-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Wt+g3SH6AQ7nfd4SKjooBZOw81NXIT8Sqmcln5oFiSlEEdyytruKP/xx8RBxrQKs 8kqt6YtfGKpBI2kqHNpxMA== 0001021408-99-001630.txt : 19990924 0001021408-99-001630.hdr.sgml : 19990924 ACCESSION NUMBER: 0001021408-99-001630 CONFORMED SUBMISSION TYPE: S-1/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19990923 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AIRGATE WIRELESS INC CENTRAL INDEX KEY: 0001086844 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 582422929 FILING VALUES: FORM TYPE: S-1/A SEC ACT: SEC FILE NUMBER: 333-79189-02 FILM NUMBER: 99716055 BUSINESS ADDRESS: STREET 1: 230 PEACHTREE ST STREET 2: SUITE 1700 CITY: ATLANTA STATE: GA ZIP: 30303 BUSINESS PHONE: 3105406222 MAIL ADDRESS: STREET 1: 230 PEACHTREE ST STREET 2: SUITE 1700 CITY: ATLANTA STATE: GA ZIP: 30303 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AGW LEASING CO INC CENTRAL INDEX KEY: 0001086843 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMMERCIAL PHYSICAL & BIOLOGICAL RESEARCH [8731] IRS NUMBER: 582441171 FILING VALUES: FORM TYPE: S-1/A SEC ACT: SEC FILE NUMBER: 333-79189-01 FILM NUMBER: 99716056 BUSINESS ADDRESS: STREET 1: 230 PEACHTREE ST STREET 2: SUITE 1700 CITY: ATLANTA STATE: GA ZIP: 30303 BUSINESS PHONE: 3105406222 MAIL ADDRESS: STREET 1: 230 PEACHTREE ST STREET 2: SUITE 1700 CITY: ATLANTA STATE: GA ZIP: 30303 S-1/A 1 FORM S-1/A - AMENDMENT #6 As filed with the Securities and Exchange Commission on September 23, 1999 Registration No. 333- 79189-02 Registration No. 333- 79189-01 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 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 --------------- 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. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 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. 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 ---------- Total............................................................ $2,000,000 ==========
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 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 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 (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 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 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.
II-5 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
- --------------------- * 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 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 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.
Name Title Date ---- ----- ---- /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
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.
Name Title Date ---- ----- ---- /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
EX-1.2 2 EXHIBIT 1.2 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) 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 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, 3 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 4 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 5 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 6 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 7 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. 8 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 9 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 10 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. 11 (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 12 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 13 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 14 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 15 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 16 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 17 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. 18 (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 19 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 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 21 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: 22 (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; 23 (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 24 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 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 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 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 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 "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 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 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 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 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 SCHEDULE I ---------- Number of Units Underwriters to be Purchased - ------------ --------------- Donaldson, Lufkin & Jenrette Securities Corporation Credit Suisse First Boston Corporation __________ Total EX-4.5 3 EXHIBIT 4.5 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 ================================================================================ CROSS-REFERENCE TABLE*
Trust Indenture Act Section Section Indenture 310 (a)(1)...............................................................................................7.10 (a)(2)...............................................................................................7.10 (a)(3)...............................................................................................N.A. (a)(4)...............................................................................................N.A. (a)(5)...............................................................................................7.10 (b).............................................................................................7.3; 7.10 (c)..................................................................................................N.A. 311 (a)..................................................................................................7.11 (b)..................................................................................................7.11 (c)..................................................................................................N.A. 312 (a)...................................................................................................2.5 (b)..................................................................................................10.3 (c)..................................................................................................10.3 313 (a)...................................................................................................7.6 (b)(1)................................................................................................7.6 (b)(2)...........................................................................................7.6; 7.7 (c)..............................................................................................7.6;10.2 (d)...................................................................................................7.6 314 (a)..............................................................................................4.3;10.5 (b)..................................................................................................N.A. (c)(1)...............................................................................................10.4 (c)(2)...............................................................................................10.4 (c)(3)...............................................................................................N.A. (d)..................................................................................................N.A. (e)..................................................................................................10.5 (f)..................................................................................................N.A. 315 (a)...................................................................................................7.1 (b)..............................................................................................7.5,10.2 (c)...................................................................................................7.1 (d)...................................................................................................7.1 (e)..................................................................................................6.11 316 (a)(last sentence)....................................................................................2.9 (a)(1)(A).............................................................................................6.5
Trust Indenture Act Section Section Indenture 316 (a)(1)(B).............................................................................................6.4 (a)(2)...............................................................................................2.13 (b)...................................................................................................6.7 (c)..................................................................................................N.A. 317 (a)(1)................................................................................................6.8 (a)(2)................................................................................................6.9 (b)...................................................................................................2.4 318 (a)..................................................................................................10.1 (b)..................................................................................................N.A. (c)..................................................................................................10.1
N.A. means not applicable. *This Cross-Reference Table is not part of the Indenture. TABLE OF CONTENTS
PAGE ----- ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE........................................................... 1 SECTION 1.1 DEFINITIONS............................................................... 1 SECTION 1.2 OTHER DEFINITIONS......................................................... 23 SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. ................................................... 24 SECTION 1.4 RULES OF CONSTRUCTION..................................................... 24 ARTICLE II THE NOTES............................................................................................ 25 SECTION 2.1 FORM AND DATING........................................................... 25 SECTION 2.2 EXECUTION AND AUTHENTICATION.............................................. 26 SECTION 2.3 REGISTRAR AND PAYING AGENT................................................ 27 SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST....................................... 28 SECTION 2.5 HOLDER LISTS.............................................................. 28 SECTION 2.6 BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES........................................................ 28 SECTION 2.7 REPLACEMENT NOTES......................................................... 32 SECTION 2.8 OUTSTANDING NOTES......................................................... 32 SECTION 2.9 TREASURY NOTES............................................................ 33 SECTION 2.10 TEMPORARY NOTES........................................................... 33 SECTION 2.11 CANCELLATION.............................................................. 34 SECTION 2.12 DEFAULTED INTEREST........................................................ 34 SECTION 2.13 RECORD DATE............................................................... 34 SECTION 2.14 COMPUTATION OF INTEREST................................................... 34 SECTION 2.15 CUSIP NUMBER.............................................................. 35 ARTICLE III REDEMPTION AND PREPAYMENT............................................................................ 35 SECTION 3.1 NOTICES TO TRUSTEE........................................................ 35 SECTION 3.2 SELECTION OF NOTES TO BE REDEEMED......................................... 35 SECTION 3.3 NOTICE OF REDEMPTION...................................................... 36 SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION............................................ 37
i 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
ii 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
iii 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
iv 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
v SECTION 12.12 COUNTERPART ORIGINALS............................................ 103 SECTION 12.13 TABLE OF CONTENTS, HEADINGS, ETC................................. 103
vi 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 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 (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; 2 (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. 3 "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 4 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 5 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 6 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. 7 "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 8 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). 9 "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; 10 (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 11 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. 12 "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. 13 "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. 14 "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 15 (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; 16 (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. 17 "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: 18 (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: 19 (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. 20 "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 21 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 22 "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; 23 (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 24 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). 25 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. 26 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. 27 (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. 28 (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. 29 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 30 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 31 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. 32 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. 33 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 34 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 35 (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 36 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. 37 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: 38 (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). 39 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. 40 (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 41 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 42 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; 43 (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: 44 (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 45 (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; 46 (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) 47 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: 48 (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; 49 (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 50 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; 51 (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. 52 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; 53 (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 54 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. 55 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 56 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. 57 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. 58 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. 59 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 60 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. 61 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; 62 (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; 63 (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. 64 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. 65 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. 66 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 67 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; 68 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 69 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. 70 (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 71 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. 72 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. 73 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 74 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. 75 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 76 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, 77 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. 78 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 79 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 80 (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 81 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 82 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 83 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 84 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 85 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 86 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. 87 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 88 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. 89 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 90 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 91 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. 92 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. 93 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. 94 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 95 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: 96 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 97 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: 98 (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. 99 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] 100 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: 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. A-1 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: A-2 This is one of the Senior Subordinated Discount Notes referred to in the within-mentioned Indenture: Dated: ____________ BANKERS TRUST COMPANY, as Trustee By: _______________________________ A-3 (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 A-4 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: A-5 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 A-6 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 A-7 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 A-8 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. A-9 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 A-10 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). A-11 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 A-12 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 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 SCHEDULE OF EXCHANGES OF SENIOR SUBORDINATED DISCOUNT NOTES(1) The following exchanges of a part of this Global Note for other Senior Subordinated Discount Notes have been made:
- ----------------------------------------------------------------------------------------------------------------------- Principal Amount of Signature of authorized Amount of decrease in Amount of increase in this Global Note officer of Trustee or Principal Amount of Principal Amount of following such decrease Senior Subordinated Date of Exchange this Global Note this Global Note (or increase) Discount Note Custodian - -----------------------------------------------------------------------------------------------------------------------
______________________ (1) This should be included only if the Senior Subordinated Discount Note is issued in global form. A-15 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. A-16 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) 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 executed by the Trustee under the Indenture by the manual signature of one of its authorized officers. The Obligations of each Guarantor under its Guarantee shall be limited to the extent necessary to insure that it does not constitute a fraudulent conveyance under applicable law. THE TERMS OF ARTICLE X OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE. Capitalized terms used herein have the same meanings given in the Indenture unless otherwise indicated. Dated as of _______________________ [NAME OF GUARANTOR] By:________________________ Name: Title: (SEAL) B-2 EXHIBIT C FORM OF PLEDGE AGREEMENT 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. C-1 "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 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. C-3 "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 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 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. C-6 (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 C-7 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 C-8 (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 C-9 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 C-10 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 C-11 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 C-12 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. C-13 (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. C-14 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 C-15 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. C-16 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 C-17 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 C-18 (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. C-19 Notwithstanding the foregoing, no such release of any Collateral shall be effected unless any lien on such Collateral securing any Senior Debt shall also be released. C-20 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: C-21 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 EXHIBIT D FORM OF INTERCREDITOR AGREEMENT* *[See Exhibit 10.12 to the Registration Statement.] D-1 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 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 AGW LEASING COMPANY, INC. By:________________________________ Name: Title: Date: September ____, 1999 E-3 EX-5.1 4 EXHIBIT 5.1 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. 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 EX-5.2 5 EXHIBIT 5.2 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 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. 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 EX-10.15 6 EXHIBIT 10.15 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 ================================================================================ 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" 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 "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 "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 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 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 (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 (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 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. 9 (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 10 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 11 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 12 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 13 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; 14 (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; 15 (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. 16 (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 17 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, 18 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 No. ___________ ___Warrants CUSIP No. ________ A-2 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 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 [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 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 [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 SCHEDULE OF EXCHANGES OF INTERESTS OF GLOBAL WARRANTS/2/ The following exchanges of a part of this Global Warrant have been made:
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 ---------------------------------------------------------------------------------------
/2/ To be included only on Global Warrants. A-8 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 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 By:___________________________________________ Name: Title: Date: September ____, 1999 B-3 -----END PRIVACY-ENHANCED MESSAGE-----