Guarantor executed by such Guarantor
pursuant to the Second Priority Indenture.
"Second Priority Note Documents" means the Second Priority
Indenture, the Second Priority Notes issued thereunder, the Second
Priority Guarantees and the Second Priority Security Documents.
"Second Priority Notes" has the meaning given in the recitals
hereto.
"Second Priority Obligations" means the Obligations (as
defined in the Second Priority Indenture) with respect to the Second
Priority Notes and the other Second Priority Note Documents and shall
include, without limitation, the unpaid principal of and interest owing
under the Second Priority Notes and all other obligations and
liabilities of the Company or any Guarantor thereunder and under the
other Second Priority Note Documents (including, without limitation,
interest accrued at the then applicable rate provided in the Second
Priority 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 Second Priority Note 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 Second
Priority Agent and fees, expenses and indemnities of the Second
Priority Agent that are required to be paid pursuant to the terms of
the Second Priority Indenture or any other Second Priority Note
Document. To the extent any payment with respect to the Second Priority
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.
"Second Priority Security Documents" means any and all
documents providing for the grant of security to secure the Second
Priority Obligations.
"Senior Lenders" shall mean the holders of the Notes.
"Senior Obligations" means the Obligations (as defined in the
First Priority Indenture) of the Issuers with respect to the Notes and
the other Indenture 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 other Indenture 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 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 First Priority
Agent and fees, expenses and indemnities of the First Priority Agent
that are required to be paid pursuant to the terms of the First
Priority Indenture or any other Indenture Document. To the extent any
payment with respect to the Senior 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.
"Senior Security Documents" shall mean the Security Documents
(as defined in the First Priority Indenture) under the First Priority
Indenture.
(c) 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 in the First Priority Indenture or the
Second Priority Indenture), (ii) any reference herein to any Person
shall be construed to include such Person's successors and assigns, and
(iii) the words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and
section and paragraph references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Releases.
(a) If in connection with:
(i) the exercise of the First Priority Agent's remedies in
respect of the Collateral provided for in Section 4, including any
sale, lease, exchange, transfer or other disposition of such
Collateral; or
(ii) subject to Section 2(c) below, any sale, lease, exchange,
transfer or other disposition of Collateral permitted or not prohibited
under the First Priority Indenture (whether or not an Event of Default,
as defined therein, has occurred and is continuing) and permitted or
not prohibited under the Second Priority Indenture, the Trustee, for
itself or on behalf of any of the Senior Lenders, releases any of its
Liens on any part of the Collateral (or any Guarantor from its
obligations under its guaranty of the Senior Obligations), the Liens,
if any, of the Trustee on such Collateral (and the obligations of such
Guarantor under its guaranty of the Second Priority Obligations) shall
be automatically, unconditionally and simultaneously released (except
as provided in the last sentence of Section 2(d)) and the Second
Priority Agent, for itself or on behalf of any such holder of Second
Priority Notes, shall promptly execute and deliver to the First
Priority Agent or the Company such termination statements, releases and
other documents as the First Priority Agent or the Company may request
to effectively confirm such release.
(b) The Second Priority Agent, for itself and on behalf of the
holders of Second Priority Notes, hereby irrevocably constitutes and
appoints the First Priority Agent and any officer or agent of the First
Priority Agent, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place
and stead of the Second Priority Agent or such holder or in the First
Priority Agent's own name, from time to time in the Trustee's
discretion, for the purpose of carrying out the terms of this Section
2, to take any and all appropriate action and to execute and record any
and all documents and instruments which may be provided to it as
necessary or desirable to accomplish the purposes of this Section 2,
including, without limitation, any financing statements, endorsements
or other instruments or transfer or release.
(c) Notwithstanding anything to the contrary contained herein,
in the event that the First Priority Agent releases its Liens on the
Collateral because the Senior Obligations have been paid in full,
neither the Second Priority Agent nor the holders of Second Priority
Notes shall be obligated to release their Liens on any Collateral owned
by the Issuers after giving effect to such payment and termination (and
any sale, transfer or other disposition of Collateral occurring in
connection therewith contemplated under this Agreement); provided,
however, that in connection with any refinancing or replacement of all
or any portion of the Senior Obligations prior to the occurrence of a
Proceeding, the Second Priority Agent, on behalf of each holder of
Second Priority Notes, shall, if requested by the Company or the
existing or new holders of the Senior Obligations, execute an
intercreditor agreement on substantially the same terms as this
Agreement with the lenders under such refinancing or replacement.
Furthermore, if the Senior Obligations have been paid in full in
connection with any sale, transfer or other disposition of Collateral
contemplated under this Agreement, the Liens held by the holders of the
Second Priority Notes shall not be automatically released with respect
to the proceeds of such sale, transfer or other disposition of
Collateral which remain after the Senior Obligations have been paid in
full.
(d) Notwithstanding any provision to the contrary contained in
this Section 2, no portion of the Collateral may be released from the
Second Priority Note Documents unless Company shall have complied with
the provisions of Section 314(c) and 314(d) of the Trust Indenture Act,
if applicable, and shall have furnished evidence of such compliance (or
evidence that no compliance is needed) satisfactory to the Second
Priority Agent and the First Priority Agent.
3. Proceedings. In the event of any Proceeding involving any
of the Issuers:
(a) If the Second Priority Agent has failed to file claims or
proofs of claim with respect to the Second Priority Notes in any
Proceeding earlier than five days prior to the deadline for any such
filing, the holders of the Second Priority Notes hereby appoint and
empower First Priority Agent to file such claims or proofs of claim;
provided, that First Priority Agent shall have no obligation to file
any such claim. Absent any such failure to file, the Second Priority
Agent shall have and shall continue to have full and absolute
discretion over the filing of such claims in any manner and substance
as the Second Priority Agent may determine in its sole discretion.
(b) The Second Priority Agent and the holders of Second
Priority Notes agree that the Senior Lenders may (x) consent to the use
of cash collateral under Section 363 of the Bankruptcy Code, (y)
provide financing to the Issuers under Section 364 of the Bankruptcy
Code so long as the maximum amount of such financing, together with the
amounts of other debt outstanding, under the First Priority Indenture
does not exceed the amount set forth in subsection (3) of the
definition of Permitted Debt contained in Section 4.9 of the Second
Priority Indenture, or (z) obtain adequate protection of their
interests in the Collateral, all on such terms and conditions and in
such amounts as such Senior Lenders may decide, and that neither the
Second Priority Agent nor the holders of the Second Priority Notes
shall raise any objections to such use of cash collateral or adequate
protection on the grounds of a failure to provide "adequate protection"
for their Liens in the Collateral, so long as (i) the interest rate,
fees, advance rates, lending sublimits and limits and other terms of
such financing are consistent with debtor-in-possession financing
transactions of a similar nature, (ii) the Second Priority Agent on
behalf of the holders of the Second Priority Notes retains a Lien on
the Collateral (including proceeds thereof arising after the
commencement of such Proceeding) with the same priority as existed
prior to the commencement of the case under the Bankruptcy Code, but
subject to the priming liens of the Senior Lenders and of any financing
under Section 364 of the Bankruptcy Code permitted herein, (iii) the
Second Priority Agent on behalf of the holders of the Second Priority
Notes receives additional and replacement Liens on post-petition assets
to the same extent granted to the Senior Lenders, with the same
priority as existed prior to the commencement of the case under the
Bankruptcy Code, but subject to the liens of the Senior Lenders and of
any financing under Section 364 of the Bankruptcy Code permitted
herein, and (iv) such financing, use of cash collateral or adequate
protection is subject to the terms of this Agreement. The Second
Priority Agent and each holder of the Second Priority Notes agrees that
all such financing under Section 364 of the Bankruptcy Code permitted
herein shall constitute Senior Obligations hereunder, and, in
connection therewith, each Issuer may grant to such Senior Lenders
Liens upon all of the Property of such Issuer, subject to (iii) above,
which Liens (A) shall secure payment of all or any portion of the
Senior Obligations (whether such Senior Obligations arose prior to the
commencement of any Proceeding or at any time thereafter) provided by
such Senior Lenders during the Proceeding and (B) shall be superior in
priority to the Liens in favor of the holders of the Second Priority
Notes. Each of the Second Priority Agent and the holders of the Second
Priority Notes hereby waives any rights it may have under Section
363(f)(3) of the Bankruptcy Code (but preserves all other rights it may
have) to object to or oppose a sale or other disposition of any
Collateral free and clear of Liens or other claims of each holder of
Second Priority Notes if the Senior Lenders have consented to such sale
or disposition.
4. Rights in Collateral.
(a) Notwithstanding anything to the contrary contained in any
filing or agreement to which the Second Priority Agent, the holders of
the Second Priority Notes, the First Priority Agent, the Senior Lenders
or the Company may be a party and irrespective of the time, order or
method of attachment or perfection of the security interests created by
the Senior Security Documents or the Second Priority Security
Documents, the rules for determining priority under the Uniform
Commercial Code or any other law governing the relative priorities of
secured creditors, all Liens on the Collateral securing the Second
Priority Obligations pursuant to the Second Priority Security Documents
shall be and hereby are subordinated for all purposes and in all
respects to Liens on the Collateral securing the Senior Obligations
pursuant to the Senior Security Documents, and any security interest in
any Collateral in favor of or for the benefit of the First Priority
Agent and Senior Lenders pursuant to the Senior Security Documents has
and shall have priority, to the extent of any unpaid Senior
Obligations, over any security interest in such Collateral in favor of
or for the benefit of the Second Priority Agent or the holders of the
Second Priority Notes pursuant to the Second Priority Security
Documents.
(b) So long as the Senior Obligations have not been paid in
full and the First Priority Indenture has not been discharged (i)
neither the Second Priority Agent nor any holder of the Second Priority
Notes will institute any action or proceeding to exercise any of its
rights or remedies with respect to any Collateral, including, without
limitation, any action of foreclosure upon any Collateral and (ii) the
First Priority Agent shall have the exclusive right to enforce rights
and exercise remedies with respect to the Collateral under the Senior
Security Documents, and neither the Second Priority Agent nor any
holder of the Second Priority Notes shall have any right to consent to,
require notice of (except as provided herein or in the applicable
Uniform Commercial Code) or be consulted with respect to, the
enforcement of such rights or the exercise of such remedies by the
First Priority Agent and the Senior Lenders with respect thereto;
provided, however, that, (A) in any Proceeding commenced by or against
the Company, the Second Priority Agent may file a claim or statement of
interest with respect to the Second Priority Obligations, and (B) the
Second Priority Agent may take any action in order to preserve or
protect its rights in the Collateral not in contravention of this
Agreement.
(c) The Second Priority Agent, on behalf of itself and each
holder of Second Priority Notes, agrees not to seek to challenge, to
avoid, to subordinate or to contest or directly or indirectly to
support any other Person in challenging, avoiding or contesting in any
judicial or other proceeding, including, without limitation, any
Proceeding, the priority, validity, extent, perfection or
enforceability of any Lien held by the First Priority Agent or any
Senior Lender in all or any part of the Collateral. The First Priority
Agent agrees not to seek to challenge, to avoid, to subordinate, except
pursuant to the terms of this Agreement and the First Priority
Indenture, or to contest or directly or indirectly to support any other
Person in challenging, avoiding or contesting in any judicial or other
proceeding, including, without limitation, any Proceeding, the
priority, validity, extent, perfection or enforceability of any Lien
held by the Second Priority Agent or any holder of Second Priority
Notes in all or any part of the Collateral.
(d) So long as the Senior Obligations have not been paid in
full and the First Priority Indenture has not been discharged, any
money, property, securities or other distributions of any nature
whatsoever received from the sale, disposition or other realization
upon a foreclosure in accordance with the Uniform Commercial Code or
other exercise of remedies with respect to the Collateral by any Senior
Lender, the First Priority Agent, the Second Priority Agent or any
holder of the Second Priority Notes, or all or any part of the
Collateral, regardless of whether such money, property, securities or
other distributions are received during the pendency of any Proceeding
or otherwise, shall be delivered to the First Priority Agent in the
form received, duly indorsed to such party, if required, and applied by
the First Priority Agent in the following order:
First, to the payment in full of all costs and expenses
(including, without limitation, attorneys' fees and disbursements) paid
or incurred by the First Priority Agent in connection with such
realization on the Collateral or the protection of any of their rights
and interests therein;
Second, to the payment in full of all First Priority
Obligations in accordance with the Indenture Documents;
Third, to the Second Priority Agent for application to the
Second Priority Obligations pursuant to Section 6.10 of the Second
Priority Indenture to the full extent thereof at such time; and
Fourth, to pay the Company or the appropriate designee thereof
or as a court of competent jurisdiction may direct, any surplus then
remaining.
(e) In the event that:
(i) all of the Senior Obligations have been paid in
full;
(ii) any Collateral remains that remains pledged
pursuant to the Second Priority Security Documents, and
(iii) at such time there are Second Priority
Obligations outstanding,
then the Second Priority Agent shall have the right to exercise remedies against
the Collateral and to enforce the provisions of the Second Priority Security
Documents in respect of the Collateral without any consent of, notice to or
consultation with the First Priority Agent.
(f) Any Collateral or proceeds thereof received by the Second
Priority Agent or any holder of Second Priority Notes in connection with the
exercise of any right or remedy relating to the Collateral pursuant to the
Second Priority Security Documents in contravention of this Agreement shall be
segregated and held in trust and forthwith paid over to the First Priority Agent
for the benefit of the Senior Lenders in the same form as received, with any
necessary endorsements or as a court of competent jurisdiction may otherwise
direct.
(g) Notwithstanding anything to the contrary in this
Agreement, the Second Priority Agent and the holders of Second Priority Notes
may accelerate the Second Priority Obligations and exercise rights and remedies
as a creditor against the Company and its Subsidiaries (other than with respect
to the Collateral as provided herein) in accordance with the terms of the Second
Priority Note Documents and applicable law.
(h) THE COMPANY, THE FIRST PRIORITY AGENT (ON ITS OWN BEHALF
AND ON BEHALF OF THE SENIOR LENDERS) AND THE SECOND PRIORITY AGENT (ON ITS OWN
BEHALF AND ON BEHALF OF THE HOLDERS OF THE SECOND PRIORITY NOTES) EACH HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
5. Provisions Define Relative Rights. This Agreement is
intended solely for the purpose of defining the relative rights of the Senior
Lenders, the First Priority Agent, the holders of the Second Priority Notes and
the Second Priority Agent with respect to the Collateral, and no other Person
shall have any right, benefit or other interest under this Agreement.
Notwithstanding anything to the contrary herein, this Agreement shall not modify
or amend the rights and obligations of the Company and the Guarantors under any
Senior Loan Document or any Second Priority Note Document.
6. Termination of Agreement; Acknowledgments.
(a) The rights of the First Priority Agent on behalf of the
Senior Lenders under this Agreement shall terminate when the Senior Obligations
have been paid in full in cash and the First Priority Indenture has been
discharged; provided, that the obligations of the First Priority Agent arising
under this Agreement upon the payment in full in cash of the Senior Obligations
shall continue until such obligations have been fully satisfied in accordance
with the terms of this Agreement. The First Priority Agent acknowledges on
behalf of the Senior Lenders that the Senior Obligations shall be deemed "paid
in full in cash" for all purposes of this Agreement when the Senior Lenders have
received payment of all principal, interest and other amounts then outstanding
under the Indenture Documents. The First Priority Agent agrees that within five
Business Days after payment of all principal, interest and other amounts then
outstanding under the Indenture Documents and discharge of the First Priority
Indenture, it will provide a written acknowledgment of such payment and
discharge to the Second Priority Agent, which acknowledgment shall also
acknowledge that the Senior Lenders have no further rights under this Agreement
or in respect of the Collateral securing the Senior Obligations. Concurrent with
such acknowledgment, the First Priority Agent will deliver to the Second
Priority Agent, if any of the Second Priority Obligations shall be outstanding,
any items of such Collateral held in the possession of the First Priority Agent
together with any necessary endorsements (or otherwise allow the First Priority
Agent to obtain control of such Collateral), provided that if no Second Priority
Obligations shall be outstanding, the First Priority Agent will deliver all such
items of Collateral to the Company.
(b) The Senior Obligations shall continue to be treated as
Senior Obligations and the provisions of this Agreement shall continue to govern
the relative rights and priorities of Senior Lenders and the holders of the
Second Priority Notes even if all or part of the Senior Obligations or the Liens
securing the Senior Obligations are subordinated, set aside, avoided,
invalidated or disallowed in connection with any Proceeding, and this Agreement
shall be reinstated if at any time any payment of any of the Senior Obligations
is rescinded or must otherwise be returned by any holder of Senior Obligations
or any representative of such holder.
7. First Priority Agent as Bailee for Perfection of Interest
in Possessory Collateral. The Second Priority Agent, on behalf of the holders of
the Second Priority Notes, hereby appoints the First Priority Agent as the agent
for the Second Priority Agent and the holders of the Second Priority Notes,
solely for the purposes of perfecting Liens in favor of the Second Priority
Agent and the holders of the Second Priority Notes on Collateral which is of a
type such that perfection of a Lien thereon may be accomplished by possession
thereof and to which the First Priority Agent has possession (and the First
Priority Agent hereby acknowledges such appointment). In the event all Senior
Obligations shall have been paid in full and the First Priority Indenture has
been discharged, the First Priority Agent shall deliver to the Second Priority
Agent all such Collateral remaining in its possession, and the Issuers hereby
irrevocably authorize any such delivery of Collateral by the First Priority
Agent. The obligations of the First Priority Agent and the Issuers under the
preceding sentence shall survive the termination of this Agreement.
8. Notices. All notices, requests and demands to or upon the
parties shall be in writing (or by fax or similar electronic transfer confirmed
in writing) and shall be deemed to have been duly given or made (a) when
delivered by hand or (b) if given by mail, five days after being deposited in
the mails by certified mail, return receipt requested, or (c) if by fax or
similar electronic transfer, when sent and receipt has been confirmed, addressed
as follows:
If to the First Priority Agent: The Bank of New York Trust Company, N.A.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to the Second Priority Agent: The Bank of New York,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to the Company: AIRGATE PCS, INC.
▇▇▇▇▇▇ Tower, Suite ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Atlanta, Georgia 30303
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The parties hereto may change their addresses and transmission numbers for
notices by notice in the manner provided in this Section. Any notice, request or
demand to the First Priority Agent or the Second Priority Agent shall only be
deemed effective upon actual receipt.
9. Counterparts. This Agreement may be executed by one or more
of the parties on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the counterparts of this Agreement signed by all the
parties shall be lodged with the First Priority Agent and the Second Priority
Agent.
10. Severability. Any provision of this Agreement which 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 render
unenforceable such provision in any other jurisdiction.
11. Integration. This Agreement represents the entire
agreement of the Issuers, the First Priority Agent on behalf of itself and the
Senior Lenders and the Second Priority agent on behalf of itself and the holders
of Second Priority Notes with respect to the subject matter hereof and there are
no promises or representations by any of them relative to the subject matter
hereof not reflected herein.
12. Amendments in Writing. 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 First Priority Agent on behalf of the
Senior Lenders and the Second Priority Agent on behalf of the holders of Second
Priority Notes. The Company shall not have any right to amend, modify or waive
any provision of this Agreement without the consent of the First Priority Agent
and the Second Priority Agent, nor shall any consent or signed writing be
required of the Company to effect any amendment, modification or waiver of any
provision of this Agreement. For the purposes of this Agreement, no amendment of
the definitions of "Senior Debt" or subsection (3) of the definition of
"Permitted Debt" contained in the Second Priority Indenture or Article XII of
the Second Priority Indenture shall be deemed effective without the prior
written consent of the Senior Lenders holding a majority of principal amount of
Senior Obligations then outstanding.
13. Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the
benefit of each of the Senior Lenders, the First Priority Agent and the Second
Priority Agent and their successors and assigns. Each holder of Second Priority
Notes, by accepting the benefits of the Second Priority Note Documents, shall be
deemed to have agreed to (i) be bound by the provisions of this Agreement and
each agreement on the part of such holder as expressed herein and (ii) refrain
from taking any action which the Second Priority Agent has agreed not to take,
in its individual capacity or on any holder of Second Priority Notes behalf, in
this Agreement. Each Senior Lender, by accepting the benefits of the Indenture
Documents, shall be deemed to have agreed to (i) be bound by the provisions of
this Agreement and (ii) refrain from taking any action which the First Priority
Agent has agreed not to take, in its individual capacity or on any Senior
Lender's behalf, in this Agreement.
(b) Upon a successor administrative agent or collateral agent
becoming the trustee under the First Priority Indenture, such successor trustee,
as the case may be, automatically shall become the First Priority Agent
hereunder with all the rights and powers of such party hereunder, and bound by
the provisions hereof, without the need for any further action on the part of
any party hereto.
(c) Upon a successor Second Priority Agent becoming the Second
Priority Agent under the Second Priority Indenture, such successor Second
Priority Agent automatically shall become the Second Priority Agent hereunder
with all the rights and powers of the Second Priority Agent hereunder, and bound
by the provisions hereof, without the need for any further action on the part of
any party hereto.
14. Governing Law; Jurisdiction; Waiver of Jury Trial. This
Agreement shall be governed by, and construed and interpreted in accordance
with, the law 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. Each party hereto agrees
that all judicial proceedings brought against it arising out of or relating to
this Agreement or its obligations hereunder may be brought in the federal court
of competent jurisdiction in the State, County and City of New York or if
jurisdiction therein is not permitted, in any court of the State of New York
located in the County and City of New York, and accepts generally and
unconditionally the nonexclusive jurisdiction and venue of such courts. EACH
PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM
WITH RESPECT THERETO TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
15. Conflict. In the event of any conflict between the
provisions of this Agreement and the provisions of the Indenture Documents or
the Second Priority Note Documents, the provisions of this Agreement shall
govern.
16. Authorization. By its signature, each Person executing
this Agreement on behalf of other parties hereto represents and warrants to the
other parties hereto that it is duly authorized to execute this Agreement by and
on behalf of each of such other parties.
17. Effectiveness; Acknowledgement by Second Priority Agent.
This Agreement is intended to be a "subordination agreement" as that term is
used in Section 510 of the Bankruptcy Code and to be enforceable thereunder. All
references to the Company shall include the Company as debtor and debtor-in
possession and any receiver or trustee for the Company in any Proceeding. The
Second Priority Agent, on behalf of the holders of Second Priority Notes, hereby
acknowledges and agrees with the Issuers that references to the "Intercreditor
Agreement" in the Second Priority Indenture Documents shall, from and after the
effectiveness of this Agreement, refer to this Agreement and all references
therein to the "Senior Loan Obligations" shall refer to the Senior Obligations
and that the "First Lien Termination Date" referred to in the Second Priority
Indenture Documents shall not be deemed to have occurred until each of the
events referred to in the first sentence of Section 6(a) hereof shall have
occurred.
18. Compliance with the Trust Indenture Act. Nothing contained
herein shall impair the ability of the First Priority Agent or the Second
Priority Agent to take any action necessary to comply with any obligations
imposed under applicable law, including without limitation, the Trust Indenture
Act.
Signature Page to Intercreditor Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
THE BANK OF NEW YORK TRUST COMPANY, N.A., as First
Priority Agent
By: _____________________________
Name:
Title:
THE BANK OF NEW YORK,
as Second Priority Agent
By: ____________________________
Name:
Title:
Signature Page to Intercreditor Agreement
Consented:
AIRGATE PCS, INC.
By: ________________________
Name:
Title:
Consented:
AGW LEASING COMPANY, INC.
AIRGATE NETWORK SERVICES, LLC
AIRGATE SERVICE COMPANY, INC.
By:_________________________
Name:
Title: