exv4w10



 





Exhibit 4.10




INTERCREDITOR AGREEMENT




          This INTERCREDITOR AGREEMENT (this “Agreement”) is dated as of October 25,
2004, among The Bank of New York Trust Company, N.A., as trustee (together with
any successor thereto exercising substantially the same rights and powers, the
“Trustee” or the “First Priority Agent”) under the First Priority Indenture (as
defined below) and the Security Documents (as defined in the First Priority
Indenture), AirGate PCS, Inc., a Delaware corporation (the “Company”), and
certain of the Company’s subsidiaries that have guaranteed the Notes (as
defined below) (together with any future subsidiary guarantors, the
“Guarantors” and together with the Company, the “Issuers”), and The Bank of New
York (the “Second Priority Agent”) as trustee under the indenture (the “Second
Priority Indenture”) governing the $160.0 million aggregate principal amount of
Senior Subordinated Secured Notes due September 1, 2009 (the “Second Priority
Notes”), dated February 4, 2004 by and among the Company, the guarantors named
therein and The Bank of New York as trustee.



W I T N E S S E T H :




          WHEREAS, the Company is issuing $175,000,000 aggregate principal amount of
its First Priority Senior Secured Floating Rate Notes due 2011 (together with
any additional First Priority Senior Secured Floating Rate Notes due 2011 of
the Company issued pursuant to the First Priority Indenture (as defined herein)
including, without limitation, in exchange for outstanding notes, the “Notes”)
and the Guarantors have guaranteed the Notes, in each case pursuant to the
First Priority Indenture. All of the Issuers’ obligations under the Notes and
the other Indenture Documents (as defined below) are secured by first priority
liens on all of the now existing and hereafter acquired real and personal
property of the Issuers now or hereafter made subject to the Lien of the
Indenture Documents (the “Collateral”);



          WHEREAS, all of the Issuers’ obligations under the Second Priority Notes
and the other Second Priority Note Documents (as defined below) are secured by
second priority liens on all of the now existing and hereafter acquired real
and personal property of the Issuers now or hereafter made subject to the Lien
of the Second Priority Note Documents;



          WHEREAS, the Issuers have requested that the First Priority Agent and the
Second Priority Agent enter into this Agreement concerning their respective
rights with respect to the priority of their respective security interests in
and liens on the Collateral; and



          WHEREAS, the terms of the First Priority Indenture authorize the First
Priority Agent to enter into an intercreditor agreement in the form of this
Agreement, and the terms of the Second Priority Indenture authorize the Second
Priority Agent to enter into an intercreditor agreement in the form of this
Agreement, in each case upon satisfaction by the Issuers of certain conditions
precedent, including without limitation, the conditions set forth in Section
10.10 of the Second Priority Indenture.



          NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto hereby agree as follows:



          1. Definitions.



          (a) Unless otherwise defined herein, terms defined in the First Priority
Indenture and under the Second Priority Indenture have the meanings given to
them in such documents.



          (b) The following terms shall have the following meanings:




     “Agreement” means this Intercreditor Agreement as amended,
supplemented or otherwise modified from time to time in accordance with
the terms hereof.




     “Bankruptcy Code” shall mean Title 11 of the United States Code, as
amended from time to time and any successor statute and all rules and
regulations promulgated thereunder.



 









 






     “Collateral” shall mean the assets of the Company and the Guarantors
now or hereafter owned or acquired and all proceeds thereof subject to a
security interest that secures payment or performance of the Senior
Obligations and the Second Priority Obligations.




     “First Priority Indenture” means the Indenture, dated as of October
25, 2004, by and between the Company, the Guarantors and the Trustee, and
shall include any indenture or similar document entered into by the
Company and any trustee to replace the First Priority Indenture in whole
or in part.




     “Indenture Documents” means the First Priority Indenture and the
Senior Security Documents.




     “Issuers” shall mean the Company and the Guarantors.




     “Proceeding” shall mean any voluntary or involuntary case or
proceeding under the Bankruptcy Code with respect to the Company or any
of the Guarantors and any other voluntary or involuntary insolvency,
bankruptcy, receivership, custodianship, liquidation, dissolution,
reorganization, assignment for the benefit of creditors, appointment of a
custodian, receiver, trustee or other officer with similar powers or any
other proceeding for the liquidation, dissolution or other winding up of
the Company or any of the Guarantors.




     “Second Priority Guarantee” shall mean the guarantee of the Second
Priority Obligations by a Guarantor executed by such Guarantor pursuant
to the Second Priority Indenture.




     “Second Priority Note Documents” means the Second Priority
Indenture, the Second Priority Notes issued thereunder, the Second
Priority Guarantees and the Second Priority Security Documents.




     “Second Priority Notes” has the meaning given in the recitals
hereto.




     “Second Priority Obligations” means the Obligations (as defined in
the Second Priority Indenture) with respect to the Second Priority Notes
and the other Second Priority Note Documents and shall include, without
limitation, the unpaid principal of and interest owing under the Second
Priority Notes and all other obligations and liabilities of the Company
or any Guarantor thereunder and under the other Second Priority Note
Documents (including, without limitation, interest accrued at the then
applicable rate provided in the Second Priority Notes after the filing of
a petition in bankruptcy or the commencement of any Proceeding, whether
or not a claim for post-filing or post-petition interest is allowed in
such proceeding), whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, the Second Priority Note Documents,
in each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise, including,
without limitation, all fees and disbursements of counsel to the Second
Priority Agent and fees, expenses and indemnities of the Second Priority
Agent that are required to be paid pursuant to the terms of the Second
Priority Indenture or any other Second Priority Note Document. To the
extent any payment with respect to the Second Priority Obligations
(whether by or on behalf of the Company, as proceeds of security,
enforcement of any right of setoff or otherwise) is declared to be
fraudulent or preferential in any respect, set aside or required to be
paid to a debtor in possession, trustee, receiver or similar Person, then
the obligation or part thereof originally intended to be satisfied shall
be deemed to be reinstated and outstanding as if such payment had not
occurred.




     “Second Priority Security Documents” means any and all documents
providing for the grant of security to secure the Second Priority
Obligations.




     “Senior Lenders” shall mean the holders of the Notes.




     “Senior Obligations” means the Obligations (as defined in the First
Priority Indenture) of the Issuers with respect to the Notes and the
other Indenture Documents and shall include, without limitation, the
unpaid principal of and interest owing under the Notes and all other
obligations and liabilities of the Company or any Guarantor thereunder
and under the other Indenture Documents (including, without limitation,



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	 	 	 	interest accrued at the then applicable rate provided in the Notes
after the filing of a petition in bankruptcy or the commencement of any
Proceeding, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with,
the Indenture Documents, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
or otherwise, including, without limitation, all fees and disbursements
of counsel to the First Priority Agent and fees, expenses and indemnities
of the First Priority Agent that are required to be paid pursuant to the
terms of the First Priority Indenture or any other Indenture Document.
To the extent any payment with respect to the Senior Obligations (whether
by or on behalf of the Company, as proceeds of security, enforcement of
any right of setoff or otherwise) is declared to be fraudulent or
preferential in any respect, set aside or required to be paid to a debtor
in possession, trustee, receiver or similar Person, then the obligation
or part thereof originally intended to be satisfied shall be deemed to be
reinstated and outstanding as if such payment had not occurred.






     “Senior Security Documents” shall mean the Security Documents (as
defined in the First Priority Indenture) under the First Priority
Indenture.



                    (c) Unless the context requires otherwise, (i) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth in the
First Priority Indenture or the Second Priority Indenture), (ii) any reference
herein to any Person shall be construed to include such Person’s successors and
assigns, and (iii) the words “hereof,” “herein” and “hereunder” and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section and
paragraph references are to this Agreement unless otherwise specified.



               
     (d) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.



                     2. Releases.



                    (a) If in connection with:



                       (i) the exercise of the First Priority Agent’s remedies in respect of the
Collateral provided for in Section 4, including any sale, lease, exchange,
transfer or other disposition of such Collateral; or



                       (ii) subject to Section 2(c) below, any sale, lease, exchange, transfer or
other disposition of Collateral permitted or not prohibited under the First
Priority Indenture (whether or not an Event of Default, as defined therein, has
occurred and is continuing) and permitted or not prohibited under the Second
Priority Indenture, the Trustee, for itself or on behalf of any of the Senior
Lenders, releases any of its Liens on any part of the Collateral (or any
Guarantor from its obligations under its guaranty of the Senior Obligations),
the Liens, if any, of the Trustee on such Collateral (and the obligations of
such Guarantor under its guaranty of the Second Priority Obligations) shall be
automatically, unconditionally and simultaneously released (except as provided
in the last sentence of Section 2(d)) and the Second Priority Agent, for itself
or on behalf of any such holder of Second Priority Notes, shall promptly
execute and deliver to the First Priority Agent or the Company such termination
statements, releases and other documents as the First Priority Agent or the
Company may request to effectively confirm such release.



          (b) The Second Priority Agent, for itself and on behalf of the holders of
Second Priority Notes, hereby irrevocably constitutes and appoints the First
Priority Agent and any officer or agent of the First Priority Agent, with full
power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Second Priority
Agent or such holder or in the First Priority Agent’s own name,



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from time to time in the Trustee’s discretion, for the purpose of carrying
out the terms of this Section 2, to take any and all appropriate action and to
execute and record any and all documents and instruments which may be provided
to it as necessary or desirable to accomplish the purposes of this Section 2,
including, without limitation, any financing statements, endorsements or other
instruments or transfer or release.



          (c) Notwithstanding anything to the contrary contained herein, in the
event that the First Priority Agent releases its Liens on the Collateral
because the Senior Obligations have been paid in full, neither the Second
Priority Agent nor the holders of Second Priority Notes shall be obligated to
release their Liens on any Collateral owned by the Issuers after giving effect
to such payment and termination (and any sale, transfer or other disposition of
Collateral occurring in connection therewith contemplated under this
Agreement); provided, however, that in connection with any refinancing or
replacement of all or any portion of the Senior Obligations prior to the
occurrence of a Proceeding, the Second Priority Agent, on behalf of each holder
of Second Priority Notes, shall, if requested by the Company or the existing or
new holders of the Senior Obligations, execute an intercreditor agreement on
substantially the same terms as this Agreement with the lenders under such
refinancing or replacement. Furthermore, if the Senior Obligations have been
paid in full in connection with any sale, transfer or other disposition of
Collateral contemplated under this Agreement, the Liens held by the holders of
the Second Priority Notes shall not be automatically released with respect to
the proceeds of such sale, transfer or other disposition of Collateral which
remain after the Senior Obligations have been paid in full.



          (d) Notwithstanding any provision to the contrary contained in this
Section 2, no portion of the Collateral may be released from the Second
Priority Note Documents unless Company shall have complied with the provisions
of Section 314(c) and 314(d) of the Trust Indenture Act, if applicable, and
shall have furnished evidence of such compliance (or evidence that no
compliance is needed) satisfactory to the Second Priority Agent and the First
Priority Agent.



          3. Proceedings. In the event of any Proceeding involving any of the
Issuers:



          (a) If the Second Priority Agent has failed to file claims or proofs of
claim with respect to the Second Priority Notes in any Proceeding earlier than
five days prior to the deadline for any such filing, the holders of the Second
Priority Notes hereby appoint and empower First Priority Agent to file such
claims or proofs of claim; provided, that First Priority Agent shall have no
obligation to file any such claim. Absent any such failure to file, the Second
Priority Agent shall have and shall continue to have full and absolute
discretion over the filing of such claims in any manner and substance as the
Second Priority Agent may determine in its sole discretion.



          (b) The Second Priority Agent and the holders of Second Priority Notes
agree that the Senior Lenders may (x) consent to the use of cash collateral
under Section 363 of the Bankruptcy Code, (y) provide financing to the Issuers
under Section 364 of the Bankruptcy Code so long as the maximum amount of such
financing, together with the amounts of other debt outstanding, under the First
Priority Indenture does not exceed the amount set forth in subsection (3) of
the definition of Permitted Debt contained in Section 4.9 of the Second
Priority Indenture, or (z) obtain adequate protection of their interests in the
Collateral, all on such terms and conditions and in such amounts as such Senior
Lenders may decide, and that neither the Second Priority Agent nor the holders
of the Second Priority Notes shall raise any objections to such use of cash
collateral or adequate protection on the grounds of a failure to provide
“adequate protection” for their Liens in the Collateral, so long as (i) the
interest rate, fees, advance rates, lending sublimits and limits and other
terms of such financing are consistent with debtor-in-possession financing
transactions of a similar nature, (ii) the Second Priority Agent on behalf of
the holders of the Second Priority Notes retains a Lien on the Collateral
(including proceeds thereof arising after the commencement of such Proceeding)
with the same priority as existed prior to the commencement of the case under
the Bankruptcy Code, but subject to the priming liens of the Senior Lenders and
of any financing under Section 364 of the Bankruptcy Code permitted herein,
(iii) the Second Priority Agent on behalf of the holders of the Second Priority
Notes receives additional and replacement Liens on post-petition assets to the
same extent granted to the Senior Lenders, with the same priority as existed
prior to the commencement of the case under the Bankruptcy Code, but subject to
the liens of the Senior Lenders and of any financing under Section 364 of the
Bankruptcy Code permitted herein, and (iv) such financing, use of cash
collateral or adequate protection is subject to the terms of this Agreement.
The Second Priority Agent and each holder of the Second Priority Notes agrees
that all such financing under Section 364 of the Bankruptcy Code permitted
herein shall constitute Senior Obligations hereunder, and, in connection
therewith, each Issuer may grant to such Senior Lenders Liens upon all of the
Property of such Issuer, subject to (iii) above, which Liens (A)



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shall secure payment of all or any portion of the Senior Obligations
(whether such Senior Obligations arose prior to the commencement of any
Proceeding or at any time thereafter) provided by such Senior Lenders during
the Proceeding and (B) shall be superior in priority to the Liens in favor of
the holders of the Second Priority Notes. Each of the Second Priority Agent
and the holders of the Second Priority Notes hereby waives any rights it may
have under Section 363(f)(3) of the Bankruptcy Code (but preserves all other
rights it may have) to object to or oppose a sale or other disposition of any
Collateral free and clear of Liens or other claims of each holder of Second
Priority Notes if the Senior Lenders have consented to such sale or
disposition.



          4. Rights in Collateral.



          (a) Notwithstanding anything to the contrary contained in any filing or
agreement to which the Second Priority Agent, the holders of the Second
Priority Notes, the First Priority Agent, the Senior Lenders or the Company may
be a party and irrespective of the time, order or method of attachment or
perfection of the security interests created by the Senior Security Documents
or the Second Priority Security Documents, the rules for determining priority
under the Uniform Commercial Code or any other law governing the relative
priorities of secured creditors, all Liens on the Collateral securing the
Second Priority Obligations pursuant to the Second Priority Security Documents
shall be and hereby are subordinated for all purposes and in all respects to
Liens on the Collateral securing the Senior Obligations pursuant to the Senior
Security Documents, and any security interest in any Collateral in favor of or
for the benefit of the First Priority Agent and Senior Lenders pursuant to the
Senior Security Documents has and shall have priority, to the extent of any
unpaid Senior Obligations, over any security interest in such Collateral in
favor of or for the benefit of the Second Priority Agent or the holders of the
Second Priority Notes pursuant to the Second Priority Security Documents.



          (b) So long as the Senior Obligations have not been paid in full and the
First Priority Indenture has not been discharged (i) neither the Second
Priority Agent nor any holder of the Second Priority Notes will institute any
action or proceeding to exercise any of its rights or remedies with respect to
any Collateral, including, without limitation, any action of foreclosure upon
any Collateral and (ii) the First Priority Agent shall have the exclusive right
to enforce rights and exercise remedies with respect to the Collateral under
the Senior Security Documents, and neither the Second Priority Agent nor any
holder of the Second Priority Notes shall have any right to consent to, require
notice of (except as provided herein or in the applicable Uniform Commercial
Code) or be consulted with respect to, the enforcement of such rights or the
exercise of such remedies by the First Priority Agent and the Senior Lenders
with respect thereto; provided, however, that, (A) in any Proceeding commenced
by or against the Company, the Second Priority Agent may file a claim or
statement of interest with respect to the Second Priority Obligations, and (B)
the Second Priority Agent may take any action in order to preserve or protect
its rights in the Collateral not in contravention of this Agreement.



          (c) The Second Priority Agent, on behalf of itself and each holder of
Second Priority Notes, agrees not to seek to challenge, to avoid, to
subordinate or to contest or directly or indirectly to support any other Person
in challenging, avoiding or contesting in any judicial or other proceeding,
including, without limitation, any Proceeding, the priority, validity, extent,
perfection or enforceability of any Lien held by the First Priority Agent or
any Senior Lender in all or any part of the Collateral. The First Priority
Agent agrees not to seek to challenge, to avoid, to subordinate, except
pursuant to the terms of this Agreement and the First Priority Indenture, or to
contest or directly or indirectly to support any other Person in challenging,
avoiding or contesting in any judicial or other proceeding, including, without
limitation, any Proceeding, the priority, validity, extent, perfection or
enforceability of any Lien held by the Second Priority Agent or any holder of
Second Priority Notes in all or any part of the Collateral.



          (d) So long as the Senior Obligations have not been paid in full and the
First Priority Indenture has not been discharged, any money, property,
securities or other distributions of any nature whatsoever received from the
sale, disposition or other realization upon a foreclosure in accordance with
the Uniform Commercial Code or other exercise of remedies with respect to the
Collateral by any Senior Lender, the First Priority Agent, the Second Priority
Agent or any holder of the Second Priority Notes, or all or any part of the
Collateral, regardless of whether such money, property, securities or other
distributions are received during the pendency of any Proceeding or otherwise,
shall be delivered to the First Priority Agent in the form received, duly
indorsed to such party, if required, and applied by the First Priority Agent in
the following order:



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     First, to the payment in full of all costs and expenses (including,
without limitation, attorneys’ fees and disbursements) paid or incurred
by the First Priority Agent in connection with such realization on the
Collateral or the protection of any of their rights and interests
therein;




     Second, to the payment in full of all First Priority Obligations in
accordance with the Indenture Documents;




     Third, to the Second Priority Agent for application to the Second
Priority Obligations pursuant to Section 6.10 of the Second Priority
Indenture to the full extent thereof at such time; and




     Fourth, to pay the Company or the appropriate designee thereof or as
a court of competent jurisdiction may direct, any surplus then remaining.




     (e) In the event that:



                  (i) all of the Senior Obligations have been paid in full;



                  (ii) any Collateral remains that remains pledged pursuant to
the Second Priority Security Documents, and



                  (iii) at such time there are Second Priority Obligations
outstanding,



then the Second Priority Agent shall have the right to exercise remedies
against the Collateral and to enforce the provisions of the Second Priority
Security Documents in respect of the Collateral without any consent of, notice
to or consultation with the First Priority Agent.



          (f) Any Collateral or proceeds thereof received by the Second Priority
Agent or any holder of Second Priority Notes in connection with the exercise of
any right or remedy relating to the Collateral pursuant to the Second Priority
Security Documents in contravention of this Agreement shall be segregated and
held in trust and forthwith paid over to the First Priority Agent for the
benefit of the Senior Lenders in the same form as received, with any necessary
endorsements or as a court of competent jurisdiction may otherwise direct.



          (g) Notwithstanding anything to the contrary in this Agreement, the Second
Priority Agent and the holders of Second Priority Notes may accelerate the
Second Priority Obligations and exercise rights and remedies as a creditor
against the Company and its Subsidiaries (other than with respect to the
Collateral as provided herein) in accordance with the terms of the Second
Priority Note Documents and applicable law.



          (h) THE COMPANY, THE FIRST PRIORITY AGENT (ON ITS OWN BEHALF AND ON BEHALF
OF THE SENIOR LENDERS) AND THE SECOND PRIORITY AGENT (ON ITS OWN BEHALF AND ON
BEHALF OF THE HOLDERS OF THE SECOND PRIORITY NOTES) EACH HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.



          5. Provisions Define Relative Rights. This Agreement is intended solely
for the purpose of defining the relative rights of the Senior Lenders, the
First Priority Agent, the holders of the Second Priority Notes and the Second
Priority Agent with respect to the Collateral, and no other Person shall have
any right, benefit or other interest under this Agreement. Notwithstanding
anything to the contrary herein, this Agreement shall not modify or amend the
rights and obligations of the Company and the Guarantors under any Senior Loan
Document or any Second Priority Note Document.



          6. Termination of Agreement; Acknowledgments.



          (a) The rights of the First Priority Agent on behalf of the Senior Lenders
under this Agreement shall terminate when the Senior Obligations have been paid
in full in cash and the First Priority Indenture has been discharged; provided,
that the obligations of the First Priority Agent arising under this Agreement
upon the payment in full in cash of the Senior Obligations shall continue until
such obligations have been fully satisfied in



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accordance with the terms of this Agreement. The First Priority Agent
acknowledges on behalf of the Senior Lenders that the Senior Obligations shall
be deemed “paid in full in cash” for all purposes of this Agreement when the
Senior Lenders have received payment of all principal, interest and other
amounts then outstanding under the Indenture Documents. The First Priority
Agent agrees that within five Business Days after payment of all principal,
interest and other amounts then outstanding under the Indenture Documents and
discharge of the First Priority Indenture, it will provide a written
acknowledgment of such payment and discharge to the Second Priority Agent,
which acknowledgment shall also acknowledge that the Senior Lenders have no
further rights under this Agreement or in respect of the Collateral securing
the Senior Obligations. Concurrent with such acknowledgment, the First
Priority Agent will deliver to the Second Priority Agent, if any of the Second
Priority Obligations shall be outstanding, any items of such Collateral held in
the possession of the First Priority Agent together with any necessary
endorsements (or otherwise allow the First Priority Agent to obtain control of
such Collateral), provided that if no Second Priority Obligations shall be
outstanding, the First Priority Agent will deliver all such items of Collateral
to the Company.



          (b) The Senior Obligations shall continue to be treated as Senior
Obligations and the provisions of this Agreement shall continue to govern the
relative rights and priorities of Senior Lenders and the holders of the Second
Priority Notes even if all or part of the Senior Obligations or the Liens
securing the Senior Obligations are subordinated, set aside, avoided,
invalidated or disallowed in connection with any Proceeding, and this Agreement
shall be reinstated if at any time any payment of any of the Senior Obligations
is rescinded or must otherwise be returned by any holder of Senior Obligations
or any representative of such holder.



     7. First Priority Agent as Bailee for Perfection of Interest in Possessory
Collateral. The Second Priority Agent, on behalf of the holders of the Second
Priority Notes, hereby appoints the First Priority Agent as the agent for the
Second Priority Agent and the holders of the Second Priority Notes, solely for
the purposes of perfecting Liens in favor of the Second Priority Agent and the
holders of the Second Priority Notes on Collateral which is of a type such that
perfection of a Lien thereon may be accomplished by possession thereof and to
which the First Priority Agent has possession (and the First Priority Agent
hereby acknowledges such appointment). In the event all Senior Obligations
shall have been paid in full and the First Priority Indenture has been
discharged, the First Priority Agent shall deliver to the Second Priority Agent
all such Collateral remaining in its possession, and the Issuers hereby
irrevocably authorize any such delivery of Collateral by the First Priority
Agent. The obligations of the First Priority Agent and the Issuers under the
preceding sentence shall survive the termination of this Agreement.



     8. Notices. All notices, requests and demands to or upon the parties
shall be in writing (or by fax or similar electronic transfer confirmed in
writing) and shall be deemed to have been duly given or made (a) when delivered
by hand or (b) if given by mail, five days after being deposited in the mails
by certified mail, return receipt requested, or (c) if by fax or similar
electronic transfer, when sent and receipt has been confirmed, addressed as
follows:



	 	 	 	 	 
	

	 	If to the First Priority Agent:
	 	The Bank of New York Trust Company, N.A.
	

	 	 	 	100 Ashford Center North, Suite 520
	

	 	 	 	Atlanta, Georgia 30338
	

	 	 	 	Attention: Barbara Royal
	

	 	 	 	Telecopy: 770-698-5195
	 
	 	 	 	 
	

	 	If to the Second Priority Agent:
	 	The Bank of New York,
	

	 	 	 	100 Ashford Center North, Suite 520
	

	 	 	 	Atlanta, Georgia 30338
	

	 	 	 	Attention: Barbara Royal
	

	 	 	 	Telecopy: 770-698-5195
	 
	 	 	 	 
	

	 	If to the Company:
	 	AIRGATE PCS, INC.
	

	 	 	 	Harris Tower, Suite 1700
	

	 	 	 	233 Peachtree Street, N.E.
	

	 	 	 	Atlanta, Georgia 30303
	

	 	 	 	Attention: General Counsel







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	 	 	 	Telecopy: (404) 525-7922







The parties hereto may change their addresses and transmission numbers for
notices by notice in the manner provided in this Section. Any notice, request
or demand to the First Priority Agent or the Second Priority Agent shall only
be deemed effective upon actual receipt.



          9. Counterparts. This Agreement may be executed by one or more of the
parties on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A
set of the counterparts of this Agreement signed by all the parties shall be
lodged with the First Priority Agent and the Second Priority Agent.



          10. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



          11. Integration. This Agreement represents the entire agreement of the
Issuers, the First Priority Agent on behalf of itself and the Senior Lenders
and the Second Priority agent on behalf of itself and the holders of Second
Priority Notes with respect to the subject matter hereof and there are no
promises or representations by any of them relative to the subject matter
hereof not reflected herein.



          12. Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except by
a written instrument executed by the First Priority Agent on behalf of the
Senior Lenders and the Second Priority Agent on behalf of the holders of Second
Priority Notes. The Company shall not have any right to amend, modify or waive
any provision of this Agreement without the consent of the First Priority Agent
and the Second Priority Agent, nor shall any consent or signed writing be
required of the Company to effect any amendment, modification or waiver of any
provision of this Agreement. For the purposes of this Agreement, no amendment
of the definitions of “Senior Debt” or subsection (3) of the definition of
“Permitted Debt” contained in the Second Priority Indenture or Article XII of
the Second Priority Indenture shall be deemed effective without the prior
written consent of the Senior Lenders holding a majority of principal amount of
Senior Obligations then outstanding.



          13. Successors and Assigns.



          (a) This Agreement shall be binding upon and inure to the benefit of each
of the Senior Lenders, the First Priority Agent and the Second Priority Agent
and their successors and assigns. Each holder of Second Priority Notes, by
accepting the benefits of the Second Priority Note Documents, shall be deemed
to have agreed to (i) be bound by the provisions of this Agreement and each
agreement on the part of such holder as expressed herein and (ii) refrain from
taking any action which the Second Priority Agent has agreed not to take, in
its individual capacity or on any holder of Second Priority Notes behalf, in
this Agreement. Each Senior Lender, by accepting the benefits of the Indenture
Documents, shall be deemed to have agreed to (i) be bound by the provisions of
this Agreement and (ii) refrain from taking any action which the First Priority
Agent has agreed not to take, in its individual capacity or on any Senior
Lender’s behalf, in this Agreement.



          (b) Upon a successor administrative agent or collateral agent becoming the
trustee under the First Priority Indenture, such successor trustee, as the case
may be, automatically shall become the First Priority Agent hereunder with all
the rights and powers of such party hereunder, and bound by the provisions
hereof, without the need for any further action on the part of any party
hereto.



          (c) Upon a successor Second Priority Agent becoming the Second Priority
Agent under the Second Priority Indenture, such successor Second Priority Agent
automatically shall become the Second Priority Agent hereunder with all the
rights and powers of the Second Priority Agent hereunder, and bound by the
provisions hereof, without the need for any further action on the part of any
party hereto.



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          14. Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement
shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York, excluding (to the greatest extent permissible by law)
any rule of law that would cause the application of the laws of any
jurisdiction other than the State of New York. Each party hereto agrees that
all judicial proceedings brought against it arising out of or relating to this
Agreement or its obligations hereunder may be brought in the federal court of
competent jurisdiction in the State, County and City of New York or if
jurisdiction therein is not permitted, in any court of the State of New York
located in the County and City of New York, and accepts generally and
unconditionally the nonexclusive jurisdiction and venue of such courts. EACH
PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM
WITH RESPECT THERETO TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.



          15. Conflict. In the event of any conflict between the provisions of this
Agreement and the provisions of the Indenture Documents or the Second Priority
Note Documents, the provisions of this Agreement shall govern.



          16. Authorization. By its signature, each Person executing this Agreement
on behalf of other parties hereto represents and warrants to the other parties
hereto that it is duly authorized to execute this Agreement by and on behalf of
each of such other parties.



          17. Effectiveness; Acknowledgement by Second Priority Agent. This
Agreement is intended to be a “subordination agreement” as that term is used in
Section 510 of the Bankruptcy Code and to be enforceable thereunder. All
references to the Company shall include the Company as debtor and debtor-in
possession and any receiver or trustee for the Company in any Proceeding. The
Second Priority Agent, on behalf of the holders of Second Priority Notes,
hereby acknowledges and agrees with the Issuers that references to the
“Intercreditor Agreement” in the Second Priority Indenture Documents shall,
from and after the effectiveness of this Agreement, refer to this Agreement and
all references therein to the “Senior Loan Obligations” shall refer to the
Senior Obligations and that the “First Lien Termination Date” referred to in
the Second Priority Indenture Documents shall not be deemed to have occurred
until each of the events referred to in the first sentence of Section 6(a)
hereof shall have occurred.



          18. Compliance with the Trust Indenture Act. Nothing contained herein
shall impair the ability of the First Priority Agent or the Second Priority
Agent to take any action necessary to comply with any obligations imposed under
applicable law, including without limitation, the Trust Indenture Act.



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          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.



	 	 	 	 	 
	 	 	THE BANK OF NEW YORK TRUST COMPANY,
N.A., as First Priority Agent
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

	

	 	 	 	Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	 	 	THE BANK OF NEW YORK,

as Second Priority Agent
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

	

	 	 	 	Name:
	

	 	 	 	Title:







Signature Page to Intercreditor Agreement




 









 








	 	 	 
	Consented:
	AIRGATE PCS, INC.
	 
	 	 
	By:
	 	 
	

	 	

	

	 	Name:
	

	 	Title:
	 
	 	 
	Consented:
	AGW LEASING COMPANY, INC.
	AIRGATE NETWORK SERVICES, LLC
	AIRGATE SERVICE COMPANY, INC.
	 
	 	 
	By:
	 	 
	

	 	

	

	 	Name:
	

	 	Title:







Signature Page to Intercreditor Agreement