exv10w2



 


Exhibit 10.2


AIRGATE PCS, INC.




REGISTRATION RIGHTS AGREEMENT




          THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered
into [ ], 2004 between AirGate PCS, Inc., a Delaware
corporation (the “Company”) and the signatories hereto (the “Noteholders”).




          WHEREAS, the Company is offering, pursuant to an exemption from the
registration requirements of the Act (as defined below), to exchange (the
“Exchange Offer”) all its outstanding 13.5% Senior Subordinated Discount Notes
due 2009 (the “Old Notes”) for (1) shares of the Company’s common stock, par
value $0.01 per share (the “Common Stock”), and (2) the Company’s newly-issued
9 3/8% Senior Subordinated Secured Notes due 2009 (the “New Notes”);




          WHEREAS, the Noteholders have entered into the Support Agreement (or a
joinder thereto), pursuant to which the Noteholders have agreed to tender their
Old Notes in the Exchange Offer;




          WHEREAS, the shares of Common Stock and the New Notes issued to the
Noteholders in the Exchange Offer will be subject to restrictions on their
transfer;




          WHEREAS, the Company has agreed to file a resale registration statement
with the Securities and Exchange Commission (the “SEC”) to permit the
Noteholders to resell their Common Stock and New Notes pursuant to an effective
registration statement under the Act;




          NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:




          1. Definitions. As used in this Agreement, the following capitalized
terms shall have the following meanings:




          “Acceptance Date” means the date on which the Company gives written notice
to DTC that the Company has accepted for exchange all Old Notes validly
tendered and not withdrawn pursuant to the Exchange Offer.




          “Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.




          “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 the 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 or by agreement or
otherwise.





 








 



          “Closing Date” means the date on which the Company completes the Exchange
Offer.




          “Common Stock” has the meaning set forth in the recitals hereto.




          “DTC” means The Depository Trust Company




          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.




          “Holder” means any holder of Registrable Securities.




          “Indenture” means the indenture, to be entered into on the Closing Date,
by and among the Company, the Guarantors and The Bank of New York, as trustee.




          “Liquidated Damages” has the meaning set forth in Section 2(c) hereof.




          “Losses” has the meaning set forth in Section 5(d) hereof.




          “New Notes” has the meaning set forth in the recitals hereto.




          “Prepackaged Plan” has the meaning set forth in the Support Agreement.




          “Prospectus” means the prospectus included in the Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Common Stock or New Notes covered by such Shelf
Registration Statement, and all amendments and supplements to such prospectus,
including all documents incorporated or deemed to be incorporated by reference
in such prospectus.




          “Registrable Securities” means each share of Common Stock and each New
Note received by the Noteholders in the Exchange Offer or any security into or
for which such securities have been converted or exchanged, and any security
issued with respect thereto upon any stock dividend, split or similar event
until the date on which each such share of Common Stock or New Note (i) has
been effectively registered under the Act and disposed of pursuant to the Shelf
Registration Statement or another registration statement covering such share of
Common Stock or New Note which has been filed with the SEC pursuant to the Act,
in either case after such registration statement has become effective and while
such registration statement is effective under the Act, (ii) has been
transferred pursuant to Rule 144 under the Act (or any similar provision then
in force) or (iii) may be sold or transferred pursuant to Rule 144(k) under the
Act (or any successor provision then in force) without restrictions.




          “Rule 144” means Rule 144 (or any successor provision) under the Act.




          “SEC” has the meaning set forth in the recitals hereto.




          “Shelf Registration” means a registration effected pursuant to Section 2
hereof.





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          “Shelf Registration Period” has the meaning set forth in Section 2(b)
hereof.




          “Shelf Registration Statement” means a “shelf” registration statement of
the Company filed pursuant to the provisions of Section 2 hereof which covers
all of the Registrable Securities for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 under the Act, or any similar rule that
may be adopted by the SEC, and all amendments and supplements to such
registration statement and any subsequent registration statements, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all documents incorporated or deemed to be
incorporated by reference therein.




          “Support Agreement” means the support agreement, dated as of September 24,
2003, by and among the Company and the Noteholders signatory thereto, as
amended by Amendment No. 1 to Support Agreement, dated as of January [ ],
2004, by and among the Company and the Noteholders signatory thereto.




          All references in this Agreement to financial statements and schedules and
other information which is “contained”, “included”, or “stated” in the Shelf
Registration Statement, any preliminary Prospectus or Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
or deemed to be incorporated by reference in such Shelf Registration Statement,
preliminary Prospectus or Prospectus, as the case may be; and all references in
this Agreement to amendments or supplements to the Shelf Registration
Statement, any preliminary Prospectus or Prospectus shall be deemed to mean and
include any document filed with the SEC under the Exchange Act, after the date
of such Shelf Registration Statement, preliminary Prospectus or Prospectus, as
the case may be, which is incorporated or deemed to be incorporated by
reference therein.




          2. Shelf Registration Statement.




          (a) The Company shall prepare and, immediately following the
Company’s written notice to DTC that the Company has accepted for
exchange the Old Notes validly tendered and not withdrawn pursuant to the
Exchange Offer, file a shelf registration statement with the SEC to
permit resales of the Registrable Securities pursuant to Rule 415 by the
Holders from time to time and thereafter shall use its reasonable best
efforts to cause such Shelf Registration Statement to be declared
effective under the Act on the Acceptance Date. The Company shall
supplement or amend the Shelf Registration Statement if required by the
rules, regulations or instructions applicable to the registration form
used by the Company for the Shelf Registration Statement, or by the Act,
the Exchange Act or the SEC.




          (b) The Company shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective, supplemented and
amended as required under the Act in order to permit the Prospectus
forming a part thereof to be usable and to ensure that the Shelf
Registration Statement is available for resale by the Holders, until all
the shares of Common Stock and New Notes received by the Noteholders in
the Exchange Offer are no longer Registrable Securities (the “Shelf
Registration Period”). The Shelf Registration Statement shall permit
registration of such Registrable Securities





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               for resale by the Holders in accordance with the method of
distribution elected by the Holders.




          (c) If the Shelf Registration Statement has not been declared
effective by the SEC by the Acceptance Date (such event, a “Registration
Default”), then the Company will pay liquidated damages in cash
(“Liquidated Damages”) to each Holder of Registrable Securities who has
provided the Company with such information as the Company may require to
include such Holder as a selling security holder in the Shelf
Registration Statement. The amount of Liquidated Damages payable during
the period a Registration Default has occurred and is continuing is the
amount which is equal to one percent (100 basis points) per annum per
$1,000 principal amount of New Notes constituting Registrable Securities.
All calculations pursuant to the preceding sentence shall be carried out
to five decimals. Liquidated Damages will cease to accrue on the date
that the SEC declares the Shelf Registration Statement effective.
Liquidated Damages shall cease to accrue in respect of any Registrable
Security when it shall cease to be such. All accrued Liquidated Damages,
if any, shall be paid to Holders by the Company in the same manner as
interest is paid pursuant to the Indenture. The parties hereto agree
that the Liquidated Damages provided for in this Section 2(c) constitute
a reasonable estimate of the damages that may be incurred by Holders by
reason of a Registration Default.




          The Company will, (w) prepare and file with the SEC such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep the Shelf Registration Statement continuously effective for
the Shelf Registration Period, (x) cause the related Prospectus to be
supplemented by any required supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the Act,
(y) comply with the applicable provisions of Rule 424 and 430A under the Act in
a timely manner and (z) comply with the provisions of the Act with respect to
the disposition of securities covered by the Shelf Registration Statement
during the applicable period in accordance with the intended method or methods
of distribution by the Holders set forth in the Shelf Registration Statement or
supplement to the Prospectus.




          3. Registration Procedures.




          (a) The Company shall (i) furnish to each Noteholder a copy of the
Shelf Registration Statement, and each amendment thereof, at least 3
business days prior to the filing thereof with the SEC, and a copy of any
Prospectus, and each amendment or supplement thereto (excluding
amendments caused by the filing of a report under the Exchange Act); and
(ii) include information regarding the Holders provided by the Holders to
the Company.




          (b) The Company shall ensure that (i) the Shelf Registration
Statement and any amendment thereto and the Prospectus forming a part
thereof and any amendment or supplement thereto comply in all material
respects with the Act and the rules and regulations thereunder, (ii) the
Shelf Registration Statement and any amendment thereto does not, when it
becomes effective, 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





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statements therein not misleading, and (iii) the Prospectus forming
a part of the Shelf Registration Statement, and any amendment or
supplement to such Prospectus, does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading; provided that the Company makes no
representation with respect to information with respect to the Holders
required to be included in the Shelf Registration Statement or Prospectus
pursuant to the Act or the rules and regulations thereunder and which
information is included therein in reliance upon and in conformity with
information furnished to the Company in writing by the Holders for such
purpose.




          (c) The Company, as promptly as reasonably practicable, shall advise
each Holder (i) when the Shelf Registration Statement and any amendment
thereto has been filed with the SEC and when the Shelf Registration
Statement or any post-effective amendment thereto has become effective;
(ii) of the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the effectiveness of
the Shelf Registration Statement or the initiation or threatening of any
proceedings for that purpose; (iii) the happening of (but not the nature
of or details concerning) any request, following the effectiveness of the
Shelf Registration Statement under the Act, by the SEC or any other
federal or state governmental authority for amendments or supplements to
any Shelf Registration Statement or related Prospectus or for additional
information relating to the Shelf Registration Statement; (iv) the
receipt by the Company of any notification with respect to the suspension
of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and (v) of the happening
of (but not the nature of or details concerning) any event that requires
the making of any changes in the Shelf Registration Statement or the
Prospectus so that, as of such date, the statements therein are not
misleading and the Shelf Registration Statement or the Prospectus, as the
case may be, does not include 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 case of the Prospectus, in light
of the circumstances under which they were made) not misleading.




          (d) The Company shall use its reasonable best efforts to obtain (a)
the prompt withdrawal of any order suspending the effectiveness of the
Shelf Registration Statement or (b) the prompt lifting of any suspension
of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction in which they have
been qualified for sale, in either case at the earliest possible moment,
and provide immediate notice to the Holders of the withdrawal of any such
orders and shall in any event within twenty (20) days of the cessation of
the effectiveness amend the Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of an order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement
covering all the securities that as of the date of such filing are
Registrable Securities.




          (e) The Company shall promptly furnish to each Noteholder, without
charge, at least one copy of the Shelf Registration Statement and any
post-effective amendment





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thereto, including all exhibits (including those incorporated by
reference), financial statements and schedules.




          (f) The Company shall, during the Shelf Registration Period,
promptly deliver to each Holder, without charge, as many copies of the
Prospectus included in the Shelf Registration Statement (excluding
documents incorporated by reference), and any amendment or supplement
thereto, as such person may reasonably request; and, except as provided
in Section 3(i) hereof, the Company consents to the use of the Prospectus
or any amendment or supplement thereto by the Holders in connection with
the offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto.




          (g) Upon the occurrence of any event described in Section 3(c)(iii)
and 3(c)(v) hereof, the Company shall as soon as reasonably practicable
prepare and file with the SEC a post-effective amendment to such Shelf
Registration Statement or a supplement to the related Prospectus or any
document which is incorporated or deemed to be incorporated by reference
in the Shelf Registration Statement or Prospectus, as the case may be, so
that, as thereafter delivered to purchasers of the applicable Registrable
Securities included therein, the Shelf Registration Statement and the
Prospectus, in each case as then amended or supplemented, will not
include an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein (in the case of the Prospectus in light of the
circumstances under which they were made) not misleading, and in the case
of a post-effective amendment to the Shelf Registration Statement, use
its reasonable best effort to cause it to be declared effective promptly;




          (h) The Company may require the Holders to furnish to the Company
such information regarding the Holders as may, from time to time, be
required by the Act and the rules and regulations promulgated thereunder,
and the obligations of the Company to each Holder hereunder shall be
expressly conditioned on the compliance of such Holder with such request.




          (i) Each Holder agrees that, upon receipt of notice of the happening
of an event described in Sections 3(c)(ii) and 3(c)(v), such Holder shall
forthwith discontinue (and shall cause its agents and representatives to
discontinue) disposition of Registrable Securities pursuant to the Shelf
Registration Statement and will not resume disposition of Registrable
Securities pursuant to the Shelf Registration Statement until the Holders
have received copies of an amended or supplemented Prospectus
contemplated by Section 3(g) hereof, or until the Holders are advised in
writing by the Company that the use of the Prospectus may be resumed,
provided that, the foregoing shall not prevent the sale, transfer or
other disposition of Registrable Securities by the Holders in a
transaction which is exempt from, or not subject to, the registration
requirements of the Act, so long as such Holders do not and are not
required to deliver the applicable Prospectus or Shelf Registration
Statement in connection with such sale, transfer or other disposition, as
the case may be.





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          (j) If reasonably requested in writing in connection with a
disposition of Registrable Securities pursuant to a Shelf Registration
Statement, the Company shall make reasonably available for inspection
during normal business hours by a representative for the Holders, any
broker-dealers, underwriters, attorneys and accountants retained by the
Holders, and any attorneys or other agents retained by a broker-dealer or
underwriter engaged by the Holders, all relevant financial and other
records and pertinent corporate documents and properties of the Company
and its subsidiaries, and cause the appropriate officers, directors and
employees of the Company and its subsidiaries to make reasonably
available for inspection during normal business hours on reasonable
notice all relevant information reasonably requested by such
representative for the Holders, or any such broker-dealers, underwriters,
attorneys or accountants in connection with such disposition, in each
case as is customary for similar “due diligence” examinations; provided
that such persons shall first agree in writing with the Company that any
non-public information shall be kept confidential by such persons and
shall be used solely for the purposes of exercising rights under this
Agreement, unless (i) disclosure of such information is required by court
or administrative order or is necessary to respond to inquiries of
regulatory authorities, (ii) disclosure of such information is required
by law (including any disclosure requirements pursuant to federal
securities laws in connection with the filing of any Shelf Registration
Statement or the use of any prospectus referred to in this Agreement),
(iii) such information becomes generally available to the public other
than as a result of a disclosure or failure to safeguard by any such
person or (iv) such information becomes available to any such person from
a source other than the Company and such source is not bound by a
confidentiality agreement. Any person legally compelled to disclose any
such confidential information made available for inspection shall provide
the Company with prompt prior written notice of such requirement so that
the Company may seek a protective order or other appropriate remedy.




          (k) The Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities sold or to be sold pursuant to a Shelf Registration Statement,
which certificates shall not bear any restrictive legends, and cause such
Registrable Securities to be on such names as the Holders may request in
writing at least two (2) Business Days prior to any sale of such
Registrable Securities.




          (l) The Company shall cooperate and assist in any filings required
to be made with the National Association of Securities Dealer, Inc.




          (m) If requested by a Holder, the Company shall promptly incorporate
in the Shelf Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information as
such Holder may reasonably request to have included therein, including,
without limitation: (1) information relating to the “Plan of
Distribution” of the Registrable Securities, (2) information with respect
to the principal amount of Notes or number of shares of Common Stock
being sold, (3) the purchase price being paid therefor and (4) any other
terms of the offering of the Registrable Securities to be sold in such
offering; and make all required filings of such Prospectus


 
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supplement or post-effective amendment promptly after the Company is
notified of the matters to be incorporated in such Prospectus supplement
or post-effective amendment.




          (n) The Company covenants that, if at any time the Company is not
subject to the reporting requirements of the Exchange Act, it will
cooperate with the Holders and take such further actions the Holders may
reasonably request in writing (including, without limitation, making such
representations as the Holders may reasonably request), all to the extent
required from time to time to enable the Holders to sell Registrable
Securities without registration under the Act within the limitation of
the exemptions provided by Rule 144 and Rule 144A under the Act and
customarily taken in connection with sales pursuant to such exemptions.
Upon the written request of a Holder, the Company shall deliver to the
Holders a written statement as to whether it has complied with such
filing requirements, unless such a statement has been included in the
Company’s most recent report filed pursuant to Section 13 or Section
15(d) of the Exchange Act.




          (o) Prior to any offering of the Registrable Securities, the Company
shall use its reasonable best efforts to (A) register or qualify or
cooperate with the Holders in connection with the registration or
qualification (or exemption from such registration or qualification) of
such Registrable Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions within the United States as the
Holders may reasonably request in writing, (B) keep each such
registration or qualification (or exemption therefrom) effective during
the Shelf Registration Period in connection with the Holders’ offer and
sale of Registrable Securities pursuant to such registration or
qualification (or exemption therefrom) and do any and all other acts or
things reasonably necessary or advisable to enable the disposition in
such jurisdictions of such Registrable Securities in the manner set forth
in the relevant Shelf Registration Statement and the related Prospectus;
provided that the Company will not be required to (i) qualify as a
foreign corporation or as a dealer in securities in any jurisdiction
where it would not otherwise be required to qualify but for this
Agreement or (ii) take any action that would subject it to general
service of process in suits or to taxation in any such jurisdiction where
it is not then so subject.




          (p) The Company shall cause all Registrable Securities covered by
the Shelf Registration Statement to be listed or quoted, as the case may
be, on each securities exchange or automated quotation system on which
similar securities issued by the Company are then listed or quoted.




                         4. Registration Expenses. The Company shall pay all Registration Expenses
in connection with a Shelf Registration Statement, whether or not such Shelf
Registration Statement becomes effective, including without limitation: all
expenses arising from or incident to its performance of, or compliance with,
this Agreement, including, without limitation, (i) SEC, Nasdaq Stock Market and
other stock exchange and automated quotation system and NASD registration and
filing fees (including all application and filing fees in connection with
listing on a national securities exchange or automated quotation system
pursuant to the requirements hereof), (ii) all fees and expenses incurred in
complying with securities or “blue sky” laws


 
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(including reasonable fees, charges and disbursements of counsel incurred
in connection with “blue sky” qualifications of the Registrable Securities),
(iii) all printing (including printing certificates and printing of
prospectuses), messenger, delivery and telephone expenses, (iv) the fees,
charges and expenses of counsel to the Company and of its independent public
accountants and any other accounting fees, charges and expenses incurred by the
Company (including, without limitation, expenses arising from any “cold
comfort” letters or any special audits incident to or required by any
registration or qualification) and the reasonable legal fees, charges and
expenses of the Noteholders’ counsel, and (v) all internal expenses of the
Company (including without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any person, including special
experts, retained by the Company.




          5. Indemnification and Contribution.




          (a) The Company agrees to indemnify and hold harmless each Holder,
the directors, officers, employees and agents of such Holder, each person
who controls such Holder and underwriters (as defined in the Act)
reselling Registrable Securities on behalf of such Holder, within the
meaning of either the Act or the Exchange Act, against any and all
losses, claims, damages, liabilities or actions (including, without
limitation, any legal or other expenses reasonably incurred in connection
with defending or investigating any such losses, claims, damages,
liabilities or actions), joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or
state law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Shelf Registration
Statement as originally filed or in any amendment thereof, or in any
preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by any of them in connection with
defending or investigating any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable to a
Holder in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon (A) any such untrue statement
or alleged untrue statement or omission or alleged omission made therein
in reliance upon and in conformity with written information furnished to
the Company by or on behalf of such Holder specifically for inclusion
therein, (B) use of a Shelf Registration Statement or the related
Prospectus during a period when use of such Prospectus has been suspended
pursuant to Section 3(i) hereof or (C) if (x) such untrue statement or
alleged untrue statement or omission or alleged omission is corrected in
an amendment or supplement to the Prospectus and (y) having been
previously furnished by or on behalf of the Company with copies of the
Prospectus as so amended or supplemented, such Holder thereafter fails to
deliver such Prospectus, as then amended or supplemented to the person
asserting the claim from which such losses, claims, damages or
liabilities arise. This indemnity agreement shall be in addition to any
liability which the Company may otherwise have.


 
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          (b) Each Holder, severally and not jointly, agrees to indemnify and
hold harmless (i) the Company, (ii) each of its directors, (iii) each of
its officers, and (iv) each person who controls the Company within the
meaning of either the Act or the Exchange Act to the same extent as the
foregoing indemnity from the Company to the Holders, but only with
reference to written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity
agreement shall be in addition to any liability which the Holders may
otherwise have.




          (c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 5, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (I) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it was not otherwise notified
of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights or defenses and (II) will not,
in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party’s choice at the indemnifying
party’s expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party
shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party’s election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest which is not waived or waivable; (ii)
the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party
and that representation of the indemnified party by counsel chosen by the
indemnifying party would be inappropriate due to actual or potential
differing interests among the parties represented by such counsel; (iii)
the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action;
or (iv) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party.
Neither an indemnifying party nor an indemnified party will, without the
prior written consent of the other parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
such other parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of such other parties from all liability arising
out of such claim, action, suit or proceeding. An


 
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indemnifying party shall not be liable for any losses, claims,
damages or liabilities by reason of any settlement of any action or
proceeding effected without such indemnifying party’s prior written
consent, which consent will not be unreasonably withheld.




          (d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 5 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party
shall have an obligation to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively “Losses”), as incurred, to which such indemnified party may
be subject in such proportion as is appropriate to reflect the relative
benefits received by such indemnifying party, on the one hand, and such
indemnified party, on the other hand, from any sales of Registrable
Securities under the Shelf Registration Statement. If the allocation
provided by the immediately preceding sentence is unavailable for any
reason, the indemnifying party and the indemnified party shall contribute
in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of such indemnifying party, on the
one hand, and such indemnified party, on the other hand, in connection
with the statements or omissions which resulted in such Losses as well as
any other relevant equitable considerations. Relative fault shall be
determined by reference to whether any untrue statement or omission or
alleged untrue statement or omission relates to information provided by
the indemnifying party, on the one hand, or by the indemnified party, on
the other hand, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The parties agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
Section 5(d), 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. For purposes of this Section 5, each person who
controls any Holder within the meaning of either the Act or the Exchange
Act and each director, officer, employee and agent of the Holders shall
have the same rights to contribution as the Holders, and each person who
controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who signed the Shelf Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms
and conditions of this paragraph (d).




          (e) Notwithstanding any provision herein to the contrary, in no
event shall the liability of any Holder under this Section 5 be greater
in amount than the dollar amount of the proceeds received by such Holder
upon the sale of the Registrable Securities pursuant to the Shelf
Registration Statement giving rise to such indemnification obligation.




          (f) The provisions of this Section 5 will remain in full force and
effect, regardless of any investigation made by or on behalf of the
Holders, the Company, or any of the officers, directors or controlling
persons referred to in Section 5 hereof, and will survive the sale by any
Holder of Registrable Securities covered by the Shelf Registration
Statement.


 
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               6. Miscellaneous.




               (a) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the
written consent of the Holders.




               (b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telecopier, or air courier guaranteeing overnight
delivery (i) if to any Holder, at the most current address of such Holder
maintained by the trustee under the Indenture or the transfer agent of
the Common Stock, as the case may be; and (ii) if to the Company,
initially at the Company’s address set forth on the Shelf Registration
Statement. All such notices and communications shall be deemed to have
been duly given when received, if delivered by hand or air courier, and
when sent, if sent by first-class mail or telecopier.




               (c) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties.




               (d) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.




               (e) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.




               (f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.




               (g) Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired or affected thereby, it being intended
that all of the rights and privileges of the parties shall be enforceable
to the fullest extent permitted by law.




               (h) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the earlier of (x) the date on which the
Company files the Prepackaged Plan or (y) the end of the Shelf
Registration Period, except for any liabilities or obligations under
Sections 4 or 5 to the extent arising prior to the end of the Shelf
Registration Period.




[signature page follows]


 
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AIRGATE PCS, INC.
	 	 	 
	 	 	
By:
	 	 	


	 	 	
              Name:
	 	 	
              Title:
	 	 	 
	 	 	 
	 	 	
[LIST EACH OF THE NOTEHOLDERS WHO HAS SIGNED THE SUPPORT
AGREEMENT OR THE AMENDMENT THERETO OR A JOINDER THERETO]
	 	 	 
	 	 	 
	 	 	
              By:
	 	 	


	 	 	
              Name:
	 	 	
              Title:






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