<PAGE>
As filed with the Securities and Exchange Commission on September 23, 1999
Registration No. 333-
79189-02
Registration No. 333-
79189-01
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
Amendment No. 6
TO
Form S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
AirGate PCS, Inc. Delaware 4812 58-2422929
AGW Leasing Company, Inc. Delaware 4812 58-2441171
(Exact name of (State or other (Primary Standard (I.R.S. Employer
registrants as jurisdiction Industry Identification
specified in their of incorporation or Classification No.)
charters) Code Number)
organization)
---------------
Harris Tower Thomas M. Dougherty
Suite 1700 AirGate PCS, Inc.
233 Peachtree Street, N.E. Harris Tower
Atlanta, Georgia 30303 Suite 1700
(404) 525-7272 233 Peachtree Street, N.E.
(Address, including zip code, and Atlanta, Georgia 30303
telephone number, including area (404) 525-7272
code, of registrants' principal (Name, address, including zip code, and
executive offices) telephone number, including area code,
of agent for service)
---------------
Copies to:
Mary M. Sjoquist, Esq. Gary P. Cullen, Esq.
Joseph G. Passaic, Jr., Esq. Skadden, Arps, Slate, Meagher & Flom
Patton Boggs LLP (Illinois)
2550 M Street, NW 333 West Wacker Drive
Washington, DC 20037 Chicago, Illinois 60606
(202) 457-6000 (312) 407-0700
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
---------------
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, please check the following box: [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]______________
If the Form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
Part II
Information Not Required in the Prospectus
Item 13. Other Expenses of Issuance and Distribution
AirGate PCS, Inc. and AGW Leasing Company, Inc. (the "Registrants") estimate
that expenses (other than underwriting discounts and commissions) in connection
with the offering described in this Registration Statement will be as set forth
in the following table. All amounts shown are estimates except for the
Securities and Exchange Commission registration fee, the NASD filing fee and
the Nasdaq National Market listing fee.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee................ $ 75,801
National Association of Securities Dealers, Inc. filing fee........ 27,767
Nasdaq National Market listing fees................................ 76,625
Printing and engraving expenses.................................... 350,000
Accountants' fees and expenses..................................... 250,000
Legal fees and expenses............................................ 350,000
Fees and expenses for qualifications under state securities laws
(including legal fees)............................................ 10,000
Transfer agent fees................................................ 5,000
Miscellaneous...................................................... 854,807
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Total............................................................ $2,000,000
==========
</TABLE>
Item 14. Indemnification of Directors and Officers
In accordance with General Corporation Law of the State of Delaware (being
Chapter 1 of Title 8 of the Delaware Code), each Registrant's Certificate of
Incorporation provides as follows:
Each Registrant's Certificate of Incorporation provides that the Registrant
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Registrant to procure a judgment in its favor by reason of the fact that
such person acted in any of the capacities set forth above, against expenses
(including attorney's fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if such person
acted under similar standards, provided that the Registrant receives a written
undertaking by or on behalf of the director or officer to repay such amount if
it is ultimately determined that that such person is not entitled to be
indemnified by the Registrant.
Each Registrant's Certificate of Incorporation further provides that to the
extent that a director or officer of the Registrant has been successful in the
defense of any action, suit or proceeding referred to above or in the defense
of any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorney's fees) actually and reasonably incurred by him or
her in connection therewith, that indemnification provided for by the
Certificate of Incorporation shall not be deemed exclusive of any other rights
to which the indemnified party may be entitled; and that the Registrant is
empowered to purchase and maintain insurance on behalf of a director or officer
of the Registrant against any liability asserted against him or here in any
such capacity, or arising out of such person's status as such, whether or not
the Registrant would have the power to indemnify him against such liabilities
under the Certificate of Incorporation.
II-1
<PAGE>
In addition to indemnification provided to our officers and directors in the
Certificate of Incorporation and under the laws of Delaware, AirGate PCS, Inc.
has entered into indemnification agreements with certain officers and directors
to provide further assurances and protection from liability that they may incur
in their respective positions and duties in connection with the public offering
or as a fiduciary of AirGate PCS, Inc. and its shareholders. We have agreed to
indemnify and hold harmless, to the extent permitted under Delaware law, each
person and affiliated person (generally, any director, officer, employee,
controlling person, agent, or fiduciary of the indemnified person), provided
that the indemnified person was acting or serving at our request in his
capacity as either an officer, director, employee, controlling person,
fiduciary or other agent or affiliate of AirGate PCS, Inc. Under the
indemnification agreements, each person is indemnified against any and all
losses, claims, damages, expenses and liabilities, joint or several, (including
attorney's fees, expenses and amount in settlement) that occur in connection
with any threatened, pending or completed action, suit, proceeding, alternative
dispute resolution mechanism or hearing, inquiry or investigation that such
indemnified person believes in good faith may lead to the institution of such
action, under the Securities Act of 1933, Securities Exchange Act of 1934 or
other federal or state statutory law or regulation, at common law or otherwise,
which relate directly or indirectly to the registration, purchase, sale or
ownership of any securities of AirGate PCS, Inc. or to any fiduciary obligation
owed with respect to AirGate PCS, Inc. and its stockholders. As a condition to
receiving indemnification, indemnified persons are required to give us notice
in writing of any claim for which indemnification may be sought under this
agreement.
The agreement provides that an indemnified person may receive indemnification
against (1) expenses (including attorney's fees and other costs, expenses and
obligations incurred), judgments, fines and penalties; (2) amounts paid in
settlement (approved by AirGate PCS, Inc.); (3) federal, state, local taxes
imposed as a result of receipt of any payments under the indemnification
agreement; and (4) all interest, assessments and other charges paid or payable
in connection with any expenses, costs of settlement or taxes. An indemnified
person will be indemnified against expenses to the extent that he is successful
on the merits or otherwise, including dismissal of an action without prejudice,
in defense of any action, suit, proceeding, inquiry or investigation. Expenses
that the indemnified person have or will incur in connection with a suit or
other proceeding may be received in advance within 10 days of written demand to
AirGate PCS, Inc.
Prior to receiving indemnification or being advanced expenses, a committee,
consisting of either members of the board of directors or any person appointed
by the board of directors, must make a determination of whether the indemnified
person is entitled to indemnification under Delaware law. If there is a change
in control (as defined in the indemnification agreement) that occurs without
majority approval of the board of directors, then the committee will consist of
independent legal counsel selected by the indemnified person and approved by
AirGate PCS, Inc. to render a written opinion as to whether and the extent of
indemnification that the indemnified person is entitled, which will be binding
on AirGate PCS, Inc. Under the indemnification agreement, an indemnified person
may appeal a determination by the committee's determination not to grant
indemnification or advance expenses by commencing a legal proceeding. Failure
of the committee to make a indemnification determination or the termination of
any claim by judgment, order, settlement, plea of nolo contendere, or
conviction does not create a presumption that either (1) the indemnified person
did not meet a particular standard of conduct or belief or (2) that the court
has determined that indemnification is not available.
Under the indemnification agreement, an indemnified person is entitled to
contribution from us for losses, claims, damages, expenses or liabilities as
well as other equitable considerations upon the
II-2
<PAGE>
determination of a court of competent jurisdiction that indemnification is not
available. The amount contributed by AirGate PCS, Inc. will be in proportion,
as appropriate, to reflect the relative benefits received by us and the
indemnified person or, if such contribution is not permitted under Delaware
law, then the relative benefit will be considered with the relative fault of
both parties. In connection with the registration of AirGate PCS, Inc.'s
securities, the relative benefits received by AirGate PCS, Inc. and indemnified
person will be deemed to be in the same respective proportions of the net
proceeds from the offering (less expenses) received by AirGate PCS, Inc. and
the indemnified person. The relative fault of AirGate PCS, Inc. and the
indemnified person is determined by reference to the whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by AirGate PCS, Inc. or
the indemnified person and their relative intent, knowledge, access to
information and opportunity to correct such statement or omission.
Contribution paid takes into account the equitable considerations, if any,
instead of a pro rata or per capital allocation. In connection with the
offering of AirGate PCS, Inc. securities, an indemnified person will not be
required to contribute any amount in excess of the lessor of (1) the proportion
of the total of such losses, claims, damages, or liabilities indemnified
against equal to the proportion of the total securities sold under the
registration statement sold by the indemnified person or (2) the proceeds
received by the indemnified person from the sale of securities under the
registration statement. Contribution will not be available if such person is
found guilty of fraudulent misrepresentation, as defined in the agreement.
In the event that AirGate PCS, Inc. is also obligated under a claim and upon
written notice to the indemnified person, we are entitled to assume defense of
the claim and select counsel which is approved by the indemnified person. Upon
receipt of the indemnified person's approval, AirGate PCS, Inc. will directly
incur the legal expenses and as a result will have the right to conduct the
defense as it sees fit in its sole discretion, including the right to settle
any claim against any indemnified party, without consent of the indemnified
person.
The underwriting agreements to be filed as Exhibits 1.1 and 1.2 to the
Registration Statement provides for indemnification by the underwriters of
AirGate PCS, Inc. and its directors and certain officers, and by AirGate PCS,
Inc. of the underwriters, for certain liabilities arising under the Securities
Act or otherwise.
Item 15. Recent Sales of Unregistered Securities
In accordance with Item 701 of Regulation S-K, the following information is
presented with respect to securities sold by the Registrants within the past
three years which were not registered under the Securities Act.
(i) September 1996 Note
(a) On September 27, 1996, AirGate, L.L.C. (the "LLC") sold a $180,000 8%
note, due and payable or convertible on August 8, 1998. This note was rolled
into the 1998 Financing outlined below.
(b) The note was sold to a related party who qualified as an accredited
investor under Regulation D promulgated under the Securities Act.
(c) The note was sold for $180,000.
(d) The notes were offered and sold in reliance upon an exemption from
registration under Section 4(2) of the Securities Act.
II-3
<PAGE>
(e) Not applicable
(f) Not applicable
(ii) The 1998 Financing
(a) Between August and September 1998, AirGate PCS, Inc. sold $4,815,000 of
8% Convertible Promissory Notes. $3 million of the notes was due on September
18, 1999, while $1.815 million was due on August 20, 1999, unless converted.
The notes are convertible into Series A preferred stock or common stock upon
the satisfaction of certain conditions. AirGate PCS, Inc. also issued warrants
to purchase the preferred stock to the purchasers of the notes, which warrants
were to be exercised on the earlier of five years from the date of issuance or
an initial public offering. These notes were rolled into the May 1999
Refinancing.
(b) The notes and warrants were sold to two related party venture funds and
their affiliates who qualified as accredited investors within the meaning of
Regulation D under the Securities Act.
(c) The notes and the warrants were sold for a total aggregate consideration
of $4,815,000.
(d) The notes were offered and sold in reliance upon an exemption from
registration under Section 4(2) of the Securities Act.
(e) Not applicable
(f) Not applicable
(iii) The 1999 Financings
(a) In March, April and May 1999 AirGate PCS, Inc. sold an aggregate of $2.5
million of 8% subordinated notes.
(b) The notes and warrants were sold to two related party venture funds,
Weiss, Peck and Greer Venture Partners affiliated funds and JAFCO America
Ventures, Inc. affiliated funds, who qualified as accredited investors within
the meaning of Regulation D under the Securities Act.
(c) The notes were sold for a total aggregate consideration of $2.5 million.
(d) The notes were offered and sold in reliance upon an exemption from
registration under Section 4(2) of the Securities Act.
(e) Not applicable
(f) Not applicable
(iv) The May 1999 Refinancing
(a) In May 1999, AirGate PCS, Inc. consolidated the promissory notes issued
to the two related party venture funds in the 1998 financing and the March,
April and May 1999 financings totaling $7.325 million into promissory notes
that will be converted into shares of AirGate PCS, Inc.'s common stock
concurrently with the completion of the offering contemplated hereby at a price
48% less than the price of a share of common stock sold in the offering. The
warrants held by these funds
II-4
<PAGE>
were terminated. In addition, the Registrant issued warrants to Weiss, Peck and
Greer Venture Partners affiliated funds to purchase shares of common stock for
an aggregate price of up to $2.73 million at a price 25% less than the price of
a share of common stock sold in this offering.
(b) The promissory notes and the warrants were issued to two related party
venture funds, Weiss, Peck and Greer Venture Partners affiliated funds and
JAFCO America Ventures, Inc. affiliated funds, who qualified as accredited
investors within the meaning of Regulation D under the Securities Act.
(c) The aggregate consideration received in exchange for the promissory notes
and the warrant was the refinancing of $7.561 million of promissory notes and
the cancellation of warrants held by each venture fund.
(d) The notes and the warrant were offered and sold in reliance upon an
exemption from registration under Section 4(2) of the Securities Act.
(e) Not applicable
(f) Not applicable
(v) The August 1999 Lucent Financing
(a) In connection with the Lucent financing in August 1999, AirGate issued
warrants to Lucent representing in the aggregate of 1% of the number of fully-
diluted shares of common stock outstanding on the closing of our initial public
offering.
(b) The warrants were sold to Lucent Technologies Inc., which qualifies as an
accredited investor for purposes of Regulation D under the Securities Act.
(c) The warrants were issued to Lucent as inducement to Lucent to enter into
a credit agreement with no additional consideration.
(d) The warrants were offered and sold in reliance of an exemption from
registration under Section 4(2) of the Securities Act.
(e) Not applicable.
(f) Not applicable.
Item 16. Exhibits
The exhibits and financial statement schedules filed as a part of the
Registration Statement are as follows:
(a) List of Exhibits
<TABLE>
<C> <S>
1.1* Form of Equity Underwriting Agreement
1.2 Form of Unit Underwriting Agreement
3.1* Amended and Restated Certificate of Incorporation of AirGate PCS, Inc.
3.2* Amended and Restated Bylaws of AirGate PCS, Inc.
</TABLE>
II-5
<PAGE>
<TABLE>
<S> <C>
4.1* Specimen of Common Stock Certificate of AirGate PCS, Inc.
4.2 Form of warrant issued in units offering (included in Exhibit 10.15)
4.3* Form of Weiss, Peck and Greer warrants
4.4* Form of Lucent warrants
4.5 Form of Indenture for senior subordinated discount notes
4.6 Form of unit (included in exhibit 10.15)
5.1 Opinion of Patton Boggs LLP regarding legality of the common stock being offered
5.2 Opinion of Patton Boggs LLP regarding legality of the units being offered
10.1*+ Sprint PCS Management Agreement between SprintCom, Inc. and AirGate Wireless, L.L.C.
10.2* Sprint PCS Services Agreement between Sprint Spectrum L.P. and AirGate Wireless, L.L.C.
10.3* Sprint Spectrum Trademark and Service Mark License Agreement
10.4* Sprint Trademark and Service Mark License Agreement
10.5*+ Master Site Agreement dated August 6, 1998 between AirGate and BellSouth Carolinas PCS, L.P.,
BellSouth Personal Communications, Inc. and BellSouth Mobility PCS.
10.6*+ Compass Telecom, L.L.C. Construction Management Agreement
10.7* Commercial Real Estate Lease dated August 7, 1998 between AirGate and Perry Company of
Columbia, Inc. to lease a warehouse facility.
10.8* Form of Indemnification Agreement
10.9* Employment Agreement dated April 9, 1999 between AirGate and Mr. Thomas M. Dougherty
10.10* Form of Executive Employment Agreement
10.11* Form of 1999 Stock Option Plan
10.12*+ Credit Agreement with Lucent (including the form of pledge agreement and form of intercreditor
agreement)
10.13* Consent and Agreement
10.14* Assignment of Sprint PCS Management Agreement, Sprint Spectrum Services Agreement and
Trademark and Service Mark Agreements from AirGate Wireless, L.L.C. to AirGate Wireless, Inc.
date November 20, 1998.
10.15 Form of Warrant Agreement for units offering (including form of warrant in units offering and form
of unit)
21.1* Subsidiaries of AirGate PCS, Inc.
23.1* Consent of KPMG LLP
23.2* Consent of Patton Boggs LLP (included in Exhibits 5.1 and 5.2)
24.1* Powers of Attorney
25.1* Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of Trustee, on
Form T-1, in connection with the units offering
27.1* Financial Data Schedule
</TABLE>
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* Previously filed
**To be filed by amendment
+Confidential treatment requested on portions of these documents
(b) Financial Statement Schedule
No financial statement schedules are filed because the required information
is not applicable or is included in the consolidated financial statements or
related notes.
II-6
<PAGE>
Item 17. Undertakings
Each of the Registrants hereby undertakes:
(1) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of such Registrant pursuant to the foregoing
provisions, or otherwise, such Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by such Registrant of expenses incurred
or paid by a director, officer or controlling person of such Registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, such Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(2) To provide to the underwriter at the closing specified in the
underwriting agreements certificates in such denominations and registered
in such names as required by the underwriter to permit prompt delivery to
each purchaser.
(3) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(4) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-7
<PAGE>
Pursuant to the requirements of the Securities Act, AirGate PCS, Inc. has
duly caused this Amendment No. 6 to the Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the County of
Fulton, State of Georgia, on September 23, 1999.
Airgate PCS, Inc.
/s/ Thomas M. Dougherty
By: _________________________________
Name: Thomas M. Dougherty
Title: Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 6 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ Thomas M. Dougherty Chief Executive Officer September 23, 1999
______________________________________ and Director (Principal
Thomas M. Dougherty Executive Officer)
/s/ Alan B. Catherall* Chief Financial Officer September 23, 1999
______________________________________ (Principal Financial and
Alan B. Catherall Accounting Officer)
/s/ W. Chris Blane* Vice President and September 23, 1999
______________________________________ Director
W. Chris Blane
/s/ Thomas D. Body III* Vice President and September 23, 1999
______________________________________ Director
Thomas D. Body III
/s/ Barry Schiffman* Director September 23, 1999
______________________________________
Barry Schiffman
/s/ Gill Cogan* Director September 23, 1999
______________________________________
Gill Cogan
/s/ Thomas M. Dougherty September 23, 1999
*By: _________________________________
Thomas M. Dougherty
Attorney-in-Fact
</TABLE>
<PAGE>
Pursuant to the requirements of the Securities Act, AGW Leasing Company, Inc.
has duly caused this Amendment No. 6 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the County of
Fulton, State of Georgia, on September 23, 1999.
AGW Leasing Company, Inc.
/s/ Thomas M. Doughtery
By: _________________________________
Name: Thomas M. Dougherty
Title: Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 6 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ Thomas M. Dougherty Chief Executive Officer September 23, 1999
______________________________________ and Director (Principal
Thomas M. Dougherty Executive Officer)
/s/ Alan B. Catherall* Chief Financial Officer September 23, 1999
______________________________________ (Principal Financial and
Alan B. Catherall Accounting Officer)
/s/ W. Chris Blane* Vice President and September 23, 1999
______________________________________ Director
W. Chris Blane
/s/ Thomas D. Body III* Vice President and September 23, 1999
______________________________________ Director
Thomas D. Body III
/s/ Barry Schiffman* Director September 23, 1999
______________________________________
Barry Schiffman
/s/ Gill Cogan* Director September 23, 1999
______________________________________
Gill Cogan
/s/ Thomas M. Dougherty September 23, 1999
*By: _________________________________
Thomas M. Dougherty
Attorney-in-Fact
</TABLE>
<PAGE>
EXHIBIT 1.2
FORM OF UNIT WARRANT UNDERWRITING AGREEMENT
$
AIRGATE PCS, INC.
_________ Units Consisting of
___% Senior Subordinated Discount Notes Due 2009 and
Warrants to Purchase ____ Shares of Common Stock
Payment of Principal and Interest Unconditionally
Guaranteed by the Guarantors Referred to Herein
UNDERWRITING AGREEMENT
----------------------
September ___, 1999
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON CORPORATION
As Underwriters
c/o Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
AirGate PCS, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to the several underwriters named in Schedule I hereto (the
"Underwriters") __________ units (the "Units"), each consisting of $1,000 in
aggregate principal amount at maturity of the Company's ___% Senior Subordinated
Discount Notes due 2009 (the "Notes"), and one warrant (a "Warrant," and all
such warrants being hereinafter referred to, collectively, as the "Warrants") to
purchase ______ shares of the Company's common stock, par value $.01 per share
("Common Stock"). The Notes are to be issued pursuant to the provisions of an
Indenture to be dated as of September __, 1999 (the "Indenture") by and among
the Company, the Guarantor (as defined below)
<PAGE>
and Bankers Trust Company, as trustee (the "Trustee"). The payment of principal,
premium and interest on the Notes will be unconditionally guaranteed, jointly
and severally, on a senior subordinated basis, by AGW Leasing Company, Inc., a
Delaware corporation (the "Guarantor") and by future subsidiaries of the Company
that become "Restricted Subsidiaries" under the Indenture. The guarantees of the
Notes by the Guarantor and future subsidiaries are hereinafter referred to as
the "Guarantees," and references herein to the Notes shall be deemed to include
the Guarantees. The Warrants will be issued pursuant to a Warrant Agreement (the
"Warrant Agreement"), to be dated as of September ___, 1999, between the Company
and Bankers Trust Company, as warrant agent (the "Warrant Agent"). The shares of
Common Stock issuable upon exercise of the Warrants are referred to herein,
collectively, as the "Warrant Shares." The Units, the Notes, the Warrants and
the Warrant Shares are referred to herein, collectively, as the "Securities."
The Units are being issued and sold concurrently with an offering by the
Company of shares of its Common Stock (the "Common Stock
Offering"). In addition, the Company has entered into a credit agreement, dated
as of August 16, 1999 (the "Credit Agreement"), with the several lending
institutions that from time to time will be parties thereto (the "Lenders"),
State Street Bank and Trust Company as collateral agent and Lucent Technologies
Inc. ("Lucent"), as administrative agent on behalf of the Lenders, and is
entering into certain other related agreements, including a 5-year exclusive
supply contract between the Company and Lucent (the "Supply Contract") pursuant
to which the Company shall purchase products and services from Lucent (the
Credit Agreement and such other related documents, including the Supply
Contract, being hereinafter referred to, collectively, as the "Lucent Financing
Documents" and the financing to be provided to the Company under the Credit
Agreement being hereinafter referred to as the "Lucent Financing").
Section 1. Registration Statement and Prospectus. The Company and the
Guarantor have prepared and filed with the Securities and Exchange Commission
(the "Commission") in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-1, including a
prospectus, relating to the Units. The registration statement, as amended at
the time it became effective, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule
430A under the Act, is hereinafter referred to as the "Registration Statement";
and the prospectus in the form first used to confirm sales of Units is
hereinafter referred to as the "Prospectus." If the Company has filed or is
required pursuant to the terms hereof to file a registration statement pursuant
to Rule 462(b) under the Act registering additional Units (a "Rule 462(b)
Registration
2
<PAGE>
Statement"), then, unless otherwise specified, any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement.
Section 2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and each Underwriter
agrees, severally and not jointly, to purchase from the Company the number of
Units set forth opposite the name of such Underwriter in Schedule I hereto at a
purchase price equal to $_____ per Unit (the "Purchase Price").
Section 3. Terms of Public Offering. The Company and the Guarantor are
advised by you that the Underwriters propose (i) to make a public offering of
their respective portions of the Units as soon after the execution and delivery
of this Agreement as in your judgment is advisable and (ii) initially to offer
the Units upon the terms set forth in the Prospectus.
Section 4. Delivery and Payment. The Notes and Warrants comprising the
Units shall be represented by definitive certificates and shall be issued in
such authorized denominations and registered in such names as Donaldson, Lufkin
& Jenrette Securities Corporation shall request no later than two business days
prior to the Closing Date (as defined below). The Company shall deliver the
Units, with any transfer taxes thereon duly paid by the Company, to Donaldson,
Lufkin & Jenrette Securities Corporation through the facilities of The
Depository Trust Company ("DTC"), for the respective accounts of the several
Underwriters, against payment to the Company of the Purchase Price therefore by
wire transfer of Federal or other funds immediately available in New York City.
The certificates representing the Notes and Warrants comprising the Units shall
be made available for inspection not later than 9:30 A.M., New York City time,
on the business day prior to the Closing Date (as defined below), at the office
of DTC or its designated custodian (the "Designated Office"). The time and date
of delivery and payment for the Units shall be 9:00 A.M., New York City time, on
September ___, 1999 or such other time on the same or such other date as
Donaldson, Lufkin & Jenrette Securities Corporation and the Company shall agree
in writing. The time and date of such delivery and payment are hereinafter
referred to as the "Closing Date."
The documents to be delivered on the Closing Date on behalf of the parties
hereto pursuant to Section 8 of this Agreement shall be delivered at the offices
of Skadden, Arps, Slate, Meagher & Flom (Illinois), 333 West Wacker Drive,
Chicago,
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Illinois 60606, and the Notes and Warrants shall be delivered at the Designated
Office, all on the Closing Date.
Section 5. Agreements of the Company and the Guarantor. The Company and
the Guarantor jointly and severally agree with you:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Units for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, (iii) when any amendment to the
Registration Statement becomes effective, (iv) if the Company is required to
file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, when the Rule 462(b) Registration Statement has become effective and
(v) of the happening of any event during the period referred to in Section 5(d)
below which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires any additions to or changes
in the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company and the
Guarantor will use their best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time.
(b) To furnish to you three (3) signed copies of the Registration
Statement as first filed with the Commission and of each amendment to it,
including all exhibits, and to furnish to you and each Underwriter designated by
you such number of conformed copies of the Registration Statement as so filed
and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to you, and to file the Prospectus in such form with the Commission
within the applicable period specified in Rule 424(b) under the Act; during the
period specified in Section 5(d) below, not to file any further amendment to the
Registration Statement and not to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to which you
shall reasonably object after being so advised; and, during such period, to
prepare and file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or amendment or supplement to the
Prospectus which may be necessary or advisable in
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connection with the distribution of the Units by you, and to use its best
efforts to cause any such amendment to the Registration Statement to become
promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur
or condition shall exist as a result of which, in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare and file with the
Commission an appropriate amendment or supplement to the Prospectus so that the
statements in the Prospectus, as so amended or supplemented, will not in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with applicable law, and to furnish to each
Underwriter and to any dealer as many copies thereof as such Underwriter or
dealer may reasonably request.
(f) Prior to any public offering of the Units, to cooperate with you and
counsel for the Underwriters in connection with the registration or
qualification of the Units for offer and sale by the several Underwriters and by
dealers under the state securities or Blue Sky laws of such jurisdictions as you
may request, to continue such registration or qualification in effect so long as
required for distribution of the Units and to file such consents to service of
process or other documents as may be necessary in order to effect such
registration or qualification; provided, however, that neither the Company nor
any Guarantor shall be required in connection therewith to qualify as a foreign
corporation in any jurisdiction in which it is not now so qualified or to take
any action that would subject it to general consent to service of process or
taxation other than as to matters and transactions relating to the Prospectus,
the Registration Statement, any preliminary prospectus or the offering or sale
of the Units, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to their security holders as soon
as practicable an earnings statement covering the twelve-month period ending
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September 30, 2000 that shall satisfy the provisions of Section 11(a) of the
Act, and to advise you in writing when such statement has been so made
available.
(h) So long as the Securities are outstanding and the Indenture or the
Warrant Agreement so requires, (i) to mail and make generally available as soon
as practicable after the end of each fiscal year to the record holders of the
Securities a financial report of the Company and its subsidiaries on a
consolidated basis (and a similar financial report of all unconsolidated
subsidiaries, if any), all such financial reports to include a consolidated
balance sheet, a consolidated statement of operations, a consolidated statement
of cash flows and a consolidated statement of shareholders' equity as of the end
of and for such fiscal year, together with comparable information as of the end
of and for the preceding year, certified by independent public accountants and
(ii) to mail and make generally available as soon as practicable after the end
of each quarterly period (except for the last quarterly period of each fiscal
year) to such holders, a consolidated balance sheet, a consolidated statement of
operations and a consolidated statement of cash flows (and similar financial
reports of all unconsolidated subsidiaries, if any) as of the end of and for
such period, and for the period from the beginning of such year to the close of
such quarterly period, together with comparable information for the
corresponding periods of the preceding year.
(i) So long as the Securities are outstanding, to furnish to you as soon
as available copies of all reports or other communications furnished by the
Company or the Guarantor to their security holders or furnished to or filed with
the Commission or any national securities exchange on which any class of
securities of the Company or the Guarantor is listed and such other publicly
available information concerning the Company and/or its subsidiaries as you may
reasonably request.
(j) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel and
the Company's accountants in connection with the registration and delivery of
the Securities under the Act and all other fees and expenses in connection with
the preparation, printing, filing and distribution of the Registration Statement
and the Shelf Registration Statement (as defined below) (including, in each
case, financial statements and exhibits), any preliminary prospectus, the
Prospectus and all amendments and supplements to any of the foregoing, including
the mailing and delivering of copies thereof to the Underwriters and dealers in
the quantities specified herein, (ii) all costs and expenses related to the
transfer and delivery of the Units to the Underwriters, including any transfer
or other taxes payable thereon, (iii) all costs of printing or producing this
Agreement and any
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other agreements or documents in connection with the offering, purchase, sale or
delivery of the Securities, (iv) all expenses in connection with the
registration or qualification of the Securities for offer and sale under the
securities or Blue Sky laws of the several states and all costs of printing or
producing any preliminary and supplemental Blue Sky memoranda in connection
therewith (including the filing fees and fees and disbursements of counsel for
the Underwriters in connection with such registration or qualification and
memoranda relating thereto), (v) the filing fees and disbursements of counsel
for the Underwriters in connection with the review and clearance of the offering
of the Securities by the National Association of Securities Dealers, Inc., (vi)
all fees and expenses in connection with the preparation and filing of any
registration statement on Form 8-A relating to the Securities and all costs and
expenses incident to the listing of the Securities on any national securities
exchanges and foreign stock exchanges, (vii) the cost of printing certificates
representing the Securities, (viii) the costs and charges of any transfer agent,
registrar and/or depositary (including the DTC), (ix) any fees charged by rating
agencies for the rating of the Securities, (x) the fees and expenses of the
Trustee and the Trustee's counsel in connection with the Indenture and the
Notes, (xi) the fees and expenses of the Warrant Agent and the Warrant Agent's
counsel in connection with the Warrant Agreement and the Warrants and (xii) all
other costs and expenses incident to the performance of the obligations of the
Company and/or the Guarantor hereunder for which provision is not otherwise made
in this Section.
(k) In accordance with the Warrant Agreement, to cause any Warrant Shares,
upon issuance, to be listed on the principal securities exchanges, automated
quotation systems or other markets within the United States of America, if any,
on which other shares of Common Stock are then listed and to maintain any such
listings of Warrant Shares for so long as such Warrant Shares are outstanding.
(l) Upon receipt of a request from Donaldson, Lufkin & Jenrette Securities
Corporation that any of the Securities other than Warrant Shares be listed for
quotation on the Nasdaq National Market or listed on the NYSE or AMEX, to use
its best efforts (A) to list for quotation such Units, Notes or Warrants on the
Nasdaq National Market and to maintain the listing of such Units, Notes or
Warrants on the Nasdaq National Market or (B) to list, subject to notice of
issuance, such Units, Notes or Warrants on the NYSE or AMEX and to maintain the
listing of such Units, Notes or Warrants on the NYSE or AMEX, as the case may
be, for so long as such Units, Notes or Warrants are outstanding.
(m) During the period beginning on the date hereof and continuing to and
including the Closing Date, not to offer, sell, contract to sell or otherwise
transfer or
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dispose of any debt securities of the Company or any Guarantor or any warrants,
rights or options to purchase or otherwise acquire debt securities of the
Company or any Guarantor substantially similar to the Notes (other than (i) the
Units, (ii) the Notes, (iii) securities issued in connection with the Credit
Agreement, and (iv) commercial paper issued in the ordinary course of business),
without the prior written consent of Donaldson, Lufkin & Jenrette Securities
Corporation.
(n) Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of the Securities.
(o) If the Registration Statement at the time of the effectiveness of this
Agreement does not cover all of the Units, to file a Rule 462(b) Registration
Statement with the Commission registering the Units not so covered in compliance
with Rule 462(b) by 10:00 P.M., New York City time, on the date of this
Agreement and to pay to the Commission the filing fee for such Rule 462(b)
Registration Statement at the time of the filing thereof or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
(p) In accordance with the Warrant Agreement, to (or, in the case of a
Guarantor, to use its best efforts to cause the Company to) file and cause to
become effective a shelf registration statement pursuant to Rule 415 under the
Act relating to the issuance of the Warrant Shares (the "Shelf Registration
Statement") and to use its best efforts to maintain the effectiveness of the
Shelf Registration Statement for so long as Warrants remain outstanding and
exercisable.
(q) To comply with all of their agreements set forth in the Warrant
Agreement and the Indenture.
(r) To obtain the approval of the DTC for book-entry transfer of the Notes
and Warrants as Units and as separate securities and to comply with all of the
respective agreements set forth in their representation letter to the DTC
relating to the approval of the Notes and Warrants as Units and as separate
securities by the DTC for book-entry transfer.
(s) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company and/or
the Guarantor prior to the Closing Date and to satisfy all conditions precedent
to the delivery of the Units.
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SECTION 6. Representations and Warranties of the Company and the
Guarantor. The Company and the Guarantor jointly and severally represent and
warrant to each Underwriter that:
(a) The Registration Statement has become effective (other than any
Rule 462(b) Registration Statement to be filed by the Company and the Guarantor
after the effectiveness of this Agreement); any Rule 462(b) Registration
Statement filed after the effectiveness of this Agreement will become effective
no later than 10:00 P.M., New York City time, on the date of this Agreement; and
no stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or threatened by
the Commission.
(b)(i) The Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company and the Guarantor after the
effectiveness of this Agreement), when it became effective, did not contain and,
as amended, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (ii) the Registration Statement
(other than any Rule 462(b) Registration Statement to be filed by the Company
and the Guarantor after the effectiveness of this Agreement) and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Act, (iii) if the Company and the Guarantor are
required to file a Rule 462(b) Registration Statement after the effectiveness of
this Agreement, such Rule 462(b) Registration Statement and any amendments
thereto, when they become effective (A) will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading and (B) will comply
in all material respects with the Act and (iv) the Prospectus does not contain
and, as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this paragraph do not apply to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to any Underwriter
furnished to the Company and the Guarantor in writing by such Underwriter
through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances
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under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or omissions
in any preliminary prospectus based upon information relating to any Underwriter
furnished to the Company and the Guarantor in writing by such Underwriter
through you expressly for use therein.
(d) No relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries
on the other hand, which is required by the Act to be described in the
Registration Statement or Prospectus which is not so described.
(e) Each of the Company and its subsidiaries has been duly incorporated,
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority to carry
on its business as described in the Prospectus and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a whole.
(f) All the outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid, non-assessable and not
subject to any preemptive or similar rights.
(g) All of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature (each, a
"Lien"), except as provided under the Lucent Financing Documents. The Company
does not, directly or indirectly, own any capital stock or other equity
securities or interests in any entity other than those described in Exhibit 21.1
to the Registration Statement.
(h) The Warrant Agreement has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company, enforceable
in accordance with its terms except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally
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and (B) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(i) The Warrants have been duly authorized by the Company and, on the
Closing Date, will have been validly executed and delivered by the Company. When
the Warrants have been executed and countersigned in accordance with the
provisions of the Warrant Agreement and delivered to and paid for by the
Underwriters as part of a Unit, the Warrants will be entitled to the benefits of
the Warrant Agreement, and the Warrants will be valid and binding obligations of
the Company, enforceable in accordance with their terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (B) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(j) The Warrant Shares have been duly and validly authorized for issuance
by the Company and, when issued pursuant to the terms of the Warrants and the
Warrant Agreement, will be fully paid, non-assessable and not subject to any
preemptive or similar rights.
(k) The Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and has been duly authorized,
executed and delivered by the Company and the Guarantor and is a valid and
binding agreement of the Company and the Guarantor, enforceable in accordance
with its terms except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(B) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(l) The Notes have been duly authorized and, on the Closing Date, will
have been validly executed and delivered by the Company and the Guarantor. When
the Notes have been executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of this Agreement, the Notes will be entitled to the benefits of
the Indenture and will be valid and binding obligations of the Company and the
Guarantor, enforceable in accordance with their terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (B) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(m) The Company has duly and validly authorized the issuance of the Notes
and the Warrants as Units.
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(n) The Securities conform as to legal matters to the description thereof
contained in the Prospectus.
(o) Neither the Company nor any of its subsidiaries is in violation of its
respective certificate of incorporation or by-laws or in default in the
performance of any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or instrument that
is material to the Company and its subsidiaries, taken as a whole, to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries or their respective property is bound.
(p) The execution, delivery and performance of this Agreement, the
Indenture, the Warrant Agreement and the Securities by the Company and the
Guarantor, the compliance by the Company and the Guarantor with all the
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of the various states), (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the certificate
of incorporation or by-laws of the Company or any of its subsidiaries or any
indenture, loan agreement, mortgage, lease or other agreement or instrument that
is material to the Company and its subsidiaries, taken as a whole, to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries or their respective property is bound, (iii) violate or
conflict with any applicable law or any rule, regulation, judgment, order or
decree of any court or any governmental body or agency having jurisdiction over
the Company, any of its subsidiaries or their respective property, (iv) result
in the imposition or creation of (or the obligation to create or impose) a Lien
under any agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries or
their respective property is bound or (v) result in the suspension, termination
or revocation of any Authorization (as defined below) of the Company or any of
its subsidiaries or any other impairment of the rights of the holder of any such
Authorization.
(q) There are no legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is or could be a party or to
which any of their respective property is or could be subject that are required
to be described in the Registration Statement or the Prospectus and are not so
described; nor are there any statutes, regulations, contracts or other documents
that are required to be described in
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the Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not so described or filed as required.
(r) Neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), any provisions of the Employee Retirement Income Security Act of
1974, as amended, or any provisions of the Foreign Corrupt Practices Act or
the rules and regulations promulgated thereunder, except for such
violations which, singly or in the aggregate, would not have a material
adverse effect on the business, prospects, financial condition or results
of operation of the Company and its subsidiaries, taken as a whole.
(s) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other
approvals (each, an "Authorization") of, and has made all filings with and
notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including, without
limitation, under any applicable Environmental Laws, as are necessary to
own, lease, license and operate its respective properties and to conduct
its business, except where the failure to have any such Authorization or to
make any such filing or notice would not, singly or in the aggregate, have
a material adverse effect on the business, prospects, financial condition
or results of operations of the Company and its subsidiaries, taken as a
whole. Each such Authorization is valid and in full force and effect and
each of the Company and its subsidiaries is in compliance with all the
terms and conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect thereto;
and no event has occurred (including, without limitation, the receipt of
any notice from any authority or governing body) which allows or, after
notice or lapse of time or both, would allow, revocation, suspension or
termination of any such Authorization or results or, after notice or lapse
of time or both, would result in any other impairment of the rights of the
holder of any such Authorization; and such Authorizations contain no
restrictions that are burdensome to the Company or any of its subsidiaries;
except where such failure to be valid and in full force and effect or to be
in compliance, the occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a material adverse
effect on the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole.
(t) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any
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Authorization, any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(u) This Agreement has been duly authorized, executed and delivered
by the Company and the Guarantor.
(v) KPMG LLP are independent public accountants with respect to the
Company and its subsidiaries as required by the Act.
(w) The consolidated financial statements included in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto), together with related schedules and notes, present fairly the
consolidated financial position, results of operations and changes in
financial position of the Company and its subsidiaries on the basis stated
therein at the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been prepared
in accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein; the
supporting schedules, if any, included in the Registration Statement
present fairly in accordance with generally accepted accounting principles
the information required to be stated therein; and the other financial and
statistical information and data set forth in the Registration Statement
and the Prospectus (and any amendment or supplement thereto) are, in all
material respects, accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the Company.
(x) Neither the Company nor the Guarantor is or, after giving effect
to the offering and sale of the Units and the application of the proceeds
thereof as described in the Prospectus, will be, an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
(y) Except as disclosed in the Registration Statement there are no
contracts, agreements or understandings between the Company or Guarantor
and any person granting such person the right to require the Company or
Guarantor to file a registration statement under the Act with respect to
any securities of the Company or Guarantor or to require the Company or
Guarantor to include such securities with the Units registered pursuant to
the Registration Statement.
(z) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Act has
indicated to the Company or any Guarantor that it is considering (i) the
downgrading, suspension or withdrawal
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of, or any review for a possible change that does not indicate the
direction of the possible change in, any rating assigned to the Company or
any Guarantor or any securities of the Company or any Guarantor or (ii) any
change in the outlook for any rating of the Company or any Guarantor or any
securities of the Company or any Guarantor.
(aa) Since the respective dates as of which information is given in
the Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), (i) there has not occurred any material adverse change or any
development involving a prospective material adverse change in the
condition, financial or otherwise, or the earnings, business, management or
operations of the Company and its subsidiaries, taken as a whole, (ii)
there has not been any material adverse change or any development involving
a prospective material adverse change in the capital stock or in the long-
term debt of the Company or any of its subsidiaries and (iii) neither the
Company nor any of its subsidiaries has incurred any material liability or
obligation, direct or contingent.
(bb) The indebtedness represented by the Units is being incurred for
proper purposes and in good faith, and, on the Closing Date (after giving
effect to the application of the proceeds from the issuance of the Units),
the Company will be solvent, will have sufficient capital for carrying on
its business and will be able to pay its debts as they mature.
(cc) The Company has provided the Underwriters and counsel for the
Underwriters true and correct copies of each and every agreement (or, if an
agreement has not been reduced to writing, a written enumeration of the
terms of such agreement) between and among the Company and any Related
Party (as such term is defined below), on the one hand, and Sprint PCS and
any Related Party on the other, including in each case any amendments and
addenda thereto and restatements thereof, as in effect on the date hereof
(collectively, the "Sprint Agreements"); all documents and correspondence
relating to such agreements; and such other documents as may be necessary
to interpret such agreements, documents and correspondence and to assess
the impact thereof on the business and financial condition of the Company.
For purposes of this subparagraph and the immediately following
subparagraph, "Related Party" shall have the meaning given to such term in
the Schedule of Definitions incorporated by reference in that certain
Sprint PCS Management Agreement executed by the Company and Sprint PCS as
of July 22, 1998 (the "Sprint PCS Management Agreement").
(dd) Each of the Sprint Agreements (A) has been duly authorized,
executed and delivered by, (B) constitutes the valid and binding obligation
of and (C) is
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enforceable in accordance with its terms against, the Company and any
Related Party, to the extent each is a party thereto.
(ee) The Company has provided the Underwriters and counsel for the
Underwriters a true and correct copy of the Consent and Agreement between
Sprint Spectrum L.P., SprintCom, Inc., Sprint Communications Company, L.P.,
WirelessCo, L.P. and Lucent, as administrative agent for the Lenders, and
acknowledged by the Company and its stockholder, including any amendments
thereto and restatements thereof, as in effect on the date hereof (the
"Lucent Consent and Agreement"); all documents and correspondence relating
to such Lucent Consent and Agreement; and such other documents as may be
necessary to interpret such Lucent Consent and Agreement, documents and
correspondence and to assess the impact thereof on the business and
financial condition of the Company.
(ff) The Company has provided the Underwriters and counsel for the
Underwriters true and correct copies of each and every Lucent Financing
Document that is or may be required pursuant to the borrowing by the
Company under the Lucent Financing (or, if an agreement relating to the
Lucent Financing has not been reduced to writing, a written enumeration of
the terms of such agreement), including in each case any amendments thereto
and restatements thereof, as in effect on the date hereof (collectively,
including the Lucent Consent and Agreement, the "Lucent Financing
Agreements"); all documents and correspondence relating to such agreements;
and such other documents as may be necessary to interpret such agreements,
documents and correspondence and to assess the impact thereof on the
business and financial condition of the Company.
(gg) Each of the Lucent Financing Agreements (A) has been duly
authorized, executed and delivered by, (B) constitutes the valid and
binding obligation of and (C) is enforceable in accordance with its terms
against, the Company and its affiliates, to the extent each is a party
thereto.
(hh) The Company has heretofore received $13.5 million under the
Lucent Financing Documents. The Lucent Financing Agreements constitute all
of the documentation and agreements necessary for the Company to receive
further disbursements under the Lucent Financing in accordance with the
terms of the Lucent Financing Agreements.
(ii) The execution, delivery and performance of the Sprint Agreements
and the Lucent Financing Agreements by the Company and any of its
affiliates that are a party thereto, the compliance by the Company and such
affiliates with all the provisions
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thereof and the consummation of the transactions contemplated thereby do
not (A) require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except such
as have already been obtained), (B) conflict with or constitute a breach of
any of the terms or provisions of, or a default under (or an event which
with notice or lapse of time, or both, would constitute a breach of or a
default under), the certificate of incorporation or by-laws of the Company
or any of its subsidiaries or any indenture, loan agreement, mortgage,
lease or other agreement or instrument that is material to the Company and
its subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
or their respective property is bound, (C) violate or conflict with any
applicable law or any rule, regulation, judgment, order or decree of any
court or any governmental body or agency having jurisdiction over the
Company, any of its subsidiaries or their respective property or (D) result
in the suspension, termination or revocation of any Authorization of the
Company or any of its subsidiaries or any other impairment of the rights of
the holder of any such Authorization.
(jj) Each of the Sprint Agreements (including, without limitation, the
Sprint PCS Management Agreement) and each of the Lucent Financing
Agreements (collectively, the "PCS Agreements"), is, and the PCS Agreements
viewed as a whole are, consistent with the terms and conditions of the
License (as such term is defined in the Sprint PCS Management Agreement) as
the Federal Communications Commission (the "FCC") has construed the terms
of such license, or similar licenses, to date and, to the best of the
Company's knowledge, is not otherwise contrary to FCC policies, rules and
regulations or other applicable law, rules or regulations.
(kk) The plan of reorganization relating to AirGate PCS, Inc. and
AirGate Wireless, Inc., pursuant to which AirGate PCS, Inc. was merged with
and into AirGate Wireless, Inc., and the surviving corporation was renamed
AirGate PCS, Inc. (the "Plan of Reorganization"), has been duly authorized,
executed and delivered by the parties thereto and constitutes the legal,
valid and binding obligations of such parties, and the transactions
contemplated by the Plan of Reorganization have been consummated in all
respects in accordance with the terms of the Plan of Reorganization.
(ll) Each certificate signed by any officer of the Company or a
Guarantor and delivered to the Underwriters or counsel for the Underwriters
shall be deemed to be a representation and warranty by the Company or such
Guarantor to the Underwriters as to the matters covered thereby.
Section 7. Indemnification. (a) The Company and the Guarantor, jointly
and severally, agree to indemnify and hold harmless each Underwriter, its
directors, its
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officers and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), from and against any and all
losses, claims, damages, liabilities and judgments (including, without
limitation, any legal or other expenses reasonably incurred in connection
with investigating or defending any matter, including any action, that
could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished in writing to the Company
by such Underwriter through you expressly for use therein; provided,
however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter
who failed to deliver a Prospectus, as then amended or supplemented, (so
long as the Prospectus and any amendment or supplemented thereto was
provided by the Company to the several Underwriters in the requisite
quantity and on a timely basis to permit proper delivery on or prior to the
Closing Date) to the person asserting any losses, claims, damages,
liabilities or judgements caused by any untrue statement or alleged untrue
statement of a material fact contained in the preliminary prospectus, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, if such material misstatement or omission or alleged
material misstatement or omission was cured in the Prospectus, as so
amended or supplemented, and such Prospectus was required by law to be
delivered at or prior to the written confirmation of sale to such person.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Guarantor, directors of the Company and
the Guarantor, officers of the Company and the Guarantor who sign the
Registration Statement and each person, if any, who controls the Company or
a Guarantor within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, to the same extent as the foregoing indemnity from the
Company and the Guarantor to such Underwriter but only with reference to
information relating to such Underwriter furnished in writing to the
Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any preliminary prospectus.
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(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7(a) or 7(b)
(the "indemnified party"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party")
in writing and the indemnifying party shall assume the defense of such
action, including the employment of counsel reasonably satisfactory to the
indemnified party and the payment of all reasonably-incurred fees and
expenses of such counsel, as incurred (except that in the case of any
action in respect of which indemnity may be sought pursuant to both
Sections 7(a) and 7(b), the Underwriter shall not be required to assume the
defense of such action pursuant to this Section 7(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense
of such Underwriter). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of the
indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action
or employ counsel reasonably satisfactory to the indemnified party or (iii)
the named parties to any such action (including any impleaded parties)
include both the indemnified party and the indemnifying party, and the
indemnified party shall have been advised by such counsel that there may be
one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such
action on behalf of the indemnified party). In any such case, the
indemnifying party shall not, in connection with any one action or separate
but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such
reasonably-incurred fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by Donaldson, Lufkin &
Jenrette Securities Corporation, in the case of parties indemnified
pursuant to Section 7(a), and by the Company, in the case of parties
indemnified pursuant to Section 7(b). The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and
all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or (ii)
effected without its written consent if the settlement is entered into more
than twenty business days after the indemnifying party shall have received
a request from the indemnified party for reimbursement for the fees and
expenses of counsel (in any case where such fees and expenses are at the
expense of the indemnifying party) and, prior to the date of such
settlement, the indemnifying party shall have failed to comply with such
reimbursement request. No indemnifying party shall, without the prior
written consent of the
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indemnified party, effect any settlement or compromise of, or consent to
the entry of judgment with respect to, any pending or threatened action in
respect of which the indemnified party is or could have been a party and
indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of the indemnified
party.
(d) To the extent the indemnification provided for in this Section 7
is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as
a result of such losses, claims, damages, liabilities and judgments (i) in
such proportion as is appropriate to reflect the relative benefits received
by the Company and the Guarantor on the one hand and the Underwriters on
the other hand from the offering of the Units or (ii) if the allocation
provided by clause 7(d)(i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 7(d)(i) above but also the relative fault of the
Company and the Guarantor on the one hand and the Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Guarantor on the one hand and the Underwriters on the other
hand shall be deemed to be in the same proportion as the total net proceeds
from the offering (after deducting underwriting discounts and commissions
but before deducting expenses) received by the Company and the Guarantor,
and the total underwriting discounts and commissions received by the
Underwriters, bear to the total price to the public of the Units, in each
case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company and the Guarantor on the one hand and the
Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company and the Guarantor or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The Company, the Guarantor and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7(d)
were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable
20
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considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any matter,
including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Units
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7(d) are several in proportion to the respective
principal amount of Units purchased by each of the Underwriters hereunder
and not joint.
(e) The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
Section 8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Units under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the
Guarantor contained in this Agreement shall be true and correct on the
Closing Date with the same force and effect as if made on and as of the
Closing Date.
(b) If the Company and the Guarantor are required to file a Rule
462(b) Registration Statement after the effectiveness of this Agreement,
such Rule 462(b) Registration Statement shall have become effective by
10:00 P.M., New York City time, on the date of this Agreement; and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been commenced
or shall be pending before or contemplated by the Commission.
(c) On or after the date hereof, (i) there shall not have occurred any
downgrading, suspension or withdrawal of, nor shall any notice have been
given of any potential or intended downgrading, suspension or withdrawal
of, or of any review (or
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of any potential or intended review) for a possible change that does not
indicate the direction of the possible change in, any rating of the Company
or the Guarantor or any securities of the Company or the Guarantor
(including, without limitation, the placing of any of the foregoing ratings
on credit watch with negative or developing implications or under review
with an uncertain direction) by any "nationally recognized statistical
rating organization" as such term is defined for purposes of Rule 436(g)(2)
under the Act, (ii) there shall not have occurred any change, nor shall any
notice have been given of any potential or intended change, in the outlook
for any rating of the Company or the Guarantor or any securities of the
Company or the Guarantor by any such rating organization and (iii) no such
rating organization shall have given notice that it has assigned (or is
considering assigning) a lower rating to the Notes than that on which the
Notes were marketed.
(d) You shall have received on the Closing Date a certificate dated
the Closing Date, signed by Thomas M. Dougherty in his capacity as
President and Chief Executive Officer of the Company and by Alan B.
Catherall in his capacity as Chief Financial Officer of the Company,
confirming the matters set forth in Sections 6(aa), 8(a), 8(b) and 8(c) and
that the Company and the Guarantor have complied with all of the agreements
and satisfied all of the conditions herein contained and required to be
complied with or satisfied by the Company and/or the Guarantor on or prior
to the Closing Date.
(e) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), (i) there shall not have occurred any change or any development
involving a prospective change in the condition, financial or otherwise, or
the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there shall not have been any change
or any development involving a prospective change in the capital stock or
in the long-term debt of the Company or any of its subsidiaries and (iii)
neither the Company nor any of its subsidiaries shall have incurred any
liability or obligation, direct or contingent, the effect of which, in any
such case described in clause 8(e)(i), 8(e)(ii) or 8(e)(iii), in your
judgment, is material and adverse and, in your judgment, makes it
impracticable to market the Units on the terms and in the manner
contemplated in the Prospectus.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date, of Patton Boggs LLP counsel for the Company and the Guarantor, to the
effect that:
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(i) each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power
and authority to carry on its business as described in the Prospectus and
to own, lease and operate its properties;
(ii) each of the Company and its subsidiaries is duly qualified and
is in good standing as a foreign corporation authorized to do business in
each jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified would not have a material adverse effect on the
business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole;
(iii) all the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid, non-
assessable and not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear of any Lien
except as provided under the Lucent Financing Documents;
(v) the Warrant Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (B) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability;
(vi) the Warrants have been duly authorized and, when executed by
the Company in accordance with the provisions of the Warrant Agreement and
delivered to and paid for by the Underwriters in accordance with the terms
of this Agreement, will be entitled to the benefits of the Warrant
Agreement and will be valid and binding obligations of the Company,
enforceable in accordance with their terms except as (A) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (B) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability;
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(vii) the Warrant Shares have been duly and validly authorized for
issuance by the Company and, when issued pursuant to the terms of the
Warrants and the Warrant Agreement, will be fully paid, non-assessable and
not subject to any preemptive or similar rights;
(viii) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (B) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(ix) the Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms
of this Agreement, will be entitled to the benefits of the Indenture and
will be valid and binding obligations of the Company and the Guarantor,
enforceable in accordance with their terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (B) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability;
(x) the Company has duly and validly authorized the issuance of
the Notes and the Warrants as Units;
(xi) this Agreement has been duly authorized, executed and
delivered by the Company;
(xii) the Registration Statement has become effective under the Act,
no stop order suspending its effectiveness has been issued and no
proceedings for that purpose are, to the best of such counsel's knowledge
after due inquiry, pending before or contemplated by the Commission;
(xiii) the statements under the captions "The Sprint PCS Agreements,"
"Description of Certain Indebtedness," "Principal Stockholders," "Certain
Transactions," "Description of Units," "Description of Notes," "Description
of Warrants," "Description of Provisions Applicable to the Senior
Subordinated Discount Notes and Warrants," "Description of Capital Stock,"
"United States Federal Income Tax Consequences" and "Underwriting" in the
Prospectus and Items 14 and 15 of Part II of the Registration Statement,
insofar as such
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<PAGE>
statements constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings;
(xiv) neither the Company nor any of its subsidiaries is in
violation of its respective certificate of incorporation or by-laws and, to
the best of such counsel's knowledge after due inquiry, neither the Company
nor any of its subsidiaries is in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture,
loan agreement, mortgage, lease or other agreement or instrument that is
material to the Company and its subsidiaries, taken as a whole, to which
the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or their respective property is bound;
(xv) the execution, delivery and performance of this Agreement, the
Indenture, the Warrant Agreement and the Securities by the Company and the
Guarantor, the compliance by the Company and the Guarantor with all the
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (A) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states), (B) conflict with or
constitute a breach of any of the terms or provisions of, or a default
under, the certificate of incorporation or by-laws of the Company or any of
its subsidiaries or any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its
subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
or their respective property is bound, (C) violate or conflict with any
applicable law or any rule, regulation, judgment, order or decree of any
court or any governmental body or agency having jurisdiction over the
Company, any of its subsidiaries or their respective property, (D) result
in the imposition or creation of (or the obligation to create or impose) a
Lien under any agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
or their respective property is bound or (E) result in the suspension,
termination or revocation of any Authorization of the Company or any of its
subsidiaries or any other impairment of the rights of the holder of any
such Authorization;
(xvi) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any
25
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of its subsidiaries is or could be a party or to which any of their
respective property is or could be subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described, or of any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that
are not so described or filed as required;
(xvii) to the best of such counsel's knowledge, neither the Company
nor any of its subsidiaries has violated any Environmental Law, any
provisions of the Employee Retirement Income Security Act of 1974, as
amended, or any provisions of the Foreign Corrupt Practices Act or the
rules and regulations promulgated thereunder, except for such violations
which, singly or in the aggregate, would not have a material adverse effect
on the business, prospects, financial condition or results of operation of
the Company and its subsidiaries, taken as a whole;
(xviii) to the best of such counsel's knowledge: (A) each of the
Company and its subsidiaries has such Authorizations of, and has made all
filings with and notices to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other tribunals,
including, without limitation, under any applicable Environmental Laws, as
are necessary to own, lease, license and operate its respective properties
and to conduct its business, except where the failure to have any such
Authorization or to make any such filing or notice would not, singly or in
the aggregate, have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole; (B) each such Authorization is valid and in
full force and effect and each of the Company and its subsidiaries is in
compliance with all the terms and conditions thereof and with the rules and
regulations of the authorities and governing bodies having jurisdiction
with respect thereto; (C) no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or results
or, after notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such Authorization; and (D)
such Authorizations contain no restrictions that are burdensome to the
Company or any of its subsidiaries; except where such failure to be valid
and in full force and effect or to be in compliance, the occurrence of any
such event or the presence of any such restriction would not, singly or in
the aggregate, have a material adverse effect on the business, prospects,
financial
26
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condition or results of operations of the Company and its subsidiaries,
taken as a whole;
(xix) neither the Company nor the Guarantor is, or, after giving
effect to the offering and sale of the Securities and the application of
the proceeds thereof as described in the Prospectus, will be, an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended;
(xx) to the best of such counsel's knowledge after due inquiry,
there are no contracts, agreements or understandings between the Company or
Guarantor and any person granting such person the right to require the
Company or Guarantor to file a registration statement under the Act with
respect to any securities of the Company or Guarantor or to require the
Company or Guarantor to include such securities with the Units registered
pursuant to the Registration Statement;
(xxi) the Registration Statement and the Prospectus and any
supplement or amendment thereto (except for the financial statements and
other financial data included therein as to which no opinion need be
expressed) comply as to form with the Act;
(xxii) each of the Sprint Agreements (A) has been duly authorized,
executed and delivered by, (B) constitutes the valid and binding obligation
of and (C) is enforceable in accordance with its terms against, the Company
and any Related Party, to the extent each is a party thereto;
(xxiii) each of the Lucent Financing Agreements (A) has been duly
authorized, executed and delivered by, (B) constitutes the valid and
binding obligation of and (C) is enforceable in accordance with its terms
against, the Company and its affiliates, to the extent each is a party
thereto;
(xxiv) the Lucent Financing Agreements constitute all of the
documentation and agreements necessary for the Company to receive further
disbursements under the Lucent Financing Documents in accordance with the
terms of the Lucent Financing Agreements; and
(xxv) the execution, delivery and performance of the Sprint
Agreements and the Lucent Financing Agreements by the Company and any of
its affiliates that are a party thereto, the compliance by the Company and
such affiliates with all the provisions thereof and the consummation of the
transactions contemplated thereby do not (A) require any consent, approval,
authorization or
27
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other order of, or qualification with, any court or governmental body or
agency (except such as have already been obtained), (B) conflict with or
constitute a breach of any of the terms or provisions of, or a default
under (or an event which with notice or lapse of time, or both, would
constitute a breach of or a default under), the certificate of
incorporation or by-laws of the Company or any of its subsidiaries or any
indenture, loan agreement, mortgage, lease or other agreement or instrument
that is material to the Company and its subsidiaries, taken as a whole, to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or their respective property is bound,
(C) violate or conflict with any applicable law or any rule, regulation,
judgment, order or decree of any court or any governmental body or agency
having jurisdiction over the Company, any of its subsidiaries or their
respective property or (D) result in the suspension, termination or
revocation of any Authorization of the Company or any of its subsidiaries
or any other impairment of the rights of the holder of any such
Authorization.
In rendering such opinions, such counsel may rely on (A) as to matters
involving the application of laws other than the laws of the United States and
the State of New York and the General Corporation Law of the State of Delaware,
to the extent such counsel deems proper and to the extent specified in such
opinion, if at all, upon an opinion or opinions (in form and substance
reasonably satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to the Underwriters' counsel, familiar with the applicable laws; and
(B) as to matters of fact, to a reasonable extent, on certificates of
responsible officers of the Company and certificates or other written statements
of officials of jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company. The opinion of such
counsel for the Company shall state that the opinion of any such other counsel
upon which they relied is in form satisfactory to such counsel and, in such
counsel's opinion, the Underwriters and they are justified in relying thereon.
With respect to the matters to be covered in subparagraph [ ] and [ ]
above counsel may state their opinion and belief is based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto and review and discussion of
the contents thereof but is without independent check or verification except as
specified.
The opinion of Patton Boggs LLP described in Section 8(f) above shall be
rendered to you at the request of the Company and shall so state therein.
(g) You shall have received on the Closing Date a letter (satisfactory to
you and counsel for the Underwriters) dated the Closing Date, of Patton Boggs
LLP, counsel for the Company and the Guarantor, to the effect that they have
participated in
28
<PAGE>
conferences with directors, officers and other representatives of the Company
and the Guarantor, representatives of the independent public accountants for the
Company, the Representatives and counsel for the Underwriters, at which
conferences the contents of the Registration Statement, the Prospectus and
related matters were discussed, and, although such counsel have not
independently verified and are not passing upon and assume no responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, nothing has come to their attention
that would lead them to believe that the Registration Statement, or any
amendment or supplement thereto (other than the financial statements, the notes
thereto, and other tabular, financial and statistical appraisal data included
therein or omitted therefrom as to which no statement need be made), as of the
date of its effectiveness, contained an untrue statement of material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectus, as of its date
and as of the Closing Date, contained an untrue statement of a material fact or
omitted to state and material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
The letter of Patton Boggs LLP described in this Section 8(g) shall be
rendered to you at the request of the Company and shall so state therein.
(h) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Skadden, Arps, Slate, Meagher & Flom (Illinois), counsel for
the Underwriters, as to the matters referred to in Sections 8(f)(v), 8(f)(vi),
8(f)(vii), 8(f)(viii), 8(f)(ix), 8(f)(x), 8(f)(xi), 8(f)(xiii) (but only with
respect to the statements under the captions "Description of Units,"
"Description of Notes," "Description of Warrants," "Description of Capital
Stock" and "Underwriting"), 8(f)(xxi) and 8(g).
In giving such opinion with respect to the matters covered by Section
8(f)(xxi) and Section 8(g), counsel for the Underwriters may state that their
opinion and belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
and review and discussion of the contents thereof, but are without independent
check or verification except as specified.
(i) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from KPMG LLP, independent public
accountants, containing the information and statements of the type ordinarily
included in accountants'
29
<PAGE>
"comfort letters" to Underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
(j) The Notes shall have been rated "[ ]" by [Standard & Poor's
Corporation] and "[ ]" by [Moody's Investors Service, Inc.]
(k) The Underwriters shall have received a counterpart, conformed as
executed, of the Indenture which shall have been entered into by the Company,
the Guarantor and the Trustee.
(l) The Company shall not have failed on or prior to the Closing Date to
perform or comply with any of the agreements herein contained and required to be
performed or complied with by the Company on or prior to the Closing Date.
(m) The Common Stock Offering shall have been consummated simultaneously
with the consummation of the transactions contemplated by this Agreement.
(n) You shall have received on the Closing Date a letter from Lucent,
reasonably satisfactory to you and counsel for the Underwriters, dated the
Closing Date, to the effect that all of the conditions set forth in Article IV
of the Credit Agreement have been satisfied or waived.
(o) The Company shall have received $13.5 million under the Lucent
Financing Documents.
(p) The Company shall have delivered evidence reasonably satisfactory to
you and counsel for the Underwriters that the transactions contemplated by the
Plan of Reorganization have been consummated in all respects in accordance with
the terms of such Plan of Reorganization.
(q) Prior to the Closing Date, AirGate, L.L.C. shall have distributed to
its members any and all shares of Common Stock beneficially owned or otherwise
held by AirGate, L.L.C.
Section 9. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Company if any of the following has
occurred: (i) any
30
<PAGE>
outbreak or escalation of hostilities or other national or international
calamity or crisis or change in economic conditions or in the financial markets
of the United States or elsewhere that, in your judgment, is material and
adverse and, in your judgment, makes it impracticable to market the Units on the
terms and in the manner contemplated in the Prospectus, (ii) the suspension or
material limitation of trading in securities or other instruments on the New
York Stock Exchange, the American Stock Exchange, the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade or the
Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company or the Guarantor on any
exchange or in the over-the-counter market, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole, (v) the declaration of a banking
moratorium by either federal or New York State authorities or (vi) the taking of
any action by any federal, state or local government or agency in respect of its
monetary or fiscal affairs which in your opinion has a material adverse effect
on the financial markets in the United States.
If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase the Units which it or they have agreed to purchase hereunder
on such date and the aggregate number of Units which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than one-
tenth of the aggregate number of Units to be purchased on such date by all
Underwriters, each non-defaulting Underwriter shall be obligated severally, in
the proportion which the number of Units set forth opposite its name in Schedule
I bears to the aggregate number of Units which all the non-defaulting
Underwriters have agreed to purchase, or in such other proportion as you may
specify, to purchase the Units which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no event
shall the aggregate number of Units which any Underwriter has agreed to purchase
pursuant to Section 2 hereof be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such number of Units without the written
consent of such Underwriter. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase Units and the aggregate number of
Units with respect to which such default occurs is more than one-tenth of the
aggregate number of Units to be purchased by all Underwriters and arrangements
satisfactory to you and the Company for purchase of such Units are not made
within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter, the Company or the
Guarantor. In any such case which does not result in termination of this
31
<PAGE>
Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of any such Underwriter under this Agreement.
Section 10. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company or any
Guarantor, to AirGate PCS, Inc., Harris Tower, Suite 1700, 233 Peachtree Street,
N.W., Atlanta, Georgia 30303, Attention: Thomas M. Dougherty and (ii) if to any
Underwriter or to you, to you c/o Donaldson, Lufkin & Jenrette Securities
Corporation, 277 Park Avenue, New York, New York 10172, Attention: Syndicate
Department, or in any case to such other address as the person to be notified
may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Guarantor and the several
Underwriters set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Units, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the officers or
directors of any Underwriter, any person controlling any Underwriter, the
Company, any Guarantor, the officers or directors of the Company or such
Guarantor or any person controlling the Company or such Guarantor, (ii)
acceptance of the Units and payment for them hereunder and (iii) termination of
this Agreement.
If for any reason the Units are not delivered by or on behalf of the
Company and the Guarantor as provided herein (other than as a result of any
termination of this Agreement pursuant to Section 9), the Company and each
Guarantor, jointly and severally, agree to reimburse the several Underwriters
for all reasonable out-of-pocket expenses (including the reasonable fees and
disbursements of counsel) incurred by them. Notwithstanding any termination of
this Agreement, the Company and the Guarantor shall be jointly and severally
liable for all expenses which they have agreed to pay pursuant to Section 5(j)
hereof. The Company and each Guarantor, jointly and severally, also agree to
reimburse the several Underwriters, their directors and officers and any persons
controlling any of the Underwriters for any and all reasonable fees and expenses
(including, without limitation, the fees disbursements of counsel) incurred by
them in connection with enforcing their rights hereunder (including, without
limitation, pursuant to Section 7 hereof).
32
<PAGE>
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Guarantor, the
Underwriters, the Underwriters' directors and officers, any controlling persons
referred to herein, the directors of the Company and the Guarantor and the
officers of the Company and the Guarantor who sign the Registration Statement
and their respective successors and assigns, all as and to the extent provided
in this Agreement, and no other person shall acquire or have any right under or
by virtue of this Agreement. The term "successors and assigns" shall not
include a purchaser of any of the Units from any of the several Underwriters
merely because of such purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
33
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
AIRGATE PCS, INC.
By: ________________________
Title:
AGW LEASING COMPANY, INC.
By: ________________________
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON CORPORATION
Acting severally on behalf of
themselves
By DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By________________________________
34
<PAGE>
SCHEDULE I
----------
Number of Units
Underwriters to be Purchased
- ------------ ---------------
Donaldson, Lufkin & Jenrette Securities
Corporation
Credit Suisse First Boston Corporation
__________
Total
<PAGE>
EXHIBIT 4.5
FORM OF INDENTURE
================================================================================
AirGate PCS, Inc.
AGW Leasing Company, Inc.
======================
$[ ] AGGREGATE PRINCIPAL AMOUNT AT MATURITY
______% SENIOR SUBORDINATED DISCOUNT NOTES DUE 2009
======================
===============
INDENTURE
DATED AS OF SEPTEMBER __, 1999
===============
Bankers Trust Company
Trustee
================================================================================
<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Trust Indenture
Act Section Section Indenture
<S> <C>
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
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Trust Indenture
Act Section Section Indenture
<S> <C>
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
</TABLE>
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
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
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
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....................................................... 60
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...................................................... 61
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
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
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........................................................... 68
SECTION 6.4 WAIVER OF PAST DEFAULTS.................................................. 68
SECTION 6.5 CONTROL BY MAJORITY...................................................... 69
SECTION 6.6 LIMITATION ON SUITS...................................................... 69
SECTION 6.7 RIGHTS OF HOLDERS OF NOTES TO RECEIVE
PAYMENT. ........................................................ 70
SECTION 6.8 COLLECTION SUIT BY TRUSTEE............................................... 70
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM......................................... 70
SECTION 6.10 PRIORITIES............................................................... 71
SECTION 6.11 UNDERTAKING FOR COSTS.................................................... 71
ARTICLE VII
TRUSTEE............................................................................................. 72
SECTION 7.1 DUTIES OF TRUSTEE........................................................ 72
SECTION 7.2 RIGHTS OF TRUSTEE........................................................ 73
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE............................................. 74
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............................... 75
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.................................................. 78
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
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...................................................... 79
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..................................................... 82
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......................................... 86
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
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C>
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........................................ 94
SECTION 11.4 PAYMENT PERMITTED IF NO DEFAULT.......................................... 95
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....................................... 98
SECTION 11.13 AUTHORIZATION TO EFFECT SUBORDINATION.................................... 98
SECTION 11.14 ARTICLE APPLICABLE TO PAYING AGENTS...................................... 99
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............................................................... 103
SECTION 12.11 SEVERABILITY............................................................. 103
</TABLE>
v
<PAGE>
<TABLE>
<S> <C>
SECTION 12.12 COUNTERPART ORIGINALS............................................ 103
SECTION 12.13 TABLE OF CONTENTS, HEADINGS, ETC................................. 103
</TABLE>
vi
<PAGE>
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
vii
<PAGE>
Indenture, dated as of September __, 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
______% 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 or
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:
(a) Indebtedness of any other Person existing at the time such
other Person is merged with or into or became a Subsidiary of such specified
Person, whether or not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging with or into, or becoming a
Subsidiary of, such specified Person; and
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(b) 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:
(a) 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
(b) the issuance of Equity Interests by any of AirGate's
Restricted Subsidiaries or the sale of Equity Interests in any of its Restricted
Subsidiaries,
Notwithstanding the preceding, the following items shall not be deemed to be
Asset Sales:
(a) any single transaction or series of related transactions
that: (i) involves assets having a fair market value of less than $1.0 million;
or (ii) results in net proceeds to AirGate and its Restricted Subsidiaries of
less than $1.0 million;
(b) a transfer of assets between or among AirGate and its
Wholly Owned Restricted Subsidiaries;
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(c) an issuance of Equity Interests by a Wholly Owned
Restricted Subsidiary to AirGate or to another Wholly Owned Restricted
Subsidiary;
(d) a Restricted Payment that is permitted by Section 4.7; and
(e) any transfer by AirGate or a Subsidiary of property or
equipment with a fair market value of less than $5.0 million to a Person who is
not an Affiliate of AirGate in exchange for property or equipment that has a
fair market value at least equal to the fair market value of the property or
equipment so transferred; provided that, in the event of a transfer described in
this clause (e), AirGate shall deliver to the Trustee an 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.
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"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of AirGate to have been duly adopted by the
Board of Directors, unless the context specifically requires that such
resolution be adopted by a majority of the disinterested directors, in which
case by a majority of such directors, and to be in full force and effect on the
date of such certification and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, 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:
(a) in the case of a corporation, corporate stock;
(b) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents, however
designated, of corporate stock;
(c) in the case of a partnership or limited liability company,
partnership or membership interests, whether general or limited; and
(d) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Cash Equivalents" means:
(a) United States dollars;
(b) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or instrumentality
thereof, provided that the full faith and credit of the United States is pledged
in support thereof, having maturities of less than one year from the date of
acquisition;
(c) certificates of deposit and eurodollar time deposits with
maturities of less than one year from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case, with any domestic
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commercial bank having capital and surplus in excess of $500 million and a
Thompson Bank Watch Rating of "B" or better,
(d) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (b) and (c)
above entered into with any financial institution meeting the qualifications
specified in clause (c) above;
(e) commercial paper having the highest rating obtainable from
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
(f) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (a) through (e) of
this definition.
"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:
(a) the sale, transfer, conveyance or other disposition, other
than by way of merger or consolidation, in one or a series of related
transactions, of all or substantially all of the assets of AirGate and its
Subsidiaries taken as a whole to any "person," as such term is used in Section
13(d)(3) of the Exchange Act;
(b) the adoption of a plan relating to the liquidation or
dissolution of AirGate;
(c) the consummation of any transaction, including, without
limitation, any merger or consolidation, the result of which is that any
"person," as defined above, becomes the Beneficial Owner, directly or
indirectly, of more than 50% of the Voting Stock of AirGate, measured by voting
power rather than number of shares;
(d) the first day on which a majority of the members of the
Board of Directors of AirGate are not Continuing Directors; or
(e) AirGate consolidates with, or merges with or into, 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
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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.
"Closing Date" means September ___, 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:
(a) the Net Income, but not loss, of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be
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included only to the extent of the amount of dividends or distributions paid in
cash to the specified Person or a Wholly Owned Subsidiary thereof;
(b) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at the
date of determination permitted without any prior governmental approval that has
not been obtained or, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Restricted Subsidiary or its
stockholders;
(c) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition shall
be excluded;
(d) 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
(e) 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:
(a) the consolidated equity of the common stockholders of such
Person and its consolidated Subsidiaries as of such date; plus
(b) the respective amounts reported on such Person's balance
sheet as of such date with respect to any series of preferred stock, other than
Disqualified Stock, that by its terms is not entitled to the payment of
dividends unless such dividends may be declared and paid only out of net
earnings in respect of the year of such declaration and payment, but only to the
extent of any cash received by such Person upon issuance of such preferred
stock.
"Consolidation" means the consolidation of the accounts of each of the
Restricted Subsidiaries with those of AirGate, if and to the extent that the
accounts of each such Restricted Subsidiary would normally be consolidated with
those of AirGate in accordance with generally accepted accounting principles;
provided, however, that "Consolidation" shall not include consolidation of the
accounts of any Unrestricted Subsidiary, but the interest of AirGate or any
Restricted Subsidiary in any Unrestricted Subsidiary shall be accounted for as
an investment. The term "Consolidated" has a correlative meaning.
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"Continuing Directors" means, as of any date of determination, any member
of the Board of Directors of AirGate who:
(a) was a member of such Board of Directors on the date of
this Indenture; or
(b) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors who were
members of such Board at the time of such nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 12.2 hereof or such other address as to which the
Trustee may give notice to the Company.
"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
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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).
"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, 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).
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"Government Securities" means (1) any security which is (a) a direct
obligation of the United States of America for the payment of which the full
faith and credit of the United States of America is pledged or (b) an obligation
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation of the United
States of America, which, in either case, is not callable or redeemable at the
option of the issuer thereof, and (2) any depository receipt issued by a bank,
as defined in the Securities Act, as custodian with respect to any Government
Securities and held by such bank for the account of the holder of such
depository receipt, or with respect to any specific payment of principal of or
interest on any Government Securities which is so specified and held, provided
that, except as required by law, such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Securities or
the specific payment of principal or interest evidenced by such depository
receipt.
"Guarantee" means any guarantee of the Notes by any Guarantor pursuant to
this Indenture.
"Guarantors" means each of AGW 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:
(a) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements; and
(b) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent, in respect of:
(a) borrowed money;
(b) evidenced by bonds, Notes, debentures or similar
instruments or letters of credit, or reimbursement agreements in respect
thereof;
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(c) banker's acceptances;
(d) representing Capital Lease Obligations;
(e) 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
(f) representing any Hedging Obligations;
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:
(a) the accreted value thereof, in the case of any
Indebtedness issued with original issue discount; and
(b) 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 ___, 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 Pledge Agreement 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
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sheet prepared in accordance with GAAP. If AirGate or any Restricted Subsidiary
of AirGate sells or otherwise disposes of any Equity Interests of any direct or
indirect Restricted Subsidiary of AirGate such that, after giving effect to any
such sale or disposition, such Person is no longer a Restricted Subsidiary of
AirGate, AirGate shall be deemed to have made an Investment on the date of any
such sale or disposition equal to the fair market value of the Equity Interests
of such Restricted Subsidiary not sold or disposed of in an amount determined as
provided in the final paragraph of Section 4.7.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the principal Corporate
Trust Office of the Trustee is located or at a place of payment are authorized
by law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday, payment shall be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
"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:
(a) any gain, but not loss, together with any related
provision for taxes on such gain (but not loss), realized in connection with:
(i) any Asset Sale; or (ii) the disposition of any securities by such Person or
any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of
such Person or any of its Restricted Subsidiaries; and
(b) any extraordinary gain, but not loss, together with any
related provision for taxes on such extraordinary gain, but not loss.
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"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 AirGate or any Restricted Subsidiary, as the case may
be, after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale.
"Non-Recourse Debt" means Indebtedness:
(a) as to which neither AirGate nor any of its Restricted
Subsidiaries (i) provides credit support of any kind, including any undertaking,
agreement or instrument that would constitute Indebtedness, (ii) is directly or
indirectly liable as a guarantor or otherwise, or (iii) constitutes the lender;
(b) no default with respect to which, including any rights
that the holders thereof may have to take enforcement action against an
Unrestricted Subsidiary, would permit upon notice, lapse of time or both any
holder of any other Indebtedness, other than the Notes, of AirGate or any of its
Restricted Subsidiaries to declare a default on such other Indebtedness or cause
the payment thereof to be accelerated or payable prior to its stated maturity;
and
(c) as to which the lenders have been notified in writing that
they will not have any recourse to the stock or assets of AirGate or any of its
Restricted Subsidiaries.
"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.
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"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.
"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.
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"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:
(a) any Investment in AirGate or in a Wholly Owned Restricted
Subsidiary of AirGate that is a Guarantor,
(b) any Investment in Cash Equivalents;
(c) any Investment by AirGate or any Restricted Subsidiary of
AirGate in a Person, if as a result of such Investment:
(i) such Person becomes a Wholly Owned Restricted
Subsidiary of AirGate; or
(ii) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into,
AirGate or a Wholly Owned Restricted Subsidiary of AirGate;
(d) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in compliance
with Section 4.10;
(e) any acquisition of assets solely in exchange for the
issuance of Equity Interests, other than Disqualified Stock, of AirGate;
(f) investments, the payment of which consists only of Equity
Interests, other than Disqualified Stock; and
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(g) 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:
(a) 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;
(b) Liens in favor of AirGate or the Guarantors;
(c) 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;
(d) 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;
(e) 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;
(f) 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;
(g) Liens existing on the date of this Indenture;
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(h) Liens on Assets of Guarantors to secure Senior Debt of
such Guarantor that was permitted by this Indenture to be incurred;
(i) 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
(j) 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 extend, refinance, renew, replace, defease or refund other
Indebtedness of AirGate or any of its Restricted Subsidiaries, other than
intercompany Indebtedness; provided that:
(a) the principal amount, or accreted value, if applicable, of
such Permitted Refinancing Indebtedness does not exceed the principal amount of,
or accreted value, if applicable, plus the amount of any premium required to be
paid in connection with such refinancing pursuant to the terms of the
Indebtedness refinanced or the amount of any premium reasonably determined by
AirGate as necessary to accomplish such refinancing plus accrued interest on,
the Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded, plus the amount of reasonable expenses incurred in connection
therewith;
(b) such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a Weighted Average
Life to Maturity equal to or greater than the Weighted Average Life to Maturity
of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded;
(c) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and is subordinated in right of payment to, the Notes on
terms at least as favorable to the holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and
(d) such Indebtedness is incurred either by AirGate or by the
Restricted Subsidiary who is the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded.
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"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 __, 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.
"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:
(a) all Indebtedness outstanding under Credit Facilities and
all Hedging Obligations with respect thereto; and
(b) 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:
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(a) any liability for federal, state, local or other taxes
owed or owing by AirGate;
(b) any Indebtedness of AirGate to any of its Subsidiaries or
other Affiliates;
(c) any trade payables; or
(d) 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.
"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:
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(a) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of Capital Stock
entitled, without regard to the occurrence of any contingency, to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person, or a combination thereof; and
(b) any partnership (i) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of such Person
or (ii) the only general partners of which are such Person or of one or more
Subsidiaries of such Person, or any combination thereof.
"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 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.
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"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:
(a) has no Indebtedness other than Non-Recourse Debt;
(b) is not party to any agreement, contract, arrangement or
understanding with AirGate or any Restricted Subsidiary of AirGate unless the
terms of any such agreement, contract, arrangement or understanding are no less
favorable to AirGate or such Restricted Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of AirGate;
(c) is a Person with respect to which neither AirGate nor any of
its Restricted Subsidiaries has any direct or indirect obligation (i) to
subscribe for additional Equity Interests or (ii) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating, results;
(d) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of AirGate or any of its Restricted
Subsidiaries; and
(e) has at least one director on its board of directors that is
not a director or executive officer of AirGate or any of its Restricted
Subsidiaries and has at least one executive officer that is not a director or
executive officer of AirGate or any of its Restricted Subsidiaries.
Any designation of a Subsidiary of AirGate as an Unrestricted Subsidiary
shall be evidenced to the Trustee by filing with the Trustee 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
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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:
(a) the sum of the products obtained by multiplying (i) the
amount of each then remaining installment, sinking fund, serial maturity or
other required payments of principal, including payment at final maturity, in
respect thereof, by (ii) the number of years, calculated to the nearest one-
twelfth, that will elapse between such date and the making of such payment; by
(b) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which, other than directors' qualifying shares, shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person 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
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"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.
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;
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(2) an accounting term not otherwise defined herein has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) unless otherwise specified, any reference to Section or Article
refers to such Section or Article of this Indenture;
(6) provisions apply to successive events and transactions; and
(7) references to sections of or rules under the Securities Act or
the Exchange Act shall be deemed to include substitute, replacement or
successor sections or rules adopted by the Commission from time to time.
ARTICLE II
THE NOTES
SECTION 2.1 FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A attached hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes
initially shall be issued only in denominations of $1,000 and integral multiples
thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture and AirGate and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby. However, to the extent any provision of
any Note conflicts with the express provisions of this Indenture, the provisions
of this Indenture shall govern and be controlling.
(a) The Notes shall be issued initially in the form of one or
more Global Notes substantially in the form attached as Exhibit A hereto, which
shall be deposited on behalf of the purchasers of the Notes represented thereby
with the Trustee as custodian for the Depositary, and registered in the name of
the Depositary or a nominee of the Depositary, duly
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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.
(b) 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.
(c) 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).
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SECTION 2.2 EXECUTION AND AUTHENTICATION.
An Officer shall sign the Notes for AirGate by manual or facsimile
signature. AirGate's seal shall be reproduced on the Notes and may be in
facsimile form.
If an Officer whose signature is on a Note no longer holds that office at
the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee shall, upon a written order of AirGate signed by one Officer
directing the Trustee to authenticate the Notes and certifying that all
conditions precedent to the issuance of the Notes contained herein have been
complied with, authenticate Notes for original issue up to the aggregate
principal amount stated in paragraph 4 of the Notes. The aggregate principal
amount of Notes outstanding at any time may not exceed such amount except as
provided in Section 2.8 hereof.
The Trustee may appoint an authenticating agent acceptable to AirGate to
authenticate Notes. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with Holders or AirGate or an Affiliate of AirGate.
SECTION 2.3 REGISTRAR 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.
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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 2.4 PAYING AGENT TO HOLD MONEY IN TRUST.
AirGate shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent shall hold in trust for the benefit of Holders
or the Trustee all money held by the Paying Agent for the payment of principal,
premium, if any, or interest on the Notes, and shall notify the Trustee of any
Default by AirGate in making any such payment. While any such Default continues,
the Trustee may require a Paying Agent to pay all money held by it to the
Trustee. AirGate at any time may require a Paying Agent to pay all money held by
it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than AirGate or a Subsidiary) shall have no further liability for the money. If
AirGate or a Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon the occurrence of events specified in Section 6.1(ix), (x)
and (xi) hereof, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.5 HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA (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 2.6 BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.
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(a) Each Global Note shall (i) be registered in the name of the
Depositary for such Global Notes or the nominee of such Depositary, (ii) be
delivered to the Trustee as custodian for such Depositary and (iii) bear legends
as set forth in Section 2.6(g).
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Note, and the Depositary may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Note.
(b) Transfers of a Global Note shall be limited to transfers of
such Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in a Global Note may
be transferred in accordance with the rules and procedures of the Depositary. In
addition, Certificated Notes shall be transferred to all beneficial owners in
exchange for their beneficial interests if (i) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for the Global
Notes or the Depositary ceases to be a "clearing agency" registered under the
Exchange Act and a successor depositary is not appointed by the Company within
ninety (90) days of such notice or (ii) an Event of Default of which a
Responsible Officer of the Trustee has actual notice has occurred and is
continuing and the Registrar has received a request from the Depositary to issue
such Certificated Notes.
(c) In connection with the transfer of the entire Global Note to
beneficial owners pursuant to clause (b) of this Section, such Global Note shall
be deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in such Global Note an equal aggregate principal amount of Certificated
Notes of authorized denominations.
(d) The registered holder of a Global Note may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interest through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
(e) A Certificated Note may not be transferred or exchanged
for a beneficial interest in a Global Note.
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(f) If at any time:
(i) the Depositary for the Notes notifies AirGate that
the Depositary is unwilling or unable to continue as
Depositary for the Global Notes and a successor Depositary for
the Global Notes is not appointed by AirGate within ninety
(90) days after delivery of such notice; or
(ii) AirGate, at its sole discretion, notifies the
Trustee in writing that it elects to cause the issuance of
Certificated Notes under this Indenture,
then AirGate shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.2 hereof, authenticate and
deliver, Certificated Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(g) Each Global Security shall bear the following legends on
the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUIRED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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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.
(h) At such time as all beneficial interests in Global Notes
have been exchanged for Certificated Notes, redeemed, repurchased or cancelled,
all Global Notes shall be returned to or retained and cancelled by the Trustee
in accordance with Section 2.11 hereof. At any time prior to such cancellation,
if any beneficial interest in a Global Note is exchanged for Certificated Notes,
redeemed, repurchased or cancelled, the principal amount of Notes represented by
such Global Note shall be reduced accordingly and an endorsement shall be made
on such Global Note, by the Trustee or the Note Custodian, at the direction of
the Trustee, to reflect such reduction.
(i) General Provisions Relating to Transfers and Exchanges.
------------------------------------------------------
(i) To permit registrations of transfers and
exchanges, AirGate shall execute and the Trustee shall
authenticate Global Notes and Certificated Notes at the
Registrar's request.
(ii) No service charge shall be made to a Holder for
any registration of transfer or exchange, but AirGate may
require payment of a sum sufficient to cover any stamp or
transfer tax or similar governmental charge payable in
connection therewith (other than any such stamp or transfer
taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.2, 2.10, 3.6, 4.10, 4.14, 9.5
and 10.1 hereto).
(iii) All Global Notes and Certificated Notes issued
upon any registration of transfer or exchange of Global Notes
or Certificated Notes shall be the valid obligations of
AirGate, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Global Notes or
Certificated Notes surrendered upon such registration of
transfer or exchange.
(iv) The Registrar shall not be required: (A) to
issue, to register the transfer of or to exchange Notes during
a
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period beginning at the opening of fifteen (15) days before
the day of any selection of Notes for redemption under Section
3.2 hereof and ending at the close of business on the day of
selection, (B) to register the transfer of or to exchange any
Note so selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part, or
(C) to register the transfer of or to exchange a Note between
a record date and the next succeeding interest payment date.
(v) Prior to due presentment for the registration of
a transfer of any Note, the Trustee, any Agent and AirGate may
deem and treat the Person in whose name any Note is registered
as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Notes
and for all other purposes, and neither the Trustee, any Agent
nor AirGate shall be affected by notice to the contrary.
(vi) The Trustee shall authenticate Global Notes and
Certificated Notes in accordance with the provisions of
Section 2.2 hereof.
SECTION 2.7 REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or AirGate and the
Trustee receives evidence to their satisfaction of the destruction, loss or
theft of any Note, AirGate shall issue and the Trustee, upon the written order
of AirGate signed by an Officer of AirGate, shall authenticate a replacement
Note if the Trustee's requirements are met. If required by the Trustee or
AirGate, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and AirGate to protect AirGate, the Trustee, any
Agent and any authenticating agent from any loss that any of them may suffer if
a Note is replaced. AirGate and the Trustee may charge for their expenses in
replacing a Note.
Every replacement Note is an additional obligation of AirGate and shall
be entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
SECTION 2.8 OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the
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interest in a Global Note effected by the Trustee in accordance with the
provisions hereof, and those described in this Section 2.8 as not outstanding.
Except as set forth in Section 2.9 hereof, a Note does not cease to be
outstanding because AirGate or an Affiliate of AirGate holds the Note.
If a Note is replaced pursuant to Section 2.7 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.1
hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than AirGate, a Subsidiary or an Affiliate of
any thereof) holds, on a redemption date or maturity date, money sufficient to
pay Notes payable on that date, then on and after that date such Notes shall be
deemed to be no longer outstanding and shall cease to accrue interest.
SECTION 2.9 TREASURY NOTES.
In determining whether the Holders of the required 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 other agreement shall not be deemed to be owned by such
entity until legal title to such Notes passes to such entity.
SECTION 2.10 TEMPORARY NOTES.
Until Certificated Notes are ready for delivery, AirGate may prepare and
the Trustee shall authenticate temporary Notes upon a written order of AirGate
signed by two Officers of AirGate. Temporary Notes shall be substantially in the
form of Certificated Notes but may have variations that AirGate considers
appropriate for temporary Notes. Without unreasonable delay, AirGate shall
prepare and the Trustee shall upon receipt of a written order of AirGate signed
by two Officers authenticate Certificated Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
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SECTION 2.11 CANCELLATION.
AirGate at any time may deliver to the Trustee for cancellation any Notes
previously authenticated and delivered hereunder or which AirGate may have
acquired in any manner whatsoever, and all Notes so delivered shall be promptly
cancelled by the Trustee. All Notes surrendered for registration of transfer,
exchange or payment, if surrendered to any Person other than the Trustee, shall
be delivered to the Trustee. The Trustee and no one else shall cancel all Notes
surrendered for registration of transfer, exchange, payment, replacement or
cancellation. Subject to Section 2.7 hereof, AirGate may not issue new Notes to
replace Notes that it has redeemed or paid or that have been delivered to the
Trustee for cancellation. All cancelled Notes held by the Trustee shall be
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 2.12 DEFAULTED INTEREST.
If AirGate defaults in a payment of interest on the Notes, it shall pay
the defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, which date shall be at the earliest practicable
date but in all events at least five (5) Business Days prior to the payment
date, in each case at the rate provided in the Notes and in Section 4.1 hereof.
AirGate shall fix or cause to be fixed each such special record date and payment
date, and shall promptly thereafter, notify the Trustee of any such date. At
least fifteen (15) days before the special record date, AirGate (or the Trustee,
in the name and at the expense of AirGate) shall mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.
SECTION 2.13 RECORD DATE.
The record date for purposes of determining the identity of Holders
entitled to vote or consent to any action by vote or consent authorized or
permitted under this Indenture shall be determined as provided for in TIA (S)
316 (c).
SECTION 2.14 COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
SECTION 2.15 CUSIP NUMBER.
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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 3.1 NOTICES TO TRUSTEE.
If AirGate elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.7 hereof, it shall furnish to the Trustee, at least
forty-five (45) days before a redemption date, an Officers' Certificate setting
forth (i) the Section of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.
If AirGate is required to make an offer to purchase Notes pursuant to
Section 4.10 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.
AirGate will also provide the Trustee with any additional information
that the Trustee reasonably requests in connection with any redemption or offer.
SECTION 3.2 SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time, the Trustee
shall select the Notes to be redeemed among the Holders in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot
or by such method as the Trustee shall deem fair and appropriate (and in a
manner that complies with applicable legal requirements); provided that no Notes
of $1,000 or less shall be redeemed in part. Notices of redemption shall be
mailed by first class mail at least 30 but not more than 60 days before the
redemption date to each Holder of Notes to be
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redeemed at its registered address. Notices of redemption may not be
conditional. If any Note is to be redeemed in part only, the notice of
redemption that relates to such Note shall state the portion of the principal
amount thereof to be redeemed. A new Note in principal amount equal to the
unredeemed portion of the original Note will be issued in the name of the Holder
thereof upon cancellation of the original Note. Notes called for redemption
become due on the date fixed for redemption. On and after the redemption date,
interest ceases to accrue on Notes or portions of them called for redemption.
The Trustee shall make the selection from the Notes outstanding and not
previously called for redemption and shall promptly notify AirGate in writing of
the Notes selected for redemption. The Trustee may select for redemption
portions (equal to $1,000 or any integral multiple thereof) of the principal of
the Notes that have denominations larger than $1,000.
SECTION 3.3 NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.9, at least 30 days but not more
than 60 days before a redemption date, AirGate shall mail or cause to be mailed
by first class mail, a notice of redemption to each Holder whose Notes are to be
redeemed.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Notes to be redeemed and that, after the
redemption date, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(4) the name, telephone number and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless AirGate defaults in making such redemption payment,
interest, if any, on Notes called for redemption ceases to accrue on and
after the redemption date;
(7) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
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(8) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Notes.
At AirGate's request, the Trustee shall give the notice of redemption in
AirGate's name and at AirGate's expense; provided, however, that AirGate shall
have delivered to the Trustee, at least 45 days prior to the redemption date, an
Officers' Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in the notice as provided in the preceding
paragraph. The notice mailed in the manner herein provided shall be conclusively
presumed to have been duly given whether or not the Holder receives such notice.
In any case, failure to give such notice by mail or any defect in the notice to
the Holder of any Note shall not affect the validity of the proceeding for the
redemption of any other Note.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.3
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price plus accrued and unpaid interest, if
any, to such date. A notice of redemption may not be conditional.
SECTION 3.5 DEPOSIT OF REDEMPTION OF PURCHASE PRICE.
On or before 10:00 a.m. (New York City time) on each redemption date or
the date on which Notes must be accepted for purchase pursuant to Section 4.10
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.
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
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close of business on such record date. If any Note called for redemption shall
not be so paid upon surrender for redemption because of the failure of AirGate
to comply with the preceding paragraph, interest shall be paid on the unpaid
principal from the redemption or purchase date until such principal is paid, and
to the extent lawful on any interest not paid on such unpaid principal, in each
case, at the rate provided in the Notes and in Section 4.1 hereof.
SECTION 3.6 NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, AirGate shall issue
and, upon 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 3.7 OPTIONAL REDEMPTION.
(a) Except as set forth in the next paragraph, the Notes will not
be redeemable at AirGate's option prior to __________, 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 __________ of the
years indicated below :
Year Percentage
2004 ........................................... %
2005 ........................................... %
2006 ........................................... %
2007 and thereafter ............................ 100.00%
(b) Notwithstanding the foregoing, until __________, 2002 AirGate
may on any one or more occasions redeem up to 35% of the Accreted Value of the
Notes originally issued under this Indenture at a redemption price of ___% at
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.
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SECTION 3.8 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 3.9 REPURCHASE OFFERS.
In the event that AirGate shall be required to commence an offer to all
Holders to repurchase Notes (a "Repurchase Offer") pursuant to 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 30 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 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:
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(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
(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).
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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 4.1 PAYMENT OF NOTES.
(a) AirGate shall pay or cause to be paid the principal of, premium,
if any, and interest on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and interest, shall be considered paid for
all purposes hereunder on the date the Paying Agent, if other than AirGate or a
Subsidiary thereof, holds, as of 10:00 a.m. (New York City time), money
deposited by AirGate in immediately available funds and designated for and
sufficient to pay all such principal, premium, if any, and interest then due.
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(b) AirGate shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal
to 1% per annum in excess of the then applicable interest rate on the Notes to
the extent lawful; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY.
AirGate shall maintain in the Borough of Manhattan, the City of New York
an office or agency (which may be an office of the Trustee or an affiliate of
the Trustee or Registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon AirGate in
respect of the Notes and this Indenture may be served. AirGate shall give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time AirGate shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
AirGate may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve AirGate of
its obligation to maintain an office or agency in the Borough of Manhattan, the
City of New York for such purposes. AirGate shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
AirGate hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of AirGate in accordance with Section 2.3 hereof.
SECTION 4.3 COMMISSION REPORTS.
Whether or not required by the rules and regulations of the Commission,
so long as any Notes are outstanding, AirGate shall furnish to the 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 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
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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 4.4 COMPLIANCE CERTIFICATE.
AirGate shall deliver to the Trustee, within 90 days after the end of
each fiscal year, an Officers' Certificate stating that a review of the
activities of AirGate and its Subsidiaries during the preceding fiscal year has
been made under the supervision of the signing Officers with a view to
determining whether each has kept, observed, performed and fulfilled its
obligations under this Indenture (including, with respect to any Restricted
Payments made during such year, the basis upon which the calculations required
by Section 4.7 hereof were computed, which calculations may be based on
AirGate's latest available financial statements), and further stating, as to
each such Officer signing such certificate, that, to the best of his or her
knowledge, each entity has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action AirGate is taking or proposes to take with respect thereto) and
that, to the best of his or her knowledge, no event has occurred and remains in
existence by reason of which payments on account of the principal of, premium,
if any, or interest on the Notes is prohibited or if such event has occurred, a
description of the event and what action AirGate is taking or proposes to take
with respect thereto.
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 has come to their attention that would lead them to believe
that AirGate has violated any
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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 4.5 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 4.6 STAY, EXTENSION AND USURY LAWS.
AirGate covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and AirGate and each of the Guarantors (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
SECTION 4.7 LIMITATION ON RESTRICTED PAYMENTS.
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;
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(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,
(a) no Default or Event of Default shall have occurred and be
continuing;
(b) AirGate would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable period, have been permitted to incur at
least $1.00 of additional Indebtedness, other than Permitted Debt, pursuant to
clause (a) or (b) of the first paragraph of Section 4.9 hereof; and
(c) after giving effect to such Restricted Payment on a pro
forma basis, the aggregate amount of all Restricted Payments made on or after
the Closing Date shall not exceed:
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(i) 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
(ii) the aggregate Net Proceeds, including the fair
market value of property other than cash, as determined:
(A) in the case of any property other than cash with a
value less than $25 million, by the Board of Directors, whose good-
faith determination shall be conclusive and as evidenced by a Board
Resolution, or
(B) in the case of any property other than cash with a
value equal to or greater than $25 million, by an accounting,
appraisal or investment banking firm of national standing and
evidenced by a written opinion of such firm,
received by AirGate from the issuance and sale, other than to a
Restricted Subsidiary, on or after the 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
(iii) the aggregate Net Proceeds, including the fair
market value of property other than cash, as determined:
(A) in the case of any property other than cash with a
value less than $25 million, by the Board of Directors, whose good-
faith determination shall be conclusive and as evidenced by a Board
Resolution, or
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(B) in the case of any property other than cash with a value
equal to or greater than $25 million, by an accounting, appraisal or
investment banking firm of national standing and evidenced by a written
opinion of such firm,
received by AirGate from the issuance or sale, other than to a Restricted
Subsidiary, after the Closing Date of any Equity Interests of AirGate,
other than Disqualified Stock, or any options, warrants or other rights to
purchase such Equity Interests, other than Disqualified Stock, upon the
conversion of, or exchange for, Indebtedness of AirGate or a Restricted
Subsidiary, plus
(iv) the aggregate Net Proceeds received by AirGate or any
Restricted Subsidiary from the sale, disposition or repayment, other
than to AirGate or a Restricted Subsidiary, of any Investment made
after the 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;
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(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:
(a) the proceeds of a capital contribution or a substantially
concurrent offering of, shares of Equity Interests, other than Disqualified
Stock, of AirGate or options, warrants or other rights to acquire such Equity
Interests, or
(b) Indebtedness that 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;
(4) 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
(5) 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)
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the additional cash consideration, if any, received by AirGate upon such
exercise, minus (b) all expenses incurred in connection with such issuance or
sale.
For purposes of this Section 4.7, if a particular Restricted Payment
involves a noncash payment, including a distribution of assets, then such
Restricted Payment shall be deemed to be an amount equal to the cash portion of
such Restricted Payment, if any, plus an amount equal to the fair market value
of the noncash portion of such Restricted Payment, as determined by the Board of
Directors, whose good-faith determination shall be conclusive and evidenced by a
Board Resolution. Not later than the date of making any Restricted Payment,
AirGate shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.7 were computed, together with a copy of
any fairness opinion or appraisal required by this Indenture.
The amount of any Investment outstanding at any time shall be deemed to
be equal to the amount of such Investment on the date made, less the return of
capital, repayment of loans and return on capital, including interest and
dividends, in each case, received in cash, up to the amount of such Investment
on the date made.
SECTION 4.8 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:
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(1) 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 than those contained in
such Existing Indebtedness, as in effect on the date of this Indenture;
(2) this Indenture and the Notes;
(3) applicable law;
(4) any instrument governing Indebtedness or Capital Stock of a
Person acquired by AirGate or any of its Restricted Subsidiaries as in
effect at the time of such acquisition, except to the extent such
Indebtedness was incurred in connection with or in contemplation of such
acquisition, which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired, provided that, in
the case of Indebtedness, such Indebtedness was permitted by the terms of
this Indenture to be incurred;
(5) customary non-assignment provisions in leases entered into in
the ordinary course of business and consistent with past practices;
(6) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions on the property so acquired
of the nature described in clause (3) of the preceding paragraph of this
Section 4.8;
(7) any agreement for the sale or other disposition of a Restricted
Subsidiary that restricts distributions by such Restricted Subsidiary
pending its sale or other disposition;
(8) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive, taken as a whole, than
those contained in the agreements governing the Indebtedness being
refinanced;
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(9) 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;
(10) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements and other similar
agreements entered into in the ordinary course of business; and
(11) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of
business.
SECTION 4.9 LIMITATION ON INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
PREFERRED STOCK.
AirGate shall not, and shall not permit any Restricted Subsidiary to,
incur any Indebtedness, including Acquired Debt, other than Permitted Debt, and
AirGate shall not issue any Disqualified Stock unless immediately after giving
effect to the incurrence of such Indebtedness or the issuance of such
Disqualified Stock and the receipt and application of the net proceeds
therefrom, including, without limitation, the application or use of the net
proceeds therefrom to repay Indebtedness or make any Restricted Payment, (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
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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 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:
(a) if AirGate or any Guarantor is the obligor on such
Indebtedness, such Indebtedness, other than intercompany Obligations owed by
AirGate to AGW Leasing Company, Inc. relating to leases of real property, must
be expressly subordinated to the prior payment in full in cash of all
Obligations with respect to the Notes, in the case of AirGate, or the Guarantee
of such Guarantor, in the case of a Guarantor; and
(b) (1) any subsequent issuance or transfer of Equity Interests
that results in any such Indebtedness being held by a Person other than AirGate
or a Wholly Owned Restricted Subsidiary thereof 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);
(7) 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;
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(8) 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;
(9) 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);
(10) 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;
(11) 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;
(12) 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
(13) 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.
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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 4.10 ASSET SALES.
AirGate, will not, and will not permit any of its Restricted Subsidiaries
to, consummate an Asset Sale unless:
(1) AirGate, or the Restricted Subsidiary, as the case may be,
receives consideration at the time of such Asset Sale at least equal to
the fair market value of the assets or Equity Interests issued or sold or
otherwise disposed of;
(2) such fair market value is determined by AirGate's Board of
Directors and 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:
(a) any liabilities, as shown on AirGate's or such Restricted
Subsidiary's most recent balance sheet, of AirGate or any Restricted Subsidiary,
other than contingent liabilities and liabilities that are by their terms
subordinated to the Notes or any Guarantee, that are assumed by the transferee
of any such assets pursuant to a customary novation agreement that releases
AirGate or such Restricted Subsidiary from further liability; and
(b) any securities, Notes or other obligations received by
AirGate or any such Restricted Subsidiary from such transferee that are
contemporaneously, subject to ordinary settlement periods, converted by AirGate
or such Restricted Subsidiary into cash, to the extent of the cash received in
that conversion.
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;
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(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.
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 4.11 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
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purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate (each, an "Affiliate Transaction"),
unless:
(1) such Affiliate Transaction is on terms that are no less
favorable to AirGate or the relevant Restricted Subsidiary than those
that would have been obtained in a comparable transaction by AirGate or
such Restricted Subsidiary with an unrelated Person; and
(2) AirGate delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess of
$1.0 million, a resolution of the Board of Directors set forth in an Officers'
Certificate certifying that such Affiliate Transaction complies with this
covenant and that such Affiliate Transaction has been approved by a majority of
the disinterested members of the Board of Directors; and
(b) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess of
$25.0 million, an opinion as to the fairness to the Holders of such Affiliate
Transaction from a financial point of view issued by an accounting, appraisal or
investment banking firm of national standing.
The following items shall not be deemed to be Affiliate Transactions and,
therefore, will not be subject to the provisions of the prior paragraph:
(1) any employment agreement 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.
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SECTION 4.12 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 4.13 SALE AND LEASEBACK TRANSACTIONS.
AirGate will not, and will not permit any of its Restricted Subsidiaries
to, enter into any sale and leaseback transaction; provided that AirGate or any
Restricted Subsidiary of AirGate that is a Guarantor may enter into a sale and
leaseback transaction if:
(1) AirGate or that Guarantor, as applicable, could have (a)
incurred Indebtedness in an amount equal to the Attributable Debt
relating to such sale and leaseback transaction under the 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 4.14 OFFER TO PURCHASE UPON CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, each Holder will have the
right to require AirGate to repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of such Holder's Notes pursuant to the offer
described below (the "Change of Control Offer") at an offer price in cash equal
to 101% of the Accreted Value thereof on the date of purchase (if such date of
purchase is prior to __________ __, 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
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purchase is on or after __________ __, 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 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.
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SECTION 4.15 CORPORATE EXISTENCE.
Subject to Section 4.14 and Article V hereof, as the case may be, AirGate
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence and the corporate, partnership or other
existence of each of its Subsidiaries in accordance with the respective
organizational documents (as the same may be amended from time to time) of
AirGate or any such Subsidiary and the rights (charter and statutory), licenses
and franchises of AirGate and its Subsidiaries; provided that AirGate shall not
be required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Subsidiaries, if the Board of
Directors of AirGate shall determine that the preservation thereof is no longer
desirable in the conduct of the business of AirGate and its Subsidiaries, taken
as a whole, and that the loss thereof is not adverse in any material respect to
the Holders.
SECTION 4.16 LIMITATION ON ISSUANCES AND SALES OF EQUITY INTERESTS IN
WHOLLY OWNED RESTRICTED SUBSIDIARIES.
AirGate will not, and will not permit any of its Restricted Subsidiaries
to, transfer, convey, sell, lease or otherwise dispose of any Equity Interests
in any Wholly Owned Restricted Subsidiary of AirGate to any Person, other than
AirGate or a Wholly Owned Restricted Subsidiary of AirGate, unless:
(1) such transfer, conveyance, sale, lease or other disposition is
of all the Equity Interests in such Wholly Owned Restricted Subsidiary;
and
(2) 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 4.17 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 4.18 PAYMENT FOR CONSENTS.
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AirGate will not, and will not permit any of its Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration to or for the
benefit of any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Notes
unless such consideration is offered to be paid and is paid to all Holders that
consent, waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
SECTION 4.19 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 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 4.20 ADDITIONAL GUARANTEES.
If AirGate or any of its Restricted Subsidiaries acquires or creates
another Restricted Subsidiary after the date of this Indenture, then that newly
acquired or created Restricted Subsidiary must become a Guarantor and (i)
execute a supplemental indenture satisfactory to the Trustee making such
Restricted Subsidiary a party to this Indenture, (ii) execute an endorsement of
Guarantee substantially in the form of Exhibit B attached hereto 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.
SECTION 4.21 DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.
The Board of Directors may designate any Restricted Subsidiary as an
Unrestricted Subsidiary if that designation would not cause a Default. If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary, all
outstanding Investments owned by AirGate and its Restricted Subsidiaries in the
Subsidiary so designated will be deemed to be an Investment made as of the time
of such designation and will reduce the amount available for Restricted Payments
under 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.
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SECTION 4.22 FURTHER INSTRUMENTS AND ACTS.
Upon request by the Trustee, AirGate shall execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purposes of this Indenture.
ARTICLE V
SUCCESSORS
SECTION 5.1 MERGER, CONSOLIDATION OR SALE OF ASSETS.
AirGate shall not, in any transaction or series of related transactions,
merge or consolidate with or into, or sell, assign, convey, transfer or
otherwise dispose of its properties and assets substantially as an entirety to,
any Person, and shall not permit any of its Restricted Subsidiaries to enter
into any such transaction or series of transactions if such transaction or
series of transactions, in the aggregate, would result in a sale, assignment,
conveyance, transfer or other disposition of the properties and assets of
AirGate and its Restricted Subsidiaries, taken as a whole, substantially as an
entirety to any Person, unless, at the time and after giving effect thereto:
(1) either: (A) if the transaction or series of transactions is a
consolidation of AirGate with or a merger of AirGate with or into any
other Person, AirGate shall be the surviving Person of such merger or
consolidation, or (B) the Person formed by any consolidation with or
merger with or into AirGate, or to which the properties and assets of
AirGate or AirGate and its Restricted Subsidiaries, taken as a whole, as
the case may be, substantially as an entirety are sold, assigned,
conveyed or otherwise transferred (any such surviving Person or
transferee Person referred to in this clause (B) being the "Surviving
Entity"), shall be a corporation, partnership, limited liability company
or trust organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia and shall
expressly assume by a supplemental indenture executed and delivered to
the Trustee, in form satisfactory to the Trustee, all the obligations of
AirGate under the Notes 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
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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 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.
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SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of AirGate in accordance with Section 5.1 hereof, the successor corporation
formed by such consolidation or into or with which AirGate is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to AirGate), and shall exercise every right
and power of AirGate under this Indenture with the same effect as if such
successor Person had been named as AirGate herein.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT
Each of the following constitutes an "Event of Default":
(i) default for 30 days in the payment when due of interest
on the Notes, whether or not prohibited by Article XI hereof;
(ii) default in payment when due of principal of or
premium, if any, on the Notes, whether or not prohibited by Article
XI hereof;
(ii) failure by AirGate or any of its Restricted
Subsidiaries to comply with the provisions described under Sections
4.10 and 4.14 hereof;
(iv) 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;
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(v) default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by AirGate or any of
its Restricted Subsidiaries (or the payment of which is guaranteed
by AirGate or any of its Restricted Subsidiaries) whether such
Indebtedness or guarantee now exists, or is created after the date
hereof, which default:
(a) is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness on
the date of such default (a "Payment Default") or
(b) results in the acceleration of such Indebtedness
prior to its express maturity,
and in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $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) 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 or the
unenforceability of the Pledge Agreement against AirGate for any
reason;
(viii) except as permitted by this Indenture, any Guarantee
shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and
effect or any Guarantor, or any Person acting on behalf of any
Guarantor, shall deny or disaffirm its obligations under its
Guarantee;
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(ix) 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,
(d) makes a general assignment for the benefit of its
creditors, or
(e) generally is not paying its debts as they become
due;
(x) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against AirGate or any 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
(xi) any event occurs that causes, subject to any
applicable grace period, an Event of Termination under any of the
Sprint Agreements.
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The term "Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
SECTION 6.2 ACCELERATION.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately. Upon such declaration,
the principal of (or, if prior to _______, 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 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 _______, 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 _______, 2004,
then the amount payable in respect of such Notes for purposes of this paragraph
for each of the twelve-month periods beginning on _______ of the years indicated
below shall be set forth below, expressed as percentages of the Accreted Value,
if any, to the date of payment:
Year Percentage
1999 .................................... _______%
2000 .................................... _______%
2001 .................................... _______%
2002 .................................... _______%
2003 .................................... _______%
SECTION 6.3 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium, if any,
interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
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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 6.4 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 6.5 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 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.
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SECTION 6.6 LIMITATION ON SUITS.
A Holder may pursue a remedy with respect to this Indenture or the Notes
only if:
(a) the Holder gives to the Trustee written notice of a continuing
Event of Default or the Trustee receives such notice from AirGate;
(b) the Holders of at least 25% in 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;
(c) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability or
expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) 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 6.7 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal, premium, if any, and interest on or
after the respective due dates expressed in the Note (including in connection
with an offer to purchase), or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1(i) or (ii) hereof occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against AirGate for the whole amount of
principal of, premium and interest remaining unpaid on the Notes and interest on
overdue principal and, to the extent lawful, interest and such further amount as
shall be sufficient to cover the costs and expenses of
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collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to AirGate (or any other
obligor upon the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other securities or
property payable or deliverable upon the conversion or exchange of the Notes or
on any such claims and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.7 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article VI, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.7 hereof, including payment of all reasonable compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
Second: to holders of Senior Debt for amounts due;
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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 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.7 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE VII
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined
solely by the express provisions of this Indenture or the TIA
and the Trustee need perform only those duties that are
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specifically set forth in this Indenture or the TIA and no
others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section 7.1;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by an officer of the Trustee,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
6.5 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section 7.1.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
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(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with AirGate. Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
SECTION 7.2 RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely on any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. Prior to taking,
suffering or admitting any action, the Trustee may consult with counsel of the
Trustee's own choosing and 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.
(c) 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.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from AirGate or a Guarantor shall be
sufficient if signed by an Officer of AirGate or such Guarantor.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity satisfactory to the Trustee against the
costs, expenses and liabilities that might be incurred by it in compliance with
such request or direction.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with AirGate or any Affiliate of
AirGate with the same rights it would have if it were not Trustee. However, in
the event that the Trustee acquires any conflicting
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interest it must eliminate such conflict within 90 days, apply to the Commission
for permission to continue as Trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.
SECTION 7.4 TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for AirGate's use of the proceeds from the Notes or any money paid
to AirGate or upon AirGate's direction under any provision of this Indenture, it
shall not be responsible for the use or application of any money received by any
Paying Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.
SECTION 7.5 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
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 7.6 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each [May 15] beginning with the [May 15] following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders a brief report dated as of such reporting date
that complies with TIA (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.
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SECTION 7.7 COMPENSATION AND INDEMNITY.
AirGate shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. AirGate shall reimburse the Trustee promptly upon
request for all reasonable disbursements, advances and expenses incurred or made
by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
AirGate shall indemnify the Trustee (which for purposes of this Section
7.7 shall include its officers, directors, employees and agents) against any and
all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
AirGate (including this Section 7.7) and defending itself against any claim
(whether asserted by AirGate or any Holder or any other person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith. The Trustee shall notify AirGate
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify AirGate shall not relieve AirGate of its obligations hereunder.
AirGate shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee may have separate counsel and AirGate shall pay the reasonable fees
and expenses of such counsel. AirGate need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The obligations of AirGate under this Section 7.7 shall survive the
satisfaction and discharge of this Indenture or the resignation or removal of
the Trustee.
To secure AirGate's payment obligations in this Section 7.7, the Trustee
shall have a Lien prior to the Notes on all money or property held or collected
by the Trustee, except that held in trust to pay principal or interest, if any,
on particular Notes. Such Lien shall survive the satisfaction and discharge of
this Indenture and the resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1 (ix), (x) or (xi) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA (S) 313(b)(2) to the
extent applicable.
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SECTION 7.8 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.8.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying AirGate. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and AirGate in writing. AirGate may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, AirGate shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount 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
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the Holders. The retiring Trustee shall promptly transfer all property held by
it as Trustee to the successor Trustee, provided that all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in Section
7.7 hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.8, AirGate's obligations under Section 7.7 hereof shall continue for the
benefit of the retiring Trustee.
SECTION 7.9 SUCCESSOR TRUSTEE BY 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 7.10 ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, 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 7.11 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.
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ARTICLE VII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
AirGate may, at the option of its Boards of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.2 or 8.3 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article VIII.
SECTION 8.2 LEGAL DEFEASANCE AND DISCHARGE.
Upon AirGate's exercise under Section 8.1 hereof of the option applicable
to this Section 8.2, AirGate shall, subject to the satisfaction of the
conditions set forth in Section 8.4 hereof, be deemed to have been discharged
from its obligations with respect to all outstanding Notes on the date the
conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For
this purpose, Legal Defeasance means that AirGate shall be deemed to have paid
and discharged the entire Indebtedness represented by the outstanding Notes,
which shall thereafter be deemed to be "outstanding" only for the purposes of
Section 8.5 hereof and the other Sections of this Indenture referred to in (a)
and (b) below, and to have satisfied all of its other obligations under such
Notes and this Indenture (and the Trustee, on demand of and at the expense of
AirGate, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Notes to receive
payments in respect of the principal of, premium, if any, and interest, if any,
on such Notes when such payments are due from the trust referred to in Section
8.4(a); (b) AirGate's obligations with respect to such Notes under Sections 2.2,
2.3, 2.4, 2.5, 2.6, 2.7, 2.10 and 4.2 hereof; (c) the rights, powers, trusts,
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 8.3 COVENANT DEFEASANCE.
Upon AirGate's exercise under Section 8.1 hereof of the option applicable
to this Section 8.3, AirGate shall, subject to the satisfaction of the
conditions set forth in Section 8.4 hereof, be released from its obligations
under the covenants contained in Sections 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13,
4.14, 4.15, 4.16, 4.17, 4.18, 4.19, 4.20, 4.21 and 5.1 hereof with respect to
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the outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, AirGate or any of
its Subsidiaries may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.1 hereof, but,
except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby. In addition, upon AirGate's exercise under Section 8.1
hereof of the option applicable to this Section 8.3, subject to the satisfaction
of the conditions set forth in Section 8.4 hereof, Sections 6.1(iii) and (iv)
hereof shall not constitute Events of Default.
SECTION 8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.2 or 8.3 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) AirGate must irrevocably deposit with the Trustee, in trust, for
the benefit of the Holders, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as shall be sufficient, in
the written opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium and interest on the outstanding
Notes on the stated maturity or on the applicable redemption date, as the case
may be, and AirGate must specify whether the Notes are being defeased to
maturity or to a particular redemption date;
(b) in the case of an election under Section 8.2 hereof, AirGate
shall have delivered to the Trustee an Opinion of Counsel 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,
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in the same manner and at the same times as would have been the case if such
Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.3 hereof, AirGate
shall have delivered to the Trustee an Opinion of Counsel 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;
(d) 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 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;
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under this Indenture or any
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;
(f) 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;
(g) 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
(h) 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.
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SECTION 8.5 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.6 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.5, the
"Trustee") pursuant to Section 8.4 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including AirGate or any Subsidiary acting as Paying
Agent) as the Trustee may determine, to the Holders of such Notes of all sums
due and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
AirGate shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.4 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding, the
Trustee shall deliver or pay to AirGate from time to time upon the written
request of AirGate and be relieved of all liability with respect to any money or
non-callable Government Securities held by it as provided in Section 8.4 hereof
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.4(a) hereof), are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.6 REPAYMENT TO AIRGATE.
Any money deposited with the Trustee or any Paying Agent, or then held by
AirGate, in trust for the payment of the principal of, premium, if any, or
interest, if any, on any Note and remaining unclaimed for one year after such
principal, and premium, if any, or interest has become due and payable shall be
paid to AirGate on its written request or (if then held by AirGate) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as an
unsecured general creditor, look only to AirGate for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of AirGate as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of AirGate cause to be published
once, in the New York Times and The Wall Street Journal (national edition),
notice
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that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such money then remaining shall be repaid
to AirGate.
SECTION 8.7 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.2 or
8.3 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations of AirGate under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.2 or 8.3 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.2 or 8.3 hereof,
as the case may be; provided, however, that, if AirGate makes any payment of
principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, AirGate shall be subrogated to the rights of
the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.1 WITHOUT CONSENT OF HOLDERS OF THE NOTES.
Notwithstanding Section 9.2 of this Indenture, without the consent of any
Holder, AirGate and the Trustee may amend or supplement this Indenture or the
Notes:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(c) to provide for the assumption of AirGate's obligations to
the Holders in the case of a merger, or consolidation or sale of all or
substantially all of AirGate's assets;
(d) to make any change that would provide any additional
rights or benefits to the Holders or that does not adversely affect the legal
rights hereunder of any Holder; or
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(e) 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 9.2 WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.2, this Indenture or the Notes
may be amended or supplemented with the consent of the Holders of at least a
majority in aggregate Accreted Value of the Notes then outstanding if before
________, 2004 or in aggregate principal amount of the then outstanding Notes if
after __________, 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 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 , 2004
or in aggregate principal amount of the then outstanding Notes if after ,
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
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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 or the Notes. However, without the consent of each Holder adversely
affected, an amendment or waiver may not (with respect to any Note held by a
non-consenting Holder):
(a) reduce the aggregate Accreted Value of the then
outstanding Notes, if before , 2004, or the aggregate principal amount of
the then outstanding Notes, if after , 2004, whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of
any Note or alter the provisions with respect to the redemption of the Notes
(other than provisions relating to Sections 4.10 and 4.14 hereof);
(c) reduce the rate of or change the time for payment of
interest on any Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Notes (except a rescission
of acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the Notes and a waiver of the payment default that resulted
from such acceleration);
(e) make any Note payable in money other than that stated in
the Notes;
(f) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders to receive
payments of principal of or premium, if any, or interest on the Notes;
(g) waive a redemption or repurchase payment with respect to
any Note (other than a payment required by Section 4.10 or 4.14 hereof); or
(h) make any change in the amendment and waiver provisions of
this Article IX.
In addition, any amendment to, or waiver of, the provisions of 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
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Notes then outstanding if before , 2004 or in aggregate principal amount
of the then outstanding Notes if after , 2004.
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall be set
forth in an amended or supplemental indenture that complies with the TIA as then
in effect.
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder of a Note is a continuing consent by the Holder and every
subsequent Holder of that Note or portion of the Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on the Note. However, any such Holder or subsequent Holder may revoke the
consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. When an
amendment, supplement or waiver becomes effective in accordance with its terms,
it thereafter binds every Holder.
AirGate may, but shall not be obligated to, fix a record date for
determining which Holders consent to such amendment, supplement or waiver. If
AirGate fixes a record date, the record date shall be fixed at (i) the later of
30 days prior to the first solicitation of such consent or the date of the most
recent list of Holders furnished for the Trustee prior to such solicitation
pursuant to Section 2.5 hereof or (ii) such other date as AirGate shall
designate.
SECTION 9.5 NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. AirGate in exchange
for all Notes may issue and the Trustee shall authenticate new Notes that
reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture authorized
pursuant to this Article IX if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. AirGate and
the Guarantors may not sign an amendment or supplemental indenture until their
respective Boards of Directors approve it. In signing or
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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 10.1 GUARANTEES.
(a) Each Guarantor hereby jointly and severally, fully,
unconditionally and irrevocably guarantees the Notes and obligations of AirGate
hereunder and thereunder, and guarantees to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee on behalf of such Holder, that:
(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.
(b) Each Guarantor hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder 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.
(c) Each Guarantor hereby waives the benefits of diligence,
presentment, demand for payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company or any other Person, protest, notice and all demands
whatsoever and covenants that the Guarantee of
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such Guarantor shall not be discharged as to any Note except by complete
performance of the obligations contained in such Note and such Guarantee or as
provided for in this Indenture. Each of the Guarantors hereby agrees that, in
the event of a default in payment of principal or premium, if any or interest on
such Note, whether at its Stated Maturity, by acceleration, call for redemption,
purchase or otherwise, legal proceedings may be instituted by the Trustee on
behalf of, or by, the Holder of such Note, subject to the terms and conditions
set forth in this Indenture, directly against each of the Guarantors to enforce
such Guarantor's Guarantee without first proceeding against the Company or any
other Guarantor. Each Guarantor agrees that if, after the occurrence and during
the continuance of an Event of Default, the Trustee or any of the Holders are
prevented by applicable law from exercising their respective rights to
accelerate the maturity of the Notes, to collect interest on the Notes, or to
enforce or exercise any other right or remedy with respect to the Notes, such
Guarantor shall pay to the Trustee for the account of the Holders, upon demand
therefor, the amount that would otherwise have been due and payable had such
rights and remedies been permitted to be exercised by the Trustee or any of the
Holders.
(d) If any Holder or the Trustee is required by any court or
otherwise to return to AirGate or any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to either AirGate or any
Guarantor, any amount paid by any of them to the Trustee or such Holder, the
Guarantee of each of the Guarantors, to the extent theretofore discharged, shall
be reinstated in full force and effect. This paragraph (d) shall remain
effective notwithstanding any contrary action which may be taken by the Trustee
or any Holder in reliance upon such amount required to be returned. This
paragraph (d) shall survive the termination of this Indenture except as
otherwise provided in the Intercreditor Agreement.
(e) Each Guarantor further agrees that, as between each
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article VI hereof for the purposes of the Guarantee of such
Guarantor, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (y) in
the event of any acceleration of such obligations as provided in Article VI
hereof, such obligations (whether or not due and payable) shall forthwith become
due and payable by each Guarantor for the purpose of the Guarantee of such
Guarantor.
SECTION 10.2 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
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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 10.3 SEVERABILITY.
In case any provision of any Guarantee shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.4 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 10.5 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
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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 10.6 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
(2) either:
(A) the Person acquiring the property in any such sale
or disposition or the Person formed by or surviving any such
consolidation or merger assumes all the obligations of that Guarantor
under this Indenture pursuant to a supplemental indenture and
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
(B) the Net Proceeds of any such sale or other
disposition of a Guarantor are applied in accordance with the
provisions of Section 4.10 hereof.
In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the
Guarantee and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Guarantor, such successor
Person shall succeed to and be substituted for the Guarantor with the same
effect as if it had been named herein as a Guarantor. All the Guarantees so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Guarantees theretofore and thereafter issued in accordance with
the terms of this Indenture as though all such Guarantees had been issued at the
date of the execution hereof.
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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 10.7 RELEASES FOLLOWING SALE OF ASSETS.
Any Guarantor shall be released and relieved of any obligations under
this Guarantee, (1) in connection with any sale or other disposition by AirGate
or any Subsidiary of AirGate of all or substantially all of the assets of that
Guarantor (including by way of merger or consolidation) to a Person that is not
(either before or after giving effect to such transaction) a Subsidiary, if
AirGate or the Guarantor applies the Net Proceeds of that sale or other
disposition in accordance with the provisions of Section 4.10 hereof; or (2) in
connection with any sale of all of the Capital Stock of a Guarantor by AirGate
or any Subsidiary of AirGate to a Person that is not (either before or after
giving effect to such transaction) a Subsidiary, if AirGate applies the Net
Proceeds of that sale in accordance with the provisions of Section 4.10 thereof.
Upon delivery to the Trustee of an Officers' Certificate and an Opinion of
Counsel to the effect that such sale or other disposition was made by AirGate in
accordance with the provisions of this Indenture, including without limitation
Section 4.10 hereof, the Trustee shall execute any documents reasonably required
in order to evidence the release of any Guarantor from its obligations under its
Guarantee.
Any Guarantor not released from its obligations under this Guarantee
shall remain liable for the full amount of principal of and interest on the
Notes and for the other obligations of any Guarantor under this Indenture as
provided in this Article X.
SECTION 10.8 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
deliver an appropriate instrument evidencing such release upon receipt of the
Company's request for such release accompanied by an Officers' Certificate
certifying as to the compliance with this Section 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
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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 10.9 BENEFITS ACKNOWLEDGED.
Each Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
its guarantee and waivers pursuant to its Guarantee are knowingly made in
contemplation of such benefits.
SECTION 10.10 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 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 11.1 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 in cash or Cash
Equivalents (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.
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SECTION 11.2 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:
(i) the holders of Senior Debt shall be entitled to
receive payment in full of all Obligations due in cash or Cash
Equivalents 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);
(ii) until all Obligations with respect to Senior Debt
(as provided in clause (i) above) are paid in full in cash or
Cash Equivalents, 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;
(iii) in the event that, notwithstanding the foregoing
provisions of this Section, the Trustee or any Holder shall
have received any payment in respect of the Notes (other than
a payment in Permitted Junior Securities and from the trust
described in Section 8.4 hereof) when (A) the payment is
prohibited by this Article, and (B) the Trustee or the Holder
has actual knowledge or otherwise receives notice that such
payment is prohibited, the Trustee or the Holder, as the case
may be, shall hold the payment in trust for the benefit of the
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holders of Senior Debt, and upon the written request of the
holders of Senior Debt, the Trustee or the Holder, as the case
may be, shall deliver the amounts in trust to the holders of
Senior Debt or their proper representative under the indenture
or other agreement (if any) pursuant to which such Senior Debt
may have been issued, as its 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.
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 such Guarantor for the purposes of
this Section if the Person formed by such consolidation or into which 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 11.3 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:
(a) 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
(b) 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
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Blockage Notice") from a majority of the holders, or from the trustee, agent or
other 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:
(i) 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
(ii) 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 11.4 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 11.5 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.
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SECTION 11.6 WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives any payments of any
Obligations with respect to the Notes at a time when an officer of the Trustee
has actual knowledge that such payment is prohibited by Section 11.3 hereof,
such payment shall be held by the Trustee or such Holder in trust for the
benefit of, and shall be paid forthwith over and delivered upon written request
to, the Representative of the holders of Senior Debt of AirGate or any Guarantor
under the indenture or other agreement (if any) pursuant to which Senior Debt
may have been issued, as its 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 the Trustee or any Holder that because of
this Article XI should not have been made to it, the Trustee or such Holder who
receives the distribution shall hold it in trust for the benefit of, and upon
written request pay it over to, the Representative of the holders of Senior Debt
under the indenture or other agreement (if any) pursuant to which Senior Debt
may have been issued, as its 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 11.7 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.
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SECTION 11.8 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 payments over 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 11.9 RELATIVE RIGHTS.
This Article XI defines the relative rights of Holders and holders of
Senior Debt. Nothing in this Indenture shall:
(a) 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;
(b) 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
(c) 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.
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SECTION 11.10 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 11.11 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.
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 11.12 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
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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 other 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 11.13 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.
SECTION 11.14 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 12.1 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 12.2 NOTICES.
Any notice or communication by AirGate, the Guarantors or the Trustee to
the others is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested), telecopier
or overnight air courier guaranteeing next day delivery, to the others address:
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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
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 (S) 313(c), to the extent
required by the TIA. Failure to mail a notice or
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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 12.3 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA (S) 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).
SECTION 12.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by AirGate to the Trustee to take any
action under this Indenture (other than the initial issuance of the Notes),
AirGate shall furnish to the Trustee upon request:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.5 hereof) stating that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this Indenture relating to the
proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.5 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
SECTION 12.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA (S) 314(a)(4)) shall comply with the provisions of TIA (S)
314(e) and shall include:
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(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
SECTION 12.6 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 12.7 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of AirGate,
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 12.8 GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES, IF ANY.
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SECTION 12.9 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of AirGate or its Subsidiaries or of any other Person. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 12.10 SUCCESSORS.
All agreements of AirGate and the Guarantors in this Indenture and the
Notes and the Guarantees, as applicable, shall bind their respective successors
and assigns. All agreements of the Trustee in this Indenture shall bind its
successors and assigns.
SECTION 12.11 SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 12.12 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 12.13 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
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SIGNATURES
----------
Dated as of September __, 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:
<PAGE>
EXHIBIT A
FORM OF NOTE
(Face of Senior Subordinated Discount Note)
_____% 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 ___% SENOR SUBORDINATED
DISCOUNT NOTES DUE 2009 OF AIRGATE PCS, INC. (THE "SENIOR SUBORDINATED DISCOUNT
NOTES") AND ___ WARRANTS (THE "WARRANTS") INITIALLY ENTITLING THE HOLDER THEREOF
TO PURCHASE ___ SHARES, PAR VALUE $0.01 PER SHARE, OF AIRGATE PCS, INC.]/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
/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.
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SOLE DISCRETION SHALL DETERMINE, THE SENIOR SUBORDINATED DISCOUNT 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: _______ and _______, beginning ___, 2005
Record Dates: ______ and _____
AIRGATE PCS, INC.
By: _______________________________
Name:
Title:
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This is one of the
Senior Subordinated Discount Notes referred to in the
within-mentioned Indenture:
Dated: ____________
BANKERS TRUST COMPANY,
as Trustee
By: _______________________________
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(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 [INSERT DATE WHEN
INTEREST ACCRUAL COMMENCES]; provided that if there is no existing
Default or Event of Default in the payment of interest, and if this
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 [INSERT DATE WHEN INTEREST ACCRUAL
COMMENCES]), interest shall accrue from such next succeeding Interest
Payment Date, except in the case of the original issuance of 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 ______ or ______ 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
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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 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 ______, 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 $[ ] 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 _____, 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 _______
of the years indicated below:
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Year Percentage
2004 ............................... %
2005 ............................... %
2006 ............................... %
2007 and thereafter ................ 100.00%
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 _______% of the Accreted Value thereof, with the net cash proceeds
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 ______, 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 _____, 2004). Within ten 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
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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 ______, 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 ______, 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 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
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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 __________,
2004 or in aggregate principal amount of the then outstanding Senior
Subordinated Discount Notes if after ___________, 2004 (including,
without limitation, consents obtained in 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 _________,
2004 or in aggregate principal amount of the then outstanding Senior
Subordinated Discount Notes if after ________, 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
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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 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.
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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.
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
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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).
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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 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
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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-13
<PAGE>
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-14
<PAGE>
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:
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
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
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
</TABLE>
______________________
(1) This should be included only if the Senior Subordinated Discount Note is
issued in global form.
A-15
<PAGE>
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 ___, 1999, by and among AirGate, AGW Leasing Company, Inc.
and the Trustee (as amended and supplemented from time to time, the "Indenture")
and any additional Guarantors), has guaranteed the Notes and the obligations of
AirGate under the Indenture, which include (i) the due and punctual payment of
the principal of, premium, if any, and interest on the ____% Senior Subordinated
Discount Notes due 2009 (the "Notes") of AirGate PCS, Inc., a Delaware
corporation ("AirGate"), whether at stated maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal and
premium, if any, and (to the extent permitted by law) interest on any interest,
if any, on the Notes, and the due and punctual performance of all other
obligations of AirGate to the Holders or the Trustee all in accordance with the
terms set forth in Article 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 each 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 each Guarantor shall have any liability under this
Guarantee by reason of his or its status as such stockholder, employee, officer,
director or incorporator.
This is a continuing Guarantee and shall remain in full force and effect
and shall be binding upon each Guarantor and its successors and assigns until
full and final payment of all of AirGate's obligations under the Notes and
Indenture or until released in accordance with the Indenture and shall inure to
the benefit of the successors and assigns of the Trustee and the Holders, and,
in the event of any transfer or assignment of rights by any Holder or the
Trustee, the rights and privileges herein conferred upon that party shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof. This is a Guarantee of payment and
not of collectibility.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Note upon which this Guarantee is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
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<PAGE>
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 September ___, 1999 AGW LEASING COMPANY, INC.
By:___________________
Name:
Title:
(SEAL)
<PAGE>
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 ___, 1999, by and among AirGate, AGW Leasing Company, Inc.
and the Trustee (as amended and supplemented from time to time, the "Indenture")
and any additional Guarantors), has guaranteed the Notes and the obligations of
AirGate under the Indenture, which include (i) the due and punctual payment of
the principal of, premium, if any, and interest on the ____% Senior Subordinated
Discount Notes due 2009 (the "Notes") of AirGate PCS, Inc., a Delaware
corporation ("AirGate"), whether at stated maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal and
premium, if any, and (to the extent permitted by law) interest on any interest,
if any, on the Notes, and the due and punctual performance of all other
obligations of AirGate to the Holders or the Trustee all in accordance with the
terms set forth in Article 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 each 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 each Guarantor shall have any liability under this
Guarantee by reason of his or its status as such stockholder, employee, officer,
director or incorporator.
This is a continuing Guarantee and shall remain in full force and effect
and shall be binding upon each Guarantor and its successors and assigns until
full and final payment of all of AirGate's obligations under the Notes and
Indenture or until released in accordance with the Indenture and shall inure to
the benefit of the successors and assigns of the Trustee and the Holders, and,
in the event of any transfer or assignment of rights by any Holder or the
Trustee, the rights and privileges herein conferred upon that party shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof. This is a Guarantee of payment and
not of collectibility.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Note upon which this Guarantee is noted
shall have been
B-1
<PAGE>
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
<PAGE>
EXHIBIT C
FORM OF PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of September ___, 1999, made by AIRGATE PCS,
INC., a Delaware corporation (the "Grantor"), in favor of 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"), between Grantor 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
its 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 XII
DEFINED TERMS
SECTION 13. Definitions. (a) Unless otherwise defined herein, terms
-----------
defined in the Indenture and used herein shall have the meanings given to them
in the Indenture.
(b) 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.
"Collateral": as defined in Section 2.
----------
"Collateral Account": any collateral account established by the
------------------
Trustee as provided in Section 5.1 or 5.4.
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<PAGE>
"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
(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
C-2
<PAGE>
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
(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 Uniform Commercial Code in effect in the State of New
York on the date hereof 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.
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<PAGE>
"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.
--------------
"UCC": the Uniform Commercial Code in effect in the State of New
---
York from time to time.
SECTION 13. 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.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) 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 XIV
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
C-4
<PAGE>
when due (whether at the stated maturity, by acceleration or otherwise) of the
Secured Obligations:
(a) all Pledged Securities; and
(b) 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.;
ARTICLE XV
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 and pledge of Pledged Securities hereunder that:
SECTION 15.1 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 15.2 Enforceability. This Agreement constitutes a legal, valid
--------------
and binding obligation of the Grantor, enforceable in accordance with its terms,
and upon the filing of a UCC-1 financing statement in appropriate form in the
office of the Secretary of State of Georgia, the security interests created
pursuant to this Agreement will constitute a valid and perfected security
interest in the Collateral in favor of the Trustee for the benefit of the
Holders securing the Obligations under the Credit Facilities, enforceable in
accordance with its terms against all creditors of the Grantor and any Persons
purporting to purchase any Collateral from the Grantor, 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 15.3 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
C-5
<PAGE>
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 15.4 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
creditor of the Grantor), is required in connection with the execution,
delivery, performance, validity or enforceability of this Agreement.
SECTION 15.5 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 are permitted by the
Indenture to secure Obligations under the Credit Facilities.
SECTION 15.6 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 15.7 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 15.8 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.
(b) 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.
(c) 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.
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<PAGE>
(d) 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.
(e) 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 15.9 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 XVI
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 16.1 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.
(b) Grantor shall notify the Trustee promptly upon
acquiring any rights in any Capital Stock of any Issuer and Grantor shall
forthwith (and without the necessity for any request or demand by the Trustee or
any Holder) pledge and deliver the certificates representing such Capital Stock,
as applicable, to the Trustee, in the same manner as described in Section 4.1
hereof and 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 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
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<PAGE>
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.
(c) 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.
(d) Concurrently with the delivery to the Trustee of each
certificate representing one or more shares of Pledged Stock to the Trustee,
Grantor shall deliver an undated stock power covering such certificate, duly
executed in blank by Grantor.
SECTION 16.2 Changes in Locations, Name, etc. Grantor will not, except
--------------------------------
upon 30 days' prior written notice to the Trustee and upon delivery to the
Trustee of all additional executed financing statements and other documents
reasonably requested by the Trustee to maintain the validity, perfection and
priority of the security interests provided for herein:
(i) change the location of its chief executive
office or sole place of business from that referred to in Section
3.7; or
(ii) 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 16.3 Notices. Grantor will advise the Trustee promptly, in
-------
reasonable detail, of:
(a) 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
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<PAGE>
(b) 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 16.4 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 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 Trustee 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 liquidation or dissolution of any Issuer 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 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 (other than distributions permitted to be
made or received pursuant to the Indenture) 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.
(b) Except as otherwise permitted by the Indenture, without the
prior written consent of the Trustee (which consent will not be unreasonably
withheld), 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
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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).
(c) 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) and 5.5 shall apply to it,
mutatis mutandis, with respect to all actions that may be required of it
- ------- --------
pursuant to Section 5.1(c) or 5.5 with respect to the Pledged Securities issued
by it.
(d) With respect to the Pledged LLC Interests and the Pledged
Partnership Interests, (i) perform and comply in all material respects with all
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 16.5 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 that 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 16.6 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.
ARTICLE XVI
REMEDIAL PROVISIONS
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<PAGE>
SECTION 17.1 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 In terests, to the extent permitted in the
Indenture, 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, in the Trustee's reasonable
judgment, would materially impair the Collateral or which would be inconsistent
with or result in any violation of any provision of the Indenture or this
Agreement.
(b) If an Event of Default shall occur and be continuing,
(i) the Trustee shall have the right to receive any and all cash 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 Trustee, 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.
(c) 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.
SECTION 17.2 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
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<PAGE>
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 17.3 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 17.4 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 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 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. 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
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<PAGE>
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 17.5 Registration Rights. (a) If the Trustee shall determine to
-------------------
exercise its right to sell any or all of the Pledged Securities pursuant to
Section 5.6, and if in the reasonable opinion of the Trustee it is necessary or
advisable to have the Pledged Securities or that portion thereof to be sold,
registered under the provisions of the Securities Act, the Grantor will cause
the Issuer thereof to (i) execute and deliver, and cause the directors and
officers of such Issuer to execute and deliver, all such instruments and
documents, and do or cause to be done all such other acts as may be, in the
reasonable opinion of the Trustee, necessary or advisable to register the
Pledged Securities or that portion thereof to be sold, under the provisions of
the Securities Act, (ii) use its reasonable efforts to cause the registration
statement relating thereto to become effective and to remain effective for a
period of one year from the date of the first public offering of the Pledged
Securities, or that portion thereof to be sold, and (iii) make all amendments
thereto and/or to the related prospectus which, in the reasonable opinion of the
Trustee, are necessary or advisable, all in conformity with the requirements of
the Securities Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto. Grantor agrees to cause such Issuer to comply
with the provisions of the securities or "Blue Sky" laws of any and all
jurisdictions of the United States which the Trustee shall designate and to make
available to its security holders, as soon as practicable, an earnings statement
(which need not be audited) which will satisfy the provisions of Section II (a)
of the Securities Act.
(b) Grantor recognizes that the Trustee may be unable to
effect a public sale of any or all the Pledged Securities, by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise, and may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. Grantor
acknowledges and agrees that any such private sale may result in prices and
other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Trustee shall
be under no obligation to delay a sale of any of the Pledged Securities for the
period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws of the United States, even if such Issuer would agree to do so.
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<PAGE>
(c) Grantor agrees to use its reasonable efforts to do or
cause to be done all such other acts as may be necessary to make such sale or
sales of all or any portion of the Pledged Securities pursuant to this Section
5.7 valid and binding and in compliance with any and all other applicable laws,
rules and regulations. Grantor further agrees that a breach of any of the
covenants contained in this Section 5.7 will cause irreparable injury to the
Trustee and the Holders, that the Trustee and the Holders have no adequate
remedy at law in respect of such breach and, as a consequence, that each and
every covenant contained in this Section 5.7 shall be specifically enforceable
against Grantor, and Grantor hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants except for a
defense that no Event of Default has occurred under the Indenture.
SECTION 17.6 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.
ARTICLE XVI
THE TRUSTEE
SECTION 18.1 Trustee's Appointment as Attorney-in-Fact, etc. (a) Grantor
----------------------------------------------
hereby irrevocably constitutes and appoints the Trustee and any officer or
Trustee 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):
(i) pay or discharge taxes and Liens levied or
placed on or threatened against the Collateral; and
(ii) execute, in connection with any sale provided
for in Section 5.6 or 5.7, any indorsements, assignments or
other instruments of conveyance or transfer with respect to
the Collateral.
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<PAGE>
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.
(b) 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.
(c) The reasonable out-of-pocket expenses of the Trustee
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 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.
(d) 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 18.2 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 Trustees
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 Trustees shall
be responsible to Grantor for any act or failure to act hereunder, except for
their own gross negligence or willful misconduct.
SECTION 18.3 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
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<PAGE>
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.
SECTION 18.4 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 Trustee 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 XIX
MISCELLANEOUS
SECTION 19.1 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 ____ of the Indenture.
SECTION 19.2 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 19.3 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.
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<PAGE>
SECTION 19.4 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, 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.
(b) 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.
(c) 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.
(d) The agreements in this Section 7.4 shall survive
repayment of the Secured Obligations and all other amounts payable under the
Indenture.
SECTION 19.5 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 19.6 Intercreditor Agreement. Notwithstanding any provision of
-----------------------
this Agreement to the contrary, all rights of the Trustee and the Holders
hereunder with respect to the right to possess any of the Collateral and with
respect to the exercise of remedies against any of the Collateral are subject to
the terms of the Intercreditor Agreement.
SECTION 19.7 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 19.8 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
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<PAGE>
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 19.9 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 19.10 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.
SECTION 19.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 19.12 Submission To Jurisdiction; Waivers. Grantor hereby
-----------------------------------
irrevocably and unconditionally:
(a) 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;
(b) 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;
(c) 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;
(d) 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
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<PAGE>
(e) 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 19.13 Acknowledgments. Grantor hereby acknowledges that:
---------------
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement;
(b) 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
(c) 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 19.15 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 19.16 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.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by Grantor in a transaction permitted by 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.
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<PAGE>
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.
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<PAGE>
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:
Acknowledged and Accepted:
BANKERS TRUST COMPANY, as Trustee
By:_______________________
Title:
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<PAGE>
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-A-1
<PAGE>
EXHIBIT D
FORM OF INTERCREDITOR AGREEMENT*
*[See Exhibit 10.12 to the Registration Statement.]
D-1
<PAGE>
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 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
- -------------------
/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.
E-1
<PAGE>
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/
AIRGATE PCS, INC.
By:_____________________________________
Name:
Title:
- -----------------------
/3/ This paragraph should be included only if the Unit certificate is issued
prior to the Separation Date.
E-2
<PAGE>
AGW LEASING COMPANY, INC.
By:________________________________
Name:
Title:
Date: September ____, 1999
E-3
<PAGE>
EXHIBIT 5.1
August 2, 1999
AirGate PCS, Inc.
Harris Tower
233 Peachtree Street, N.W.
Suite 1700
Atlanta, Georgia 30303
Re: AirGate PCS, Inc.
Registration Statement on Form S-1
Ladies and Gentlemen:
We have acted as special counsel to AirGate PCS, Inc., a Delaware
corporation, originally incorporated under the name AirGate Wireless, Inc. (the
"Company") in connection with a Registration Statement on Form S-1 (the
"Registration Statement") pertaining to the registration of $116.5 million of
the Company's common stock, par value $0.01 per share (the "Common Stock"), and
$150 million of the Company's units consisting of Senior Subordinated Discount
Notes (the "Notes") due 2009 and warrants being offered by the Company or such
additional amounts of Common Stock and Notes as may be registered in connection
with this offering and pursuant to an abbreviated registration statement filed
pursuant to Rule 462(b) under the Securities Act of 1933 (the "Securities Act").
We have examined such documents and records as we deemed appropriate,
including the following:
(i) The Company's Amended and Restated Certificate of Incorporation.
(ii) The Company's Amended and Restated Bylaws.
(iii) Resolutions duly adopted by the Board of Directors of the Company
authorizing the filing of the Registration Statement.
In the course of our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed by parties other than the Company, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity, binding effect and enforceability
thereof on such parties.
<PAGE>
AirGate PCS, Inc.
August 2, 1999
Page 2
Based upon the foregoing, we are of the opinion that:
The shares of Common Stock have been duly authorized, and when issued
subject to effectiveness of the Registration Statements, will be validly issued
by the Company, fully paid and nonassessable.
We express no opinion as to the laws of any jurisdiction other than the
State of Delaware and the federal laws of the United States of America. We
hereby consent to the filing of this opinion as an exhibit to the Registration
Statement, to the incorporation by reference of this opinion in any abbreviated
registration statement, in connection with the offering covered by the
Registration Statement, filed pursuant to Rule 462(b) under the Securities Act
and to the reference to our firm under the caption "Legal Matters" contained in
the Prospectus included therein.
Very truly yours,
PATTON BOGGS LLP
By: /s/ Mary M. Sjoquist
-------------------------------------
Mary M. Sjoquist
<PAGE>
EXHIBIT 5.2
September [_____], 1999
AirGate PCS, Inc.
233 Peachtree Street, N.E.
Harris Tower
Suite 1700
Atlanta, Georgia 30303
Re: AirGate PCS, Inc.
Registration Statement on Form S-1
Ladies and Gentlemen:
We have acted as special counsel to AirGate PCS, Inc., a Delaware
corporation (the "Company") in connection with a Registration Statement on Form
S-1 (the "Registration Statement") pertaining to the registration of $116.5
million of the Company's common stock, par value $0.01 per share (the "Common
Stock"), and $150 million of the Company's Units (the "Units"), consisting of
Senior Subordinated Discount Notes (the "Notes") due 2009 and Warrants (the
"Warrants") to purchase shares of Common Stock, being offered by the Company or
such additional amounts of Common Stock, Notes, Warrants and Units as may be
registered in connection with this offering and pursuant to an abbreviated
registration statement filed pursuant to Rule 462(b) under the Securities Act of
1933 (the "Securities Act").
We have examined such documents and records as we deemed appropriate,
including the following:
(i) The Company's Amended and Restated Certificate of Incorporation.
(ii) The Company's Amended and Restated Bylaws.
(iii) Resolutions duly adopted by the Board of Directors of the Company
authorizing the filing of the Registration Statement.
In the course of our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed by parties other than the Company, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or
<PAGE>
AirGate PCS, Inc.
September [______], 1999
Page 2
other, and execution and delivery by such parties of such documents and the
validity, binding effect and enforceability thereof on such parties.
Based upon the foregoing, we are of the opinion that:
1. The Notes have been duly authorized, and assuming the Indenture is duly
executed and delivered by the Company and the Trustee, and the Notes are duly
executed, authenticated and issued in accordance with the Indenture, and
delivered as part of the Units in accordance with the underwriting agreement
referred to the units prospectus that is a part of the Registration Statement,
will be binding obligations of the Company.
2. The Warrants have been duly authorized and, assuming the Warrant
Agreement is duly executed and delivered by the Company and the Warrant Agent,
and the Warrants are duly executed in accordance with the Warrant Agreement and
duly issued in accordance with the Warrant Agreement and delivered as part of
the Units in accordance with the underwriting agreement referred to in the units
prospectus that is part of the Registration Statement, will be valid and binding
obligations of the Company.
3. The issuance of the Common Stock has been duly authorized and when
issued and delivered in accordance with the terms of the Warrant Agreement and
the Warrants, will be validly issued, fully paid and non-assessable.
4. The issuance of the Notes and Warrants as Units has been validly
authorized and when the Units are duly executed and authenticated and duly
delivered against payment of the consideration therefor in accordance with the
underwriting agreement referred to in the units prospectus that is part of the
Registration Statement will be valid and binding obligations of the Company.
<PAGE>
AirGate PCS, Inc.
September [______], 1999
Page 3
We express no opinion as to the laws of any jurisdiction other than the
State of Delaware and the federal laws of the United States of America. We
hereby consent to the filing of this opinion as an exhibit to the Registration
Statement, to the incorporation by reference of this opinion in any abbreviated
registration statement, in connection with the offering covered by the
Registration Statement, filed pursuant to Rule 462(b) under the Securities Act
and to the reference to our firm under the caption "Legal Matters" contained in
the Prospectus included therein.
Very truly yours,
PATTON BOGGS LLP
By: ________________________
Mary M. Sjoquist
<PAGE>
EXHIBIT 10.15
FORM OF WARRANT AGREEMENT
================================================================================
AirGate PCS, Inc.
Warrants to Purchase
[ ] Shares of Common Stock
WARRANT AGREEMENT
Dated as of September __, 1999
Bankers Trust Company
Warrant Agent
================================================================================
<PAGE>
WARRANT AGREEMENT, dated as of September __, 1999, by and among
AirGate PCS, Inc., a Delaware corporation ("AirGate" or the "Company"), and
Bankers Trust Company, a New York banking corporation, as warrant agent (the
"Warrant Agent").
WHEREAS, the Company proposes to issue warrants (the "Warrants")
to initially purchase up to an aggregate of ___________ shares of Common Stock,
par value $.01 per share (the "Common Stock"), of the Company (the Common Stock
issuable on exercise of the Warrants being referred to herein as the "Warrant
Shares"), in connection with the offering (the "Offering") by AirGate, of
___________ Units (the "Units"), each consisting of $1,000 principal amount at
maturity of AirGate's ____% Senior Subordinated Discount Notes due 2009 (the
"Notes") and ___ Warrants, each Warrant initially representing the right to
purchase _____ Warrant Shares.
WHEREAS, the Company desires the Warrant Agent to act on behalf
of the Company, and the Warrant Agent is willing so to act in connection with
the issuance of Warrant Certificates (as defined) and other matters as provided
herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the
following respective meanings:
"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 or
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.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
<PAGE>
and "under common control with"), 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 specified Person, whether
through the ownership of voting securities, by agreement or otherwise; provided
that beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Warrant, the rules and
procedures of the Depositary, Euroclear and Cedel Bank that apply to such
transfer or exchange.
"Business Day" means any day other than a Legal Holiday.
"Cedel Bank" means Cedel Bank, SA.
"Closing Date" means the date hereof.
"Commission" means the Securities and Exchange Commission.
"Depositary" means, with respect to the Warrants issuable or
issued in whole or in part in global form, the Person specified in Section 3.3
hereof as the Depositary with respect to the Warrants, and any and all
successors thereto appointed as Depositary hereunder and having become such
pursuant to the applicable provision of the Indenture.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, and all successors thereto, as operator of the Euroclear
system.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Global Warrants" means, individually and collectively, each of
the Global Warrants substantially in the form of Exhibit A hereto issued in
accordance with Section 3.1(b) and 3.5 hereof.
"Global Warrant Legend" means the legend set forth in Section
3.5(f)(i), which is required to be placed on all Global Warrants issued under
this Warrant Agreement.
"Holder" means a person who is listed as the record owner of
Warrants, Warrant Shares and any other securities issued or issuable with
respect to the Warrants or the Warrant Shares by way of a stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization.
"Indenture" means the indenture, dated the date hereof, by and
among the Company, AGW Leasing Company, Inc. and Bankers Trust Company, as
trustee relating to the Notes.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Warrant through a Participant.
2
<PAGE>
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York 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 at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue on such payment for the intervening period.
"Offering" means the concurrent offering by the Company of the
Company's Common Stock, and Units.
"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.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Warrant Agent in form and substance reasonably
acceptable to the Warrant Agent. The counsel may be an employee of or counsel to
the Company, any subsidiary of the Company or the Warrant Agent.
"Participant" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to The Depository Trust Company, shall include
Euroclear and Cedel).
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof, including any
subdivision or ongoing business of any such entity or substantially all of the
assets of any such entity, subdivision or business.
"Prospectus" means the prospectus included in a Registration
Statement at the time such Registration Statement is declared effective, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments and all material incorporated by
reference into such Prospectus.
"Registration Statement" means "registration statement," as such
term is defined in Section 2(a)(8) of the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Separation Date" means the earliest of (i) 180 days after the
closing of the Offering, (ii) the occurrence of a Change of Control or an Event
of Default (each as defined in the Indenture) and (iii) such date as Donaldson,
Lufkin & Jenrette Securities Corporation in its sole discretion shall determine.
3
<PAGE>
"Shelf Registration" means a shelf registration statement filed
pursuant to Rule 415 under the Securities Act relating to the Warrant Shares.
"Trustee" means the trustee under the Indenture.
"Underwriting Agreement" means that certain underwriting
agreement, dated as of September ___, 1999, by and among the Company, AGW
Leasing Company, Inc. and the underwriters party thereto pursuant to which the
Company agrees to sell units, of which the Warrants form a part, to the
underwriters.
SECTION 2. APPOINTMENT OF WARRANT AGENT.
The Company hereby appoints the Warrant Agent to act as agent for
the Company in accordance with the instructions set forth hereinafter in this
Agreement and the Warrant Agent hereby accepts such appointment.
SECTION 3. ISSUANCE OF WARRANTS; WARRANT CERTIFICATES.
3.1 Form and Dating.
(a) General.
The Warrants shall be substantially in the form of Exhibit A
hereto (the "Warrant Certificates") and shall be issued initially, together with
Notes, as Units, substantially in the form of Exhibit B hereto. The Warrants may
have notations, legends or endorsements required by law, stock exchange rule or
usage. Each Warrant shall be dated the date of the countersignature.
The terms and provisions contained in the Warrants shall
constitute, and are hereby expressly made, a part of this Warrant Agreement. The
Company and the Warrant Agent, by their execution and delivery of this Warrant
Agreement, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Warrant conflicts with the express
provisions of this Warrant Agreement, the provisions of this Warrant Agreement
shall govern and be controlling.
(b) Global Warrants.
Warrants issued in global form shall be substantially in the form
of Exhibit A attached hereto (including the Global Warrant Legend thereon and
the "Schedule of Exchanges of Interests in the Global Warrant" attached
thereto). Warrants issued in definitive form shall be substantially in the form
of Exhibit A attached hereto (but without the Global Warrant Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Warrant" attached
thereto). Each Global Warrant shall represent such of the outstanding Warrants
as shall be specified therein and each shall provide that it shall represent the
number of outstanding Warrants from time to time endorsed thereon and that the
number of outstanding Warrants represented thereby may from time
4
<PAGE>
to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Warrant to reflect the amount of any
increase or decrease in the number of outstanding Warrants represented thereby
shall be made by the Warrant Agent in accordance with instructions given by the
Holder thereof as required by Section 3.5 hereof.
(c) Euroclear and Cedel Procedures Applicable.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the "General
Terms and Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall
be applicable to transfers of beneficial interests, if any, in the Global
Warrant that are held by Participants through Euroclear or Cedel Bank.
3.2 Execution.
An Officer shall sign the Warrants for the Company by manual or
facsimile signature.
If the Officer whose signature is on a Warrant no longer holds
that office at the time a Warrant is countersigned, the Warrant shall
nevertheless be valid.
A Warrant shall not be valid until countersigned by the manual
signature of the Warrant Agent. The signature shall be conclusive evidence that
the Warrant has been properly issued under this Warrant Agreement.
The Warrant Agent shall, upon a written order of the Company
signed by an Officer (a "Warrant Countersignature Order"), countersign Warrants
for original issue up to the number stated in the preamble hereto.
The Warrant Agent may appoint an agent acceptable to the Company
to countersign Warrants. Such an agent may countersign Warrants whenever the
Warrant Agent may do so. Each reference in this Warrant Agreement to a
countersignature by the Warrant Agent includes a countersignature by such agent.
Such an agent has the same rights as the Warrant Agent to deal with the Company
or an Affiliate of the Company.
3.3 Warrant Registrar.
The Company shall maintain an office or agency where Warrants may
be presented for registration of transfer or for exchange ("Warrant Registrar").
The Warrant Registrar shall keep a register of the Warrants and of their
transfer and exchange. The Company may appoint one or more co-Warrant
Registrars. The term "Warrant Registrar" includes any co-Warrant Registrar. The
Company may change any Warrant Registrar without notice to any Holder. The
Company shall notify the Warrant Agent in writing of the name and address of any
agent not a party to this Warrant Agreement. If the Company fails to appoint or
maintain another entity as Warrant Registrar, the Warrant Agent shall act as
such. The Company or any of its subsidiaries may act as Warrant Registrar.
5
<PAGE>
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Warrants.
The Company initially appoints the Warrant Agent to act as the
Warrant Registrar with respect to the Global Warrants.
3.4 Holder Lists.
The Warrant Agent 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. If the Warrant Agent is not the Warrant Registrar, the
Company shall promptly furnish to the Warrant Agent at such times as the Warrant
Agent may request in writing, a list in such form and as of such date as the
Warrant Agent may reasonably require of the names and addresses of the Holders.
3.5 Transfer and Exchange.
(a) Transfer and Exchange of Global Warrants.
A Global Warrant may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Warrants will be exchanged by the Company for Definitive
Warrants if (i) the Company delivers to the Warrant Agent notice from the
Depositary that it is unwilling or unable to continue to act as Depositary or
that it is no longer a clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by the Company within 120
days after the date of such notice from the Depositary,(ii) the Company in its
sole discretion determines that the Global Warrants (in whole but not in part)
should be exchanged for Definitive Warrants and delivers a written notice to
such effect to the Warrant Agent or (iii) an event of default under the
Indenture of which an officer of the Warrant Agent has actual notice has
occurred and is continuing and the Warrant Registrar has received a request from
DTC to issue Definitive Warrants. Upon the occurrence of either of the
preceding events in (i), (ii) or (iii) above, Definitive Warrants shall be
issued in such names as the Depositary shall instruct the Warrant Agent. Global
Warrants also may be exchanged or replaced, in whole or in part, as provided in
Sections 3.6 and 3.7 hereof. A Global Warrant may not be exchanged for another
Warrant other than as provided in this Section 3.5(a), however, beneficial
interests in a Global Warrant may be transferred and exchanged as provided in
Section 3.5(b) or (c) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Warrants.
The transfer and exchange of beneficial interests in the Global
Warrants shall be effected through the Depositary, in accordance with the
provisions of this Warrant Agreement and the Applicable Procedures. Transfers
of beneficial interests in the Global Warrants also shall require compliance
with either subparagraph (i) or (ii) below, as applicable:
6
<PAGE>
(i) Transfer of Beneficial Interests in the Same Global
Warrant. Beneficial interests in any Global Warrant may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in a
Global Warrant. No written orders or instructions shall be required to be
delivered to the Warrant Registrar to effect the transfers described in
this Section 3.5(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Warrants. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section 3.5(b)(i)
above, the transferor of such beneficial interest must deliver to the
Warrant Registrar either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Warrant in an amount equal
to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such
increase or (B) (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to cause to be issued a Definitive
Warrant in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given by the Depositary to the Warrant
Registrar containing information regarding the Person in whose name such
Definitive Warrant shall be registered. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global
Warrants contained in this Agreement and the Warrants or otherwise
applicable under the Securities Act, the Warrant Agent shall adjust the
principal amount of the relevant Global Warrant(s) pursuant to Section
3.5(g) hereof.
(c) Transfer and Exchange of Beneficial Interests for Definitive
Warrants.
(i) Beneficial Interests in Global Warrants to Definitive
Warrants. If any holder of a beneficial interest in an Global Warrant
proposes to exchange such beneficial interest for a Definitive Warrant or
to transfer such beneficial interest to a Person who takes delivery thereof
in the form of a Definitive Warrant, then, upon satisfaction of the
conditions set forth in Section 3.5(b)(ii) hereof, the Warrant Agent shall
cause the amount of the applicable Global Warrant to be reduced accordingly
pursuant to Section 3.5(g) hereof, and the Company shall execute and the
Warrant Agent shall countersign and deliver to the Person designated in the
instructions a Definitive Warrant in the appropriate principal amount. Any
Definitive Warrant issued in exchange for a beneficial interest pursuant to
this Section 3.5(c)(i) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Warrant Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Warrant Agent shall deliver such Definitive Warrants to
the Persons in whose names such Warrants are so registered.
7
<PAGE>
(d) Transfer and Exchange of Definitive Warrants for Beneficial
Interests.
(i) Definitive Warrants to Beneficial Interests in Global
Warrants. A Holder of a Definitive Warrant may exchange such Warrant for a
beneficial interest in a Global Warrant or transfer such Definitive
Warrants to a Person who takes delivery thereof in the form of a beneficial
interest in a Global Warrant at any time. Upon receipt of a request for
such an exchange or transfer, the Warrant Agent shall cancel the applicable
Definitive Warrant and increase or cause to be increased the amount of one
of the Global Warrants.
(e) Transfer and Exchange of Definitive Warrants for Definitive
Warrants.
Upon request by a Holder of Definitive Warrants and such Holder's
compliance with the provisions of this Section 3.5(e), the Warrant Registrar
shall register the transfer or exchange of Definitive Warrants. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Warrant Registrar the Definitive Warrants duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Warrant Registrar duly executed by such Holder or by its attorney, duly
authorized in writing. In addition, the requesting Holder shall provide any
additional certifications, documents and information, as applicable, required
pursuant to the following provisions of this Section 3.5(e).
(i) Definitive Warrants to Definitive Warrants. A Holder of
Definitive Warrants may transfer such Warrants to a Person who takes
delivery thereof in the form of a Definitive Warrant. Upon receipt of a
request to register such a transfer, the Warrant Registrar shall register
the Definitive Warrants pursuant to the instructions from the Holder
thereof.
(f) Legends.
The following legends shall appear on the face of all Global
Warrants and Definitive Warrants issued under this Warrant Agreement unless
specifically stated otherwise in the applicable provisions of this Warrant
Agreement.
(i) Global Warrant Legend. Each Global Warrant shall bear a
legend in substantially the following form:
"THIS GLOBAL WARRANT IS HELD BY THE DEPOSITARY (AS DEFINED
IN THE WARRANT AGREEMENT GOVERNING THIS WARRANT) OR ITS NOMINEE IN CUSTODY
FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE WARRANT AGENT MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 3.5 OF
THE WARRANT AGREEMENT, (II) THIS GLOBAL WARRANT MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 3.5(a) OF THE WARRANT AGREEMENT, (III)
THIS GLOBAL WARRANT MAY BE
8
<PAGE>
DELIVERED TO THE WARRANT AGENT FOR CANCELLATION PURSUANT TO SECTION 3.8 OF
THE WARRANT AGREEMENT AND (IV) THIS GLOBAL WARRANT MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY."
(ii) Unit Legend. Each Warrant issued prior to the
Separation Date shall bear a legend in substantially the following form:
"THE WARRANTS EVIDENCED BY THIS CERTIFICATE ARE INITIALLY
ISSUED AS PART OF AN ISSUANCE OF UNITS (THE "UNITS"), EACH OF WHICH CONSIST
OF $1,000 PRINCIPAL AMOUNT AT MATURITY OF THE __% SENIOR SUBORDINATED
DISCOUNT NOTES DUE 2009 OF AIRGATE PCS, INC. (THE "NOTES") AND ________
WARRANTS (THE "WARRANTS") INITIALLY ENTITLING THE HOLDER THEREOF TO
PURCHASE____SHARES OF COMMON STOCK, PAR VALUE $0.01 PER SHARE, OF AIRGATE
PCS, INC.
"PRIOR TO THE EARLIEST 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 (EACH AS DEFINED IN THE INDENTURE GOVERNING THE NOTES) AND
(III) SUCH DATE AS DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION IN
ITS SOLE DISCRETION SHALL DETERMINE, THE WARRANTS EVIDENCED BY THIS
CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY FROM, BUT MAY BE
TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE NOTES."
(g) Cancellation and/or Adjustment of Global Warrants.
At such time as all beneficial interests in a particular Global
Warrant have been exercised or exchanged for Definitive Warrants or a particular
Global Warrant has been exercised, redeemed, repurchased or canceled in whole
and not in part, each such Global Warrant shall be returned to or retained and
canceled by the Warrant Agent in accordance with Section 3.8 hereof. At any time
prior to such cancellation, if any beneficial interest in a Global Warrant is
exercised or exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Warrant or for
Definitive Warrants, the amount of Warrants represented by such Global Warrant
shall be reduced accordingly and an endorsement shall be made on such Global
Warrant by the Warrant Agent or by the Depositary at the direction of the
Warrant Agent to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Warrant, such other Global
Warrant shall be increased accordingly and an endorsement shall be made on such
Global Warrant by the Warrant Agent or by the Depositary at the direction of the
Warrant Agent to reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
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(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Warrant Agent shall countersign Global
Warrants and Definitive Warrants upon the Company's order or at the Warrant
Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Warrant or to a holder of a Definitive
Warrant for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith.
(iii) All Global Warrants and Definitive Warrants issued
upon any registration of transfer or exchange of Global Warrants or
Definitive Warrants shall be the duly authorized, executed and issued
warrants for Common Stock of the Company, not subject to any preemptive
rights, and entitled to the same benefits under this Warrant Agreement, as
the Global Warrants or Definitive Warrants surrendered upon such
registration of transfer or exchange.
(iv) Prior to due presentment for the registration of a
transfer of any Warrant, the Warrant Agent and the Company may deem and
treat the Person in whose name any Warrant is registered as the absolute
owner of such Warrant for all purposes and neither the Warrant Agent nor
the Company shall be affected by notice to the contrary.
(v) The Warrant Agent shall countersign Global Warrants
and Definitive Warrants in accordance with the provisions of Section 3.2
hereof.
(i) Facsimile Submissions to Warrant Agent.
All certifications, certificates and Opinions of Counsel required
to be submitted to the Warrant Registrar pursuant to this Section 3.5 to effect
a registration of transfer or exchange may be submitted by facsimile.
The Warrant Registrar shall not be responsible for confirming the
truth or accuracy of representations made in any such certifications or
certificates. As to any Opinions of Counsel delivered pursuant to this Section
3.5, the Warrant Registrar may rely upon, and be fully protected in relying
upon, such opinions.
3.6 Replacement Warrants.
If any mutilated Warrant is surrendered to the Warrant Agent or
the Company and the Warrant Agent receives evidence to its satisfaction of the
destruction, loss or theft of any Warrant, the Company shall issue and the
Warrant Agent, upon receipt of a Warrant Countersignature Order, shall
countersign a replacement Warrant if the Warrant Agent's requirements are met.
If required by the Warrant Agent or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Warrant Agent
and the Company to protect the Company, the Warrant Agent, any Agent and any
agent for purposes of the
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countersignature from any loss that any of them may suffer if a Warrant is
replaced. The Company may charge for its expenses in replacing a Warrant.
Every replacement Warrant is an additional warrant of the Company
and shall be entitled to all of the benefits of this Warrant Agreement equally
and proportionately with all other Warrants duly issued hereunder.
3.7 Temporary Warrants.
Until certificates representing Warrants are ready for delivery,
the Company may prepare and the Warrant Agent, upon receipt of a Warrant
Countersignature Order, shall issue temporary Warrants. Temporary Warrants shall
be substantially in the form of certificated Warrants but may have variations
that the Company considers appropriate for temporary Warrants and as shall be
reasonably acceptable to the Warrant Agent. Without unreasonable delay, the
Company shall prepare and the Warrant Agent shall countersign definitive
Warrants in exchange for temporary Warrants.
Holders of temporary Warrants shall be entitled to all of the
benefits of this Warrant Agreement.
3.8 Cancellation.
Subject to Section 3.5(g) hereof, the Company at any time may
deliver Warrants to the Warrant Agent for cancellation. The Warrant Registrar
and Warrant Paying Agent shall forward to the Warrant Agent any Warrants
surrendered to them for registration of transfer, exchange or exercise. The
Warrant Agent and no one else shall cancel all Warrants surrendered for
registration of transfer, exchange, exercise, replacement or cancellation and
shall destroy canceled Warrants (subject to the record retention requirement of
the Exchange Act). Certification of the destruction of all canceled Warrants
shall be delivered to the Company. The Company may not issue new Warrants to
replace Warrants that have been exercised or that have been delivered to the
Warrant Agent for cancellation.
SECTION 4. SEPARATION OF WARRANTS; TERMS OF WARRANTS; EXERCISE OF WARRANTS.
(a) The Notes and Warrants will not be separately transferable
until the Separation Date. Subject to the terms of this Agreement, each Holder
shall have the right, which may be exercised during the period commencing at the
opening of business on the Separation Date and until 5:00 p.m., New York City
time on September _____, 2009 (the "Exercise Period"), to receive from the
Company the number of fully paid and nonassessable Warrant Shares which the
Holder may at the time be entitled to receive on exercise of such Warrants and
payment of the exercise price (the "Exercise Price") (i) by tendering Notes
having an aggregate principal amount at maturity, plus accrued and unpaid
interest, if any thereon to the date of exercise (or, if such exercise takes
place prior to [______], 2005, an Accreted Value on the date of exercise) or
(ii) in cash, by wire transfer or
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by certified or official check payable to the order of the Company, in each
case, equal to the Exercise Price then in effect for such Warrant Shares;
provided that Holders shall be able to exercise their Warrants only if a
Registration Statement relating to the Warrant Shares is then in effect, or the
exercise of such Warrants is exempt from the registration requirements of the
Securities Act, and such securities are qualified for sale or exempt from
qualification under the applicable securities laws of the states in which the
various Holders of the Warrants or other persons to whom it is proposed that the
Warrant Shares be issued on exercise of the Warrants reside. Each Warrant not
exercised prior to 5:00 p.m., New York City time, on September ___, 2009 (the
"Expiration Date") shall become void and all rights thereunder and all rights in
respect thereof under this agreement shall cease as of such time. No adjustments
as to dividends will be made upon exercise of the Warrants.
(b) In order to exercise all or any of the Warrants represented
by a Warrant Certificate, the holder thereof must deliver to the Warrant Agent
at its corporate trust office set forth in Section 15 hereof the Warrant
Certificate and the form of election to purchase on the reverse thereof duly
filled in and signed, which signature shall be medallion guaranteed by an
institution which is a member of a Securities Transfer Association recognized
signature guarantee program, and upon payment to the Warrant Agent for the
account of the Company of the Exercise Price, which is set forth in the form of
Warrant Certificate attached hereto as Exhibit A, as adjusted as herein
provided, for the number of Warrant Shares in respect of which such Warrants are
then exercised. Payment of the aggregate Exercise Price shall be made (i) in
cash, by wire transfer or by certified or official bank check payable to the
order of the Company or (ii) by tendering Notes in the manner provided in
Section 4(a) hereof.
(c) Subject to the provisions of Section 5 hereof, upon
compliance with clause (b) above, the Warrant Agent shall deliver or cause to be
delivered with all reasonable dispatch, to or upon the written order of the
Holder and in such name or names as the Holder may designate, a certificate or
certificates for the number of whole Warrant Shares issuable upon the exercise
of such Warrants or other securities or property to which such Holder is
entitled hereunder, together with cash as provided in Section 9 hereof; provided
that if any consolidation, merger or lease or sale of assets is proposed to be
effected by the Company as described in Section 8(l) hereof, or a tender offer
or an exchange offer for shares of Common Stock shall be made, upon such
surrender of Warrants and payment of the Exercise Price as aforesaid, the
Warrant Agent shall, as soon as possible, but in any event not later than two
Business Days thereafter, deliver or cause to be delivered the full number of
Warrant Shares issuable upon the exercise of such Warrants in the manner
described in this sentence or other securities or property to which such Holder
is entitled hereunder, together with cash as provided in Section 9 hereof. Such
certificate or certificates shall be deemed to have been issued and any person
so designated to be named therein shall be deemed to have become a Holder of
record of such Warrant Shares as of the date of the surrender of such Warrants
and payment of the Exercise Price.
(d) The Warrants shall be exercisable, at the election of the
Holders thereof, either in full or from time to time in part. If less than all
the Warrants represented by a Definitive Warrant are exercised, such Definitive
Warrant shall be surrendered and a new Definitive Warrant of the same tenor and
for the number of Warrants which were not exercised shall be executed by the
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Company and delivered to the Warrant Agent and the Warrant Agent shall
countersign the new Definitive Warrant, registered in such name or names as may
be directed in writing by the Holder, and shall deliver the new Definitive
Warrant to the Person or Persons entitled to receive the same. The Warrant Agent
shall make such notations on the Schedule of Exchange of Interests of Global
Warrants to each Global Warrant as are required to reflect any change in the
number of Warrants represented by such Global Warrant resulting from any
exercise in accordance with the terms hereof.
(e) All Warrant Certificates surrendered upon exercise of
Warrants shall be cancelled by the Warrant Agent. Such cancelled Warrant
Certificates shall then be disposed of by the Warrant Agent in a manner
satisfactory to the Company. The Warrant Agent shall account promptly to the
Company with respect to Warrants exercised and concurrently pay to the Company
all monies received by the Warrant Agent for the purchase of the Warrant Shares
through the exercise of such Warrants.
(f) The Warrant Agent shall keep copies of this Agreement and
any notices given or received hereunder available for inspection by the Holders
during normal business hours at its office. The Company shall supply the Warrant
Agent from time to time with such numbers of copies of this Agreement as the
Warrant Agent may request.
SECTION 4A. SHELF REGISTRATION AND PROCEDURES
(a) The Company shall (i) cause the Shelf Registration to be
filed with the Commission in no event later than 60 days after the Closing Date
(such 60/th/ day being the "Filing Deadline") and (ii) use its reasonable best
efforts to cause such Shelf Registration to become effective as promptly as
reasonably practical, but in no event later than 120 days after the Closing Date
(such 120/th/ day being the "Effectiveness Deadline").
(b) In connection with the preparation and filing of the initial
Shelf Registration, the Company shall as promptly as practicable furnish to
Donaldson, Lufkin & Jenrette Securities Corporation copies, as proposed to be
filed, of the Registration Statement and any Prospectus included therein and any
amendments or supplements to such Registration Statement and Prospectus, which
documents will be subject to the review and comment of Donaldson, Lufkin &
Jenrette Securities Corporation for a period of at least five Business Days. The
Company will not file any such initial Registration Statement or Prospectus or
any amendment or supplement to such Registration Statement or Prospectus to
which Donaldson, Lufkin & Jenrette Securities Corporation shall reasonably
object within five Business Days after the receipt of copies thereof. Donaldson,
Lufkin & Jenrette Securities Corporation shall be deemed to have reasonably
objected to such filing if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains an untrue statement
of a material fact or omits to state a material fact necessary to make the
statements therein not misleading or fails to comply with the applicable
requirements of the Securities Act;
(c) To the extent necessary to ensure that the Shelf
Registration is available for sales of Warrant Shares by the Holders thereof
entitled to the benefits of this Section 4A, the
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Company shall use its best efforts to keep any Shelf Registration required by
this Section 4A continuously effective, supplemented, amended and current as
required by and subject to the provisions of Section 4A(e) hereof and in
conformity with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as amended from time to time
until the later of the date on which (a) all of the Warrants have been exercised
or (b) the Warrants have expired.
(d) No Holder of Warrants may include any of its Warrant Shares
in any Shelf Registration pursuant to this Agreement unless and until such
Holder furnishes to the Company in writing, within 20 days after receipt of a
request therefor, the information specified in Item 507 or 508 of Regulation S-
K, as applicable, of the Securities Act for use in connection with any Shelf
Registration or Prospectus or preliminary Prospectus included therein. No Holder
of Warrants shall be entitled to Liquidated Damages (as defined below) unless
and until such Holder shall have provided all such information required by this
Section within the time period specified in this Section. Each selling Holder
agrees to promptly furnish additional information required to be disclosed in
order to make the information previously furnished to the Company by such Holder
not materially misleading.
(e) In connection with any Registration Statement and any
related Prospectus required by this Agreement, the Company shall:
(i) use its reasonable best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 4A of this
Agreement. Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain
an untrue statement of material fact or omit to state any material fact
necessary to make the statements therein not misleading or (B) not to be
effective and usable for the exercise of Warrants during the period
required by this Agreement, the Company shall file promptly an appropriate
amendment to such Registration Statement curing such defect, and, if
Commission review is required, use its reasonable best efforts to cause
such amendment to be declared effective as soon as practicable.
(ii) prepare and file with the Commission such amendments
and post-effective amendments to the applicable Registration Statement as
may be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 hereof; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Securities Act, and to comply
fully with Rules 424, 430A and 462, as applicable, under the Securities Act
in a timely manner; and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended method or methods of exercise by the Holders of Warrants thereof
set forth in such Registration Statement or supplement to the Prospectus;
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(iii) advise each Holder promptly and, if requested by such
Person, confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to any applicable Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement under the Securities Act or of the suspension by any
state securities commission of the qualification of the Warrant Shares for
offering or sale in any jurisdiction, or the initiation of any proceeding
for any of the preceding purposes, (C) of the existence of any fact or the
happening of any event that makes any statement of a material fact made in
the Registration Statement, the Prospectus, any amendment or supplement
thereto or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Registration
Statement in order to make the statements therein not misleading, or that
requires the making of any additions to or changes in the Prospectus in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If at any time the Commission
shall issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption from
qualification of the Warrant Shares under state securities or Blue Sky
laws, the Company shall use its best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) subject to Section 4A(e)(i), if any fact or event
contemplated by Section 4A(e)(iii)(C) above shall exist or have occurred,
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Warrant Shares, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) furnish to each Holder named in any Registration
Statement or any Prospectus in connection with such exchange or sale, if
any, before filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such
Registration Statement);
(vi) if requested by any Holders in connection with such
exchange or sale, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Holders may reasonably request to have
included therein, including, without limitation, information relating to
the "Plan of Distribution" of the Warrant Shares; and make all required
filings of such Prospectus supplement or post-effective amendment as soon
as practicable after the Company is notified of the matters to be included
in such Prospectus supplement or post-effective amendment;
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(vii) furnish to each Holder named in any Registration
Statement or Prospectus in connection with such exchange or sale, without
charge, at least one copy of the Registration Statement, as first filed
with the Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(viii) deliver to each Holder without charge, as many copies
of the Prospectus (including each preliminary prospectus) and any amendment
or supplement thereto as such Persons reasonably may request; the Company
hereby consents to the use (in accordance with law) of the Prospectus and
any amendment or supplement thereto by each exercising Warrant Holder in
connection with the exercise of the Warrants covered by the Prospectus or
any amendment or supplement thereto;
(ix) provide a CUSIP number for all Warrant Shares not
later than the effective date of a Registration Statement covering such
Warrant Shares and provide the Trustee under the Indenture with printed
certificates for the Warrant Shares which are in a form eligible for
deposit with the Depository Trust Company; and
(x) otherwise use their its best efforts to comply with
all applicable rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be audited
covering a twelve-month period beginning after the effective date of the
Registration Statement (as such term is defined in paragraph (c) of Rule
158 under the Securities Act.
(f) Restrictions on Holders. Each Holder agrees by acquisition
-----------------------
of Warrant Shares that, upon receipt of the notice referred to in Section
4A(e)(iii)(B) or any notice from the Company of the existence of any fact of the
kind described in Section 4A(e)(iii)(C) hereof (in each case, a "Suspension
Notice"), such Holder will forthwith discontinue disposition of Warrant Shares
pursuant to the applicable Registration Statement until (i) such Holder has
received copies of the supplemented or amended Prospectus contemplated by
Section 4A(e)(iv) hereof, or (ii) such Holder is advised in writing by the
Company that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference in
the Prospectus (in each case, the "Recommencement Date"). Each Holder receiving
a Suspension Notice hereby agrees that it will either (i) destroy any
Prospectuses, other than permanent file copies, then in such Holder's possession
which have been replaced by the Company with more recently dated Prospectuses or
(ii) deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Holder's possession of the Prospectus
covering such Warrant Shares that was current at the time of receipt of the
Suspension Notice. The time period regarding the effectiveness of such
Registration Statement set forth in Section 4A hereof shall be extended by a
number of days equal to the number of days in the period from and including the
date of delivery of the Suspension Notice to the date of delivery of the
Recommencement Date.
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(g) Liquidated Damages. The Company and the underwriters party
------------------
to the Underwriting Agreement agree that the Holders will suffer damages if the
Company fails to fulfill its obligations pursuant to paragraphs (a), (c) and (e)
of Section 4A of this Warrant Agreement and that it would not be possible to
ascertain the extent of such damages. Accordingly, in the event of such failure
by the Company to fulfill such obligations, the Company hereby agrees to pay
liquidated damages ("Liquidated Damages") to each Holder under the circumstances
and to the extent set forth below:
(i) if the Shelf Registration has not been filed with the
Commission within 60 days after the Closing Date;
(ii) if the Shelf Registration has not been declared
effective by the Commission within 120 days after the Closing Date; or
(iii) if the Shelf Registration has been declared effective
by the Commission and such Shelf Registration ceases to be effective or
usable at any time until the later of the date on which (A) all of the
Warrants have been exercised or (B) the Warrants have expired (the
"Effectiveness Period"), without being succeeded on the same day
immediately by a post-effective amendment to such Registration Statement
that cures such failure and that is itself immediately declared effective
on the same day;
(any of the foregoing, a "Registration Default") then the Company shall pay
Liquidated Damages to each Holder in an amount equal to $_____ per week per
Warrant held by such Holder for each week or portion thereof that the
Registration Default continues for the first 90-day period immediately following
the occurrence of such Registration Default. This amount will increase by an
additional $____ per week per Warrant with respect to each subsequent 90-day
period, up to a maximum amount of Liquidated Damages equal to $____ per week per
Warrant. The provision for Liquidated Damages will continue until such
Registration Default has been cured. The Company will not be required to pay
Liquidated Damages for more than one Registration Default at any given time. A
Registration Default under clause (i) above shall be cured on the date that the
Shelf Registration is filed with the Commission; a Registration Default under
clause (ii) above shall be cured on the date that the Shelf Registration is
declared effective by the Commission; a Registration Default under clause (iii)
above shall be cured on the earlier of (A) the date that the post-effective
amendment curing the deficiency in the Shelf Registration is declared effective
or (B) the Effectiveness Period expires.
(h) Payment of Liquidated Damages. The Company shall notify the
-----------------------------
Warrant Agent within one Business Day after each and every date on which a
Registration Default occurs (an "Event Date"). Liquidated Damages shall accrue
from the most recent date to which Liquidated Damages have been paid or, if no
Liquidated Damages have been paid, from the date hereof. Liquidated Damages
accrued as of _________ or __________ of each year (each a "Payment Date") will
be payable on such Payment Date. The Company shall pay Liquidated Damages on
the applicable Payment Date to the Persons who are Holders of Warrants at the
close of business on the ___________ or ___________ next preceding the Payment
Date. Liquidated Damages shall be
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payable at the office of the Warrant Agent or, at the option of the Company,
payment of Liquidated Damages 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
the Liquidated Damages on all Warrants the Holders of which shall have provided
written wire transfer instructions to the Company and the Warrant 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.
SECTION 5. PAYMENT OF TAXES.
The Company will pay all documentary stamp taxes attributable to
the initial issuance of Warrant Shares upon the exercise of Warrants; provided
that the Company shall not be required to pay any tax or taxes which may be
payable in respect of any transfer involved in the issue of any Warrant
Certificates or any certificates for Warrant Shares in a name other than that of
the registered holder of a Warrant Certificate surrendered upon the exercise of
a Warrant, and the Company shall not be required to issue or deliver such
Warrant Certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
SECTION 6. RESERVATION OF WARRANT SHARES.
(a) The Company will at all times reserve and keep available,
free from preemptive rights, out of the aggregate of its authorized but unissued
Common Stock or its authorized and issued Common Stock held in its treasury, for
the purpose of enabling it to satisfy any obligation to issue Warrant Shares
upon exercise of Warrants, the maximum number of shares of Common Stock which
may then be deliverable upon the exercise of all outstanding Warrants.
(b) The Company or, if appointed, the transfer agent for the
Common Stock (the "Transfer Agent") and every subsequent transfer agent for any
shares of the Company's capital stock issuable upon the exercise of any of the
rights of purchase aforesaid will be irrevocably authorized and directed at all
times to reserve such number of authorized shares as shall be required for such
purpose. The Company will keep a copy of this Agreement on file with the
Transfer Agent and with every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of the rights of purchase
represented by the Warrants. The Warrant Agent is hereby irrevocably authorized
to requisition from time to time from such Transfer Agent the stock certificates
required to honor outstanding Warrants upon exercise thereof in accordance with
the terms of this Agreement. The Company will supply such Transfer Agent with
duly executed certificates for such purposes and will provide or otherwise make
available any cash which may be payable as provided in Section 9 hereof. The
Company will furnish such Transfer Agent a copy of all notices of adjustments,
and certificates related thereto, transmitted to each Holder pursuant to Section
10 hereof.
(c) Before taking any action which would cause an adjustment
pursuant to Section 8 hereof to reduce the Exercise Price below the then par
value (if any) of the Warrant Shares,
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the Company will take any corporate action which may, in the opinion of its
counsel (which may be counsel employed by the Company), be necessary in order
that the Company may validly and legally issue fully paid and nonassessable
Warrant Shares at the Exercise Price as so adjusted.
(d) The Company covenants that all Warrant Shares which may be
issued upon exercise of Warrants will, upon issue, be fully paid, nonassessable,
free of preemptive rights and free from all taxes, liens, charges and security
interests with respect to the issuance thereof.
SECTION 7. OBTAINING STOCK EXCHANGE LISTINGS.
The Company will from time to time take all action which may be
necessary so that the Warrant Shares, immediately upon their issuance upon the
exercise of Warrants, will be listed on the principal securities exchanges,
automated quotation systems or other markets within the United States of
America, if any, on which other shares of Common Stock are then listed, if any.
SECTION 8. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES
ISSUABLE.
The Exercise Price and the number of Warrant Shares issuable upon the
exercise of each Warrant are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 8. For purposes of this
Section 8, "Common Stock" means shares now or hereafter authorized of any class
of common stock of the Company and any other stock of the Company, however
designated, that has the right (subject to any prior rights of any class or
series of preferred stock) to participate in any distribution of the assets or
earnings of the Company without limit as to per share amount.
(a) Adjustment for Change in Capital Stock.
If the Company (i) pays a dividend or makes a distribution on its
Common Stock in shares of its Common Stock, (ii) subdivides its outstanding
shares of Common Stock into a greater number of shares, (iii) combines its
outstanding shares of Common Stock into a smaller number of shares, (iv) makes a
distribution on its Common Stock in shares of its capital stock other than
Common Stock or (v) issues by reclassification of its Common Stock any shares of
its capital stock, then the Exercise Price in effect immediately prior to such
action shall be proportionately adjusted so that the Holder of any Warrant
thereafter exercised may receive the aggregate number and kind of shares of
capital stock of the Company which he would have owned immediately following
such action if such Warrant had been exercised immediately prior to such action.
The adjustment shall become effective immediately after the record
date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification.
If, after an adjustment, a Holder of a Warrant upon exercise of it may receive
shares of two or more classes of capital stock of the Company, the Company shall
determine, in good faith, the allocation of the adjusted Exercise Price between
the classes of capital stock. After such allocation, the exercise privilege and
the Exercise Price of each class of capital
19
<PAGE>
stock shall thereafter be subject to adjustment on terms comparable to those
applicable to Common Stock in this Section 8. Such adjustment shall be made
successively whenever any event listed above shall occur.
(b) Adjustment for Rights Issue.
If the Company distributes any rights, options or warrants to all
holders of its Common Stock entitling them for a period expiring within 45 days
after the record date mentioned below to purchase shares of Common Stock at a
price per share less than the Fair Value (as defined herein) per share on that
record date, the Exercise Price shall be adjusted in accordance with the
formula:
O + N x P
-----
E = Ex M
----------
O + N
where:
E' = the adjusted Exercise Price.
E = the current Exercise Price.
O = the number of shares of Common Stock outstanding on the
record date.
N = the number of additional shares of Common Stock issued
pursuant to such rights, options or warrants.
P = the aggregate price per share of the additional shares.
M = the Fair Value per share of Common Stock on the record
date.
The adjustment shall be made successively whenever any such rights,
options or warrants are issued and shall become effective immediately after the
record date for the determination of stockholders entitled to receive the
rights, options or warrants. If at the end of the period during which such
rights, options or warrants are exercisable, not all rights, options or warrants
shall have been exercised, the Exercise Price shall be immediately readjusted to
what it would have been if "N" in the above formula had been the number of
shares actually issued.
(c) Adjustment for Other Distributions.
If the Company distributes to all holders of its Common Stock any of
its assets or debt securities or any rights or warrants to purchase debt
securities of the Company, the Exercise Price shall be adjusted in accordance
with the formula:
20
<PAGE>
E'= Ex M - F
-----
M
where:
E' = the adjusted Exercise Price.
E = the current Exercise Price.
M = the Fair Value per share of Common Stock on the record date
mentioned below.
F = the fair market value on the record date of the assets,
securities, rights or warrants to be distributed in respect
of one share of Common Stock as determined in good faith by
the Board of Directors of the Company (the "Board of
Directors").
The adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of stockholders entitled to receive the distribution.
This Section 8(c) does not apply to cash dividends or cash
distributions paid out of consolidated current or retained earnings as shown on
the books of the Company prepared in accordance with generally accepted
accounting principles. Also, this Section 8(c) does not apply to rights,
options or warrants referred to in Section 8(b) hereof.
(d) Adjustment for Common Stock Issue.
If the Company issues shares of Common Stock for a consideration per
share less than the Fair Value per share on the date the Company fixes the
offering price of such additional shares, the Exercise Price shall be adjusted
in accordance with the formula:
O + P
-
E'= Ex M
-----
A
where:
E' = the adjusted Exercise Price.
E = the then current Exercise Price.
O = the number of shares outstanding immediately prior to the
issuance of such additional shares.
21
<PAGE>
P = the aggregate consideration received for the issuance of
such additional shares.
M = the Fair Value per share on the date of issuance of such
additional shares.
A = the number of shares outstanding immediately after the
issuance of such additional shares.
The adjustment shall be made successively whenever any such issuance
is made, and shall become effective immediately after such issuance.
This subsection (d) does not apply to:
(1) any of the transactions described in subsections (a), (b),
(c) and (i) of this Section 8,
(2) the exercise of Warrants, or the conversion or exchange of
other securities convertible or exchangeable for Common Stock the issuance
of which caused an adjustment to be made under Section 8(e),
(3) Common Stock issued to the Company's employees (or employees
of its subsidiaries) under bona fide employee benefit plans adopted by the
Board of Directors and approved by the holders of Common Stock when
required by law, if such Common Stock would otherwise be covered by this
subsection (d) (but only to the extent that the aggregate number of shares
excluded hereby and issued after the date of this Warrant Agreement shall
not exceed 5% of the Common Stock outstanding at the time of the adoption
of each such plan, exclusive of anti-dilution adjustments thereunder),
(4) Common Stock issuable upon the exercise of warrants issued
to the holders of Common Stock.
(5) Common Stock issued to shareholders of any person which
merges into the Company, or with a subsidiary of the Company, in proportion
to their stock holdings of such person immediately prior to such merger,
upon such merger, provided that if such person is an Affiliate of the
Company, the Board of Directors shall have obtained a fairness opinion from
a nationally recognized investment banking, appraisal or valuation firm,
which is not an Affiliate of the Company, stating that the consideration
received in such merger is fair to the Company from a financial point of
view, or
(6) the issuance of shares of Common Stock pursuant to rights,
options or warrants which were originally issued in a Non-Affiliate Sale
(as defined below) together with one or more other securities as part of a
unit at a price per unit.
(e) Adjustment for Convertible Securities Issue.
22
<PAGE>
If the Company issues any securities convertible into or exchangeable
for Common Stock (other than securities issued in transactions described in
subsections (b) and (c) of this Section 8) for a consideration per share of
Common Stock initially deliverable upon conversion or exchange of such
securities less than the Fair Value per share on the date of issuance of such
securities, the Exercise Price shall be adjusted in accordance with this
formula:
O+ P
-
E'= Ex M
-----
O+ D
where:
E' = the adjusted Exercise Price.
E = the then current Exercise Price.
O = the number of shares outstanding immediately prior to the
issuance of such securities.
P = the aggregate consideration received for the issuance of
such securities.
M = the Fair Value per share on the date of issuance of such
securities.
D = the maximum number of shares deliverable upon conversion or
in exchange for such securities at the initial conversion or
exchange rate.
The adjustment shall be made successively whenever any such issuance
is made, and shall become effective immediately after such issuance.
If all of the Common Stock deliverable upon conversion or exchange of
such securities have not been issued when such securities are no longer
outstanding, then the Exercise Price shall promptly be readjusted to the
Exercise Price which would then be in effect had the adjustment upon the
issuance of such securities been made on the basis of the actual number of
shares of Common Stock issued upon conversion or exchange of such securities.
This subsection (e) does not apply to convertible securities issued to
shareholders of any person which merges into the Company, or with a subsidiary
of the Company, in proportion to their stock holdings of such person immediately
prior to such merger, upon such merger, provided that if such person is an
Affiliate of the Company, the Board of Directors shall have obtained a fairness
opinion from a nationally recognized investment banking, appraisal or valuation
firm, which is not an Affiliate of the Company, stating that the consideration
received in such merger is fair to the Company from a financial point of view.
(f) Consideration Received.
23
<PAGE>
For purposes of any computation respecting consideration received
pursuant to subsections (d), and (e) of this Section 8, the following shall
apply:
(i) in the case of the issuance of shares of Common Stock for
cash, the consideration shall be the amount of such cash, provided that in
no case shall any deduction be made for any commissions, discounts or other
expenses incurred by the Company for any underwriting of the issue or
otherwise in connection therewith;
(ii) in the case of the issuance of shares of Common Stock for
a consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the fair market value thereof as
determined in good faith by the Board of Directors (irrespective of the
accounting treatment thereof), whose determination shall be conclusive, and
described in a Board resolution which shall be filed with the Warrant
Agent;
(iii) in the case of the issuance of securities convertible into
or exchangeable for shares, the aggregate consideration received therefor
shall be deemed to be the consideration received by the Company for the
issuance of such securities plus the additional minimum consideration, if
any, to be received by the Company upon the conversion or exchange thereof
(the consideration in each case to be determined in the same manner as
provided in clauses (i) and (ii) of this subsection); and
(iv) in the case of the issuance of shares of Common Stock
pursuant to rights, options or warrants which rights, options or warrants
were originally issued together with one or more other securities as part
of a unit at a price per unit, the consideration shall be deemed to be the
fair value of such rights, options or warrants at the time of issuance
thereof as determined in good faith by the Board of Directors whose
determination shall be conclusive and described in a Board resolution which
shall be filed with the Warrant Agent plus the additional minimum
consideration, if any, to be received by the Company upon the exercise,
conversion or exchange thereof (as determined in the same manner as
provided in clauses (i) and (ii) of this subsection).
(g) Fair Value.
In Sections 8(d) and (e) hereof, the "Fair Value" per security at any
date of determination shall be (1) in connection with a sale by the Company to a
party that is not an Affiliate of the Company in an arm's-length transaction (a
"Non-Affiliate Sale"), the price per security at which such security is sold and
(2) in connection with any sale by the Company to an Affiliate of the Company,
(a) the last price per security at which such security was sold in a Non-
Affiliate Sale within the three-month period preceding such date of
determination or (b) if clause (a) is not applicable, the fair market value of
such security determined in good faith by (i) a majority of the Board of
Directors, including a majority of the Disinterested Directors, and approved in
a Board resolution delivered to the Warrant Agent or (ii) a nationally
recognized investment banking, appraisal or valuation firm, which is not an
Affiliate of the Company, in each case, taking into account, among all other
factors deemed relevant by the Board of Directors or such investment banking,
appraisal or valuation firm, the trading price and volume of such security on
any national
24
<PAGE>
securities exchange or automated quotation system on which such security is
traded. Notwithstanding the foregoing, any sale to Donaldson, Lufkin & Jenrette
Securities Corporation (or any successor thereto) pursuant to an underwritten
public offering registered under the Securities Act shall be deemed to be and
treated as a Non-Affiliate Sale.
In Sections 8(b) and (c) hereof, the "Fair Value" per security at any
date of determination shall be (a) the last price per security at which such
security was sold by the Company in a Non-Affiliate Sale within the three-month
period preceding such date of determination or (b) if clause (a) is not
applicable, the fair market value of such security determined in good faith by
(i) a majority of the Board of Directors, including a majority of the
Disinterested Directors, and approved in a Board resolution delivered to the
Warrant Agent or (ii) a nationally recognized investment banking, appraisal or
valuation firm, which is not an Affiliate of the Company, in each case, taking
into account, among all other factors deemed relevant by the Board of Directors
or such investment banking, appraisal or valuation firm, the trading price and
volume of such security on any national securities exchange or automated
quotation system on which such security is traded.
For purposes of this Section 8(g), "Disinterested Director" means, in
connection with any issuance of securities that gives rise to a determination of
the Fair Value thereof, each member of the Board of Directors who is not an
officer, employee, director or other Affiliate of the party to whom the Company
is proposing to issue the securities giving rise to such determination.
For purposes of this Section 8(g), "Affiliate" of any specified Person
means (A) any other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified Person and (B)
any director, officer or employee of such specified person. For purposes of
this definition "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with") 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.
(h) When De Minimis Adjustment May Be Deferred.
No adjustment in the Exercise Price need be made unless the adjustment
would require an increase or decrease of at least 1% in the Exercise Price. Any
adjustments that are not made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 8 shall be made
to the nearest cent or to the nearest 1/100th of a share, as the case may be, it
being understood that no such rounding shall be made under subsection (p).
(i) When No Adjustment Required.
No adjustment need be made for a transaction referred to Section 8(a),
(b), (c), (d), (e) or (f) hereof, if Warrant Holders are to participate (without
being required to exercise their Warrants) in the transaction on a basis and
with notice that the Board of Directors determines to be fair and appropriate in
light of the basis and notice on which holders of Common Stock participate in
the transaction. No adjustment need be made for (i) rights to purchase Common
Stock pursuant
25
<PAGE>
to a Company plan for reinvestment of dividends or interest,(ii) a change in the
par value or no par value of the Common Stock, or (iii) the adoption of a plan
commonly referred to as a "Stockholders' Rights Plan" which provides for the
issuance of rights to acquire shares of capital stock upon the occurrence of
some event that is not within the control of the rights holders, or the issuance
of rights under such plan; provided that the issuance of capital stock pursuant
to such rights shall require adjustment to the Exercise Price and number of
shares of Common Stock purchasable upon the exercise of each Warrant as set
forth in this Agreement. To the extent the Warrants become convertible into
cash, no adjustment need be made thereafter as to the cash. Interest will not
accrue on the cash.
(j) Notice of Adjustment.
Whenever the Exercise Price is adjusted, the Company shall provide the
notices required by Section 10 hereof.
(k) Voluntary Reduction. The Company from time to time may reduce the
Exercise Price by any amount for any period of time, if the period is at least
20 days and if the reduction is irrevocable during the period; provided that in
no event may the Exercise Price be less than the par value of a share of Common
Stock. Whenever the Exercise Price is reduced, the Company shall mail to Warrant
Holders a notice of the reduction. The Company shall mail the notice at least 15
days before the date the reduced Exercise Price takes effect. The notice shall
state the reduced Exercise Price and the period in which it will be in effect. A
reduction of the Exercise Price does not change or adjust the Exercise Price
otherwise in effect for purposes of Section 8(a), (b), (c), (d), (e) and (f)
hereof.
(l) Notice of Certain Transactions.
If (i) the Company takes any action that would require an adjustment
in the Exercise Price pursuant to Section 8(a), (b), (c), (d), (e) or (f) hereof
and if the Company does not arrange for Warrant Holders to participate pursuant
to Section 8(i) hereof, (ii) the Company takes any action that would require a
supplemental Warrant Agreement pursuant to Section 8(m) hereof or (iii) there is
a liquidation or dissolution of the Company, then the Company shall mail to
Warrant Holders a notice stating the proposed record date for a dividend or
distribution or the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, transfer, lease, liquidation or
dissolution. The Company shall mail the notice at least 15 days before such
date. Failure to mail the notice or any defect in it shall not affect the
validity of the transaction.
(m) Reorganization of Company.
Immediately after the date hereof, if the Company consolidates or
merges with or into, or transfers or leases all or substantially all its assets
to, any person, upon consummation of such transaction the Warrants shall
automatically become exercisable for the kind and amount of securities, cash or
other assets which the Holder of a Warrant would have owned immediately after
the consolidation, merger, transfer or lease if the Holder had exercised the
Warrant immediately before the effective date of the transaction. Concurrently
with the consummation of such
26
<PAGE>
transaction, the corporation formed by or surviving any such consolidation or
merger if other than the Company, or the person to which such sale or conveyance
shall have been made, shall enter into a supplemental Warrant Agreement so
providing and further providing for adjustments which shall be as nearly
equivalent as may be practical to the adjustments provided for in this Section
8(m). The successor Company shall mail to Warrant Holders a notice describing
the supplemental Warrant Agreement. If the issuer of securities deliverable upon
exercise of Warrants under the supplemental Warrant Agreement is an affiliate of
the formed, surviving, transferee or lessee corporation, that issuer shall join
in the supplemental Warrant Agreement. If this Section 8(m) applies, Sections
8(a), (b), (c), (d), (e) and (f) hereof do not apply.
(n) Company Determination Final.
Any determination that the Company or the Board of Directors must make
pursuant to Section 8(a), (c), (d), (e), (f), (g), (h) or (i) hereof is
conclusive.
(o) Warrant Agent's Disclaimer.
The Warrant Agent has no duty to determine when an adjustment under
this Section 8 should be made, how it should be made or what it should be. The
Warrant Agent has no duty to determine whether any provisions of a supplemental
Warrant Agreement under Section 8(m) hereof are correct. The Warrant Agent
makes no representation as to the validity or value of any securities or assets
issued upon exercise of Warrants. The Warrant Agent shall not be responsible
for the Company's failure to comply with this Section 8.
(p) When Issuance or Payment May Be Deferred.
In any case in which this Section 8 shall require that an adjustment
in the Exercise Price be made effective as of a record date for a specified
event, the Company may elect to defer until the occurrence of such event (i)
issuing to the Holder of any Warrant exercised after such record date the
Warrant Shares and other capital stock of the Company, if any, issuable upon
such exercise over and above the Warrant Shares and other capital stock of the
Company, if any, issuable upon such exercise on the basis of the Exercise Price
and (ii) paying to such Holder any amount in cash in lieu of a fractional share
pursuant to Section 9 hereof; provided that the Company shall deliver to such
Holder a due bill or other appropriate instrument evidencing such Holder's right
to receive such additional Warrant Shares, other capital stock and cash upon the
occurrence of the event requiring such adjustment.
(q) Adjustment in Number of Shares.
Upon each adjustment of the Exercise Price pursuant to this Section 8,
each Warrant outstanding prior to the making of the adjustment in the Exercise
Price shall thereafter evidence the right to receive upon payment of the
adjusted Exercise Price that number of shares of Common Stock (calculated to the
nearest hundredth) obtained from the following formula:
27
<PAGE>
N' = Nx E
-
E
where:
N' = the adjusted number of Warrant Shares issuable upon
exercise of a Warrant by payment of the adjusted Exercise
Price.
N = the number or Warrant Shares previously issuable upon
exercise of a Warrant by payment of the Exercise Price
prior to adjustment.
E' = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
(r) Form of Warrants.
Irrespective of any adjustments in the Exercise Price or the number
or kind of shares purchasable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
SECTION 9. FRACTIONAL INTERESTS.
The Company shall not be required to issue fractional Warrant Shares
on the exercise of Warrants. If more than one Warrant shall be presented for
exercise in full at the same time by the same Holder, the number of full Warrant
Shares which shall be issuable upon the exercise thereof shall be computed on
the basis of the aggregate number of Warrant Shares purchasable on exercise of
the Warrants so presented. If any fraction of a Warrant Share would, except for
the provisions of this Section 9, be issuable on the exercise of any Warrants
(or specified portion thereof), the Company shall pay an amount in cash equal to
the Fair Value per Warrant Share, as determined on the day immediately preceding
the date the Warrant is presented for exercise, multiplied by such fraction,
computed to the nearest whole U.S. cent.
SECTION 10. NOTICES TO WARRANT HOLDERS.
(a) Upon any adjustment of the Exercise Price pursuant to Section 8
hereof, the Company shall promptly thereafter (i) cause to be filed with the
Warrant Agent a certificate of a firm of independent public accountants of
recognized standing selected by the Board of Directors of the Company (who may
be the regular auditors of the Company) setting forth the Exercise Price after
such adjustment and setting forth in reasonable detail the method of calculation
and the facts upon which such calculations are based and setting forth the
number of Warrant Shares (or portion thereof) issuable after such adjustment in
the Exercise Price, upon exercise of a Warrant and payment of the adjusted
Exercise Price, which certificate shall be conclusive evidence of the
correctness of the matters set forth therein, and (ii) cause to be given to each
of the registered holders
28
<PAGE>
of Warrants at the address appearing on the Warrant register for each such
registered holder written notice of such adjustments by first-class mail,
postage prepaid. Where appropriate, such notice may be given in advance and
included as a part of the notice required to be mailed under the other
provisions of this Section 10.
(b) In case:
(i) the Company shall authorize the issuance to all holders of
shares of Common Stock of rights, options or warrants to subscribe for or
purchase shares of Common Stock or of any other subscription rights or
warrants;
(ii) the Company shall authorize the distribution to all
holders of shares of Common Stock of evidences of its indebtedness or
assets (other than dividends or cash distributions paid out of consolidated
current or retained earnings as shown on the books of the Company prepared
in accordance with generally accepted accounting principles or dividends
payable in shares of Common Stock or distributions referred to in Section
8(a) hereof);
(iii) of any consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Company is
required, or of the conveyance or transfer of the properties and assets of
the Company substantially as an entirety, or of any reclassification or
change of Common Stock issuable upon exercise of the Warrants (other than a
change in par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination), or a
tender offer or exchange offer for shares of Common Stock;
(iv) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; or
(v) the Company proposes to take any action (other than
actions of the character described in Section 8(a) hereof) which would
require an adjustment of the Exercise Price pursuant to Section 8 hereof;
then the Company shall cause to be filed with the Warrant Agent and shall cause
to be given to each of the registered holders of Warrants at his or her address
appearing on the Warrant register, at least 20 days (or 10 days in any case
specified in clauses (i) or (ii) above) prior to the applicable record date
hereinafter specified, or promptly in the case of events for which there is no
record date, by first-class mail, postage prepaid, a written notice stating (x)
the date as of which the holders of record of shares of Common Stock to be
entitled to receive any such rights, options, warrants or distribution are to be
determined, (y) the initial expiration date set forth in any tender offer or
exchange offer for shares of Common Stock, or (z) the date on which any such
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up is expected to become effective or consummated, and the date as of which it
is expected that holders of record of shares of Common Stock shall be entitled
to exchange such shares for securities or other property, if any, deliverable
upon such reclassification, consolidation, merger, conveyance, transfer,
dissolution, liquidation or winding up.
29
<PAGE>
The failure to give the notice required by this Section 10 or any defect therein
shall not affect the legality or validity of any distribution, right, option,
warrant, consolidation, merger, conveyance, transfer, dissolution, liquidation
or winding up, or the vote upon any action.
(c) Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the Holders of Warrants the
right to vote or to consent or to receive notice as stockholders in respect of
the meetings of stockholders or the election of directors of the Company or any
other matter, or any rights whatsoever as stockholders of the Company.
SECTION 11. MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT.
(a) Any corporation into which the Warrant Agent may be merged or
with which it may be consolidated, or any corporation resulting from any merger
or consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the business of the Warrant Agent, shall be the successor to the
Warrant Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor warrant agent under
the provisions of Section 13 hereof. In case at the time such successor to the
Warrant Agent shall succeed to the agency created by this Agreement, and in case
at that time any of the Warrant Certificates shall have been countersigned but
not delivered, any such successor to the Warrant Agent may adopt the
countersignature of the original Warrant Agent; and in case at that time any of
the Warrant Certificates shall not have been countersigned, any successor to the
Warrant Agent may countersign such Warrant Certificates either in the name of
the predecessor Warrant Agent or in the name of the successor to the Warrant
Agent; and in all such cases such Warrant Certificates shall have the full force
and effect provided in the Warrant Certificates and in this Agreement.
(b) In case at any time the name of the Warrant Agent shall be
changed and at such time any of the Warrant Certificates shall have been
countersigned but not delivered, the Warrant Agent whose name has been changed
may adopt the countersignature under its prior name, and in case at that time
any of the Warrant Certificates shall not have been countersigned, the Warrant
Agent may countersign such Warrant Certificates either in its prior name or in
its changed name, and in all such cases such Warrant Certificates shall have the
full force and effect provided in the Warrant Certificates and in this
Agreement.
SECTION 12. WARRANT AGENT.
The Warrant Agent undertakes the duties and obligations imposed by
this Agreement upon the following terms and conditions, by all of which the
Company and the Holders of Warrants, by their acceptance thereof, shall be
bound:
(a) The statements contained herein and in the Warrant Certificates
shall be taken as statements of the Company and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or action taken or to be taken by it.
30
<PAGE>
The Warrant Agent assumes no responsibility with respect to the distribution of
the Warrant Certificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrant Certificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant Agent
shall incur no liability or responsibility to the Company or to any holder of
any Warrant Certificate in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with the opinion or the advice of
such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to
the Company or to any holder of any Warrant Certificate for any action taken in
reliance on any Warrant Certificate, certificate of shares, notice, resolution,
waiver, consent, order, certificate, or other paper, document or instrument
believed by it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the execution of
this Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the execution of this Agreement. The Company shall indemnify
the Warrant Agent 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 Warrant Agreement, including the costs and expenses of
enforcing this Warrant Agreement against the Company and defending itself
against any claim (whether asserted by the Company or any Holder or any other
person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any such loss, liability or
expense may be attributable to its negligence or bad faith. The Warrant Agent
shall notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Warrant Agent to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend the claim and
the Warrant Agent shall cooperate in the defense. The Warrant Agent may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
(f) The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more registered holders of Warrants shall
furnish the Warrant Agent with reasonable security and indemnity for any costs
and expenses which may be incurred, but this provision shall not affect the
power of the Warrant Agent to take such action as it may consider proper,
whether with or without any such security or indemnity. All rights of action
under this Agreement or under any of the Warrants may be enforced by the Warrant
Agent without the possession of any of the Warrant Certificates or the
production thereof at any trial or other proceeding relative thereto, and any
such action, suit or proceeding instituted by the Warrant Agent shall be brought
in its name as Warrant
31
<PAGE>
Agent and any recovery of judgment shall be for the ratable benefit of the
registered holders of the Warrants, as their respective rights or interests may
appear.
(g) The Warrant Agent, and any stockholder, director, officer or
employee of it, may buy, sell or deal in any of the Warrants or other securities
of the Company or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the
Company, and its duties shall be determined solely by the provisions hereof.
The Warrant Agent shall not be liable for anything which it may do or refrain
from doing in connection with this Agreement except for its own negligence or
bad faith.
(i) The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of any Warrant Certificate to make or cause to be
made any adjustment of the Exercise Price or number of the Warrant Shares or
other securities or property deliverable as provided in this Agreement, or to
determine whether any facts exist which may require any of such adjustments, or
with respect to the nature or extent of any such adjustments, when made, or with
respect to the method employed in making the same. The Warrant Agent shall not
be accountable with respect to the validity or value or the kind or amount of
any Warrant Shares or of any securities or property which may at any time be
issued or delivered upon the exercise of any Warrant or with respect to whether
any such Warrant Shares or other securities will when issued be validly issued
and fully paid and nonassessable, and makes no representation with respect
thereto.
SECTION 13. CHANGE OF WARRANT AGENT.
If the Warrant Agent shall become incapable of acting as Warrant
Agent, the Company shall appoint a successor to such Warrant Agent. If the
Company shall fail to make such appointment within a period of 30 days after it
has been notified in writing of such incapacity by the Warrant Agent or by the
registered holder of a Warrant Certificate, then the registered holder of any
Warrant may apply to any court of competent jurisdiction for the appointment of
a successor to the Warrant Agent. Pending appointment of a successor to such
Warrant Agent, either by the Company or by such a court, the duties of the
Warrant Agent shall be carried out by the Company. The Holders of a majority of
the unexercised Warrants shall be entitled at any time to remove the Warrant
Agent and appoint a successor to such Warrant Agent. Such successor to the
Warrant Agent need not be approved by the Company or the former Warrant Agent.
After appointment, the successor to the Warrant Agent shall be vested with the
same powers, rights, duties and responsibilities as if it had been originally
named as Warrant Agent without further act or deed; provided that the former
Warrant Agent shall deliver and transfer to the successor to the Warrant Agent
any property at the time held by it hereunder and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Failure
to give any notice provided for in this Section 13, however, or any defect
therein, shall not affect the legality or validity of the appointment of a
successor to the Warrant Agent.
32
<PAGE>
SECTION 14. REPORTS.
(a) Whether or not required by the rules and regulations of the
Commission, so long as any Warrants are outstanding, the Company shall furnish
to the Warrant Agent and the Holders of Warrants (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 the Company 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 the Company's certified independent accountants and (ii) all
current reports that would be required to be filed with the Commission on Form
8-K if the Company were required to file such reports. In addition, whether or
not required by the rules and regulations of the Commission, the Company shall
file a copy of all such information and reports with the Commission for public
availability (unless the Commission shall not accept such a filing) and make
such information available to securities analysts and prospective investors upon
request.
(b) The Company shall provide the Warrant Agent with a sufficient
number of copies of all such reports that the Warrant Agent may be required to
deliver to the Holders of the Warrants under this Section 14.
SECTION 15. NOTICES TO COMPANY AND WARRANT AGENT.
Any notice or demand authorized by this Agreement to be given or made
by the Warrant Agent or by the registered holder of any Warrant to or on the
Company shall be sufficiently given or made when received if deposited in the
mail, first class or registered, postage prepaid, addressed (until another
address is filed in writing by the Company with the Warrant Agent) as follows:
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
Telecopier No.: (202) 457-6315
Attention: Mary M. Sjoquist, Esq.
33
<PAGE>
In case the Company shall fail to maintain such office or agency or
shall fail to give such notice of the location or of any change in the location
thereof, presentations may be made and notices and demands may be served at the
principal office of the Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by
the registered holder(s) of any Warrant to the Warrant Agent shall be
sufficiently given when and if deposited in the mail, first-class or registered,
postage prepaid, addressed (until another address is filed in writing by the
Warrant Agent with the Company) to the Warrant Agent as follows:
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
SECTION 16. SUPPLEMENTS AND AMENDMENTS.
The Company and the Warrant Agent may from time to time supplement or
amend this Agreement without the approval of any Holders of Warrants in order to
cure any ambiguity or to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions in regard to matters or questions arising hereunder
which the Company and the Warrant Agent may deem necessary or desirable and
which shall not in any way adversely affect the interests of the Holders of
Warrants. Any amendment or supplement to this Agreement that has an adverse
effect on the interests of the Holders of Warrants shall require the written
consent of the Holders of a majority of the then outstanding Warrants (excluding
Warrants held by the Company or any of its affiliates). The consent of each
Holder of Warrants affected shall be required for any amendment pursuant to
which the Exercise Price would be increased or the number of Warrant Shares
purchasable upon exercise of Warrants would be decreased (other than pursuant to
adjustments provided in this Agreement).
SECTION 17. SUCCESSORS.
All the covenants and provisions of this Agreement by or for the
benefit of the Company or the Warrant Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder including, without
limitation and without the need for an express assignment, subsequent Holders.
SECTION 18. TERMINATION.
This Agreement shall terminate at 5:00 p.m., New York City time on
September ____, 2009. Notwithstanding the foregoing, this Agreement will
terminate on any earlier date if all Warrants have been exercised. The
provisions of Section 12 shall survive such termination.
34
<PAGE>
SECTION 19. GOVERNING LAW.
This Agreement and each Warrant Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of New York and for all
purposes shall be construed in accordance with the internal laws of said State.
SECTION 20. BENEFITS OF THIS AGREEMENT.
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company, the Warrant Agent and the registered holders
of Warrants any legal or equitable right, remedy or claim under this Agreement;
but this Agreement shall be for the sole and exclusive benefit of the Company,
the Warrant Agent and the registered holders of Warrants. The Company agrees
that the Holders of the Warrants shall be third-party beneficiaries to the
agreements made hereunder by the Company and each Holder shall have the right to
enforce such agreements directly to the extent it deems enforcement necessary or
advisable to protect its rights hereunder.
SECTION 21. COUNTERPARTS.
This Agreement may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
[Signature Page Follows]
35
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
AirGate PCS, Inc.
By:__________________________________________
Name:
Title:
Bankers Trust Company, as Warrant Agent
By:__________________________________________
Name:
Title:
36
<PAGE>
EXHIBIT A
[Form of Warrant Certificate]
[Face]
Unit Legend. Each Warrant issued prior to the Separation Date shall
bear the following legend (the "Unit Legend") on the face thereof:
THE WARRANTS EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART OF AN
ISSUANCE OF UNITS (THE "UNITS"), EACH OF WHICH CONSIST OF $1,000 PRINCIPAL
AMOUNT AT MATURITY OF THE __% SENIOR SUBORDINATED DISCOUNT NOTES DUE 2009 OF
AIRGATE PCS, INC. (THE "NOTES") AND _______ WARRANTS (THE "WARRANTS") INITIALLY
ENTITLING THE HOLDER THEREOF TO PURCHASE ___ SHARES OF COMMON STOCK, PAR VALUE
$0.01 PER SHARE, OF AIRGATE PCS, INC.
PRIOR TO THE EARLIEST 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 (EACH
AS DEFINED IN THE INDENTURE GOVERNING THE NOTES) AND (III) SUCH DATE AS
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION IN ITS SOLE DISCRETION SHALL
DETERMINE, THE WARRANTS EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR
EXCHANGED SEPARATELY FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER
WITH, THE NOTES.
[THIS GLOBAL WARRANT IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
WARRANT AGREEMENT GOVERNING THIS WARRANT) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE WARRANT AGENT MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 3.5 OF THE
WARRANT AGREEMENT, (II) THIS GLOBAL WARRANT MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 3.5(a) OF THE WARRANT AGREEMENT, (III) THIS
GLOBAL WARRANT MAY BE DELIVERED TO THE WARRANT AGENT FOR CANCELLATION
PURSUANT TO SECTION 3.8 OF THE WARRANT AGREEMENT AND (IV) THIS GLOBAL
WARRANT MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.]/1/
/1/ This paragraph should be included only if the Warrant is issued in global
form.
A-1
<PAGE>
No. ___________ ___Warrants
CUSIP No. ________
A-2
<PAGE>
Warrant Certificate
AIRGATE PCS, INC.
This Warrant Certificate certifies that Cede & Co., or its registered
assigns, is the registered holder of Warrants expiring September ____, 2009 (the
"Warrants") to purchase Common Stock, par value $.01 (the "Common Stock"), of
AirGate PCS, Inc., a Delaware corporation (the "Company"). Each Warrant
entitles the registered holder upon exercise at any time from 9:00 a.m. on the
Separation Date referred to below (the "Exercise Date") until 5:00 p.m. New
York City time on September ____, 2009, to receive from the Company ____ fully
paid and nonassessable shares of Common Stock (the "Warrant Shares") at the
initial exercise price (the "Exercise Price") of $0.01 per share payable upon
surrender of this Warrant Certificate and payment of the Exercise Price at the
office or agency of the Warrant Agent, but only subject to the conditions set
forth herein and in the Warrant Agreement referred to on the reverse hereof.
The Exercise Price and number of Warrant Shares issuable upon exercise of the
Warrants are subject to adjustment upon the occurrence of certain events set
forth in the Warrant Agreement.
No Warrant may be exercised after 5:00 p.m., New York City time on
September ____, 2009, and to the extent not exercised by such time such Warrants
shall become void.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent, as such term is used in the Warrant Agreement.
This Warrant Certificate shall be governed by and construed in
accordance with the internal laws of the State of New York.
A-3
<PAGE>
IN WITNESS WHEREOF, AirGate PCS, Inc. and AGW Leasing Company, Inc.
have caused this Warrant Certificate to be signed below.
Dated: September __, 1999
AirGate PCS, Inc.
By:_____________________________________
Name:
Title:
Countersigned:
Bankers Trust Company
as Warrant Agent
By: _____________________________________
Authorized Signature
A-4
<PAGE>
[Reverse of Warrant Certificate]
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring at 5:00 p.m. New York City time on
September ___, 2009 entitling the holder on exercise to receive shares of Common
Stock, and are issued or to be issued pursuant to a Warrant Agreement dated as
of September ___, 1999 (the "Warrant Agreement"), duly executed and delivered by
the Company to Bankers Trust Company, as warrant agent (the "Warrant Agent"),
which Warrant Agreement is hereby incorporated by reference in and made a part
of this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Warrant Agent, the Company and the holders (the words "holders" or "holder"
meaning the registered holders or registered holder) of the Warrants. A copy of
the Warrant Agreement may be obtained by the holder hereof upon written request
to the Company.
Warrants may be exercised at any time on or after the Separation Date
and on or before 5:00 p.m. New York City time on September ___, 2009; provided
that holders shall be able to exercise their Warrants only if a Registration
Statement relating to the Warrants Shares is then in effect, or the exercise of
such Warrants is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "Securities Act"), and such securities are qualified
for sale or exempt from qualification under the applicable securities laws of
the states in which the various holders of the Warrants or other persons to whom
it is proposed that the Warrant Shares be issued on exercise of the Warrants
reside. In order to exercise all or any of the Warrants represented by this
Warrant Certificate, the holder must deliver to the Warrant Agent at its New
York corporate trust office set forth in Section 15 of the Warrant Agreement
this Warrant Certificate and the form of election to purchase on the reverse
hereof duly filled in and signed, which signature shall be medallion guaranteed
by an institution which is a member of a Securities Transfer Association
recognized signature guarantee program, and upon payment to the Warrant Agent
for the account of the Company of the Exercise Price, as adjusted as provided in
the Warrant Agreement, for the number of Warrant Shares in respect of which such
Warrants are then exercised. No adjustment shall be made for any dividends on
any Common Stock issuable upon exercise of this Warrant.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that the number of shares of Common Stock issuable upon the
exercise of each Warrant shall be adjusted. No fractions of a share of Common
Stock will be issued upon the exercise of any Warrant, but the Company will pay
the cash value thereof determined as provided in the Warrant Agreement.
Warrant Certificates, when surrendered at the office of the Warrant
Agent by the registered holder thereof in person or by legal representative or
attorney duly authorized in writing, may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant
A-5
<PAGE>
Certificate or Warrant Certificates of like tenor evidencing in the aggregate a
like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder(s) thereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a stockholder of the Company.
A-6
<PAGE>
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive _____________ shares of
Common Stock and herewith tenders payment for such shares to the order of
AIRGATE PCS, INC., in the amount of $__________ in accordance with the terms
hereof. The undersigned requests that a certificate for such shares be
registered in the name of _______________, whose address is __________________
and that such shares be delivered to ___________, whose address is
____________________________. If said number of shares is less than all of the
shares of Common Stock purchasable hereunder, the undersigned requests that a
new Warrant Certificate representing the remaining balance of such shares be
registered in the name of ______________________, whose address is
____________________, and that such Warrant Certificate be delivered to whose
address is ____________________.
________________________________________
Signature
Date:
________________________________________
Signature Guaranteed
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Warrant Agent, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Warrant Agent in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-7
<PAGE>
SCHEDULE OF EXCHANGES OF INTERESTS
OF GLOBAL WARRANTS/2/
The following exchanges of a part of this Global Warrant have been made:
<TABLE>
<CAPTION>
Amount of
decrease in Amount of
Number of increase in Number of Signature of
warrants in Number of Warrants in this Global authorized
Date of this Global Warrants in this Warrant following such officer of
Exchange Warrant Global Warrant decrease or increase Warrant Agent
---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
</TABLE>
/2/ To be included only on Global Warrants.
A-8
<PAGE>
EXHIBIT B
[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 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
__________________________
/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.
B-1
<PAGE>
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/
AIRGATE PCS, INC.
By:________________________________________
Name:
Title:
AGW LEASING COMPANY, INC.
_____________________________
/3/ This paragraph should be included only if the Unit certificate is issued
prior to the Separation Date.
B-2
<PAGE>
By:___________________________________________
Name:
Title:
Date: September ____, 1999
B-3
