Exhibit 99.1
TRUST AGREEMENT
This Trust Agreement ("Agreement") is made and entered into as
of October 17, 2003, by and between AirGate PCS, Inc., a Delaware corporation
(the "Company"), and Wilmington Trust Company, a Delaware banking corporation
(the "Bank").
WHEREAS, the Company is the record owner of 1000 shares of the
common stock, par value $.01 per share, of iPCS, Inc, a Delaware corporation
("iPCS"), and such shares represent all of the outstanding capital stock of iPCS
(the "iPCS Stock");
WHEREAS, on February 23, 2003, iPCS and its subsidiaries, iPCS
Wireless, Inc. and iPCS Equipment, Inc., filed a Chapter 11 bankruptcy petition
in the United States Bankruptcy Court for the Northern District of Georgia (the
"Bankruptcy Court") for the purpose of effecting a court-administered
reorganization pursuant to a plan of reorganization (the "Plan");
WHEREAS, the Company desires to irrevocably transfer all
right, title and interest in and to the iPCS Stock to a trust for the benefit of
the Beneficiaries (as defined herein) and the Bankruptcy Court has approved such
transfer; and
WHEREAS, the Trustee (as defined herein) has agreed to act as
the Trustee under this Agreement and to perform as Trustee upon and subject to
the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the covenants and
agreements set forth below, intending to be legally bound hereby, the Trustee
accepts the Trust (as defined herein) created hereby and agrees to hold all
property which it may receive in trust, for the purposes and on the terms and
conditions set forth herein, and the Company and the Trustee hereby agree, for
the express benefit of the Beneficiaries, as follows:
ARTICLE I
Organization
Section 1.1 Name. The Trust created by this Agreement (the "Trust") will be
known as the "iPCS Common Stock Trust."
Section 1.2 Office. The administrative office of the Trust will be in care
of the Trustee, addressed to Wilmington Trust Company, Corporate Financial
Services Division, Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000, Attention:
Corporate Trust Administration, or at such other address in Delaware as the
Trustee may designate by written notice to the Company. For the purposes of this
Agreement, the term "Trustee" means Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as Trustee under this
Agreement, and any successor Trustee under this Agreement.
Section 1.3 Purposes and Powers. This Trust is established for the sole
purpose of protecting and conserving the Trust Estate (as defined herein)
transferred to it by the Company on behalf of the Beneficiaries, enforcing the
rights of the Beneficiaries thereto, collecting the income thereon, distributing
the Trust Estate to the Beneficiaries, and taking such other action as is
necessary to conserve and protect the Trust Estate and to provide for the
orderly liquidation of any and all of the Trust Estate. Under no circumstances
shall the Trust or the Trustee hereunder have any power to engage in any trade
or business, or in any other activity except as is necessary to the foregoing
purposes and this limitation shall apply irrespective of whether the conduct of
any business activities is deemed by the Trustee to be convenient, desirable,
necessary or proper for the conservation and protection of the Trust Estate.
Section 1.4 Appointment of Trustee. The Company hereby appoints the Trustee
as trustee of the Trust effective as of the date of this Agreement (the
"Effective Date"), to have all the rights, powers and duties set forth in this
Agreement.
Section 1.5 Trust Estate. Simultaneously with the execution and delivery of
this Agreement, the Company shall irrevocably transfer to the Trustee, on behalf
of and for the sole benefit of the Beneficiaries, all of the Company's
respective right, title and interest in and to the iPCS Stock. The Company shall
deliver to the Trustee the certificate or certificates representing the iPCS
Stock, duly endorsed, accompanied by all instruments and documents required to
effect the transfer and to vest in the Trustee title to the iPCS Stock. The iPCS
Stock and any dividends or distributions made with respect to the iPCS Stock,
including any amount received upon the cancellation of the iPCS Stock, as well
as any additional contributions that may be made by the Company to the Trust,
and any dividends, distributions or additional contributions, will constitute
the "Trust Estate" from time to time.
Section 1.6 Interest of the Company. The Company hereby
disclaims any right, title, and interest in and to the iPCS Stock on and after
the Effective Date including without limitation the right to vote the iPCS Stock
and the right to any distributions on the iPCS Stock.
Section 1.7 Declaration of Trust. The Trustee declares that it
will hold the Trust Estate in trust upon and subject to the conditions set forth
in this Agreement for the benefit of the Beneficiaries.
Section 1.8 Location of Trust. It is the intention of the
parties to this Agreement that the Trust constitute a trust under the laws of
the State of Delaware. The Trust is created and will be administered in the
State of Delaware. The bank account maintained by the Trustee on behalf of the
Trust will be located in the State of Delaware, and all securities owned by the
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Trust will be held in the State of Delaware. The Trust will not have any
employees and will not have any real or personal property located in any state
other than the State of Delaware. The Trust's only office will be at the office
of the Trustee as set forth in this Agreement.
ARTICLE II
Beneficiaries
Section 2.1 Stockholders as Beneficiaries. The record owners
of the Company's common stock, par value $0.01 per share (the "Common Stock"),
at the close of business on the Effective Date (the "Trust Stockholders") shall
be the initial Beneficiaries of the Trust and shall have a Beneficial Interest
(as defined herein) in the Trust. Beneficial Interests in the Trust shall be
evidenced by a book entry in a register maintained by the Trustee for such
purpose pursuant to Section 2.2 hereof. For this purpose, the term "Beneficial
Interest" shall mean, for each Beneficiary, the percentage determined by
dividing the number of shares of Common Stock of Company (the "Stock") held
beneficially and of record by the Beneficiary at the close of business on the
Effective Date by the total number of shares of Common Stock outstanding on such
date (25,961,445 shares as of the Effective Date). The rights and benefits
provided in this Agreement represent the sole interest of the Trust Stockholders
in the Trust. Each distribution by the Trustee shall be made to the Trust
Stockholders, or their legal representatives or successors in interest
authorized by Section 2.5 hereof (together with the Trust Stockholders, the
"Beneficiaries"), pro rata according to their respective Beneficial Interests.
As of the Effective Date, there were no shares of any other class of stock of
the Company issued or outstanding other than the Common Stock.
Section 2.2 Record of Beneficiaries. The Company shall provide
the Trustee with a list of the Trust Stockholders and the respective number of
shares owned by such Trust Stockholders at the close of business on the
Effective Date and the Company shall promptly inform the Trustee of any
successors in interest to such Trust Stockholders authorized by Section 2.5
hereof. In reliance exclusively on such information supplied by the Company, the
Trustee shall maintain a record of the names of each Beneficiary and his
Beneficial Interest in the Trust.
Section 2.3 Trust Certificates. The Beneficial Interests
shall be uncertificated, and the Trustee shall not issue certificates
representing Beneficial Interests in the Trust.
Section 2.4 Missing Beneficiaries. A "Missing Beneficiary"
shall be defined as a Beneficiary who has not cashed one or more checks issued
to him by the Trustee in payment of distributions hereunder or has not properly
endorsed any document required by a delivery service in connection with the
delivery of property addressed to him as part of a distribution hereunder. If a
notice or distribution is mailed by the Trustee to a Beneficiary and either the
notice is returned by the United States Postal Service to the Trustee as
undeliverable or any check included in such notice is not cashed within 60 days,
such Beneficiary shall thereafter be a Missing Beneficiary. Upon the termination
of the Trust pursuant to Section 6.2 hereof, any distributions hereunder which
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have not been distributed due to the existence of Missing Beneficiaries shall be
delivered to iPCS to be held for the benefit of the Missing Beneficiaries and in
accordance with applicable escheat law and any Missing Beneficiaries shall
thereafter look only to iPCS for payment of any such distributions.
Section 2.5. Transfer of Interests. The Beneficial Interest of
a Beneficiary in the Trust may not be transferred in any manner whatsoever
(including, without limitation, by sale, exchange, gift, pledge or creation of a
security interest) except (a) by bequest or inheritance in the case of an
individual Beneficiary or (b) by operation of law.
ARTICLE III
Obligations Of The Trustee
Section 3.1 Access to Books and Records. If so requested by a
Beneficiary and at such Beneficiary's sole cost and expense, the Trustee shall
permit the Beneficiary or its respective authorized representatives (including
without limitation attorneys and independent public accountants) access to its
books and records relating to the Trust during normal business hours for the
purpose of auditing the Trust and the activities therein.
Section 3.2 Investment of Funds. The Trustee is hereby
authorized and directed to open a non-interest bearing trust account into which
any cash or cash equivalents constituting part of the Trust Estate from time to
time shall be deposited. Under no circumstances shall any cash or cash
equivalents constituting part of the Trust Estate be invested. The Trustee (in
its capacity as such) shall not engage in any income-producing activity and
shall hold all funds received by it in non-interest bearing trust accounts.
Section 3.3 Grantor Trust. It is intended that the granting,
assignment and conveyance of the iPCS Stock to the Trust shall be for the
benefit of the Beneficiaries and shall be treated for federal, state and local
income tax purposes as if it were distributed directly to the Beneficiaries. It
is the intent of the parties hereto that the Trust will be treated as a grantor
trust for federal, state and local income tax purposes and each Beneficiary
shall be treated as the owner of its Beneficial Interest in the iPCS Stock. The
Trustee shall cause to be prepared for and filed on behalf of the Trust all
income tax returns and governmental reports required by law. Pursuant to Section
671 of the Internal Revenue Code of 1986, as amended, each Beneficiary shall
include in the calculation of its taxable income and federal income tax
liability, if any, such Beneficiary's share of all items of income, gain, loss,
deduction and credit attributable to the Trust Estate. The Trustee shall timely
provide to each of the Beneficiaries such information as is reasonably necessary
for such Beneficiary to file its income tax returns and reports. The Company
will furnish the Trustee with all such information as may be reasonably required
in connection with the preparation of such income tax returns and governmental
reports. The Trustee shall satisfy its obligations with respect to this Section
3.3 of this Agreement by retaining a firm of independent public accountants or
an affiliate of the Trustee (the "Accountants") which shall perform the
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obligations of the Trustee under this Section 3.3. The Trustee shall be deemed
to have discharged its obligations pursuant to this Section 3.3 upon its
retention of the Accountants and the Trustee shall have no liability with
respect to the negligence or misconduct of the Accountants.
Section 3.4 Distributions. Within five (5) business days
following notice from the Bankruptcy Court to the Trustee of the final approval
of the Plan by the Bankruptcy Court and provided that the Plan provides for a
distribution with respect to the iPCS Stock to the Beneficiaries, the Trustee
shall distribute the Trust Estate to the Beneficiaries pursuant to Section 2.1
hereof and the terms of the Plan. In addition, the Trustee may distribute any of
the Trust Estate to the Beneficiaries in-kind; provided, however that,
notwithstanding anything in this Agreement to the contrary, the Trustee shall
not be responsible for reviewing and/or interpreting the Plan and if the Plan
speaks to the manner in which the iPCS Stock or any other part of the Trust
Estate is to be distributed, handled or maintained, the Trustee shall
distribute, handle or maintain such iPCS Stock or other part of the Trust Estate
solely in accordance with written instructions from the Bankruptcy Court and the
Trustee shall have the power to petition the Bankruptcy Court for clarification
of any such written instruction.
Section 3.5 No Payment to Company. In no event shall the
Trustee reconvey to the Company any of the Trust Estate.
Section 3.6 Annual Report to Beneficiaries. As soon as
practicable after the close of each calendar year, but in any event within 90
days thereafter, the Trustee shall prepare and mail to each Beneficiary a report
for such calendar year showing the assets and liabilities of the Trust known to
the Trustee at the end of each such calendar year and the receipts and
disbursements of the Trust for the period, including dates and amounts of
distributions made by the Trustee, and if the Trustee is directed so to do by
the iPCS board of directors, a copy of such report shall be filed with the
Securities and Exchange Commission. Such report shall also describe the changes
in the Trust's assets during the period and the actions taken by the Trustee
during the period. The financial statements contained in such report shall be
prepared in accordance with generally accepted accounting principles, but need
not be audited by an independent public accountant.
Section 3.7 Interim Reports to Beneficiaries. The Trustee
shall prepare and mail to each Beneficiary a report describing each event that
occurs with respect to the Trust which, as directed in writing by the iPCS board
of directors or the Bankruptcy Court, constitutes a material event relating to
the Trust Estate; provided that a report need not be prepared and mailed
describing a material event if an annual report will be issued at approximately
the same time that describes the material event as it would be discussed in a
report issued. If the Trustee is directed so to do by the iPCS board of
directors, the Trustee shall file a copy of the report with the Securities and
Exchange Commission.
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ARTICLE IV
Powers Of The Trustee
Section 4.1 Title. Legal title to all assets of the Trust
Estate shall be vested in the Trustee, on behalf of and for the benefit of the
Beneficiaries, except that the Trustee shall have the power to cause legal
title, or evidence of legal title, to any part of the Trust Estate to be held by
any nominee or other person, on such terms, in such manner and with such power
as the Trustee may reasonably determine.
Section 4.2 Powers of Trustee. Subject to the terms of this
Agreement and the Plan, and subject to any order of the Bankruptcy Court, the
Trustee shall have control and authority over the Trust Estate, over the
acquisition, administration, use and disposition thereof. No person dealing with
the Trust shall be obligated to inquire as to the authority of the Trustee in
connection with the acquisition, administration, use and disposition of the
Trust Estate. Subject to Section 1.3 hereof, the Trustee's powers, except as
otherwise expressly limited in this Agreement or the Plan, shall include, but
shall not be limited to, the following:
(i) to accept on behalf of the Beneficiaries the iPCS Stock to be
transferred from the Company on the Effective Date;
(ii) to hold the iPCS Stock until the final approval of the Plan and
distribute the proceeds to the Beneficiaries in accordance with the terms
of this Agreement and the Plan;
(iii) to expend monies constituting part of the Trust Estate for the
purpose of administering the Trust;
(iv) solely upon receipt by the Trustee of written instructions
pursuant to Section 8.2(g) hereof or from a majority in Beneficial
Interest, to prosecute and defend all actions affecting the Trust and to
compromise or settle any suits, claims or demands, or waive or release any
rights, relating to the Trust;
(v) to engage in all acts necessary and reasonable in performing the
obligations of a trustee under a trust of the type provided for in this
Agreement; and
(vi) to modify, amend or alter the terms of this Agreement as provided
in Section 9.6 of this Agreement.
Notwithstanding anything in this Agreement to the contrary,
the Trustee shall not be authorized and shall have no power to (1) "vary the
investment" of any Beneficiary within the meaning of Treasury Regulation section
301.7701-4(c)(1) or (2) elect under Treasury Regulation section 301.7701-3 to
treat this Trust as other than a trust for federal income tax purposes. Any
party providing the Trustee with written instructions pursuant to any provision
of this Agreement shall include a representation to the effect that the
compliance by the Trustee with such instructions shall not result in the Trustee
being deemed to have violated the foregoing clauses (1) and (2) of this Section
4.2.
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ARTICLE V
Concerning the Trustee
Section 5.1 Acceptance of Trusts and Duties. The Trustee
accepts the trust created by this Agreement and agrees to perform its duties
under this Agreement with respect to such trust upon the terms contained in this
Agreement. Neither the Trustee nor the Bank shall be answerable or accountable
under any circumstances, except (i) for its own willful misconduct or gross
negligence, (ii) in the case of the inaccuracy of any representation or warranty
contained in Section 5.3 expressly made by the Bank, or (iii) for taxes, fees,
or other charges that are imposed on, based on, or measured by any fees,
commissions, or compensation received by the Trustee in connection with any of
the transactions contemplated by this Agreement. In particular, but not by way
of limitation:
(a) Neither the Trustee nor the Bank shall be liable for any
error of judgment made in good faith by a responsible officer thereof in the
absence of gross negligence or willful misconduct;
(b) Neither the Trustee nor the Bank shall be liable with
respect to any action taken or omitted to be taken in accordance with the
instructions of iPCS in the absence of gross negligence or willful misconduct;
(c) No provision of this Agreement shall require the Trustee
or the Bank to expend or risk funds or otherwise incur any financial liability
in the performance of any of its or the Trustee's rights or powers hereunder, if
the Trustee or the Bank shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured or provided to it;
Section 5.2 Furnishing of Documents. The Trustee shall furnish
to the Company promptly upon receipt, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements, and any other
instruments furnished to the Trustee under this Agreement (other than documents
originated by or otherwise furnished to the Company).
Section 5.3 Representation and Warranty. The Bank hereby
represents and warrants to the Company, for its benefit and the benefit of the
Beneficiaries, that (i) this Agreement has been executed and delivered by its
officers who have been duly authorized to execute and deliver this Agreement in
such capacity on its behalf; (ii) this Agreement constitutes a valid, legal and
binding instrument of the Bank, enforceable in accordance with its terms except
as such enforceability may be affected by applicable bankruptcy, insolvency,
reorganization, and other similar laws affecting the rights of creditors,
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generally and general principles of equity; (iii) the execution, delivery and
performance of this Agreement by the Bank will not conflict with or constitute a
breach of or default under the certificate of incorporation or by-laws of the
Bank or any agreement, indenture or other instrument to which the Bank is a
party or by which it or any of its properties may be bound, or any law,
administrative regulation or court decree applicable to the Bank; and (iv) the
Bank meets the requirements for a successor Trustee specified in Section 7.1(c).
Section 5.4 Reliance: Advice of Counsel.
(a) The Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond, or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Trustee may accept a certified copy of a resolution of the board of directors or
other governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of whose determination is not
specifically prescribed in this Agreement, the Trustee may for all purposes of
this Agreement rely on a certificate signed by the president, any vice
president, the treasurer, any assistant treasurer, the secretary or any
assistant secretary of the relevant party, as to such fact or matter, and such
certificate shall constitute full protection to the Trustee for any action taken
or omitted to be taken by it in good faith in reliance on the certificate.
(b) In the exercise or administration of the Trust under this
Agreement, the Trustee (i) may act directly or, at the expense of the Trust
Estate, through agents or attorneys pursuant to agreements entered into with any
of them, and the Trustee shall not be liable for the default or misconduct of
such agents or attorneys if such agents or attorneys shall have been selected by
the Trustee with reasonable care; and (ii) may, at the expense of the Trust
Estate, consult with counsel, accountants, and other skilled persons to be
selected with reasonable care and employed by it, and the Trustee shall not be
liable for anything done, suffered, or omitted in good faith by it in accordance
with the advice or opinion of any such counsel, accountants, or other skilled
persons.
Section 5.5 Not Acting in Individual Capacity. Except as
provided in this Article V, in accepting the Trust created by this Agreement the
Bank acts solely as trustee under this Agreement and not in its individual
capacity and all persons having any claims against the Trust or the Trustee by
reason of the transactions contemplated by this Agreement shall look only to the
Trust Estate for payment or satisfaction of those claims.
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ARTICLE VI
Term and Termination
Section 6.1 Term. This Agreement shall become effective upon
the Effective Date and shall exist until terminated in accordance with Section
6.2 hereof.
Section 6.2 Termination. This Agreement and the Trust created
hereby shall terminate and this Agreement shall be of no further force or
effect, only upon the earlier to occur of the following: (i) a distribution in
accordance with Section 3.4 of this Agreement, and, if applicable, Section 2.4
hereof, (ii) the approval of a Plan that does not provide for the distribution
of iPCS Stock to the Beneficiaries and (iii) three (3) years after the Effective
Date. Upon the termination of this Agreement and the Trust created hereby, the
Trustee shall distribute the Trust Estate to the Beneficiaries pursuant to
Section 2.1 hereof. Under no circumstances shall any of the Trust Estate revert
to or vest with the Company.
ARTICLE VII
Successor Trustees And Additional Trustees
Section 7.1 Resignation of Trustee: Appointment of Successor.
(a) The Trustee may resign at any time without cause by giving
at least 60 days' prior written notice to iPCS, such resignation to be effective
on the acceptance of appointment by a successor Trustee under Section 7.1(b). In
addition, iPCS may at any time remove the Trustee solely for cause by an
instrument in writing delivered to the Trustee, such removal to be effective
upon the acceptance of appointment by a successor Trustee under Section 7.1(b).
In case of the resignation or removal of the Trustee, iPCS may appoint a
successor Trustee by an instrument signed by iPCS. iPCS will use its best
efforts to appoint a successor Trustee. If a successor Trustee is not appointed
within 30 days after the giving of written notice of such resignation or the
delivery of the written instrument with respect to such removal, the Trustee may
apply to any court of competent jurisdiction to appoint a successor Trustee.
Such court may thereupon, after such notice, if any, as it may prescribe,
appoint a successor Trustee, which shall, if possible, meet the qualifications
of Section 7.1(c). Notwithstanding the removal or resignation of the Trustee
pursuant to this Section 7.1, the Bank shall remain liable to the extent set
forth in Section 5.1 for any action or inaction of the Trustee prior to such
removal or resignation.
(b) Any successor Trustee, however appointed, will execute and
deliver to the predecessor Trustee and to the Company an instrument accepting
its appointment, and thereupon the successor Trustee, without further act, will
become vested with all the estates, properties, rights, powers, duties and
trusts of the predecessor Trustee in the trusts under this Agreement with the
same effect as if the successor Trustee had originally been named as the
Trustee; but nevertheless, upon the written request of a successor Trustee, the
predecessor Trustee will execute and deliver an instrument transferring to the
successor Trustee, upon the trusts expressed in this Agreement, all the estates,
properties, rights, powers, duties and trusts of the predecessor Trustee, and
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the predecessor Trustee will duly assign, transfer, deliver, and pay over to the
successor Trustee all moneys or other property then held or subsequently
received by the predecessor Trustee upon the trusts expressed in this Agreement.
(c) Any successor Trustee, however appointed, shall be a bank
or trust company incorporated and doing business within the United States of
America and having a combined capital and surplus of at least $50,000,000, if
there is such an institution willing, able, and legally qualified to perform the
duties of the Trustee under this Agreement upon reasonable and customary terms.
(d) Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion, or consolidation to which the Trustee shall be a
party, or any corporation to which substantially all the corporate trust
business of the Trustee may be transferred, shall, subject to the terms of
Section 7.1(c), be the Trustee under this Agreement without further act.
Section 7.2 Appointment of Additional Trustees. At any time or
times for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Trust Estate may at the time be located, the Trustee, by
an instrument in writing, may appoint one or more individuals or corporations to
act as separate trustee or separate trustees of all or any part of the Trust
Estate to the full extent that a local law makes it necessary for such separate
trustee or separate trustees to act alone. Under no circumstances shall the
Trustee have any liability for any action or inaction of any such separate
trustee, but rather shall only be liable to the extent the Trustee did not
exercise reasonable care in the selection of such separate trustee.
ARTICLE VIII
Representations, Warranties and Covenants
Section 8.1 Representations, Warranties and Covenants of the
Company. The Company represents and warrants to the Bank that:
(a) The Company has been duly organized and is validly
existing and in good standing as a corporation under the laws of the State of
Delaware with corporate power and authority to own its properties and to
transact the business in which it is now engaged, and the Company is duly
qualified to do business and is in good standing in each jurisdiction where the
nature of its business or the ownership of its properties requires it to be so
qualified, except jurisdictions in which failure to qualify would not, in the
aggregate, have a material adverse effect upon the Company.
(b) This Agreement has been duly authorized, executed and
delivered by the Company and this Agreement is the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
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its terms, except as such enforceability may be affected by applicable
bankruptcy, insolvency, reorganization and other similar laws affecting the
rights of creditors generally and by general principles of equity.
(c) The iPCS Stock being transferred to the Trust constitutes
all of the issued and outstanding capital stock of iPCS owned by the Company.
Section 8.2 Representations and Warranties of the Trustee. The
Trustee represents and warrants to the Company, subject to Section 8.2(g)
hereof, that:
(a) The Trustee shall not amend or propose to amend or
otherwise change iPCS's certificate of incorporation or bylaws and shall comply
with the iPCS certificate of incorporation and bylaws in effect on the Effective
Date, other than as may be directed in writing by the iPCS Board of Directors or
by the Bankruptcy Court;
(b) The Trustee shall not cause iPCS to issue, sell, pledge,
dispose of or encumber, or authorize the issuance, sale, pledge, disposition or
encumbrance of, any shares of iPCS's capital stock, or any options, warrants,
convertible securities, debt securities, or any other ownership interest in
iPCS, other than as may be directed in writing by the iPCS Board of Directors or
by the Bankruptcy Court;
(c) The Trustee acknowledges that (i) the Company has informed
it that, prior to the Effective Date, the Company's Board of Directors consisted
of Xxxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxx and Xxxx Xxxxx; (ii) the Company has
informed it that, effective as of the Effective Date, Xxxxxx X. Xxxxxxxxx and
Xxxxxxx X. Xxxxxxx will resign from the Board of Directors of iPCS and Xxxx
Xxxxx will continue as a member of Board of Directors of iPCS; (iii) the Company
has informed it that, at the Effective Date, the Board of Directors of iPCS will
be reduced to two members and an individual designated by the Board of Directors
of iPCS will be appointed to fill the vacancy on the Board of Directors; and
(iv) the Trustee shall take no action to remove Xxxx Xxxxx or such
newly-appointed director as members of the iPCS Board of Directors or to change
the size of the iPCS Board of Directors, other than as may be directed in
writing by the iPCS Board of Directors or by the Bankruptcy Court;
(d) The Trustee acknowledges the Management Agreement between
iPCS and YMS Management, L.L.C. attached hereto as Exhibit A and agrees not to
take any action to amend the terms of the Management Agreement (it being
understood that such agreement may be modified, amended or supplemented by iPCS
and YMS Management, L.L.C. without the consent of the Trustee or the
Beneficiaries provided however, that no such amendment may affect the Trustee
without its consent;
(e) The Trustee confirms that the Company has informed it
that Xxxxxxx X. Xxxxx is the Chief Restructuring Officer of iPCS and will
continue as the Chief Restructuring Officer of iPCS following the Effective
Date. The Trustee represents that it will not take any action to remove Xxxxxxx
X. Xxxxx or any other officer of the Company;
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(f) Subject to Section 6.2 hereof, the Trustee will not
pledge, assign, sell, convey or transfer the iPCS Stock except pursuant to the
Plan confirmed by the Bankruptcy Court or as otherwise ordered by the Bankruptcy
Court; and
(g) The Trustee will vote the iPCS Stock and otherwise act in
its capacity as a stockholder of iPCS in accordance with the direction of the
iPCS board of directors as set forth in a secretary's certificate of iPCS and
will have no obligation to act absent a direction from the iPCS board of
directors.
ARTICLE IX
Miscellaneous
Section 9.1 Notices. All notices, requests, demands, waivers,
instructions and other communications required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been given when
personally delivered or two Business Days (as defined herein) after being
deposited in the U.S. mail, registered or certified, return receipt requested
with postage prepaid and addressed as follows to the party to whom the notice,
request, demand, waiver, instruction or other communication is to be given, or
at such other address as that party shall designate by notice to the other
parties in accordance with this Section; provided that notices, requests,
demands, waivers, instructions and other communications to the Trustee shall be
deemed effective only upon receipt by the Trustee. For this purpose, "Business
Day" shall mean any day on which banks located in Wilmington, Delaware are not
required or authorized by law to remain closed.
To the Company: AirGate PCS, Inc.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxx Tower, Suite 1700
Xxxxxxx, Xxxxxxx 00000
To the Bank or Trustee: Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust
Administration
Tel: (000)-000-0000
With a copy of any notice to: iPCS, Inc.
0000 Xxxxx Xxxxxxxxxx Xxxx,
Xxxxx 000
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
c/o Xxxxxxx X. Xxxxx
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Mayer, Brown, Xxxx & Maw LLP
000 Xxxxx XxXxxxx Xx.
Xxxxxxx, Xxxxxxxx 00000-0000
c/o Xxxx X. Xxxxxx
Section 9.2 Governing Law. This Agreement, the rights of the
parties hereunder and the legal relations among the parties shall be governed
by, and construed and enforced in accordance with the laws of the State of
Delaware, without regard to its conflict of laws rules.
Section 9.3 Successors and Assignee. This Agreement shall,
subject to other provisions hereof restricting assignment or delegation, be
binding upon and inure to the benefit of the parties hereto, their respective
successor, heirs, executors, administrators, estates, legal representatives and
assigns. For purposes of this Agreement, all of the successors, heirs,
executors, administrators, estates, legal representatives and assigns of any
Beneficiaries shall collectively constitute a single Beneficiary.
Section 9.4 Counterparts. This Agreement may be executed in
two or more counterparts, and by each party on separate counterparts, each of
which shall be deemed an original agreement, but all of which together shall
constitute one and the same instrument.
Section 9.5 Headings. Titles and headings to sections herein
are for purposes of reference only and shall in no way limit, define or
otherwise affect the interpretation of the provisions hereof.
Section 9.6 Amendment. This Agreement may be amended,
modified or supplemented only by an agreement in writing signed by the
Trustee and by the Company.
Section 9.7 Limitations on Rights of Others. The provisions of
this Agreement are solely for the benefit of the Trustee and the Beneficiaries,
and nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Assets of the Trust or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
Section 9.8 Entire Agreement. This Agreement constitutes and
embodies the entire understanding and agreement of the parties hereto relating
to the subject matters hereof and there are no other agreements or
understandings, written or oral, in effect between the parties relating to such
subject matter except as expressly referred to herein.
Section 9.9 Consent to Jurisdiction. The Company, the Trustee
and any Beneficiary accepting a Beneficial Interest herein, from time to time,
hereby irrevocably and unconditionally (i) agree that any action or proceeding
arising out of or in connection with this Agreement shall be brought only in the
Chancery Court of the State of Delaware (the "Delaware Court"), and not in any
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other state or federal court in the United States of America or any court in any
other county, (ii) consent to submit to the exclusive jurisdiction of the
Delaware Court for purposes of any action or proceeding arising out of or in
connection with this Agreement or any transaction or event relating hereto,
(iii) waive any objection to the laying of venue of any such action or
proceeding in the Delaware Court, and (iv) waive, and agree not to plead or to
make, any claim that any such action or proceeding brought in the Delaware Court
has been brought in an improper or inconvenient forum or is subject to a jury
trial.
IN WITNESS WHEREOF, each of the parties hereto has
executed this Agreement as of the date and year first above written.
AIRGATE PCS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
WILMINGTON TRUST COMPANY
By:/s/ Xxxxx Xxxx
Title: Financial Services Officer
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