EXHIBIT 4.5
================================================================================
AirGate PCS, Inc.
AGW Leasing Company, Inc.
======================
$300,000,000 AGGREGATE PRINCIPAL AMOUNT AT MATURITY
13 1/2% SENIOR SUBORDINATED DISCOUNT NOTES DUE 2009
======================
===============
INDENTURE
DATED AS OF SEPTEMBER 30, 1999
===============
Bankers Trust Company
Trustee
================================================================================
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section 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).................................................................. 10.3
(c).................................................................. 10.3
313 (a).................................................................. 7.6
(b)(1)............................................................... 7.6
(b)(2)............................................................... 7.6; 7.7
(c).................................................................. 7.6;10.2
(d).................................................................. 7.6
314 (a).................................................................. 4.3;10.5
(b).................................................................. N.A.
(c)(1)............................................................... 10.4
(c)(2)............................................................... 10.4
(c)(3)............................................................... N.A.
(d).................................................................. N.A.
(e).................................................................. 10.5
(f).................................................................. N.A.
315 (a).................................................................. 7.1
(b).................................................................. 7.5,10.2
(c).................................................................. 7.1
(d).................................................................. 7.1
(e).................................................................. 6.11
316 (a)(last sentence)................................................... 2.9
(a)(1)(A)............................................................ 6.5
Trust Indenture
Act Section Section Indenture
316 (a)(1)(B)............................................................ 6.4
(a)(2)............................................................... 2.13
(b).................................................................. 6.7
(c).................................................................. N.A.
317 (a)(1)............................................................... 6.8
(a)(2)............................................................... 6.9
(b).................................................................. 2.4
318 (a).................................................................. 10.1
(b).................................................................. N.A.
(c).................................................................. 10.1
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......................................... 1
SECTION 1.1 DEFINITIONS.......................................................... 1
SECTION 1.2 OTHER DEFINITIONS.................................................... 23
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.................... 24
SECTION 1.4 RULES OF CONSTRUCTION................................................ 24
ARTICLE II THE NOTES.......................................................................... 25
SECTION 2.1 FORM AND DATING...................................................... 25
SECTION 2.2 EXECUTION AND AUTHENTICATION......................................... 26
SECTION 2.3 REGISTRAR AND PAYING AGENT........................................... 27
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST.................................. 28
SECTION 2.5 HOLDER LISTS......................................................... 28
SECTION 2.6 BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.......................... 28
SECTION 2.7 REPLACEMENT NOTES.................................................... 32
SECTION 2.8 OUTSTANDING NOTES.................................................... 32
SECTION 2.9 TREASURY NOTES....................................................... 33
SECTION 2.10 TEMPORARY NOTES...................................................... 33
SECTION 2.11 CANCELLATION......................................................... 34
SECTION 2.12 DEFAULTED INTEREST................................................... 34
SECTION 2.13 RECORD DATE.......................................................... 34
SECTION 2.14 COMPUTATION OF INTEREST.............................................. 34
SECTION 2.15 CUSIP NUMBER......................................................... 35
ARTICLE III REDEMPTION AND PREPAYMENT.......................................................... 35
SECTION 3.1 NOTICES TO TRUSTEE................................................... 35
SECTION 3.2 SELECTION OF NOTES TO BE REDEEMED.................................... 35
SECTION 3.3 NOTICE OF REDEMPTION................................................. 36
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION....................................... 37
SECTION 3.5 DEPOSIT OF REDEMPTION OR PURCHASE PRICE.............................. 37
SECTION 3.6 NOTES REDEEMED IN PART............................................... 38
SECTION 3.7 OPTIONAL REDEMPTION.................................................. 38
SECTION 3.8 MANDATORY REDEMPTION................................................. 39
SECTION 3.9 REPURCHASE OFFERS................................................... 39
ARTICLE IV COVENANTS........................................................................ 42
SECTION 4.1 PAYMENT OF NOTES....................................................... 42
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY........................................ 42
SECTION 4.3 COMMISSION REPORTS..................................................... 43
SECTION 4.4 COMPLIANCE CERTIFICATE................................................. 43
SECTION 4.5 TAXES.................................................................. 44
SECTION 4.6 STAY, EXTENSION AND USURY LAWS......................................... 44
SECTION 4.7 LIMITATION ON RESTRICTED PAYMENTS...................................... 45
SECTION 4.8 DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING SUBSIDIARIES.................................... 50
SECTION 4.9 LIMITATION ON INCURRENCE OF INDEBTEDNESS
AND ISSUANCE OF PREFERRED STOCK........................................ 51
SECTION 4.10 ASSET SALES............................................................ 54
SECTION 4.11 TRANSACTIONS WITH AFFILIATES........................................... 56
SECTION 4.12 LIENS.................................................................. 57
SECTION 4.13 SALE AND LEASEBACK TRANSACTIONS........................................ 58
SECTION 4.14 OFFER TO PURCHASE UPON CHANGE OF CONTROL............................... 58
SECTION 4.15 CORPORATE EXISTENCE.................................................... 59
SECTION 4.16 LIMITATION ON ISSUANCES AND SALES OF EQUITY INTERESTS IN WHOLLY OWNED
RESTRICTED SUBSIDIARIES................................................ 60
SECTION 4.17 BUSINESS ACTIVITIES.................................................... 60
SECTION 4.18 PAYMENT FOR CONSENTS................................................... 60
SECTION 4.19 NO SENIOR SUBORDINATED DEBT............................................ 61
SECTION 4.20 ADDITIONAL GUARANTEES.................................................. 61
SECTION 4.21 DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES................ 61
SECTION 4.22 FURTHER INSTRUMENTS AND ACTS........................................... 62
ARTICLE V SUCCESSORS........................................................................... 62
SECTION 5.1 MERGER, CONSOLIDATION OR SALE OF ASSETS................................ 62
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED...................................... 64
ARTICLE VI DEFAULTS AND REMEDIES................................................................ 64
SECTION 6.1 EVENTS OF DEFAULT................................................. 64
SECTION 6.2 ACCELERATION...................................................... 67
SECTION 6.3 OTHER REMEDIES....................................................... 67
SECTION 6.4 WAIVER OF PAST DEFAULTS.............................................. 68
SECTION 6.5 CONTROL BY MAJORITY.................................................. 68
SECTION 6.6 LIMITATION ON SUITS.................................................. 69
SECTION 6.7 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT........................ 69
SECTION 6.8 COLLECTION SUIT BY TRUSTEE........................................... 69
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM..................................... 70
SECTION 6.10 PRIORITIES........................................................... 70
SECTION 6.11 UNDERTAKING FOR COSTS................................................ 71
ARTICLE VII TRUSTEE............................................................................ 71
SECTION 7.1 DUTIES OF TRUSTEE.................................................... 71
SECTION 7.2 RIGHTS OF TRUSTEE.................................................... 73
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE......................................... 73
SECTION 7.4 TRUSTEE'S DISCLAIMER................................................. 74
SECTION 7.5 NOTICE OF DEFAULTS................................................... 74
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES........................... 74
SECTION 7.7 COMPENSATION AND INDEMNITY........................................... 75
SECTION 7.8 REPLACEMENT OF TRUSTEE............................................... 76
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC..................................... 77
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION........................................ 77
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST AIRGATE.................... 77
ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE........................................... 78
SECTION 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE............. 78
SECTION 8.2 LEGAL DEFEASANCE AND DISCHARGE....................................... 78
SECTION 8.3 COVENANT DEFEASANCE.................................................. 78
SECTION 8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE........................... 79
SECTION 8.5 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS....................................... 81
SECTION 8.6 REPAYMENT TO AIRGATE................................................. 81
SECTION 8.7 REINSTATEMENT........................................................ 82
ARTICLE IX AMENDMENT, SUPPLEMENT AND WAIVER................................................... 82
SECTION 9.1 WITHOUT CONSENT OF HOLDERS OF THE NOTES.................................. 82
SECTION 9.2 WITH CONSENT OF HOLDERS OF NOTES......................................... 83
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT...................................... 85
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS........................................ 85
SECTION 9.5 NOTATION ON OR EXCHANGE OF NOTES......................................... 85
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC.......................................... 86
ARTICLE X GUARANTEES............................................................................. 86
SECTION 10.1 GUARANTEES............................................................... 86
SECTION 10.2 EXECUTION AND DELIVERY OF GUARANTEE...................................... 88
SECTION 10.3 SEVERABILITY............................................................. 88
SECTION 10.4 SENIORITY OF GUARANTEES.................................................. 88
SECTION 10.5 LIMITATION OF GUARANTORS' LIABILITY...................................... 89
SECTION 10.6 GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS....................... 89
SECTION 10.7 RELEASES FOLLOWING SALE OF ASSETS........................................ 90
SECTION 10.8 RELEASE OF A GUARANTOR................................................... 91
SECTION 10.9 BENEFITS ACKNOWLEDGED.................................................... 91
SECTION 10.10 FUTURE GUARANTORS........................................................ 92
ARTICLE XI SUBORDINATION.......................................................................... 92
SECTION 11.1 AGREEMENT TO SUBORDINATE................................................. 92
SECTION 11.2 LIQUIDATION; DISSOLUTION; BANKRUPTCY..................................... 92
SECTION 11.3 DEFAULT ON DESIGNATED SENIOR DEBT........................................ 93
SECTION 11.4 PAYMENT PERMITTED IF NO DEFAULT.......................................... 94
SECTION 11.5 NOTICE OF ACCELERATION OF SECURITIES..................................... 95
SECTION 11.6 WHEN DISTRIBUTION MUST BE PAID OVER...................................... 95
SECTION 11.7 NOTICE BY AIRGATE........................................................ 96
SECTION 11.8 SUBROGATION.............................................................. 96
SECTION 11.9 RELATIVE RIGHTS.......................................................... 96
SECTION 11.10 SUBORDINATION MAY NOT BE IMPAIRED BY AIRGATE............................. 97
SECTION 11.11 DISTRIBUTION OR NOTICE TO REPRESENTATIVE................................. 97
SECTION 11.12 RIGHTS OF TRUSTEE AND PAYING AGENT....................................... 97
SECTION 11.13 AUTHORIZATION TO EFFECT SUBORDINATION.................................... 98
SECTION 11.14 ARTICLE APPLICABLE TO PAYING AGENTS...................................... 98
ARTICLE XII MISCELLANEOUS.......................................................................... 99
SECTION 12.1 TRUST INDENTURE ACT CONTROLS................................................... 99
SECTION 12.2 NOTICES........................................................................ 99
SECTION 12.3 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.................. 101
SECTION 12.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. ........................... 101
SECTION 12.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. ................................ 101
SECTION 12.6 RULES BY TRUSTEE AND AGENTS.................................................... 102
SECTION 12.7 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS....... 102
SECTION 12.8 GOVERNING LAW.................................................................. 102
SECTION 12.9 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.................................. 102
SECTION 12.10 SUCCESSORS..................................................................... 102
SECTION 12.11 SEVERABILITY................................................................... 103
SECTION 12.12 COUNTERPART ORIGINALS.......................................................... 103
SECTION 12.13 TABLE OF CONTENTS, HEADINGS, ETC............................................... 103
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF GUARANTEE
Exhibit C FORM OF PLEDGE AGREEMENT
Exhibit D FORM OF INTERCREDITOR AGREEMENT
Exhibit E FORM OF UNIT CERTIFICATE
ix
Indenture, dated as of September 30, 1999, by and among AirGate PCS,
Inc., a Delaware corporation ("AirGate"), AGW Leasing Company, Inc., a Delaware
corporation (a "Guarantor"), and Bankers Trust Company, a New York banking
corporation, 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
AirGate's 13 1/2% Senior Subordinated Discount Notes due 2009 (the "Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.1 DEFINITIONS.
"Accreted Value" of any outstanding Note as of or to any date of
determination means an amount equal to the sum of (1) the issue price of such
Note as determined in accordance with Section 1273 of the Internal Revenue Code
plus (2) the aggregate of the portions of the original issue discount, i.e., the
excess of the amounts considered as part of the "stated redemption price at
maturity" of such Note within the meaning of Section 1273(a)(2) of the Internal
Revenue Code or any successor provisions, whether denominated as principal or
interest, over the issue price of such Note, that shall theretofore have accrued
pursuant to Section 1272 of the Internal Revenue Code, without regard to Section
1272(a)(7) of the Internal Revenue Code, from the date of issue of such Note (a)
for each six-month or shorter period ending April 1 or October 1 prior to the
date of determination and (b) for the shorter period, if any, from the end of
the immediately preceding six-month or shorter period, as the case may be, to
the date of determination plus (3) accrued and unpaid interest to the date such
Accreted Value is paid (without duplication of any amount set forth in (2)
above), minus all amounts theretofore paid in respect of such Note, which
amounts are considered as part of the "stated redemption price at maturity" of
such Note within the meaning of Section 1273(a)(2) of the Internal Revenue Code
or any successor provisions whether such amounts paid were denominated principal
or interest.
"Acquired Debt" means, with respect to any specified Person:
(1) 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
(2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"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.
"Agent" means any Registrar, Paying Agent or co-registrar.
"AirGate" or the "Company" means AirGate PCS, Inc., a Delaware
corporation.
"Annualized Operating Cash Flow" means Operating Cash Flow, for
the latest two full fiscal quarters for which consolidated financial statements
of AirGate are available multiplied by two.
"Asset Sale" means:
(3) the sale, lease, conveyance or other disposition of any
assets or rights, other than sales of inventory and sales of obsolete equipment
in the ordinary course of business consistent with past 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
(4) 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:
(5) 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;
(6) a transfer of assets between or among AirGate and its Wholly
Owned Restricted Subsidiaries;
2
(7) an issuance of Equity Interests by a Wholly Owned Restricted
Subsidiary to AirGate or to another Wholly Owned Restricted Subsidiary;
(8) a Restricted Payment that is permitted by Section 4.7; and
(9) 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 Officer's Certificate
certifying that such exchange complies with this clause (e).
"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
Indebtedness that is pari passu with the Notes 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 such other pari passu 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
3
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, at the time any determination
thereof is to be made, 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:
(10) in the case of a corporation, corporate stock;
(11) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents, however
designated, of corporate stock;
(12) in the case of a partnership or limited liability company,
partnership or membership interests, whether general or limited; and
(13) 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:
(14) United States dollars;
(15) 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;
(16) 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 domestic commercial bank having capital and
surplus in excess of $500 million and a Thompson Bank Watch Rating of "B" or
better,
4
(17) 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;
(18) commercial paper having the highest rating obtainable from
Moody's Investors Service, Inc. or Standard & Poor's Corporation and in each
case maturing prior to one year after the date of acquisition; and
(19) 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.
"Cedel" means Cedel Bank, societe anonyme.
"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:
(20) 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;
(21) the adoption of a plan relating to the liquidation or
dissolution of AirGate;
(22) 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;
(23) the first day on which a majority of the members of the
Board of Directors of AirGate are not Continuing Directors; or
(24) AirGate consolidates with, or merges with or into, a 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.
5
"Closing Date" means September 30, 1999, the date on which the
Notes were originally issued under this Indenture.
"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 Annualized Operating Cash Flow Ratio" means,
as at any date of determination, the ratio of (i) Consolidated Debt to (ii) the
Annualized Operating Cash Flow of AirGate as of the most recently completed
fiscal quarter of AirGate for which financial statements 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:
(25) 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;
(26) 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
6
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;
(27) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition shall
be excluded;
(28) 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
(29) 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, the sum of:
(30) the consolidated equity of the common stockholders of
such Person and its consolidated Subsidiaries as of such date; plus
(31) 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:
(32) was a member of such Board of Directors on the date of
this Indenture; or
7
(33) 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.
"Credit Facilities" means, with respect to AirGate or any
Guarantor, one or more debt facilities or commercial paper facilities, in each
case with banks or other institutional lenders providing for revolving credit
loans, term loans, receivables financing, including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from
such lenders against such receivables, or letters of credit, and shall include
the Lucent Financing in each case, as amended, restated, modified, renewed,
refunded, replaced or refinanced in whole or in part from time to time.
"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 of this Indenture, and,
thereafter, "Depositary" shall mean or include such successor.
"Designated Senior Debt" means (a) Indebtedness under the Lucent
Financing and (b) any other Senior Debt that has been designated by AirGate in
writing to the Trustee as "Designated Senior Debt."
"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 terms of such Capital Stock provide that
AirGate may not repurchase or redeem any such Capital Stock pursuant to such
provisions unless such repurchase or redemption complies with Section 4.7.
"DTC" means The Depository Trust Company (55 Water Street, New
York, New York).
8
"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 any public or private offering of Capital
Stock of AirGate in which the gross proceeds to AirGate are at least $50.0
million; provided, however, the underwritten public offering of AirGate common
stock sold pursuant to a prospectus dated as of the Closing Date shall not
constitute an Equity Offering.
"Euroclear" means Morgan Guaranty Trust Company of New York, the
Brussels office, and all successors thereto, as operator of the Euroclear
system.
"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.
"Existing Indebtedness" means the $150,000 in aggregate principal
amount of Indebtedness of AirGate and its Restricted Subsidiaries in existence
on the date of this Indenture, until such amounts are repaid.
"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).
"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
9
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 Leasing Company, Inc. 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:
(34) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements; and
(35) 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 specified Person, any
indebtedness of such Person, whether or not contingent, in respect of:
(36) borrowed money;
(37) evidenced by bonds, Notes, debentures or similar
instruments or letters of credit, or reimbursement agreements in respect
thereof;
(38) banker's acceptances;
(39) representing Capital Lease Obligations;
(40) the balance deferred and unpaid of the purchase price
of any property, except any such balance that constitutes an accrued expense or
trade payable; or
(41) representing any Hedging Obligations;
10
if and to the extent any of the preceding, other than letters of credit and
Hedging Obligations, would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien on any
asset of the specified Person, whether or not such Indebtedness is assumed by
the specified Person, and, to the extent not otherwise included, the guarantee
by such Person of any Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall
be:
(42) the accreted value thereof, in the case of any
Indebtedness issued with original issue discount; and
(43) the principal amount thereof, together with any
interest thereon that is more than 30 days past due, in the case of any other
Indebtedness.
"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 that certain Intercreditor
Agreement, dated as of September 30, 1999, among the Trustee, Lucent
Technologies, Inc., as administrative agent under the Lucent Financing, State
Street Bank and Trust Company, as collateral agent under the Lucent Financing
and AGW Leasing Company, Inc., and consented to by AirGate, substantially in the
form of Exhibit D attached hereto.
"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
11
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.
"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.
"Lucent Financing" means the Credit Agreement dated as of August
16, 1999 among AirGate PCS, Inc., the several lending institutions that from
time to time are party thereto, State Street Bank and Trust Company as
collateral agent and Lucent Technologies Inc. as administrative agent, as such
may be amended, restated, modified, renewed, refunded, replaced or refinanced in
whole or in part 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:
(44) 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
(45) any extraordinary gain, but not loss, together with any
related provision for taxes on such extraordinary gain, but not loss.
"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, other than Senior Debt, secured by a
Lien on the asset or assets that were the subject of such Asset Sale 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
12
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:
(46) 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;
(47) 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
(48) 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.
"Notes" has the meaning set forth in the introductory paragraphs
hereto.
"Note Custodian" means the Trustee when serving as custodian for
the Depositary with respect to the Notes in global form, or any successor entity
thereto.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities 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 Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary, or an Assistant Secretary, of AirGate, and
delivered to the Trustee.
13
"Operating Cash Flow" means, for any fiscal quarter, (i) AirGate's
Consolidated Net Income (Loss) plus (ii) depreciation, amortization and other
non-cash charges in respect thereof for such fiscal quarter, plus (iii) all
amounts deducted in calculating Consolidated Net Income (Loss) for such fiscal
quarter 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. For purposes of calculating Operating Cash Flow for the fiscal
quarter 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 Annualized 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 fiscal quarter, (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 fiscal quarter 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 fiscal quarter, 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 fiscal quarter.
"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, Euroclear or Cedel, a
Person who has an account with DTC, Euroclear or Cedel, respectively (and, with
respect to DTC, shall include Euroclear and Cedel).
"Paying Agent" means any Person authorized by AirGate to pay the
principal of, and premium, if any, or interest on any Notes on behalf of
AirGate.
"Permitted Business" means the business primarily involved in the
ownership, design, construction, development, acquisition, installation,
integration, management and/or provision of Telecommunications Assets or 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:
14
(49) any Investment in AirGate or in a Wholly Owned
Restricted Subsidiary of AirGate that is a Guarantor,
(50) any Investment in Cash Equivalents;
(51) any Investment by AirGate or any Restricted Subsidiary
of AirGate in a Person, if as a result of such Investment:
(1) such Person becomes a Wholly Owned Restricted
Subsidiary of AirGate; or
(2) 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;
(52) 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;
(53) any acquisition of assets solely in exchange for the
issuance of Equity Interests, other than Disqualified Stock, of AirGate;
(54) investments, the payment of which consists only of
Equity Interests, other than Disqualified Stock; and
(55) 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 (g) since the date of this
Indenture, not to exceed $5.0 million.
"Permitted Junior Securities" means Equity Interests in AirGate or
its Subsidiaries or debt securities of AirGate or its Subsidiaries that are
subordinated to all Senior Debt (and any debt securities issued in exchange for
Senior Debt) to substantially the same extent as, or to a greater extent than,
the Notes are subordinated to Senior Debt.
"Permitted Liens" means:
15
(56) Liens on the assets of AirGate and any Guarantor
securing Indebtedness and other Obligations under Credit Facilities that were
permitted by the terms of this Indenture to be incurred;
(57) Liens in favor of AirGate or the Guarantors;
(58) 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 were in existence prior to the
contemplation of such merger or consolidation and do not extend to any assets
other than those of the Person merged into or consolidated with AirGate or the
Restricted Subsidiary;
(59) Liens on property existing at the time of acquisition
thereof by AirGate or any Restricted Subsidiary of AirGate, provided that such
Liens were in existence prior to the contemplation of such acquisition;
(60) Liens and deposits made to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business;
(61) Liens to secure Indebtedness, including Capital Lease
Obligations, permitted by clause (4) of the second paragraph of Section 4.9
covering only the assets acquired with such Indebtedness;
(62) Liens existing on the date of this Indenture;
(63) Liens on Assets of Guarantors to secure Senior Debt of
such Guarantor that was permitted by this Indenture to be incurred;
(64) 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; and
(65) 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.
"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
16
extend, refinance, renew, replace, defease or refund other Indebtedness of
AirGate or any of its Restricted Subsidiaries, other than intercompany
Indebtedness; provided that:
(66) 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;
(67) 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;
(68) 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 of Notes as those
contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and
(69) 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, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Pledge Agreement" means that certain Pledge Agreement, dated as
of September 30, 1999, by and between AirGate and the Trustee, substantially in
the form attached hereto as Exhibit C.
"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.
17
"Responsible Officer" means, when used with respect to the
Trustee, any officer assigned to the Corporate Trust Office of the Trustee,
including any managing director, principal, vice president, assistant vice
president, assistant treasurer, assistant secretary 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 or whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Restricted Investment" means any Investment that is not a
Permitted Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means:
(70) all Indebtedness outstanding under Credit Facilities
and all Hedging Obligations with respect thereto; and
(71) all Obligations with respect to the items listed in the
preceding clause (a).
Notwithstanding anything to the contrary in the preceding, Senior
Debt will not include:
(72) any liability for federal, state, local or other taxes
owed or owing by AirGate;
(73) any Indebtedness of AirGate to any of its Subsidiaries
or other Affiliates;
(74) any trade payables; or
(75) any Indebtedness that is incurred in
violation of this Indenture.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated by the Commission, as such Regulation is in effect on the date
hereof.
18
"Sprint Agreements" means the (1) 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 (the "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) 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 (the "Trademark
Agreement"); and (4) 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 (the "Spectrum Trademark Agreement").
"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.
"Subordinated Note Obligations" means all Obligations with respect
to the Notes, including without limitation, principal of, premium, if any, and
interest, if any, payable pursuant to the terms of the Notes (including upon the
acceleration of redemption thereof), together with and including any amounts
received or receivable upon the exercise of rights of recission or other rights
of action (including claims for damages) or otherwise.
"Subsidiary" means, with respect to any Person:
(76) 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
(77) 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.
"Telecommunications Assets" means, with respect to any Person, any
asset that is utilized by such Person, directly or indirectly, for the design,
development, construction, installation, integration, operation, management or
provision of PCS telecommunications
19
equipment, inventory, technology, systems and/or services. Telecommunications
Assets shall include stock, joint venture or partnership interests of an entity
where substantially all of the assets of the entity consist of
Telecommunications Assets.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)
77aaa-77bbbb), as amended, as in effect on the date hereof.
"Total Invested Capital" means at any time of determination, the
sum of, without duplication, (i) the total amount of equity contributed to
AirGate as of the Closing Date (being $7.6 million), plus (ii) the aggregate net
cash proceeds received by AirGate from the common stock offering concurrent with
the issuance of the Notes pursuant to this Indenture plus (iii) the aggregate
net cash proceeds received by AirGate from capital contributions or any other
issuance or sale of Capital Stock (other than Disqualified Stock but including
Capital Stock issued upon the conversion of convertible Debt or from the
exercise of options, warrants or rights to purchase Capital Stock (other than,
Disqualified Stock)), including cash payments under the Committed Capital
Contribution, subsequent to the Closing Date, other than to a Restricted
Subsidiary, plus (iv) the aggregate net repayment of any Investment made after
the Closing Date and constituting a Restricted Payment in an amount equal to the
lesser of (a) the return of capital with respect to such Investment and (b) the
initial amount of such Investment, in either case, less the cost of the
disposition of such Investment, plus (v) an amount equal to the Consolidated Net
Investment (as of the date of determination) AirGate and/or any of the
Restricted Subsidiaries has made in any Subsidiary that has been designated as
an Unrestricted Subsidiary after the Closing Date upon its redesignation as a
Restricted Subsidiary in accordance with Section 4.21, plus (vi) Consolidated
Debt minus (vii) the aggregate amount of all Restricted Payments declared or
made on or after the Closing Date.
"Trustee" has the meaning set forth in the recitals 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:
(78) has no Indebtedness other than Non-Recourse Debt;
(79) 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;
20
(80) 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;
(81) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of AirGate or any of its Restricted
Subsidiaries; and
(82) 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 a
certified copy of 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, the number of years obtained by dividing:
(83) 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
21
(84) 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 and one or more Wholly Owned Restricted
Subsidiaries of such Person.
SECTION 1.2 OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"Affiliate Transaction" ................................................4.11
"Agent Members"..........................................................2.6
"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 Blockage Notice"...............................................11.3
"Payment Default" ...................................................... 6.1
"Permitted Debt" ........................................................4.9
"Purchase Date" ........................................................ 3.9
"Registrar" ............................................................ 2.3
"Representative"........................................................11.3
"Repurchase Offer" ..................................................... 3.9
"Restricted Payment" ....................................................4.7
"Surviving Entity".......................................................5.1
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
22
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.
23
ARTICLE II
THE NOTES
SECTION 1.5 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.
(1) 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. Initially, the Notes shall
constitute a part of units consisting of Notes together with warrants to
purchase common stock of the Company, which units shall be represented by one or
more unit certificates substantially in the form attached as Exhibit F hereto.
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.
24
(2) This 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 this
Section 2.1(b), 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 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.
(a) 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 1.6 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 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
25
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 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 1.7 REGISTRAR AND PAYING AGENT.
AirGate shall maintain (i) an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and (ii) an
office or agency where Notes may be presented for payment to a Paying 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
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 or Paying
Agent, the Trustee shall act as such. AirGate or any of its Subsidiaries may act
as Paying Agent or Registrar.
AirGate shall notify the Trustee and the Trustee shall notify the
Holders of the Notes 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 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 and
Paying Agent.
AirGate initially appoints DTC to act as the Depositary with
respect to the Global Notes.
SECTION 1.8 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
26
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 Section 6.1(ix), (x) and (xi) hereof, the Trustee shall serve as
Paying Agent for the Notes.
SECTION 1.9 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 (S) 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 (S) 312(a).
SECTION 1.10 BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.
(1) 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.
(2) 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 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
27
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.
(3) 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.
(4) 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 Securities.
(5) A Certificated Note may not be transferred or exchanged for
a beneficial interest in a Global Note.
(6) If at any time:
(1) 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
(2) 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.
(7) Each Global Security shall bear the following legends on the
face thereof:
28
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK),
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 SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO. OR TO SUCH OTHER 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 INASMUCH AS 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.
(8) 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.
(9) General Provisions Relating to Transfers and Exchanges.
-------------------------------------------------------
(1) 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.
(2) 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
29
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, 9.5 and 10.1 hereto).
(3) 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.
(4) 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.
(5) 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.
(6) The Trustee shall authenticate Global Notes and
Certificated Notes in accordance with the provisions of Section
2.2 hereof.
SECTION 1.11 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
30
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 1.12 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 1.13 TREASURY NOTES.
In determining whether the Holders of the required Accreted Value or
aggregate principal amount, as the case may be, 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 Trustee's 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
31
other agreement shall not be deemed to be owned by such entity until legal title
to such Notes passes to such entity.
SECTION 1.14 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 1.15 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 destroyed and certification of their destruction 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 1.16 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.
32
SECTION 1.17 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
(S) 316 (c).
SECTION 1.18 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 1.19 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.
ARTICLE III
REDEMPTION AND PREPAYMENT
SECTION 1.20 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 or 4.14 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 or (b) a Change of Control has
occurred, as applicable.
33
AirGate will also provide the Trustee with any additional
information that the Trustee reasonably requests in connection with any
redemption or offer.
SECTION 1.21 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 1.22 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;
34
(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 1.23 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 1.24 DEPOSIT OF REDEMPTION OR 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 or 4.14, 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.
35
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 or Change of Control 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 1.25 NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, AirGate shall
issue and, upon AirGate's written request, 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 1.26 OPTIONAL REDEMPTION.
(1) Except as set forth in the next paragraph, the Notes
will not be redeemable at AirGate's option prior to October 1, 2004. 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, if redeemed during the twelve-month period beginning on October 1 of the
years indicated below:
Year Percentage
2004 ................................ 106.750%
2005 ................................ 104.500%
2006 ................................ 102.250%
2007 and thereafter ................. 100.000%
(2) Notwithstanding the foregoing, until September 30, 2002
AirGate may on any one or more occasions redeem up to 35% of the Accreted Value
of the
36
Notes originally issued under this Indenture at a redemption price of 113.500%
of the Accreted Value thereof, with the net cash proceeds of one or more Equity
Offerings; provided that (i) at least 65% of the Accreted Value of the Notes
originally issued under this Indenture remains outstanding immediately after the
occurrence of such redemption, excluding Notes held by AirGate and its
Subsidiaries; and (ii) such redemption shall occur within 60 days of the date of
the closing of such Equity Offering.
SECTION 1.27 MANDATORY REDEMPTION.
Except as set forth under Sections 3.9, 4.10 and 4.14 hereof, AirGate
shall not be required to make mandatory redemption or sinking fund payments with
respect to the Notes.
SECTION 1.28 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 Section 4.10
hereof, an "Excess Proceeds Offer," or pursuant to Section 4.14 hereof, a
"Change of Control Offer," AirGate shall follow the procedures specified below.
A Repurchase Offer shall commence no earlier than 20 days and no
later than 60 days after a Change of Control (unless AirGate is not required to
make such offer pursuant to Section 4.14 hereof) or an Excess Proceeds Offer
Triggering Event (as defined in Section 4.10), 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 Accreted
Value or aggregate principal amount, as the case may be, of Notes required to be
purchased pursuant to Section 4.10 hereof, in the case of an Excess Proceeds
Offer, or Section 4.14 hereof, in the case of a Change of Control 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, with a
copy to the Trustee. 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
37
shall govern the terms of the Repurchase Offer, shall describe the transaction
or transactions that constitute the Change of Control or Excess Proceeds 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 or 4.14
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 Holder is
withdrawing his election to have such Note
purchased;
(g) that, if the Accreted Value or aggregate principal
amount, as the case may be, 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
38
(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
Holder'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 1.29 PAYMENT OF NOTES.
(1) 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
39
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.
(2) 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 1.30 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 1.31 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
Holders of Notes (i) all quarterly and annual financial information that would
be required to be contained in a filing with the Commission on Forms 10-Q and
10-K if AirGate were required to file such Forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and,
with respect to the annual information only, a report thereon by AirGate's
certified independent accountants and (ii) all current reports that would be
required to be filed with the Commission on
40
Form 8-K if AirGate were required to file such reports. In addition, whether or
not required by the rules and regulations of the Commission, AirGate shall file
a copy of all such information and reports with the Commission for public
availability (unless the Commission will not accept such a filing) within the
time periods that would have been applicable had AirGate been subject to such
rules and regulations and make such information available to securities analysts
and prospective investors upon request. AirGate shall at all times comply with
TIA (S) 314(a).
The financial information to be distributed to Holders of Notes 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 1.32 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.
So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, in connection with the
year-end financial statements delivered pursuant to Section 4.3 hereof, AirGate
shall use its best efforts to deliver a written statement of AirGate's
independent public accountants (who shall be a firm of established national
reputation) that in making the examination necessary for certification of such
financial statements, nothing
41
has come to their attention that would lead them to believe that AirGate has
violated any provisions of Article IV or Article V hereof or, if any such
violation has occurred, specifying the nature and period of existence thereof,
it being understood that such accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of any such
violation. In the event that such written statement of AirGate's independent
public accountants cannot be obtained, AirGate shall deliver an Officers'
Certificate certifying that it has used its best efforts to obtain such
statements and was unable to do so.
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 1.33 TAXES.
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.
SECTION 1.34 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 1.35 LIMITATION ON RESTRICTED PAYMENTS.
Prior to and including, December 31, 2002, AirGate shall not, 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;
42
(2) purchase, redeem or otherwise acquire or retire for value,
or permit any Restricted Subsidiary to, directly or indirectly,
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, or permit any Restricted Subsidiary to, directly or
indirectly, 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, 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, or permit any Restricted Subsidiary, directly or
indirectly, to make, any Restricted 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"). After December 31, 2002, AirGate shall not, directly
or indirectly, make any Restricted Payment, and shall not permit any
Restricted Subsidiary to make any Restricted Investment, unless, at the
time thereof, after giving effect thereto,
(2) no Default or Event of Default shall have occurred and
be continuing;
(3) 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, other than Permitted Debt, pursuant to
clause (a) or (b) of the first paragraph of Section 4.9 hereof; and
(4) 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:
43
(1) amount of (x) the Operating Cash Flow of AirGate
after December 31, 2002 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 December 31, 2002 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
(2) the aggregate Net Proceeds, including the fair
market value of property other than cash, as determined:
(1) 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
(2) 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 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, other than shares of
Equity Interests or options, warrants or other rights to purchase
Equity Interests or shares issuable upon exercise thereof, plus
(3) the aggregate Net Proceeds, including the
fair market value of property other than cash, as
determined:
(1) 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
(2) in the case of any property other than
cash with a value equal to or greater than $25 million, by an
44
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 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
(4) 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
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, 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). 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:
(1) paying 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;
(2) repurchasing 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;
(3) 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:
45
(5) 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
(6) Indebtedness that 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, with Restricted Payments pursuant
to this clause not being counted as Restricted Payments for purposes of clause
(c) above;
(1) 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; or
(2) 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.
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
46
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 1.36 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:
(4) Existing Indebtedness or Credit Facilities 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, replacement or refinancings are no more restrictive, taken
as a whole, with respect to such dividend and other payment
restrictions
47
than those contained in such Existing Indebtedness, as in effect on the
date of this Indenture;
(5) this Indenture and the Notes;
(6) applicable law;
(7) 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;
(8) customary non-assignment provisions in leases entered into in the
ordinary course of business and consistent with past practices;
(9) 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;
(10) 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;
(11) 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;
(12) Liens securing Indebtedness otherwise permitted to be incurred
pursuant to the provisions of Section 4.12 hereof that limit the right of
AirGate or any of its Restricted Subsidiaries to dispose of the assets
subject to such Lien;
(13) 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
48
(14) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business.
SECTION 1.37 LIMITATION ON INCURRENCE OF INDEBTEDNE 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, (a) the
Consolidated Debt to Annualized Operating Cash Flow Ratio would be (1) less than
7.0 to 1.0, if prior to September 1, 2005 and (2) less than 6.0 to 1.0, if on or
after September 1, 2005 or (b) in the case of any incurrence of Indebtedness
prior to September 1, 2005 only, Consolidated Debt would be equal to or less
than 70% of Total Invested Capital.
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 and the Guarantees;
(3) the incurrence by AirGate and any Guarantor of
Indebtedness under Credit Facilities; provided that the aggregate
principal amount of all Indebtedness of AirGate and the Guarantors
outstanding under all Credit Facilities at any time outstanding, after
giving effect to such incurrence, does not exceed an amount equal to
$175.0 million less the aggregate amount of all Net Proceeds of Asset
Sales applied by AirGate or any of its Subsidiaries since the date of
this Indenture to repay Indebtedness under a Credit Facility pursuant
to Section 4.10 hereof;
(4) 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
49
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;
(5) 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 (12)
of this paragraph;
(6) 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:
(2) 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 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
(3) (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 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, 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 (6);
(1) 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;
(2) 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;
(3) 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
(9);
50
(4) 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;
(5) 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 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;
(6) 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
(12), not to exceed $50.0 million; and
(7) the incurrence by AirGate of any Indebtedness under the
promissory note executed by AirGate pursuant to Section 6(d)(ii) of
the Consent and Agreement, dated August 16, 1999, among Lucent
Technologies Inc., Sprint Spectrum L.P., SprintCom, Inc., Sprint
Communications Company, L.P. and WirelessCo, L.P. and acknowledged by
AirGate and AirGate's stockholders.
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 (13) 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 1.38 ASSET SALES.
51
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 evidenced by a resolution of the Board of
Directors set forth in an Officers' Certificate delivered to the
Trustee; and
(3) at least 85% 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:
(2) 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
(3) 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.
Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, AirGate may apply such Net Proceeds at its option:
(1) to repay Senior Debt;
(2) 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;
(3) to make a capital expenditure in assets that are used
or useful in a Permitted Business; or
(4) to acquire other long-term assets that are used or
useful in a Permitted Business.
52
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. The offer price in
any Asset Sale Offer will be equal to 100% of the Accreted Value or 100% of the
principal amount, plus accrued and unpaid interest, if any, to the date of
purchase, as applicable, 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. If the
aggregate principal amount of Notes and such other pari passu Indebtedness
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes and such other pari passu 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 1.39 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:
53
(2) 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; and
(3) 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 entered into by AirGate or any of
its Restricted Subsidiaries in the ordinary course of business and
consistent with the past practice 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 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, to
Affiliates of AirGate.
SECTION 1.40 LIENS.
AirGate will not, and will not permit any Guarantor to, create, incur,
assume or otherwise cause or suffer to exist or become effective any Lien of any
kind securing Indebtedness that is pari passu with the Notes or the applicable
Guarantee, as the case may be, or is subordinated Indebtedness, upon any of
their property or assets, now owned or hereafter acquired, unless all payments
due under this Indenture and the Notes are secured equally and ratably with, or
prior to, in the case of subordinated Indebtedness, the obligations so secured
until such time as such obligations are no longer secured by such Lien; provided
that this restriction will not apply to Permitted Liens.
SECTION 1.41 SALE AND LEASEBACK TRANSACTIONS.
54
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 tests in (a)
and (b), if applicable, 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, as determined
in good faith by the Board of Directors and set forth in an Officers'
Certificate delivered to the Trustee, of the property that is the
subject of such sale and leaseback transaction; 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 1.42 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 Accreted Value thereof on the date of purchase (if such date of
purchase is prior to October 1, 2004) or 101% of the aggregate principal amount
thereof plus accrued and unpaid interest thereon, if any, to the date of
purchase (if such date of purchase is on or after October 1, 2004) (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
55
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 Accreted Value or aggregate principal amount,
as applicable, 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 1.43 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.
56
SECTION 1.44 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) the cash Net Proceeds from such transfer, conveyance, sale,
lease or other disposition are applied 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 1.45 BUSINESS ACTIVITIES.
AirGate shall not, and shall not permit any Restricted Subsidiary to,
engage in any business other than a Permitted Business, except to such extent as
would not be material to AirGate and its Restricted Subsidiaries taken as a
whole.
SECTION 1.46 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 1.47 NO SENIOR SUBORDINATED DEBT.
Neither AirGate nor the Guarantors will incur any Indebtedness that
pursuant to its terms is subordinate or junior in right of payment to any Senior
Debt or any Permitted Debt described in clause (4) of the second paragraph of
Section 4.9 and senior in any respect in right of payment to the Notes or the
Guarantees; provided that the foregoing limitation shall not apply
57
to distinctions between categories of Senior Debt of AirGate or a Guarantor that
exist by reason of any Liens or guarantees arising or created in respect of some
but not all such Senior Debt.
SECTION 1.48 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 and (iii)
deliver an Opinion of Counsel to the Trustee, in each case within 10 Business
Days of the date on which it was acquired or created. If any of the Capital
Stock of such Guarantor is directly owned by AirGate, then AirGate shall pledge
all of the Capital Stock of such Guarantor owned by AirGate pursuant to the
terms of the Pledge Agreement.
SECTION 1.49 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 paragraph (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 1.50 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.
ARTICLE V
SUCCESSORS
SECTION 1.51 MERGER, CONSOLIDATION OR SALE OF ASSETS.
58
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 and this
Indenture and, in each case, this Indenture, 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
clause (a) of 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 to any other
Restricted Subsidiary, or the merger or
59
consolidation of any Restricted Subsidiary with or into any other
Restricted Subsidiary. AirGate may not, directly or indirectly, lease
all or substantially all of its properties or asset, 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
predecessor company shall be released from all its obligations and covenants
under this Indenture and the Notes.
SECTION 1.52 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
60
SECTION 1.53 EVENTS OF DEFAULT
Each of the following constitutes an "Event of Default":
(1) default for 30 days in the payment when
due of interest on the Notes, whether or not
prohibited by Article XI hereof;
(2) default in payment when due of principal
of or premium, if any, on the Notes, whether or
not prohibited by Article XI hereof;
(3) failure by AirGate or any of its
Restricted Subsidiaries to comply with the
provisions described under Sections 4.10 and 4.14
hereof;
(4) failure by AirGate or any of its
Restricted Subsidiaries for 60 days after notice
from the Trustee or the Holders of at least 25% in
principal amount of the Notes then outstanding to
comply with the provisions of any other agreement
in this Indenture or the Pledge Agreement;
(5) 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,
61
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 $5.0
million or more;
(6) failure by AirGate or any of its
Restricted Subsidiaries to pay final judgments
aggregating in excess of $5.0 million, which
judgments are not paid, discharged or stayed for a
period of 60 days;
(7) breach by AirGate of any material
representation or warranty or agreement in the
Pledge Agreement, the repudiation by AirGate of
any of its obligations under the Pledge Agreement,
the unenforceability of the Pledge Agreement
against AirGate for any reason, the failure of any
Lien on the Collateral (as defined in the Pledge
Agreement) purported to be created under the
Pledge Agreement to be a valid and perfected Lien
with the priority required under the Pledge
Agreement or assertion by AirGate that such Lien
is not valid or perfected or lacks such priority;
(8) 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;
(9) AirGate or any of its Restricted
Subsidiaries or any group of 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,
62
(d) makes a general assignment for the
benefit of its creditors, or
(e) generally is not paying its debts
as they become due;
(10) a court of competent jurisdiction enters
an order or decree under any Bankruptcy Law that:
(a) is for relief against AirGate or
any of its Restricted Subsidiaries in an
involuntary case;
(b) appoints a Custodian of AirGate or
any of its Restricted Subsidiaries 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 of its Restricted Subsidiaries and the
order or decree remains unstayed and in
effect for 60 consecutive days; or
(11) any event occurs that causes, subject to
any applicable grace period, an Event of
Termination under any of the Sprint Agreements.
The term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
SECTION 1.54 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 (or, if prior to October 1, 2004, the Accreted Value 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
63
of the premium that AirGate would have had to pay if AirGate then had elected to
redeem the Notes pursuant to Section 3.7(a) 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 1, 2004 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 1, 2004, then the amount payable in
respect of such Notes for purposes of this paragraph shall be equal to 113.500%
of the Accreted Value, if any, to the date of payment.
SECTION 1.55 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.
Pursuant to Section 4.4, AirGate is required to deliver to the Trustee
annually a statement regarding compliance with this Indenture, and AirGate is
required upon becoming aware of any Default or Event of Default, to deliver to
the Trustee a statement specifying such Default or Event of Default.
SECTION 1.56 WAIVER OF PAST DEFAULTS.
The Holders of a majority in Accreted Value or aggregate principal
amount, as the case may be, 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 1.57 CONTROL BY MAJORITY.
The Holders of a majority in Accreted Value or aggregate principal
amount, as the case may be, 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
64
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 1.58 LIMITATION ON SUITS.
A Holder may pursue a remedy with respect to this Indenture or the
Notes only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default or the Trustee receives such notice from AirGate;
(2) the Holders of at least 25% in Accreted Value or
aggregate principal amount, as the case may be, of the then outstanding Notes
make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer and, if requested, provide
to the Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(4) 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 indemnity; and
(5) during such 60-day period the Holders of a majority in
Accreted Value or aggregate principal amount, as the case may be, 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 1.59 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.
65
SECTION 1.60 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 1.61 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 1.62 PRIORITIES.
If the Trustee collects any money pursuant to this Article VI, it
shall pay out the money in the following order:
66
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 Senior Debt for amounts due;
Third: 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;
Fourth: without duplication, to the Holders for any other Obligations
owing to the Holders under this Indenture and the Notes; and
Fifth: 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 1.63 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 1.64 DUTIES OF TRUSTEE.
(1) 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.
67
(2) Except during the continuance of an Event of
Default:
(1) 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
(2) 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. However,
the Trustee shall examine the certificates and
opinions to determine whether or not they conform
to the requirements of this Indenture.
(3) 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:
(1) this paragraph does not limit the
effect of paragraph (b) of this Section 7.1;
(2) 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
(3) 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.
(4) 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.
(5) 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
68
Holder shall have offered to the Trustee security and indemnity satisfactory to
it against any loss, liability or expense.
(6) 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 1.65 RIGHTS OF TRUSTEE.
(1) The Trustee may conclusively rely 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.
(2) 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 may request an Opinion of Counsel which shall be full
and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(3) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(4) 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.
(5) 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.
(6) 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.
SECTION 1.66 INDIVIDUAL RIGHTS OF TRUSTEE.
69
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 1.67 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 or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.
SECTION 1.68 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to an officer of the Trustee, 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 1.69 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each September 1 beginning with the September 1
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 (S) 313(a) (but if no event described
in TIA (S) 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA (S)
313(b). The Trustee shall also transmit by mail all reports as required by TIA
(S) 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 (S) 313(d). AirGate shall promptly notify the Trustee when
the Notes are listed on any stock exchange and of any delisting thereof.
70
SECTION 1.70 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 losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, the Pledge Agreement and the Intercreditor Agreement, including the
costs and expenses of enforcing this Indenture, the Pledge Agreement and the
Intercreditor Agreement 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 and under the Pledge Agreement and the
Intercreditor Agreement except to the extent any such loss, 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 or under the Pledge Agreement.and the Intercreditor Agreement 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 (S) 313(b)(2) to
the extent applicable.
71
SECTION 1.71 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:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) 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;
(3) a Custodian or public officer takes charge of the
Trustee or its property; or
(4) 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 or Accreted Value as then applicable, 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 or Accreted Value as the applicable,
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 1.72 SUCCESSOR TRUSTEE BY MERGER, 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 1.73 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, that is subject to supervision or examination by federal or state
authorities. The Trustee and its direct parent 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 (S)(S) 310(a)(l), (2) and (5). The Trustee is subject to
TIA (S) 310(b).
SECTION 1.74 PREFERENTIAL COLLECTION OF CLAIMS
AGAINST AIRGATE.
The Trustee is subject to TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated therein.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1.75 OPTION TO EFFECT LEGAL DEFEASANCE OR
COVENANT DEFEASANCE.
AirGate may, at the option of its Boards of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.2 or 8.3 hereof be
73
applied to all outstanding Notes upon compliance with the conditions set forth
below in this Article VIII.
SECTION 1.76 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, duties 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 1.77 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 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
74
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 1.78 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:
(1) 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;
(2) in the case of an election under Section 8.2 hereof,
AirGate shall have delivered to the Trustee an Opinion of Counsel 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;
(3) in the case of an election under Section 8.3 hereof,
AirGate shall have delivered to the Trustee an Opinion of Counsel in the United
States to the effect that the 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;
(4) no Default or Event of Default shall have occurred and
be continuing on the date of such deposit (other than a Default or Event of
Default resulting from
75
the borrowing of funds to be applied to such deposit) or 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;
(5) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under this Indenture
or any other material agreement or instrument to which AirGate or any of its
Subsidiaries is a party or by which AirGate or any of its Subsidiaries is bound;
(6) AirGate shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the 91st day following the deposit, the
trust funds shall not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(7) AirGate shall have delivered 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
(8) AirGate shall have delivered to the Trustee an
Officers' Certificate and an opinion of counsel, each stating that all
conditions precedent provided for relating to the Legal Defeasance or the
Covenant Defeasance have been complied with as contemplated by this Section 8.4.
SECTION 1.79 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 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
76
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 1.80 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 1.81 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.
77
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 1.82 WITHOUT CONSENT OF HOLDERS OF THE NOTES.
Notwithstanding Section 9.2 of this Indenture, without the consent of
any Holder, AirGate and the Trustee may amend or supplement this Indenture, the
Pledge Agreement, the Intercreditor Agreement, any Guarantee or the Notes:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
(3) to provide for the assumption of AirGate's obligations
to the Holders in the case of a merger, or consolidation or sale of all or
substantially all of AirGate's assets;
(4) 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; or
(5) to comply with requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the TIA.
Upon the written request of AirGate accompanied by a resolution of its
Board of Directors of AirGate authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 9.6 hereof, the Trustee shall join with AirGate in the
execution of any amended or supplemental indenture 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 amended or supplemental indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
SECTION 1.83 WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.2, this Indenture, the
Pledge Agreement, the Intercreditor Agreement, any Guarantee or the Notes may be
amended or supplemented with
78
the consent of the Holders of at least a majority in aggregate Accreted Value of
the Notes then outstanding if before October 1, 2004 or in aggregate principal
amount of the then outstanding Notes if after October 1, 2004 (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 Pledge Agreement, the
Intercreditor Agreement, any Guarantee or the Notes may be waived with the
consent of the Holders of a majority in aggregate Accreted Value of the then
outstanding Notes if before October 1, 2004 or in aggregate principal amount of
the then outstanding Notes if after October 1, 2004 (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 resolution of its Board
of Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders as aforesaid, and upon receipt by the
Trustee of the documents described in Section 9.6 hereof, the Trustee shall join
with AirGate in the execution of such amended or supplemental indenture unless
such amended or supplemental indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee may,
but shall not be obligated to, enter into such amended or supplemental
indenture.
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 Accreted Value of the Notes then outstanding may amend or waive
compliance in a particular instance by AirGate with any provision of this
Indenture, the Pledge Agreement, the Intercreditor Agreement, any Guarantee 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):
(1) reduce the aggregate Accreted Value of the then
outstanding Notes, if before October 1, 2004, or the aggregate principal amount
of the then outstanding Notes, if after October 1, 2004, whose Holders must
consent to an amendment, supplement or waiver;
79
(2) 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);
(3) reduce the rate of or change the time for payment of
interest on any Note;
(4) 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);
(5) make any Note payable in money other than that stated
in the Notes;
(6) 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;
(7) 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
(8) make any change in the amendment and waiver provisions
of this Article IX.
In addition, any amendment to, or waiver of, the provisions of the
Pledge Agreement or this Indenture relating to the security interests created by
the Pledge Agreement that adversely affects the rights of the Holders will
require the consent of the Holders of at least 75% in aggregate Accreted Value
of Notes then outstanding if before October 1, 2004 or in aggregate principal
amount of the then outstanding Notes if after October 1, 2004.
SECTION 1.84 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 1.85 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
80
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 1.86 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 1.87 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 amended 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 amended or supplemental indenture is authorized or permitted
by this Indenture, that it is not inconsistent herewith, and that it will be
valid and binding upon AirGate in accordance with its terms.
ARTICLE X
GUARANTEES
SECTION 1.88 GUARANTEES.
(1) Each Guarantor hereby jointly and severally, fully,
unconditionally and irrevocably guarantees the Notes and obligations of AirGate
hereunder and
81
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: (a) 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 (b) 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.
(2) 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 of the Notes 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.
(3) 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.
82
(4) 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.
(5) 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 1.89 EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its Guarantee set forth in Section 10.1, 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 10.1
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 1.90 SEVERABILITY.
83
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 1.91 SENIORITY OF GUARANTEES.
The obligations of each Guarantor under its Guarantee pursuant to this
Article X shall be junior and subordinated to any Senior Debt of such Guarantor
on the same basis as the Notes are junior and subordinated to Senior Debt of
AirGate. For the purposes of the foregoing sentence, the Trustee and the Holders
shall have the right to receive and/or retain payments by any of the Guarantors
only at such times as they may receive and/or retain payments in respect of the
Notes pursuant to this Indenture, including Article XI hereof. The obligations
of each Guarantor under its Guarantee pursuant to this Article X shall be equal
in right of payment to all existing and future senior subordinated Indebtedness
of each Guarantor and senior in right of payment to all existing and future
subordinated Indebtedness of each Guarantor.
SECTION 1.92 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 1.93 GUARANTORS MAY CONSOLIDATE, ETC., ON
CERTAIN TERMS.
Except as otherwise provided in Section 10.7 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
84
(2) either:
(1) 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 appropriate collateral documents satisfactory to
the Trustee and the Capital Stock of such Person is pledged
pursuant to the Pledge Agreement if such Person is directly owned
by AirGate; or
(2) 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 1.94 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
85
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 X.
SECTION 1.95 RELEASE OF A GUARANTOR.
(a) 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 execute 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 10.8. 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.
(b) AGW Leasing Company, Inc. shall be released and
discharged of its obligations under its Guarantee upon the foreclosure of the
security interest in the Capital Stock of AGW Leasing Company, Inc. securing
Obligations under the Lucent Financing (i) upon the occurrence of the later of
(A) the date that one hundred percent (100%) of such Capital Stock of AGW
Leasing Company, Inc. is sold pursuant to such foreclosure and (B) the date that
the Lien securing the Obligations under the Lucent Financing in all of the
Capital Stock of AGW Leasing Company, Inc. has been released, AGW Leasing
Company, Inc. has been released from all other Obligations relating to the
Lucent Financing and all Liens granted in connection therewith have been
released and (ii) so long as the Capital Stock of AGW Leasing Company, Inc. is
not sold pursuant to such foreclosure sale directly or indirectly (A) the
administrative agent or the collateral agent, or any of their respective
successors, under the Lucent Financing, (B) any holder of Obligations under the
Lucent Financing or (C) any affiliate of any of the foregoing, unless prior
notice of such foreclosure is given to the Trustee.
SECTION 1.96 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.
86
SECTION 1.97 FUTURE GUARANTORS.
Each future Restricted Subsidiary shall become a Guarantor. Within ten
(10) days of becoming a Restricted Subsidiary, (a) such Subsidiary shall execute
and deliver to the Trustee a supplemental indenture making such Subsidiary a
party to this Indenture and (b) if any of the Capital Stock of such Guarantor is
directly owned by AirGate, AirGate shall pledge all of the Capital Stock of such
Guarantor owned by AirGate pursuant to the terms of the Pledge Agreement.
ARTICLE XI
SUBORDINATION
SECTION 1.98 AGREEMENT TO SUBORDINATE.
AirGate and each Guarantor agree, and each Holder by accepting a Note
agrees, that the Indebtedness evidenced by each Note and each Guarantee is
subordinated in right of payment, to the extent and in the manner provided
herein, to the prior payment in full of all Senior Debt (whether outstanding on
the date hereof or hereafter created, incurred, assumed or guaranteed), and that
the subordination is for the benefit of the holders of Senior Debt.
SECTION 1.99 LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon (a) any distribution to creditors of AirGate or any Guarantor in a
liquidation or dissolution of AirGate or any Guarantor or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to
either AirGate or its property or any Guarantor or its property or (b) an
assignment for the benefit of creditors or any marshalling of AirGate's or any
Guarantor's assets and liabilities:
(1) the holders of Senior Debt shall be entitled to
receive payment in full of all Obligations due in respect of such
Senior Debt (including interest after the commencement of any
such proceeding, whether or not allowed, at the rate specified in
the applicable Senior Debt) before Holders shall be entitled to
receive any payment on account of any Obligations on the Notes
(except that Holders may receive and retain Permitted Junior
Securities and payments made from the trust described in Section
8.4 hereof); and
87
(2) until all Obligations with respect to Senior Debt
(as provided in clause (i) above) are paid in full, any
distribution to which Holders would be entitled but for this
Article XI shall be made to holders of Senior Debt (except that
Holders may receive and retain Permitted Junior Securities and
payments made from the trust described in Section 8.4 hereof), as
their interests may appear to the extent necessary to make
payment in full on all Obligations with respect to Senior Debt
remaining unpaid, after giving effect to all concurrent payments
or distributions to the holders of Senior Debt.
The consolidation of AirGate or any Guarantor with, or the merger of
AirGate or any Guarantor into, another Person or the liquidation or dissolution
of AirGate or any Guarantor following the conveyance, transfer or lease of its
properties and assets substantially as an entirety to another Person upon the
terms and conditions set forth in Article V shall not be deemed a dissolution,
winding up, liquidation, reorganization, assignment for the benefit of creditors
or marshaling of assets and liabilities of AirGate or such Guarantor for the
purposes of this Section if the Person formed by such consolidation or into
which AirGate or such Guarantor is merged or the Person which acquires by
conveyance, transfer or lease such properties and assets substantially as an
entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance, transfer or lease, comply with the conditions set forth in Article V
and, in the case of AirGate, such other Person shall assume AirGate's
obligations hereunder in accordance with Article V hereof.
SECTION 1.100 DEFAULT ON DESIGNATED SENIOR DEBT.
Neither AirGate nor any Guarantor shall (1) make any payment or
distribution to the Trustee or any Holder upon or in respect of Obligations with
respect to the Notes or (2) acquire from the Trustee or any Holder any Notes for
cash or property (in each case other than payments in Permitted Junior
Securities and payments made from the trust previously established as described
in Section 8.4 hereof) if:
(1) a default in the payment of any principal, premium, if
any, interest or other amount with respect to any Designated Senior Debt occurs
and is continuing beyond any applicable grace period in the agreement, indenture
or other document governing such Designated Senior Debt (whether upon maturity,
as a result of acceleration or otherwise); or
(2) any other default occurs and is continuing with respect
to any Designated Senior Debt that permits holders of such Designated Senior
Debt to accelerate its maturity, and AirGate and the Trustee receive written
notice of such default (a "Payment Blockage Notice") from a majority of the
holders, or from the trustee, agent or other
88
representative (the "Representative") of the holders, of any such Designated
Senior Debt. If the Trustee receives any such notice, a subsequent notice
received within 360 days thereafter shall not be effective for purposes of this
Section. No nonpayment default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the
basis for a subsequent Payment Blockage Notice unless such default shall have
been cured or waived for a period of not less than 90 days.
Notwithstanding anything herein to the contrary, AirGate and the
Guarantors may and shall resume payments on and distributions in respect of the
Obligations on the Notes upon the earlier of:
(1) in the case of a default referred to in clause (a)
of this Section 11.3, the date upon which the default is cured or
waived or ceases to exist, or
(2) in the case of a default referred to in clause (b)
of this Section 11.3, 179 days after the date on which the
applicable Payment Blockage Notice is received, unless the
maturity of any Designated Senior Debt has been accelerated.
SECTION 1.101 PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article XI or elsewhere in this Indenture, in
any of the Notes or in any Guarantee shall prevent AirGate or any Guarantors, as
applicable, at any time except during the pendency of any case, proceedings,
dissolution, liquidation or other winding up, assignment for the benefit of
creditors or other marshaling of assets and liabilities of AirGate or any
Guarantor referred to in Section 11.2 or under the conditions described in
Section 11.3, from making payments at any time of principal of and premium or
interest on the Notes or under a Guarantee, as applicable.
SECTION 1.102 NOTICE OF ACCELERATION OF SECURITIES.
If payment of the Notes is accelerated because of an Event of Default,
AirGate shall promptly notify holders of Senior Debt of such acceleration.
SECTION 1.103 WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that any Holder receives any payments of any Obligations
with respect to the Notes at a time when such payment is prohibited by Section
11.3 hereof, such payment shall be held by such Holder in trust for the benefit
of, and, upon written request of the Representative
89
of the holders of Senior Debt, shall be paid forthwith over and delivered to,
the holders of Senior Debt of AirGate or any Guarantor under any indenture or
other agreement (if any) pursuant to which such Senior Debt may have been
issued, as their interest may appear, for application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extent necessary
to pay such Obligations in full in accordance with their terms, after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Debt.
If a distribution is made to any Holder that because of this Article XI
should not have been made to it, such Holder who receives the distribution shall
hold it in trust for the benefit of, and upon written request of the
Representative of the holders of Senior Debt pay it over to, the holders of
Senior Debt under any indenture or other agreement (if any) pursuant to which
such Senior Debt may have been issued, as their interest may appear, for
application to the payment of all Obligations with respect to Senior Debt
remaining unpaid to the extent necessary to pay such Obligations in full in
accordance with their terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically set
forth in this Article XI, and no implied covenants or obligations with respect
to the holders of Senior Debt shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or AirGate or
any other person money or assets to which any holders of Senior Debt shall be
entitled by virtue of this Article XI except if such payment is made as a result
of the willful misconduct or gross negligence of the Trustee.
SECTION 1.104 NOTICE BY AIRGATE.
AirGate shall promptly notify the Trustee and the Paying Agent of any
facts known to AirGate that would cause a payment of any Obligations with
respect to the Notes to violate this Article XI, but failure to give such notice
shall not affect the subordination of the Notes to Senior Debt as provided in
this Article XI.
SECTION 1.105 SUBROGATION.
After all Senior Debt is paid in full and until the Notes are paid in
full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Notes) to the rights of holders of Senior Debt
to receive payments or distributions applicable to Senior Debt to the extent
that payments or distributions otherwise payable to the Holders have been
applied to the payment of Senior Debt. For the purposes of such subrogation, no
such payments or distributions to the holders of the Senior Debt by or on behalf
of AirGate to which the Holders or the Trustee would otherwise be entitled
except for the provisions of this Article XI, and no
90
payments pursuant to the provisions of this Article XI to the holders of Senior
Debt by the Holders or the Trustee, or by or on behalf of the Holders by virtue
of this Article XI which otherwise would have been made to the Holders shall, as
between AirGate and the Holders of the Notes, be deemed to be a payment by
AirGate to or on account of the Senior Debt, it being understood that the
provisions of this Article XI are and are intended solely for the purpose of
defining the relative rights of the Holders on the one hand, and the holders of
the Senior Debt, on the other hand.
SECTION 1.106 RELATIVE RIGHTS.
This Article XI defines the relative rights of Holders and holders of
Senior Debt. Nothing in this Indenture shall:
(1) impair, as between AirGate and the Guarantors and
Holders, the obligation of AirGate or any Guarantor, which are absolute and
unconditional, to pay principal of and interest on the Notes and any other
amounts due under the Indenture or the Notes in accordance with their terms;
(2) affect the relative rights of Holders and creditors of
AirGate or any Guarantor other than their rights in relation to holders of
Senior Debt; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the rights of
holders and owners of Senior Debt to receive distributions and payments
otherwise payable to Holders pursuant to this Article XI.
If AirGate fails because of this Article XI to pay principal of or
interest on a Note on the due date, such failure shall still constitute a
Default or Event of Default.
SECTION 1.107 SUBORDINATION MAY NOT BE IMPAIRED BY AIRGATE.
No right of any holder of Senior Debt to enforce the subordination of the
Indebtedness evidenced by the Notes shall be impaired by any act or failure to
act by AirGate or any Holder or by the failure of AirGate, the Trustee or any
Holder to comply with this Indenture.
SECTION 1.108 DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
91
Upon any payment or distribution of assets of either AirGate or any
Guarantor referred to in this Article XI, the Trustee and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such Representative of the Senior Debt
or of the liquidating trustee or agent or other person making any distribution
to the Trustee or to the Holders for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of the Senior Debt and
other Indebtedness of AirGate, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article XI.
SECTION 1.109 RIGHTS OF TRUSTEE AND PAYING AGENT.
AirGate shall give prompt written notice to the Trustee of any fact known
to AirGate which would prohibit the making of any payment to or by the Trustee
in respect of the Notes pursuant to the provisions of this Article XI.
Regardless of anything to the contrary contained in this Article XI or elsewhere
in this Indenture, the Trustee shall not be charged with knowledge of the
existence of any default or event of default with respect to any Senior Debt or
of any other facts which would prohibit the making of any payment to or by the
Trustee unless and until a Responsible Officer of the Trustee shall have
received notice in writing from AirGate, or from a holder of Senior Debt or a
Representative therefor, together with proof satisfactory to the Trustee of such
holding of Senior Debt or of the authority of such Representative, and, prior to
the receipt of any such written notice, the Trustee shall be entitled to assume
(in the absence of actual knowledge to the contrary) that no such facts exist.
In the event that the Trustee determines in good faith that any evidence
is required with respect to the right of any Person as a holder of Senior Debt
to participate in any payment or distribution pursuant to this Article XI, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amounts of Senior Debt held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article XI and if such evidence is not furnished the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
The Trustee in its individual or any ther capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights.
SECTION 1.110 AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of Notes by such Holder's acceptance thereof authorizes and
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article XI, and appoints the Trustee such Holder's attorney-in-fact for any and
all such purposes.
92
SECTION 1.111 ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee.
ARTICLE XII
MISCELLANEOUS
SECTION 1.112 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA (S) 318(c), the imposed duties shall control.
SECTION 1.113 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.
Harris Tower
Suite 1700
233 Peachtree Street, N.E.
Atlanta, Georgia 30303
Telecopier No.: (404) 525-7922
Attention: President and Legal Department
With a copy to:
Patton Boggs LLP
2550 M Street, N.W.
Washington, D.C. 20037
93
Telecopier No.: (202) 457-6315
Attention: Mary M. Sjoquist, Esq.
If to the Trustee:
Bankers Trust Company
Four Albany Street - 4/th/ Floor
New York, New York 10006
Telecopier No.: (212) 250-6961
Attention: Corporate Trust and Agency Group,
Corporate Market Services
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 ' 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.
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 1.114 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA ' 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 (S) 312(c).
94
SECTION 1.115 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:
(1) 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
(2) 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 1.116 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 (S) 314(a)(4)) shall comply with the provisions of TIA (S)
314(e) and shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) 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;
(3) 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
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
SECTION 1.117 RULES BY TRUSTEE AND AGENTS.
95
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 1.118 NO PERSONAL LIABILITY OF DIRECTORS,
OFFICERS, EMPLOYEES AND STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of AirGate,
as such, shall have any liability for any obligations of AirGate or any
Guarantor under the Notes, this Indenture 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.
SECTION 1.119 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.
SECTION 1.120 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 1.121 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 1.122 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 1.123 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.
96
SECTION 1.124 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.
[Signatures on following page]
97
SIGNATURES
----------
Dated as of September 30, 1999 AIRGATE PCS, INC.
By:_________________________________
Name: Thomas M. Dougherty
Title: President and Chief Executive
Officer
AGW LEASING COMPANY, INC.
By:_________________________________
Name: Thomas M. Dougherty
Title: President and Chief Executive
Officer
BANKERS TRUST COMPANY,
as Trustee
By: ________________________________
Name:
Title:
EXHIBIT A
FORM OF NOTE
EXHIBIT A
FORM OF NOTE
(Face of Senior Subordinated Discount Note)
13 1/2% Senior Subordinated Discount Notes due 2009
[Unless and until it is exchanged in whole or in part for Senior
Subordinated Discount Notes in definitive form, this Senior Subordinated
Discount Note may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. Unless this
certificate is presented by an authorized representative of The Depository Trust
Company (55 Water Street, New York, New York) ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as may be
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.]/1/
[THE SENIOR SUBORDINATED DISCOUNT NOTES EVIDENCED BY THIS CERTIFICATE
ARE INITIALLY ISSUED AS PART OF AN ISSUANCE OF UNITS (THE "UNITS"), EACH OF
WHICH CONSISTS OF $1,000 PRINCIPAL AMOUNT AT MATURITY OF THE 13 1/2% SENOR
SUBORDINATED DISCOUNT NOTES DUE 2009 OF AIRGATE PCS, INC. (THE "SENIOR
SUBORDINATED DISCOUNT NOTES") AND ONE WARRANT (A "WARRANT" AND, COLLECTIVELY,
THE "WARRANTS") INITIALLY ENTITLING THE HOLDER THEREOF TO PURCHASE 2.148 SHARES,
PAR VALUE $0.01 PER SHARE, OF AIRGATE PCS, INC. AT AN EXERCISE PRICE OF $.01 PER
SHARE]/2/
[PRIOR TO THE EARLIEST TO OCCUR OF (I) 180 DAYS AFTER THE CLOSING OF
THE OFFERING OF THE UNITS, (II) THE OCCURRENCE OF A CHANGE OF CONTROL OR AN
EVENT OF DEFAULT (AS DEFINED IN THE INDENTURE GOVERNING THE SENIOR SUBORDINATED
DISCOUNT NOTES) AND (III) SUCH DATE AS DONALDSON, LUFKIN & JENRETTE SECURITIES
CORPORATION IN ITS SOLE DISCRETION SHALL DETERMINE, THE SENIOR SUBORDINATED
DISCOUNT
_____________________
/1/ This paragraph should be included only if the Senior Subordinated Discount
Note is issued in global form.
/2/ This paragraph should be included only if the Senior Subordinated Discount
Note is issued prior to the Separation Date.
NOTES EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED
SEPARATELY FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH THE
WARRANTS (THE EARLIEST OF (I) - (III) TO OCCUR, THE "SEPARATION DATE").]/2/
No. ___ $_____________
CUSIP NO. 009367AA1
AIRGATE PCS, INC.
promises to pay to ___________________ or registered assigns, the principal sum
of ____________ Dollars on ______, 2009.
Interest Payment Dates: April 1 and October 1, beginning April 1, 2005
Record Dates: March 15 and September 15
AIRGATE PCS, INC.
By: __________________________
Name:
Title:
This is one of the
Senior Subordinated Discount Notes referred to in the
within-mentioned Indenture:
Dated: ____________
BANKERS TRUST COMPANY,
as Trustee
By: _______________________________
A-2
(Back of Senior Subordinated Discount Note)
______% Senior Subordinated Discount Notes due 2009
Capitalized terms used herein shall have the meanings assigned to them
in the 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
Senior Subordinated Discount Note at the rate of _____% per annum. AirGate
will pay interest in United States dollars (except as otherwise provided
herein) semi-annually in arrears on _______ and ______, commencing on
_______, 2005, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest on the
Senior Subordinated Discount Notes shall accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from
October 1, 2004; provided that if there is no existing Default or Event of
Default in the payment of interest, and if this Senior Subordinated
Discount Note is authenticated between a record date referred to on the
face hereof and the next succeeding Interest Payment Date (but after
October 1, 2004), interest shall accrue from such next succeeding Interest
Payment Date, except in the case of the original issuance of Senior
Subordinated Discount 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 Senior Subordinated Discount 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.
2) METHOD OF PAYMENT. AirGate will pay interest on the Senior Subordinated
Discount Notes (except defaulted interest) on the applicable Interest
Payment Date to the Persons who are registered Holders of Senior
Subordinated Discount Notes at the close of business on the March 15 or
September 15 next preceding the Interest Payment Date, even if such Senior
Subordinated Discount 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 Senior Subordinated
Discount 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
A-3
any, and interest on, all Global Notes and all other Senior Subordinated
Discount 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.
3) PAYING AGENT AND REGISTRAR. Initially, Bankers Trust Company, 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 Senior Subordinated Discount Notes under an
Indenture dated as of September 30, 1999 ("Indenture") among AirGate, AGW
Leasing Company, Inc. and the Trustee. The terms of the Senior Subordinated
Discount 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 (S)(S) 77aaa-77bbbb) (the "TIA"). The Senior
Subordinated Discount Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. The
Senior Subordinated Discount Notes are general unsecured Obligations of
AirGate limited to $300,000,000 in aggregate principal amount, plus
amounts, if any, sufficient to pay premium and interest on outstanding
Senior Subordinated Discount Notes as set forth in Paragraph 2 hereof.
5) OPTIONAL REDEMPTION. Except as set forth in the next paragraph, the Senior
Subordinated Discount Notes shall not be redeemable at AirGate's option
prior to October 1, 2004. Thereafter, the Senior Subordinated Discount
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 1 of the years indicated below:
Year Percentage
2004..............................106.750%
2005..............................104.500%
2006..............................102.250%
2007 and thereafter...............100.000%
Notwithstanding the foregoing, during the first 36 months after the
Issue Date AirGate may on one or more occasions redeem up to 35% of the
Accreted Value of the Senior Subordinated Discount Notes, in whole but not
in part, at the option of AirGate at a redemption price of 113.500% of the
Accreted Value thereof, with the net cash pro-
A-4
ceeds of one or more Equity Offerings; provided that such redemption shall
occur within 60 days of the date of the closing of such Equity Offering.
6) MANDATORY REDEMPTION. Except as set forth in paragraph 7 below, AirGate
shall not be required to make mandatory redemption or sinking fund payments
with respect to the Senior Subordinated Discount 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 Senior Subordinated
Discount Notes pursuant to the offer described below (the "Change of
Control Offer") at an offer price in cash equal to 101% of the Accreted
Value thereof on the date of purchase (if such date of purchase is prior to
October 1, 2004) or 101% of the aggregate principal amount thereof plus
accrued and unpaid interest thereon to the date of purchase (if such date
of purchase is on or after October 1, 2004). Within thirty 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) When the aggregate amount of Excess Proceeds exceeds $10.0
million, AirGate will be required to make an offer to all Holders and to
holders of such other Indebtedness that is pari passu with the Senior
Subordinated Discount Notes (an "Asset Sale Offer") to purchase the maximum
principal amount of Senior Subordinated Discount Notes and such other
Indebtedness that is pari passu with the Senior Subordinated Discount Notes
that may be purchased out of the Excess Proceeds, at an offer price in cash
in an amount equal to 100% of the Accreted Value thereof on the date of
purchase (if such date of purchase is prior to October 1, 2004) or 100% of
the principal amount thereof plus accrued and unpaid interest to the date
of purchase (if such date of purchase is on or after October 1, 2004), in
each case in accordance with the procedures set forth in the Indenture or
such other governing document in the case of Indebtedness pari passu with
the Senior Subordinated Discount Notes. To the extent that the aggregate
amount of Senior Subordinated Discount Notes and such other Indebtedness
that is pari passu with the Senior Subordinated Discount Notes tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, AirGate
may use any remaining Excess Proceeds for any purpose not otherwise
prohibited by the Indenture. If the aggregate principal amount of Senior
Subordinated Discount Notes and such other Indebtedness that is pari passu
with the Senior Subordinated Discount Notes surrendered by holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Senior
Subordinated Discount Notes and such other Indebtedness that is pari passu
with the Senior Subordinated
A-5
Discount Notes to be purchased on a pro rata basis. Upon completion of such
offer to purchase, the amount of Excess Proceeds shall be reset at zero.
(c) Holders of the Senior Subordinated Discount Notes that are the
subject of an offer to purchase will receive a Change of Control Offer or
Asset Sale Offer from AirGate prior to any related purchase date and may
elect to have such Senior Subordinated Discount 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
Senior Subordinated Discount Notes are to be redeemed at its registered
address. Senior Subordinated Discount Notes in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000,
unless all of the Senior Subordinated Discount Notes held by a Holder are
to be redeemed. On and after the redemption date, interest ceases to accrue
on the Senior Subordinated Discount Notes or portions thereof called for
redemption.
9) DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Subordinated Discount Notes
are in registered form without coupons in initial denominations of $1,000
and integral multiples of $1,000. The transfer of the Senior Subordinated
Discount Notes may be registered and the Senior Subordinated Discount 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 Senior Subordinated
Discount Note or portion of a Senior Subordinated Discount Note selected
for redemption, except for the unredeemed portion of any Senior Discount
Subordinated Note being redeemed in part. Also, it need not exchange or
register the transfer of any Senior Subordinated Discount Notes for a
period of 15 days before a selection of Senior Subordinated Discount Notes
to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
10) PERSONS DEEMED OWNERS. The registered holder of a Senior Subordinated
Discount Note may be treated as its owner for all purposes.
11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to the following paragraphs, the
Indenture and the Senior Subordinated Discount Notes may be amended or
supplemented with the consent of the Holders of at least a majority in
aggregate Accreted Value of the Senior Subordinated Discount Notes then
outstanding if before October 1, 2004 or in aggregate principal amount of
the then outstanding Senior Subordinated Discount Notes if after October 1,
2004 (including, without limitation, consents obtained in
A-6
connection with a purchase of or, tender offer or exchange offer for Senior
Subordinated Discount Notes), and any existing Default or Event of Default
or compliance with any provision of the Indenture or the Senior
Subordinated Discount Notes may be waived with the consent of the Holders
of a majority in aggregate Accreted Value of the then outstanding Senior
Subordinated Discount Notes if before October 1, 2004 or in aggregate
principal amount of the then outstanding Senior Subordinated Discount Notes
if after October 1, 2004 (including consents obtained in connection with a
tender offer or exchange offer for Senior Subordinated Discount Notes).
Without the consent of any Holder, AirGate and the Trustee may amend
or supplement the Indenture or the Senior Subordinated Discount Notes to
cure any ambiguity, defect or inconsistency, to provide for uncertificated
Senior Subordinated Discount Notes in addition to or in place of
certificated Senior Subordinated Discount Notes, to provide for the
assumption of AirGate's or a Guarantor's obligations to Holders in the case
of a merger or consolidation or a sale of all or substantially all of
AirGate's assets, to 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, to comply with the
requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the TIA or to allow any Subsidiary to
guarantee the Senior Subordinated Discount Notes.
Without the consent of each Holder adversely affected, an amendment or
waiver to the Indenture or the Senior Subordinated Discount Notes may not,
with respect to any Senior Subordinated Discount Notes held by a non-
consenting Holder, (i) reduce the principal amount of Senior Subordinated
Discount Notes whose Holders must consent to an amendment, supplement or
waiver, (ii) reduce the principal of or change the fixed maturity of any
Senior Subordinated Discount Note or alter the provisions with respect to
the redemption of the Senior Subordinated Discount 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 Senior
Subordinated Discount Note, (iv) waive a Default or Event of Default in the
payment of principal of or premium, if any, or interest on the Senior
Subordinated Discount Notes except a rescission of acceleration of the
Senior Subordinated Discount Notes by the Holders of at least a majority in
aggregate principal amount of the Senior Subordinated Discount Notes and a
waiver of the payment default that resulted from such acceleration, (v)
make any Senior Subordinated Discount Note payable in money other than that
stated in the Senior Subordinated Discount 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 Senior Subordinated Discount Notes, (vii) waive a
redemption payment with respect to any Senior Subordinated Discount Note,
other than a payment required by Sections
A-7
4.10 and 4.14 of the Indenture, and (viii) make any change in the preceding
amendment and waiver provisions.
Without the consent of at least 75% in aggregate principal amount of
Senior Subordinated Discount Notes then outstanding, AirGate and the
Trustee may not make any amendment to, or waiver of, the provisions of the
Indenture relating to the security interests created by the Pledge
Agreement that adversely affects the rights of the Holders.
12) DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30 days
in the payment when due of interest on the Senior Subordinated Discount
Notes, whether or not prohibited by the subordination provisions of the
Indenture; (ii) default in payment when due of the principal of or premium,
if any, on the Senior Subordinated Discount Notes, whether or not
prohibited by the subordination provisions of the Indenture; (iii) failure
by AirGate or any Restricted Subsidiary to comply with the provisions
described in Sections 4.10 and 4.14 of the Indenture; (iv) failure by
AirGate or any Restricted Subsidiary for 60 days after notice 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 $5.0 million or more; (vi) failure by AirGate or any of its
Restricted Subsidiaries to pay final judgments aggregating in excess of
$5.0 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 or any of its Restricted Subsidiaries; (viii) a breach
by AirGate of a material representation or warranty or agreement in the
Pledge Agreement, the repudiation by AirGate of any of its obligations
under the Pledge Agreement or the unenforceability of the Pledge Agreement
against AirGate for any reason; (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; and (x) any event occurs
that causes, subject to any applicable grace period, an Event of
Termination under any of the Sprint Agreements.
A-8
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 Senior
Subordinated Discount Notes may declare all the Senior Subordinated
Discount 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 Senior Subordinated Discount Notes will become
due and payable immediately without further action or notice. Holders may
not enforce the Indenture or the Senior Subordinated Discount Notes except
as provided in the Indenture. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Senior Subordinated
Discount 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.
13) 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.
14) 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 Senior Subordinated Discount 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 Senior Subordinated Discount Note
waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Senior Subordinated Discount
Notes.
15) AUTHENTICATION. This Senior Subordinated Discount Note shall not be valid
until authenticated by the manual signature of the Trustee or an
authenticating agent.
16) 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).
17) 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 Senior Subordinated Discount Notes and the
Trustee may use CUSIP numbers in notices of redemption as a convenience to
the Holders. No representation is
A-9
made as to the accuracy of such numbers either as printed on the Senior
Subordinated Discount 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.
Harris Tower
Suite 1700
233 Peachtree Street, N.E.
Atlanta, Georgia 30303
Telecopy: (404) 525-7922
Attention: President and Legal Department
A-10
ASSIGNMENT FORM
To assign this Senior Subordinated Discount Note, fill in the form
below: (I) or (we) assign and transfer this Senior Subordinated Discount 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 Senior Subordinated Discount 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
Senior Subordinated
Discount Note)
Signature guarantee:
A-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Subordinated Discount Note
purchased by AirGate pursuant to Section 4.10 or 4.14 of the Indenture, check
the box below:
[_] Section 4.10 [_] Section 4.14
If you want to elect to have only part of the Senior Subordinated
Discount 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 Senior
Subordinated Discount Note)
Tax Identification No.: __________________
Signature guarantee:
A-12
SCHEDULE OF EXCHANGES OF SENIOR SUBORDINATED DISCOUNT NOTES(1)
The following exchanges of a part of this Global Note for other Senior
Subordinated Discount Notes have been made:
- -------------------------------------------------------------------------------------------------------------------------
Principal Amount of Signature of authorized
Amount of decrease in Amount of increase in this Global Note officer of Trustee or
Principal Amount of Principal Amount of following such decrease Senior Subordinated
Date of Exchange this Global Note this Global Note (or increase) Discount Note Custodian
- -------------------------------------------------------------------------------------------------------------------------
______________________
(1) This should be included only if the Senior Subordinated Discount Note is
issued in global form.
A-13
EXHIBIT B
FORM OF GUARANTEE
EXHIBIT B
FORM 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 September 30, 1999, by and among AirGate PCS, Inc., a
Delaware corporation ("AirGate), AGW Leasing Company, Inc., a Delaware
corporation, and the Trustee (as amended and supplemented from time to time, the
"Indenture"), 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 ____% Senior Subordinated Discount Notes
due 2009 (the "Notes") of 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 X 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 the Guarantor to the Holders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
X 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 the 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 the 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 X 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)
B-2
EXHIBIT C
FORM OF PLEDGE AGREEMENT
[Document No. 197989]
EXHIBIT C
FORM OF PLEDGE AGREEMENT
================================================================================
PLEDGE AGREEMENT
by and between
AIRGATE PCS, INC.
and
BANKERS TRUST COMPANY,
as Trustee
Dated as of September ___, 1999
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINED TERMS................................................................... 1
Section 1.1 Definitions.............................................................. 1
Section 1.2 Other Definitional Provisions............................................ 5
ARTICLE II GRANT OF SECURITY INTEREST...................................................... 5
ARTICLE III REPRESENTATIONS AND WARRANTIES.................................................. 6
Section 3.1 Existence, Good Standing, Power and Authority and Authorization.......... 6
Section 3.2 Enforceability........................................................... 6
Section 3.3 No Conflict.............................................................. 6
Section 3.4 No Consents.............................................................. 7
Section 3.5 Title, No Other Liens.................................................... 7
Section 3.6 Perfected First Priority Liens........................................... 7
Section 3.7 Chief Executive Office................................................... 7
Section 3.8 Pledged Securities....................................................... 7
Section 3.9 Partnership and Limited Liability Company Interests...................... 8
ARTICLE IV COVENANTS....................................................................... 8
Section 4.1 Maintenance of Perfected Security Interest; Further Assurances........... 8
Section 4.2 Changes in Locations, Name, etc.......................................... 10
Section 4.3 Notices.................................................................. 10
Section 4.4 Pledged Securities; Distributions, Transfers, etc........................ 10
Section 4.5 Agreement Not to Issue Uncertificated Securities........................ 12
Section 4.6 Partnership and Limited Liability Company Interests...................... 12
Section 4.7 Amendment of Organizational Documents and By-Laws........................ 12
ARTICLE V REMEDIAL PROVISIONS............................................................. 13
Section 5.1 Pledged Securities....................................................... 13
Section 5.2 Proceeds to be Turned Over To Trustee.................................... 14
Section 5.3 Application of Proceeds.................................................. 14
C-2
Section 5.4 Code and Other Remedies.................................................. 14
Section 5.5 Waiver; Deficiency....................................................... 16
ARTICLE VI THE TRUSTEE..................................................................... 16
Section 6.1 Trustee's Appointment as Attorney-in-Fact, etc.......................... 16
Section 6.2 Duty of Trustee......................................................... 17
Section 6.3 Execution of Financing Statements....................................... 18
Section 6.4 Authority of Trustee.................................................... 18
ARTICLE VII MISCELLANEOUS.................................................................. 18
Section 7.1 Amendments in Writing................................................... 18
Section 7.2 Notices................................................................. 18
Section 7.3 No Waiver by Course of Conduct, Cumulative Remedies..................... 19
Section 7.4 Enforcement Expenses, Indemnification................................... 19
Section 7.5 Reinstatement........................................................... 20
Section 7.6 Successors and Assigns.................................................. 20
Section 7.7 Intercreditor Agreement................................................. 20
Section 7.8 Counterparts............................................................ 20
Section 7.9 Severability............................................................ 21
Section 7.10 Section Headings........................................................ 21
Section 7.11 Integration............................................................. 21
Section 7.12 GOVERNING LAW........................................................... 21
Section 7.13 Submission To Jurisdiction; Waivers..................................... 21
Section 7.14 Acknowledgments......................................................... 22
Section 7.15 WAIVER OF JURY TRIAL.................................................... 22
Section 7.16 Releases................................................................ 22
C-3
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of September ___, 1999, by and between
AIRGATE PCS, INC., a Delaware corporation (the "Grantor"), and BANKERS TRUST
-------
COMPANY, as Trustee (in such capacity, the "Trustee") under that certain
-------
Indenture, dated as of September ___, 1999 (as amended, supplemented or
otherwise modified from time to time, the "Indenture"), by and among Grantor,
---------
AGW Leasing Company, Inc. and the Trustee.
WITNESSETH:
----------
WHEREAS, pursuant to the Indenture, Grantor has agreed to pledge the
equity interests owned by Grantor in certain of Grantor's subsidiaries to secure
Grantor's obligations under the Indenture and certain other obligations as
described below upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and to induce the
Trustee to enter into the Indenture and to induce the Holders to purchase their
respective Notes (as defined below), Grantor hereby agrees with the Trustee, for
the ratable benefit of the Holders, as follows:
ARTICLE I
DEFINED TERMS
Section 1.1 Definitions. (a) Unless otherwise defined herein,
-----------
terms defined in the Indenture and used herein shall have the meanings given to
them in the Indenture.
(1) The following terms shall have the following meanings:
"Agreement": this Pledge Agreement, as the same may be amended,
---------
supplemented or otherwise modified from time to time.
"Capital Stock": Capital Stock (as defined in the Indenture) and
-------------
any and all warrants, rights or options to purchase any of the foregoing.
C-4
"Collateral": as defined in Section 2.
----------
"Collateral Account": any collateral account established by the
------------------
Trustee as provided in Section 5.1 or 5.4.
"Issuers": the collective reference to each Subsidiary of
-------
Grantor in which the Grantor directly owns any Capital Stock and which
Subsidiary is also a Restricted Subsidiary.
"New York UCC": the Uniform Commercial Code as from time to time
------------
in effect in the State of New York.
"Pledged LLC Interests": in each case, whether now existing or
---------------------
hereafter acquired, all of Grantor's right, title and interest in and to:
(a) the equity interests of each Issuer that is a limited
liability company, but not Grantor's obligations from time to time as a
holder of interests in any such Issuer (unless the Trustee or its designee,
on behalf of the Trustee and the Holders, shall elect to become a holder of
equity interests in any such Issuer in connection with its exercise of
remedies pursuant to the terms hereof);
(b) any and all moneys due and to become due to Grantor now or
in the future by way of a distribution made to Grantor in its capacity as a
holder of equity interests in any such Issuer or otherwise in respect of
Grantor's interest as a holder of equity interests in any such Issuer;
(c) any other property of any such Issuer to which Grantor now
or in the future may be entitled in respect of its equity interests in any
such Issuer by way of distribution, return of capital or otherwise;
(d) any other claim or right which Grantor now has or may in the
future acquire in respect of its equity interests in any such Issuer;
(e) all certificates, options or rights of any nature whatsoever
that may be issued or granted by any such Issuer with respect to the equity
interests of such Issuer to Grantor while this Agreement is in effect; and
C-5
(f) to the extent not otherwise included, all Proceeds of any or
all of the foregoing.
"Pledged Partnership Interests": in each case, whether now
-----------------------------
existing or hereafter acquired, all of Grantor's right, title and interest
in and to:
(a) the partnership interests of each Issuer that is a
partnership, but not Grantor's obligations from time to time as a general
or limited partner, as the case may be, in any such Issuer (unless the
Trustee or its designee, on behalf of the Trustee and the Holders, shall
elect to become a general or limited partner, as the case may be, in any
such Issuer in connection with its exercise of remedies pursuant to the
terms hereof);
(b) any and all moneys due and to become due Grantor now or in
the future by way of a distribution made to Grantor in its capacity as a
general partner or limited partner, as the case may be, in any such Issuer
or otherwise in respect of Grantor's interest as a general partner or
limited partner, as the case may be, in any such Issuer;
(c) any other property of any such Issuer to which Grantor now
or in the future may be entitled in respect of its interests as a general
partner or limited partner, as the case may be, in any such Issuer by way
of distribution, return of capital or otherwise;
(d) any other claim or right which Grantor now has or may in the
future acquire in respect of its general or limited partnership interests
in any such Issuer;
(e) the partnership agreement or other organizational documents
of any such Issuer;
(f) all certificates, options or rights of any nature whatsoever
that may be issued or granted by any such Issuer with respect to the
partnership interests of such Issuer to Grantor while this Agreement is in
effect; and
C-6
(g) to the extent not otherwise included, all Proceeds of any or
all of the foregoing.
"Pledged Securities": the collective reference to the Pledged
------------------
Partnership Interests, the Pledged LLC Interests and the Pledged Stock,
together with any Proceeds thereof.
"Pledged Stock": any shares, stock certificates, options or
-------------
rights of any nature whatsoever in respect of the Capital Stock (other than
Pledged LLC Interests and Pledged Partnership Interests) of any Issuer that
may be issued or granted to, or held by, Grantor while this Agreement is in
effect.
"Proceeds": all "proceeds" as such term is defined in Section 9-
--------
306(l) of the UCC and, in any event, shall include, without limitation, all
dividends or other income from the Pledged Securities, collections thereon
or distributions or payments with respect thereto.
"Restricted Subsidiary": means any Subsidiary of Grantor that is
---------------------
not an Unrestricted Subsidiary.
"Secured Obligations": all obligations, liabilities and
-------------------
indebtedness of the Grantor or any Restricted Subsidiary, now existing or
hereafter incurred, arising under or in connection with the Indenture, the
Notes, any Guarantee or this Agreement, whether direct or indirect,
absolute or contingent, due or to become due, including, without
limitation, all principal, interest, premiums, penalties, fees,
indemnifications, reimbursements and damages arising under the Indenture,
the Notes, any Guarantee or this Agreement (including, without limitation,
interest accrued at the then applicable rate provided in the Indenture and
the Notes after the maturity of the principal obligations owing thereunder
and interest accruing at the then applicable rate provided in the Indenture
and the Notes after the filing of any petitions in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
to the Grantor or any Restricted Subsidiary, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding).
"Securities Act": the Securities Act of 1933, as amended.
--------------
C-7
"UCC": the Uniform Commercial Code in effect in the State of New
---
York from time to time.
"Unrestricted Subsidiary": means any Subsidiary of the Grantor
-----------------------
that is designated by the Board of Directors as an Unrestricted Subsidiary
pursuant to a Board Resolution.
Section 1.2 Other Definitional Provisions. (a) The words "hereof,"
-----------------------------
"herein," "hereto" 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 Schedule references are to this
Agreement unless otherwise specified.
(1) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(2) Where the context requires, terms relating to the Collateral
or any part thereof, when used in relation to Grantor, shall refer to Grantor's
Collateral or the relevant part thereof
ARTICLE II
GRANT OF SECURITY INTEREST
Grantor hereby assigns and transfers to the Trustee, and hereby grants
to the Trustee, for the ratable benefit of the Holders, a security interest in,
all of the following property now owned or at any time hereafter acquired by
Grantor or in which Grantor now has or at any time in the future may acquire any
right, title or interest (collectively the "Collateral"), as collateral security
----------
for the prompt and complete payment and performance when due (whether at the
stated maturity, by acceleration or otherwise) of the Secured Obligations:
(3) all Pledged Securities; and
(4) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing;
provided that Collateral shall not in any event include any Capital Stock issued
by AGW Leasing Company, Inc.
C-8
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce the Trustee to enter into the Indenture and to induce the
Holders to purchase their respective Notes, Grantor hereby represents and
warrants to the Trustee and each Holder as of the date hereof and as of the date
of each acquisition of any Pledged Securities by Grantor and the pledge of
such Pledged Securities hereunder that:
Section 1.3 Existence, Good Standing, Power and Authority and
-------------------------------------------------
Authorization. Grantor is duly organized, validly existing and in good standing
- -------------
in the jurisdiction of its organization. Grantor has the corporate power and
authority and the legal right to execute and deliver, to perform its obligations
under, and to grant the security interests in the Collateral pursuant to, this
Agreement and has taken all necessary corporate action to authorize its
execution, delivery and performance of, and grant of the security interests in
the Collateral pursuant to, this Agreement.
Section 1.4 Enforceability. This Agreement constitutes a legal,
--------------
valid and binding obligation of the Grantor, enforceable in accordance with its
terms, except in each case as enforceability may be affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law).
Section 1.5 No Conflict. The execution, delivery and performance
-----------
of this Agreement will not violate any provision of any law, rule or regulation
applicable to Grantor or any material agreement, instrument or other contractual
obligation of the Grantor and will not result in the creation or imposition of
any Lien on any of the properties or revenues of the Grantor pursuant to any
such law, rule or regulation or agreement, instrument or other contractual
obligation of the Grantor, except the security interest created by this
Agreement.
Section 1.6 No Consents. No consent or authorization of, filing
-----------
with, or other act by or in respect of, any arbitrator or governmental authority
and no consent of any other Person (including, without limitation, any equity
holder or
C-9
creditor of the Grantor), is required in connection with the execution,
delivery, performance, validity or enforceability of this Agreement.
Section 1.7 Title, No Other Liens. Except for the security interest
---------------------
granted to the Trustee for the ratable benefit of the Holders pursuant to this
Agreement and the other Liens permitted to exist on the Collateral by the
Indenture to secure Obligations under the Credit Facilities, Grantor owns each
item of the Collateral free and clear of any and all Liens or claims of others.
No effective financing statement or other public notice with respect to all or
any part of the Collateral is on file or of record in any public office, except
such as have been filed in favor of the Trustee for the ratable benefit of the
Holders pursuant to this Agreement or as have been filed with respect to Liens
permitted by the Indenture to secure Obligations under the Credit Facilities.
Section 1.8 Perfected First Priority Liens. The security interests
------------------------------
granted pursuant to this Agreement (a) constitute valid perfected security
interests in all of the Collateral in favor of the Trustee, for the ratable
benefit of the Holders, as collateral security for such Grantor's Secured
Obligations, enforceable in accordance with the terms hereof against all
creditors of Grantor and any Persons purporting to purchase any Collateral from
Grantor and (b) are prior to all other Liens on the Collateral except for Liens
permitted by the Indenture to secure Obligations under the Credit Facilities.
Section 1.9 Chief Executive Office. On the date hereof, Grantor's
----------------------
jurisdiction of organization and the location of such Grantor's chief executive
office or sole place of business are specified on Schedule 1.
----------
Section 1.10 Pledged Securities. (a) The shares of Pledged Stock
------------------
pledged by such Grantor hereunder constitute all the issued and outstanding
shares of all classes of the Capital Stock of each Issuer in which Grantor has
any right, title or interest.
(1) All the shares of the Pledged Stock, Pledged Partnership
Interests and the Pledged LLC Interests pledged by Grantor have been duly and
validly issued and, to the extent applicable, are fully paid and nonassessable.
(2) The Pledged Partnership Interests pledged by Grantor
constitute all the issued and outstanding partnership interests of each Issuer
that is a partnership in which Grantor has any right, title or interest.
C-10
(3) The Pledged LLC Interests pledged by Grantor constitute all
the issued and outstanding equity interests of each Issuer that is a limited
liability company in which Grantor has any right, title or interest.
(4) Grantor is the owner of, and has title to, the Pledged
Securities pledged by it hereunder, free of any and all Liens or options, puts,
calls, warrants or other rights of third Persons in favor of, or claims of, any
other Person, except the security interest created by this Agreement and Liens
permitted by the Indenture to secure Obligations under the Credit Facilities.
Section 1.11 Partnership and Limited Liability Company Interests.
---------------------------------------------------
None of the Pledged Securities of any Issuer which is a partnership or a limited
liability company (i) is dealt in or traded on a securities exchange or in a
securities market, (ii) by its terms expressly provide that it is a security
governed by Article 8 of the Uniform Commercial Code in effect in the State of
New York, the jurisdiction of formation of the Issuer and any other applicable
jurisdiction (collectively, the "Applicable UCC"), (iii) is an investment
company security, (iv) is held in a securities account or (v) constitutes a
"security" or a "financial asset" as such terms are defined in Article 8 of the
Applicable UCC.
ARTICLE IV
COVENANTS
Grantor covenants and agrees with the Trustee and the Holders that,
from and after the date of this Agreement until the Secured Obligations shall
have been paid in full:
Section 1.12 Maintenance of Perfected Security Interest; Further
---------------------------------------------------
Assurances. (a) Grantor shall maintain the security interest created by this
- ----------
Agreement as a perfected security interest having at least the priority
described in Section 3.6 and shall defend such security interest against the
claims and demands of all Persons whomsoever except for holders of Liens
permitted by the Indenture to secure Obligations under the Credit Facilities.
(1) Grantor shall notify the Trustee promptly upon acquiring any
rights in any Pledged Securities of any Issuer and Grantor shall forth with (and
without the necessity for any request or demand by the Trustee or any Holder)
pledge and deliver the certificates representing such Pledged Securities, as
C-11
applicable, to the Trustee, in the same manner as described in Section 4.1
hereof, shall promptly thereafter deliver to the Trustee a certificate executed
by an authorized officer of the Grantor describing such Collateral and
certifying that the same has been duly pledged with the Trustee hereunder, shall
deliver any legal opinions reasonably requested by the Trustee with respect to
the validity, perfection and priority of the security interest in such Pledged
Securities and shall immediately take all actions required under this Agreement
with respect to any Capital Stock owned by Grantor which constitutes Collateral.
Grantor will furnish to the Trustee from time to time statements and schedules
further identifying and describing the Collateral and such other reports in
connection with the Collateral as the Trustee may reasonably request, all in
reasonable detail.
(2) At any time and from time to time, upon the written request
of the Trustee, and at the sole expense of Grantor, Grantor will promptly and
duly execute and deliver, and have recorded, such further instruments and
documents and take such further actions as the Trustee 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, without limitation, the
filing of any financing or continuation statements under the Uniform Commercial
Code (or other similar laws) in effect in any jurisdiction with respect to the
security interests created hereby. If any amount payable to Grantor under or in
connection with any of the Pledged Securities with respect to the equity
interests of Grantor in the Issuer thereof shall be or become evidenced by any
promissory note, other instrument or chattel paper, such note, instrument or
chattel paper in excess of $50,000 individually or $100,000 in the aggregate
shall be promptly upon receipt thereof by Grantor delivered to the Trustee, duly
endorsed in a manner satisfactory to the Trustee, to be held as Pledged
Securities pursuant to this Agreement.
(3) Concurrently with the delivery to the Trustee of each
certificate representing one or more shares of Pledged Securities to the
Trustee, Grantor shall deliver an undated stock power covering such certificate,
duly executed in blank by Grantor.
Section 1.13 Changes in Locations, Name, etc. Grantor will not,
--------------------------------
except upon 20 days' prior written notice to the Trustee and upon delivery to
the Trustee of all additional executed financing statements and other documents
reason ably requested by the Trustee to maintain the validity, perfection and
priority of the security interests provided for herein:
C-12
(1) change the location of its chief executive
office or sole place of business from that referred to in Section 3.7; or
(2) change its name, identity or corporate
structure to such an extent that any financing statement filed by the
Trustee in connection with this Agreement would become misleading.
Section 1.14 Notices. Grantor will advise the Trustee promptly, in
-------
reasonable detail, of:
(1) any Lien (other than security interests created hereby or
Liens permitted under the Indenture to secure Obligations under the Credit
Facilities) on any of the Collateral; and
(2) the occurrence of any other event which could reasonably be
expected to have a material adverse effect on the aggregate value of the
Collateral or on the security interests created hereby.
Section 1.15 Pledged Securities; Distributions, Transfers, etc. (a)
-------------------------------------------------
If Grantor shall become entitled to receive or shall receive any certificate
(including, without limitation, any certificate representing a stock dividend or
a distribution in connection with any reclassification, increase or reduction of
capital or any certificate issued in connection with any reorganization), option
or rights (other than cash dividends permitted to be made under the Indenture)
in respect of the Capital Stock of any Issuer, whether in addition to, in
substitution of, as a conversion of, or in exchange for, any shares of the
Pledged Stock, the Pledged Partnership Interests or the Pledged LLC Interests or
otherwise in respect thereof, Grantor shall accept the same as the agent of the
Trustee and the Holders, hold the same in trust for the Trustee and the Holders
and deliver the same forthwith to the Trustee in the exact form received, duly
indorsed by Grantor to the Trustee, if required, together with an undated stock
power covering such certificate duly executed in blank by Grantor and with, if
the Trustee so requests, signature guaranteed, to be held by the Trustee,
subject to the terms hereof, as additional collateral security for the Secured
Obligations. Any sums paid upon or in respect of the Pledged Securities upon the
partial or total liquidation or dissolution of any Issuer, or in redemption of,
or in exchange for any Pledged Securities, shall be paid over to the Trustee to
be held by it hereunder as additional collateral security for the Obligations,
and in case any distribution of capital shall be made on or in respect of the
Pledged Securities or any property shall
C-13
be distributed upon or with respect to the Pledged Securities, in each case
pursuant to the recapitalization or reclassification of the capital of any
Issuer or pursuant to the reorganization thereof, the property so distributed
shall, unless otherwise subject to a perfected security interest in favor of the
Trustee, be delivered to the Trustee to be held by it hereunder as additional
collateral security for the Secured Obligations. If any sums of money or
property so paid or distributed in respect of the Pledged Securities shall be
received by Grantor, Grantor shall, until such money or property is paid or
delivered to the Trustee, hold such money or property in trust for the Trustee
and the Holders, segregated from other funds of Grantor, as additional
collateral security for the Secured Obligations.
(1) Except as otherwise permitted by the Indenture, such Grantor
will not (i) vote to enable, or take any other action to permit, any Issuer to
issue any stock or other equity securities of any nature or to issue any other
securities convertible into or granting the right to purchase or exchange for
any stock or other equity securities of any nature of any Issuer except the
issuance to Grantor of equity securities which constitute Collateral, (ii) sell,
assign, transfer, exchange, or otherwise dispose of, or grant any option with
respect to, the Pledged Securities or Proceeds thereof (except pursuant to a
transaction expressly permitted by the Indenture), (iii) create, incur or permit
to exist any Lien or option in favor of, or any claim of any Person with respect
to, any of the Pledged Securities or Proceeds thereof, or any interest therein,
except for the security interests created by this Agreement and the Liens
permitted by the Indenture to secure the Obligations under the Credit Facilities
or (iv) enter into any agreement or undertaking restricting the right or ability
of Grantor to sell, assign or transfer any of the Pledged Securities or Proceeds
thereof except agreements evidencing the Lien on any of the Pledged Securities
or Proceeds thereof to secure the Obligations under the Credit Facilities (so
long as the Lien created by this Agreement is permitted thereby).
(2) Grantor shall cause each Issuer to agree that (i) it will be
bound by the terms of this Agreement relating to the Pledged Securities issued
by it and will comply with such terms insofar as such terms are applicable to
it, (ii) it will notify the Trustee promptly in writing of the occurrence of any
of the events described in Section 4.4(a) with respect to the Pledged Securities
issued by it and (iii) the terms of Sections 5.1(c) shall apply to it, mutatis
-------
mutandis, with respect to all actions that may be required of it pursuant to
- --------
Section 5.1(c) with respect to the Pledged Securities issued by it.
(3) With respect to the Pledged LLC Interests and the Pledged
Partnership Interests, (i) perform and comply in all material respects with all
C-14
terms and provisions of each limited liability company agreement and each
partnership agreement then in effect with respect thereto and required to be
performed or complied with by it and (ii) enforce each partnership agreement and
limited liability company agreement then in effect in accordance in all material
respects with its terms.
Section 1.16 Agreement Not to Issue Uncertificated Securities. All
------------------------------------------------
of the capital stock forming the Pledged Stock is and will be in certificated
form (as contemplated by Article 8 of the UCC), and Grantor will not seek to
convert all or any part of such Pledged Stock into uncertificated form (as
contemplated by Article 8 of the UCC).
Section 1.17 Partnership and Limited Liability Company Interests.
---------------------------------------------------
Grantor will not permit any of the equity interests of any Issuer which is a
partnership or a limited liability company to (i) be dealt in or traded on a
securities exchange or in a securities market, (ii) by its terms expressly
provide that it is a security governed by Article 8 of the Applicable UCC, (iii)
be an investment company security, (iv) be held in a securities account or (v)
constitute a "security" or a "financial asset" as such terms are defined in
Article 8 of the Applicable UCC. Grantor will cause each Issuer which is a
partnership or a limited liability company to execute and deliver to the Trustee
concurrently with the pledge of such Issuer's equity interests hereunder an
Acknowledgment and Consent in the form of Exhibit A hereto.
Section 1.18 Amendment of Organizational Documents and By-Laws.
-------------------------------------------------
Grantor will not consent to, cause or permit any modification or amendment to
the organizational documents or by-laws of any Issuer if any such amendment or
modification could reasonably be expected to materially lessen the rights
granted to the Trustee for the benefit of the Holders under this Agreement.
ARTICLE V
REMEDIAL PROVISIONS
Section 1.19 Pledged Securities. (a) Unless an Event of Default
------------------
shall have occurred and be continuing and except as provided in Section 4.4(a)
of this Agreement, Grantor shall be permitted to receive all cash dividends paid
in respect of the Pledged Stock and all distributions in respect of the Pledged
Partnership Interests and Pledged LLC Interests, to the extent permitted in the
Indenture,
C-15
and to exercise all voting and corporate rights with respect to the Pledged
Securities; provided, however, that no vote shall be cast or corporate right
-------- -------
exercised or other action taken which could reasonably be expected to materially
impair the Collateral or which could reasonably be expected to be inconsistent
with or result in any violation of any provision of the Indenture or this
Agreement.
(1) If an Event of Default shall occur and be
continuing, (i) the Trustee shall have the right to receive any and all
dividends, payments or other Proceeds paid in respect of the Pledged Securities
and make application thereof to the Secured Obligations in such order as the
Trustee may determine, and (ii) any or all of the Pledged Securities may be
registered in the name of the Trustee or its nominee, and the Trustee or its
nominee may thereafter exercise (x) all voting, corporate and other rights
pertaining to such Pledged Securities at any meeting of shareholders of the
relevant Issuer or Issuers or otherwise and (y) any and all rights of
conversion, exchange and subscription and any other rights, privileges or
options pertaining to such Pledged Securities as if it were the absolute owner
thereof (including, without limitation, the right to exchange at its discretion
any and all of the Pledged Securities upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the corporate
structure of any Issuer, or upon the exercise by Grantor or the Trustee of any
right, privilege or option pertaining to such Pledged Securities, and in
connection therewith, the right to deposit and deliver any and all of the
Pledged Securities with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms and conditions as the Trustee may
determine), all without liability except to account for property actually
received by it and except to the extent resulting from the gross negligence or
willful misconduct of the Trustee but the Trustee shall have no duty to Grantor
to exercise any such right, privilege or option and shall not be responsible for
any failure to do so or delay in so doing.
(2) Grantor hereby authorizes and instructs each
Issuer of any Pledged Securities pledged by Grantor hereunder to (i) comply with
any instruction received by it from the Trustee in writing that (x) states that
an Event of Default has occurred and is continuing and (y) is otherwise in
accordance with the terms of this Agreement, without any other or further
instructions from Grantor, and Grantor agrees that each Issuer shall be fully
protected in so complying, and (ii) upon the occurrence and during the
continuance of an Event of Default, unless otherwise expressly permitted hereby,
pay any dividends or other payments with respect to the Pledged Securities
directly to the Trustee.
C-16
Section 1.20 Proceeds to be Turned Over To Trustee. If an Event of
-------------------------------------
Default shall occur and be continuing, all Proceeds received by Grantor
consisting of cash, checks and other similar items shall be held by Grantor in
trust for the Trustee and the Holders, segregated from other funds of Grantor,
and shall, forthwith upon receipt by Grantor, be turned over to the Trustee in
the exact form received by Grantor (duly indorsed by Grantor to the Trustee, if
required). All Proceeds received by the Trustee hereunder shall be held by the
Trustee in a Collateral Account maintained under its sole dominion and control.
All Proceeds while held by the Trustee in a Collateral Account (or by such
Grantor in trust for the Trustee and the Holders) shall continue to be held as
collateral security for all the Secured Obligations and shall not constitute
payment thereof until applied as provided in Section 5.3.
Section 1.21 Application of Proceeds. At such intervals as may be
-----------------------
agreed upon by Grantor and the Trustee, or, if an Event of Default shall have
occurred and be continuing, the Trustee may apply all or any part of Proceeds
received by it constituting Collateral, whether or not held in any Collateral
Account, in payment of the Obligations in such order as the Trustee may
determine.
Section 1.22 Code and Other Remedies. If an Event of Default shall
-----------------------
occur and be continuing, the Trustee, on behalf of the Holders, may exercise, in
addition to all other rights and remedies granted to them in this Agreement and
in any other instrument or agreement securing, evidencing or relating to the
Secured Obligations, all rights and remedies of a secured party under the UCC or
any other applicable law. Without limiting the generality of the foregoing, the
Trustee, without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon Grantor or any other Person (all and each of which demands,
defenses, advertisements and notices are hereby waived), may without any
obligation to do so, and shall upon the request of the Holders of at least a
majority in Accreted Value or aggregate principal amount of the Notes as
applicable in accordance with Section 9.2 of the Indenture, in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give
option or options to purchase, or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, at any exchange, broker's
board or office of the Trustee or any Holder or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem best, for
cash or on credit or for future delivery without assumption of any credit risk.
The Trustee shall not be responsible
C-17
for any losses or diminution in value of the Collateral. The Trustee or any
Holder shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption in Grantor, which right or equity is waived and released upon
consummation of such sale. Grantor recognizes that the Trustee or the Holders
may be unable to effect a public sale of all or a part of the 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 Collateral for their own account, for investment
and without a view to the distribution or resale thereof. Grantor understands
that private sales so made may be at prices and other terms less favorable than
if the Collateral were sold at public sales, and agrees that neither the Trustee
nor any Holder has any obligation to delay the sale of the Collateral for the
period of time necessary to permit the Trustee to register the Collateral for
sale under the Securities Act or such state laws. Grantor agrees that private
sales under the foregoing circumstances shall be deemed to have been made in a
commercially reasonable manner. The Trustee shall apply the net proceeds of any
action taken by it pursuant to this Section 5.6, after deducting all reasonable
costs and expenses of every kind incurred in connection therewith or incidental
to the care or safekeeping of any of the Collateral or in any way relating to
the Collateral or the rights of the Trustee and the Holders hereunder,
including, without limitation, reasonable attorneys' fees and disbursements, to
the payment in whole or in part of the Secured Obligations, in such order as the
Trustee may elect and as permitted by law, and only after such application and
after the payment by the Trustee of any other amount required by any provision
of law, including, without limitation, Section 9-504(l)(c) of the UCC, need the
Trustee account for the surplus, if any, to Grantor. To the extent permitted by
applicable law, Grantor waives all claims, damages and demands it may acquire
against the Trustee or any Holder arising out of the exercise by them of any
rights hereunder, except to the extent arising out of gross negligence or
willful misconduct of the Trustee or such Holder. If any notice of a proposed
sale or other disposition of Collateral shall be required by law, such notice
shall be deemed reasonable and proper if given at least 10 days before such sale
or other disposition.
Section 1.23 Waiver; Deficiency. Grantor waives and agrees not to
------------------
assert any rights or privileges which it may acquire under Section 9-112 of the
UCC. Grantor shall remain liable for any deficiency if the proceeds of any sale
or other disposition of the Collateral are insufficient to pay its Secured
Obligations and the fees and disbursements of any attorneys employed by the
Trustee or any Holder to collect such deficiency.
C-18
ARTICLE VI
THE TRUSTEE
Section 1.24 Trustee's Appointment as Attorney-in-Fact, etc. (a)
----------------------------------------------
Grantor hereby irrevocably constitutes and appoints the Trustee and any officer
or agent thereof, 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 Grantor and in the name of Grantor or in its own name, for the purpose
of carrying out the terms of this Agreement, to take any and all appropriate
action and to execute any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of this Agreement, and,
without limiting the generality of the foregoing, Grantor hereby gives the
Trustee the power and right, on behalf of Grantor, without notice to or assent
by Grantor, to do any or all of the following, in each case, subject to the last
sentence of this Section 6.1(a):
(1) pay or discharge taxes and Liens levied or
placed on or threatened against the Collateral; and
(2) execute, in connection with any sale provided
for in Section 5.4, any indorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
Anything in this Section 6.1(a) to the contrary notwithstanding, the
Trustee agrees that it will not exercise any rights under the power of attorney
provided for in this Section 6.1(a) unless an Event of Default shall have
occurred and be continuing.
(2) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Trustee, at its option, but without any
obligation so to do, may perform or comply, or otherwise cause performance or
compliance, with such agreement.
(3) The reasonable out-of-pocket expenses and indemnities of the
Trustee (including the reasonable fees and expenses of its counsel) incurred in
connection with actions undertaken as provided in this Section 6.1, together
with interest thereon at a rate per annum equal to the rate per annum at which
interest
C-19
would then be payable on past due Obligations under the Notes from the date of
payment by the Trustee to the date reimbursed by the Grantor, shall be payable
by Grantor to the Trustee on demand.
(4) Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released in accordance with the terms hereof.
Section 1.25 Duty of Trustee. The Trustee's sole duty with respect
---------------
to the custody, safekeeping and physical preservation of the Collateral in its
possession, under Section 9-207 of the UCC or otherwise, shall be to deal with
it in the same manner as the Trustee deals with similar property for its own
account except that after the occurrence and continuance of an Event of Default,
the Trustee shall have no obligations to invest funds held in the Collateral
Account and may hold the same as demand deposits. Neither the Trustee, any
Holder nor any of their respective officers, directors, employees or agents
shall be liable for 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 Grantor or any other
Person or to take any other action whatsoever with regard to the Collateral or
any part thereof. The powers conferred on the Trustee and the Holders hereunder
are solely to protect the Trustee's and the Holders' interests in the Collateral
and shall not impose any duty upon the Trustee or any Holder to exercise any
such powers. The Trustee and the Holders shall be accountable only for amounts
that they actually receive as a result of the exercise of such powers, and
neither they nor any of their officers, directors, employees or agents shall be
responsible to Grantor for any act or failure to act hereunder, except for their
own gross negligence or willful misconduct.
Section 1.26 Execution of Financing Statements. Pursuant to Section
---------------------------------
9-402 of the UCC and any other applicable law, Grantor authorizes the Trustee to
file or record financing statements and other filing or recording documents or
instruments with respect to the Collateral without the signature of Grantor in
such form and in such offices as the Trustee reasonably determines appropriate
to perfect the security interests of the Trustee under this Agreement. A
photographic or other reproduction of this Agreement shall be sufficient as a
financing statement or other filing or recording document or instrument for
filing or recording in any jurisdiction.
C-20
Section 1.27 Authority of Trustee. Grantor acknowledges that the
--------------------
rights and responsibilities of the Trustee under this Agreement with respect to
any action taken by the Trustee or the exercise or non-exercise by the Trustee
of any option, voting right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Agreement shall, as between the
Trustee and the Holders, be governed by the Indenture, but, as between the
Trustee and the Grantor, the Trustee shall be conclusively presumed to be acting
as agent for the Holders with full and valid authority so to act or refrain from
acting, and Grantor shall not be under any obligation, or entitlement to make
any inquiry respecting such authority.
ARTICLE VII
MISCELLANEOUS
Section 1.28 Amendments in Writing. None of the terms or provisions
---------------------
of this Agreement may be waived, amended, supplemented or otherwise modified
except in accordance with subsection 9.1 and subsection 9.2 of the Indenture.
Section 1.29 Notices. All notices, requests and demands to or upon
-------
the Trustee or Grantor hereunder shall be effected in the manner provided for in
subsection 12.2 of the Indenture.
Section 1.30 No Waiver by Course of Conduct, Cumulative Remedies.
---------------------------------------------------
Neither the Trustee nor any Holder shall by any act (except by a written
instrument pursuant to Section 7.1), delay, indulgence, omission or otherwise.
be deemed to have waived any right or remedy hereunder or to have acquiesced in
any Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Trustee or any Holder, 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.
A waiver by the Trustee or any Holder of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
Trustee or such Holder would otherwise have on any future occasion. The rights
and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any other rights or remedies provided by
law.
C-21
Section 1.31 Enforcement Expenses, Indemnification. (a) Grantor
-------------------------------------
agrees to pay or reimburse each Holder and the Trustee for all its reasonable
out-of-pocket costs and expenses incurred in collecting against Grantor or
otherwise enforcing or in the case of the Trustee only, preserving any rights
under this Agreement or at its option performing or complying with any of the
agreements of the Trustee contained herein, including, without limitation, the
reasonable fees and reasonable disbursements of counsel (including the allocated
fees and expenses of in-house counsel) to each Holder and of counsel to the
Trustee.
(1) Grantor agrees to pay, and to save the Trustee and the
Holders harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other taxes which
may be payable or determined to be payable with respect to any of the Collateral
or in connection with any of the transactions contemplated by this Agreement.
(2) Grantor agrees to pay, and to save the Trustee and the
Holders harmless from, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement except liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of such party.
(3) The agreements in this Section 7.4 shall survive repayment
of the Secured Obligations and all other amounts payable under the Indenture or
the resignation or replacement of the Trustee.
Section 1.32 Reinstatement. If after receipt of any payment of, or
-------------
proceeds of, any of the Collateral applied to the payment of, any of the Secured
Obligations, the Trustee or any Holder is required to surrender or return such
payment or proceeds to any Person for any reason, then the Secured 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 Trustee or any Holder. This
Section 7.5 shall
(1) remain effective notwithstanding any contrary
action that may be taken by the Trustee or any Holder in reliance upon such
payment or proceeds; and
C-22
(2) survive the termination or revocation of this
Agreement.
Section 1.33 Successors and Assigns. This Agreement shall be
----------------------
binding upon the successors and assigns of Grantor and shall inure to the
benefit of the Trustee and the Holders and their respective permitted successors
and assigns; provided that Grantor may not assign, transfer or delegate any of
--------
its rights or obligations under this Agreement except as permitted by the
Indenture.
Section 1.34 Intercreditor Agreement. Notwithstanding any provision
-----------------------
of this Agreement to the contrary (a) all rights of the Trustee and the Holders
hereunder with respect to the exercise of remedies against any of the Collateral
are subject to the terms of the Intercreditor Agreement and (b) all obligations
of Grantor hereunder to turn over possession of any Collateral to the
Trustee will be satisfied to the extent possession of any such Collateral is
turned over to either Senior Agent pursuant to any Senior Security Documents (as
such terms are defined in the Intercreditor Agreement) so long as any Senior
Loan Obligations (as defined in the Intercreditor Agreement) remain outstanding.
Section 1.35 Counterparts. This Agreement may be executed by one or
------------
more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
Section 1.36 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.
Section 1.37 Section Headings. The Section headings used in this
----------------
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
Section 1.38 Integration. This Agreement and the Indenture
-----------
represent the agreement of the Grantor, the Trustee and the Holders with respect
to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Trustee or any Holder relative to subject
matter hereof not expressly set forth or referred to herein or in the Indenture.
C-23
Section 1.39 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
-------------
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
Section 1.40 Submission To Jurisdiction; Waivers. Grantor hereby
-----------------------------------
irrevocably and unconditionally:
(1) 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 appellate courts from any thereof;
(2) consents that any such action or proceeding may be brought
in such courts 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;
(3) 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 Grantor at
its address referred to in Section 7.2 or at such other address of which the
Trustee shall have been notified in the manner described in Section 7.2;
(4) 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; and
(5) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, indirect, punitive or consequential damages (as
opposed to direct or actual damages other than damages waived hereunder).
Section 1.41 Acknowledgments. Grantor hereby acknowledges that:
---------------
(1) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement;
C-24
(2) neither the Trustee nor any Holder has any fiduciary
relationship with or fiduciary duty to Grantor arising out of or in connection
with this Agreement, and the relationship between the Grantor, on the one hand,
and the Trustee and Holders, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(3) no joint venture is created hereby or by the Indenture or
otherwise exists by virtue of the transactions contemplated hereby among the
Holders or among the Grantor and the Holders.
Section 1.42 WAIVER OF JURY TRIAL. EACH OF GRANTOR AND THE
--------------------
TRUSTEE BY ITS ACCEPTANCE HEREOF HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND
FOR ANY COUNTERCLAIM THEREIN.
Section 1.43 Releases. (a) At such time as the Notes and the other
--------
Secured Obligations shall have been paid in full, the Collateral shall
automatically be released from the Liens created hereby, and this Agreement and
all obligations (other than those expressly stated to survive such termination)
of the Trustee and Grantor hereunder shall automatically terminate, all without
delivery of any instrument or performance of any act by any party, and all
rights to the Collateral shall revert to the Grantor. At the request and sole
expense of Grantor following any such termination, the Trustee shall deliver to
Grantor any Collateral held by the Trustee hereunder, and execute and deliver to
Grantor such documents as Grantor shall reasonably request to evidence such
termination and release.
(1) If any of the Collateral shall be sold, transferred or
otherwise disposed of by Grantor in a transaction permitted by the Indenture, or
if any Issuer shall become an Unrestricted Subsidiary pursuant to the terms of
the Indenture, then the Trustee, at the request and sole expense of Grantor,
shall execute and deliver to Grantor all releases or other documents reasonably
necessary or desirable for the release of the Liens created hereby on such
Collateral so sold, transferred or otherwise disposed of or for the release of
the Liens created hereby on the Pledged Securities issued by such Issuer.
Notwithstanding the foregoing, no such release of any Collateral shall
be effected unless any lien on such Collateral securing any Senior Debt shall
also be released.
C-25
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be duly executed and delivered as of the date first above written.
AIRGATE PCS, INC.
By:_____________________________
Title:
BANKERS TRUST COMPANY, as Trustee
By:_____________________________
Title
C-26
EXHIBIT A
ACKNOWLEDGMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Pledge Agreement
dated as of ________________________, 1999, made by AirGate PCS, Inc. in favor
of Bankers trust Company, as Trustee, as amended, restated or otherwise modified
from time to time (the "Pledge Agreement"). All capitalized terms used herein
but not otherwise defined herein shall have the meanings assigned thereto in the
Pledge Agreement. The undersigned agrees for the benefit of the Trustee and the
Holders that it will not take any action or fail to take any action that will
permit any Pledged LLC Interests or Pledged Partnership Interests issued by the
undersigned to become "securities" within the meaning of Article 8 of the
Applicable UCC.
[ISSUER]
By:_____________________________
Title:
Address for Notices:
________________________________
________________________________
________________________________
Telex:
Facsimile:
C-27
Schedule I to
-------------
Pledge Agreement
----------------
Chief Executive Office
----------------------
Chief Executive Office: Harris Tower
Suite 1700
233 Peachtree, N.E.
Atlanta, Georgia 30303
Jurisdiction of Organization: Delaware
C-28
EXHIBIT D
FORM OF INTERCREDITOR AGREEMENT
EXHIBIT D
FORM OF INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT
-----------------------
INTERCREDITOR AGREEMENT, dated as of September 30, 1999, among BANKERS
TRUST COMPANY, a New York banking corporation, as Trustee (the "Trustee") under
-------
the Indenture dated as of September 30, 1999 by and among AirGate PCS, Inc., a
Delaware corporation ("AirGate"), AGW Leasing Company, Inc., a Delaware
-------
corporation ("AGW") and the Trustee, Lucent Technologies Inc., as Administrative
---
Agent under the Credit Agreement (capitalized terms having the definitions set
forth in Section 1 below; in such capacity, the "Administrative Agent"), and
--------------------
State Street Bank and Trust Company, a Massachusetts banking corporation, as
Collateral Agent for the Senior Secured Lenders under the Senior Loan Documents
(in such capacity, the "Collateral Agent") and AGW.
W I T N E S S E T H:
-------------------
WHEREAS, AirGate intends to make secured borrowings under the Credit
Agreement;
WHEREAS, AirGate intends to issue Subordinated Notes under the
Indenture;
WHEREAS, AirGate has pledged certain collateral to secure its
obligations under each of the foregoing agreements; and
WHEREAS, the parties hereto desire to set forth their relative rights
in respect of such shared collateral and the security interests granted therein;
NOW, THEREFORE, in consideration of the premises, the parties hereto
hereby agree as follows:
1. Definitions. (a) Unless otherwise defined herein, terms defined
-----------
in the Credit Agreement and the Senior Loan Documents have the meanings given to
them in such documents.
(1) The following terms shall have the following meanings:
"Agreement": this Intercreditor Agreement.
---------
"Common Collateral": the collective reference to the capital
-----------------
stock or other equity interests issued by the Pledged Subsidiaries and
any and all property related thereto, in each case from time to time
subject to a security interest to secure payment or performance of the
Senior Loan Obligations and the Subordinated Obligations.
"Credit Agreement": the Credit Agreement, dated as of August 16,
----------------
1999, among the Senior Agents, the Senior Lenders and AirGate; for the
purposes hereof, "Credit Agreement" shall also be deemed to refer to
any credit agreement or similar document entered into by AirGate and
any lenders to replace the Credit Agreement in whole or in part to the
extent permitted by the Indenture.
"Indenture": the Indenture, dated as of the date hereof by and
---------
between AirGate and the Trustee; for the purposes hereof, "Indenture"
shall also be deemed to refer to any indenture entered into by AirGate
and any trustee to replace the Indenture, in whole or in part, to the
extent permitted by the Credit Agreement.
"Pledged Subsidiaries": means each Subsidiary of AirGate (other
--------------------
than AGW) in which AirGate owns directly any equity interest.
"Senior Agents": the Administrative Agent and the Collateral
-------------
Agent.
"Senior Guarantees": the collective reference to each guarantee
-----------------
of the Senior Loan Obligations by a Subsidiary executed by such
Subsidiary pursuant to the Credit Agreement and "Subsidiary
----------
Guarantee" shall mean any one of such guarantees.
---------
"Senior Lenders": the lenders parties from time to time to the
--------------
Credit Agreement in their capacity as lenders thereunder, and their
respective successors and assigns.
"Senior Loan Documents": the collective reference to the Credit
---------------------
Agreement and each other "Loan Document" as defined therein.
"Senior Loan Obligations": the Obligations.
-----------------------
"Senior Security Documents": the collective reference to the
-------------------------
Pledge Agreement and any and all other documents providing for the
D-2
pledge of the capital stock or other equity interests of each Pledged
Subsidiary and AGW and the proceeds related thereto as collateral
security in connection with the Credit Agreement and the other Loan
Documents.
"Senior Secured Lenders": each of the Senior Agents and each of
----------------------
the Senior Lenders.
"Subordinated Guarantees": the collective reference to each
-----------------------
Guarantee (as defined in the Indenture) each of which is subordinated
to the Senior Loan Obligations in accordance with the terms of the
Indenture and "Subordinated Guarantee" shall mean any one of such
----------------------
Guarantees.
"Subordinated Note Documents": the collective reference to the
---------------------------
Indenture, the Subordinated Notes issued thereunder, the Subordinated
Guarantees and the Subordinated Security Documents.
"Subordinated Notes": the collective reference to the senior
------------------
subordinated discount notes issued under the Indenture.
"Subordinated Obligations": the collective reference to the
------------------------
Obligations (as defined in the Indenture) with respect to the
Subordinated Notes and shall include, without limitation, the unpaid
principal of and interest owing under the Indenture and the
Subordinated Notes issued thereunder and all other obligations and
liabilities of AirGate or any Subsidiary thereunder (including,
without limitation, interest accrued at the then applicable rate
provided in the Indenture and the Subordinated Notes issued thereunder
after the maturity of the principal obligations owing thereunder and
interest accruing at the then applicable rate provided in the
Indenture and the Subordinated Notes issued thereunder after the
filing of any petitions in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to AirGate,
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, the Subordinated Notes issued thereunder, this Agreement,
any Guarantee (as defined in the Indenture) or any other Subordinated
Security Document, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs,
expenses
D-3
or otherwise (including, without limitation, all fees and
disbursements of counsel to the Trustee and fees, expenses and
indemnities of the Trustee that are required to be paid by AirGate
pursuant to the terms of the Indenture, this Agreement, any Guarantee
(as defined in the Indenture) or any other Subordinated Security
Document).
"Subordinated Security Documents": the collective reference to
-------------------------------
any and all documents providing for the pledge of the capital stock or
other equity interests of each Pledged Subsidiary and the property
related thereto as collateral security in connection with the
Indenture and the Subordinated Notes issued under the Indenture.
"Subsidiary": shall have the meaning set forth in the Credit
----------
Agreement as in effect on the date hereof.
(2) 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
Credit Agreement or in the 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.
(3) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Rights in Common Collateral. (a) Notwithstanding anything to the
---------------------------
contrary contained in any filing or agreement to which the Trustee, the Senior
Secured Lenders or AirGate now or hereafter 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 Subordinated Security Documents,
the rules for determining priority under the Uniform Commercial Code or any
other law governing the relative priorities of secured creditors, any security
interest in any Common Collateral in favor of or for the benefit of the Senior
Secured Lenders pursuant to the Senior Security Documents has and shall have
priority, to the extent of any unpaid Senior Loan Obligations, over any security
interest in such Common Collateral in favor of or for the benefit of the Trustee
pursuant to the Subordinated Security Documents.
D-4
(1) So long as the Senior Loan Obligations have not been paid in
full or the commitments under the Credit Agreement have not been terminated or
expired (i) the Trustee will not institute any action or proceeding to enforce
any of its rights or remedies with respect to any Common Collateral, including,
without limitation, any action of foreclosure upon any Common Collateral and
(ii) the Senior Secured Lenders shall have the exclusive right to enforce rights
and exercise remedies with respect to the Common Collateral under the Senior
Security Documents and the Trustee shall have no 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 Senior Secured Lenders with respect thereto
subject to clause 2(c) below.
(2) Any money, property, securities or other distributions of
any nature whatsoever received from the sale, disposition or other realization
upon a foreclosure or other exercise of remedies with respect to the Common
Collateral upon the occurrence and continuance of an Event of Default (as
defined in the Credit Agreement or the Indenture) by any Senior Secured Lender
or the Trustee, of all or any part of the Common Collateral, regardless of
whether such money, property, securities or other distributions are received
during the pendency of or in connection with any bankruptcy, insolvency or other
like proceeding or otherwise, shall be delivered to the Collateral Agent in the
form received, duly indorsed to such party, if required, and applied by the
Collateral 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 Senior Secured Lenders in connection with such realization on the
Common Collateral or the protection of any of their rights and interests
therein;
Second, to the payment in full of all Senior Loan Obligations in the
------
order prescribed by Section 2.16(b) of the Credit Agreement;
Third, to the Trustee for application to the Subordinated Obligations
-----
pursuant to Section 6.10 of the Indenture to the full extent thereof at
such time; and
Fourth, to pay AirGate or the appropriate designee thereof or as a
------
court of competent jurisdiction may direct, any surplus then remaining.
(3) In the event that:
D-5
(1) all of the Senior Loan Obligations have been paid in
full and the commitments under the Senior Credit Agreement have
been terminated or expired,
(2) after giving effect thereto any Common Collateral
remains that remains pledged pursuant to the Subordinated Security
Documents, and
(3) at such time there are Subordinated Obligations
outstanding, then the Trustee shall have the right to enforce the
provisions of the Subordinated Security Documents in respect of
the Common Collateral without any consent of, notice to or
consultation with any Senior Secured Lender.
(4) THE BORROWER, EACH OF THE SENIOR AGENTS (ON THEIR OWN BEHALF
AND ON BEHALF OF THE SENIOR LENDERS) AND THE TRUSTEE HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
3. Release of AGW Guarantee. If the Senior Secured Lenders foreclose
------------------------
upon the security interest of the Senior Secured Lenders in all of the equity
interests of AGW, the Trustee, upon receipt of a certificate from the
Administrative Agent with respect to the matters set forth below, shall deliver
an appropriate instrument prepared by the Administrative Agent which shall be
satisfactory to the Trustee evidencing the release of AGW (in the event the
capital stock of AGW is so foreclosed upon) from its Subordinated Guarantee (to
the same extent as the release of the Senior Guarantee described in clause (ii)
below) (A) upon the occurrence of the later of (i) the date that one hundred
percent (100%) of the capital stock of AGW has been sold pursuant to such
foreclosure and (ii) the date that the Lien securing the Senior Loan Obligations
in all of the capital stock of AGW has been released, AGW has been released from
all other Loan Documents (including, without limitation, the Senior Guarantee)
to which it is a party and all Liens granted in connection therewith have been
released and (B) so long as the capital stock of AGW is not sold pursuant to
such foreclosure sale directly or indirectly to any Senior Agent, any Lender or
any Affiliate of any of the foregoing unless prior notice of such foreclosure
sale is given to the Trustee. AGW hereby agrees, and the Senior Agents and the
Trustee hereby agree, that to the extent that any sale of the capital stock of
AGW is rescinded, revoked or otherwise terminated or cancelled in whole or in
part and/or any proceeds of such capital stock of AGW must be returned or
required to be repaid to any purchaser of such stock, then such Subordinated
Guarantee and such Senior Guarantee shall be reinstated and
D-6
continued in full force and effect. Notwithstanding the foregoing, neither the
Trustee nor any holder of any Subordinated Note waives or shall be deemed to
have waived any right (other than any claim against AGW under the Subordinated
Guarantee of AGW to the extent such Subordinated Guarantee is released pursuant
to this paragraph 3) to which any of them would otherwise be entitled under
applicable law.
4. Provisions Define Relative Rights. This Agreement is intended
---------------------------------
solely for the purpose of defining the relative rights of the Senior Lenders,
the Senior Agent and the Trustee with respect to the Common Collateral and the
Subordinated Guarantee of AGW, and no other Person shall have any right, benefit
or other interest under this Agreement. Notwithstanding anything to the contrary
contained herein, this Agreement shall not modify or amend the rights and
obligations of AirGate or any subsidiary of AirGate under any Senior Loan
Document or any Subordinated Note Document.
5. Termination of Agreement; Acknowledgments. The rights of the
-----------------------------------------
Senior Secured Lenders under this Agreement shall terminate when the Senior Loan
Obligations have been paid in full in cash and all commitments to extend credit
under the Credit Agreement have terminated or expired. The Senior Agents
acknowledge on behalf of the Senior Secured Lenders that the Senior Loan
Obligations shall be deemed "paid in full in cash" for all purposes of this
Agreement when the Senior Secured Lenders have received payment in cash of all
principal, interest and other amounts then outstanding under the Senior Loan
Obligations. The Senior Agents agree that, within five Business Days after
payment in cash of all principal, interest and other amounts then outstanding
under the Senior Loan Obligations and termination or expiration of all
commitments to extend credit under the Credit Agreement, they will, upon the
request of the Trustee, provide a written acknowledgment of such payment to the
Trustee, which acknowledgment shall also acknowledge that the Senior Secured
Lenders have no further rights under this Agreement or in respect of the Common
Collateral securing the Senior Loan Obligations. Concurrent with such
acknowledgment, the Senior Agents will deliver to the Trustee if any of the
Subordinated Obligations shall be outstanding, any items of such Common
Collateral held in the possession of either of the Senior Agents, provided that
if no Subordinated Obligations shall be outstanding, the Senior Agents will
deliver any such items of Collateral to AirGate. The Collateral Agent
acknowledges that prior to such delivery it holds such items of Common
Collateral for the Trustee in accordance with the terms of this Agreement, for
purposes of perfecting the Trustee's security interest therein.
6. Notices. All notices, requests and demands to or upon the parties
-------
to be effective shall be in writing (or by telex, fax or similar electronic
transfer confirmed in writing) and shall be deemed to have been duly given or
made (a) when
D-7
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 telex, fax
or similar electronic transfer, when sent and receipt has been confirmed,
addressed as follows:
If to the Administrative
Agent: LUCENT TECHNOLOGIES INC.
283 King George Road
Warren, New Jersey 07059
Attention: Assistant Treasurer, Customer Finance
Telecopy: (908) 559-1711
If to the Collateral Agent: STATE STREET BANK AND TRUST COMPANY
2 Avenue de Lafayette, 6/th/ Floor
Boston, Massachusetts 02111-1724
Attention: Patrick E. Thebado,
Assistant Vice President
Telecopy: (617) 662-1460
If to the Trustee: BANKERS TRUST COMPANY
Four Albany Street - 4/th/ Floor
New York, New York 10006
Attention: Corporate Trust and Agency
Group, Corporate Market Services
Telecopy: (212) 250-6961
If to the Borrower: AIRGATE PCS, INC.
Harris Tower, Suite 1700
233 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: President
Telecopy: (404) 525-7922
The parties hereto may change their addresses and transmission numbers for
notices by notice in the manner provided in this Section.
7. 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
D-8
counterparts of this Agreement signed by all the parties shall be lodged with
the Collateral Agent and the Trustee.
8. 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.
9. Integration. This Agreement represents the entire agreement of
-----------
the Senior Secured Lenders and the Trustee 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.
10. 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 Senior Agents and the Trustee; provided that
the penultimate sentence of paragraph 3 of this Agreement may not be amended or
otherwise modified without the consent of AGW.
11. Successors and Assigns. (a) This Agreement shall be binding upon
----------------------
and inure to the benefit of each of the Senior Secured Lenders, AGW and the
Trustee and their successors and assigns.
(1) Upon a successor administrative agent or collateral agent
becoming the Administrative Agent or the Collateral Agent, respectively, under
the Credit Agreement, such successor Administrative Agent or Collateral Agent,
as the case may be, automatically shall become a Senior 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.
(2) Upon a successor trustee becoming the Trustee under the
Indenture, such successor Trustee automatically shall become the Trustee
hereunder with all the rights and powers of the Trustee hereunder, and bound by
the provisions hereof, without the need for any further action on the part of
any party hereto.
12. Governing Law; Jurisdiction. 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
D-9
relating to this Agreement or its obligations hereunder may be brought in any
federal court of competent jurisdiction in the State, County and City of New
York, and accepts generally and unconditionally the nonexclusive jurisdiction
and venue of such courts .
D-10
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.
LUCENT TECHNOLOGIES INC., as
Administrative Agent
By:______________________________
Title:
STATE STREET BANK AND
TRUST COMPANY, as Collateral Agent
By:______________________________
Title:
BANKERS TRUST COMPANY, as Trustee
By:______________________________
Title:
AGW LEASING COMPANY, INC.
By:______________________________
Title:
Consented:
AIRGATE PCS, INC., as Borrower and Issuer
By:______________________
Title:
D-11
EXHIBIT E
FORM OF UNIT CERTIFICATE
EXHIBIT E
FORM OF UNIT CERTIFICATE
NO. _____ CUSIP NO. 009367 AB 9
AIRGATE PCS, INC.
AGW LEASING COMPANY, INC.
__________ UNITS
[THIS GLOBAL UNIT IS COMPOSED OF THE ATTACHED GLOBAL SENIOR
SUBORDINATED DISCOUNT NOTE AND GLOBAL WARRANT CERTIFICATE. THE GLOBAL UNIT, THE
GLOBAL SENIOR SUBORDINATED DISCOUNT NOTE AND THE GLOBAL WARRANT CERTIFICATE ARE
COLLECTIVELY REFERRED TO HEREIN AS THE "SECURITIES."]/1/
----------
THIS CERTIFICATE REPRESENTS _______ UNITS OF AIRGATE, PCS, INC. EACH
UNIT CONSISTS OF $1,000 AGGREGATE PRINCIPAL AMOUNT AT MATURITY OF AIRGATE PCS,
INC.'S _____% SENIOR SUBORDINATED DISCOUNT NOTES DUE 2009 AND ONE WARRANT TO
PURCHASE ________ SHARES OF COMMON STOCK OF AIRGATE PCS, INC. [THE SENIOR
SUBORDINATED DISCOUNT NOTES AND WARRANTS CONSTITUTING A PART OF THE UNITS
REPRESENTED BY THIS CERTIFICATE ARE REPRESENTED BY THE NOTES AND WARRANT
CERTIFICATES ATTACHED HERETO.]/2/
[THE SECURITIES ARE GLOBAL SECURITIES WITHIN THE MEANING OF THE
INDENTURE GOVERNING THE SENIOR SUBORDINATED DISCOUNT NOTES REPRESENTED BY THE
GLOBAL SENIOR SUBORDINATED DISCOUNT NOTE (THE "INDENTURE") AND THE WARRANT
---------
AGREEMENT GOVERNING THE WARRANTS REPRESENTED BY THE GLOBAL WARRANT CERTIFICATE
(THE "WARRANT AGREEMENT") AND
-----------------
-----------------------
/1/ This bracketed language should be included only if the Unit certificate is
issued in global form.
/2/ This bracketed language should be included only if the Units represented by
the Unit certificate are issued in definitive form.
ARE REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A
SUCCESSOR DEPOSITARY. THE SECURITIES ARE NOT EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND THE
WARRANT AGREEMENT, AND NO TRANSFER OF THE SECURITIES (OTHER THAN A TRANSFER
OF THE SECURITIES AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND THE WARRANT AGREEMENT.]/1/
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
---
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]/1/
[THE SENIOR SUBORDINATED DISCOUNT NOTES AND THE WARRANTS CONSTITUTING
A PART OF THE UNITS REPRESENTED BY THIS GLOBAL UNIT WILL TRADE SEPARATELY UPON
THE EARLIEST TO OCCUR OF: (I) 180 DAYS AFTER THE CLOSING OF THE OFFERING OF THE
UNITS, (II) THE OCCURRENCE OF A CHANGE OF CONTROL OR AN EVENT OF DEFAULT ON THE
SENIOR SUBORDINATED DISCOUNT NOTES AND (III) SUCH DATE AS DONALDSON, LUFKIN &
JENRETTE SECURITIES CORPORATION IN ITS SOLE DISCRETION SHALL DETERMINE.]/3/
- ------------------------
/3/ This paragraph should be included only if the Unit certificate is issued
prior to the Separation Date.
E-2
AIRGATE PCS, INC.
By:_________________
Name:
Title:
AGW LEASING COMPANY, INC.
By:_________________
Name:
Title:
Date: September ____, 1999
E-3