<PAGE> 1
Registration No.__________
As filed with the Securities and Exchange Commission on September 21, 1995
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-3
Registration Statement under
the Securities Act of 1933
----------------
AIRTOUCH COMMUNICATIONS, INC.
A DELAWARE CORPORATION
I.R.S. EMPLOYER NUMBER 94-3213132
ATI FINANCING II ATI FINANCING I
A DELAWARE STATUTORY BUSINESS TRUST A DELAWARE STATUTORY BUSINESS TRUST
I.R.S. EMPLOYER NUMBER PENDING I.R.S. EMPLOYER NUMBER PENDING
ONE CALIFORNIA STREET
SAN FRANCISCO, CALIFORNIA 94111
(415) 658-2000
----------------
Agent for Service of Process:
Margaret G. Gill
Vice President, Legal, External Affairs and Secretary
AirTouch Communications, Inc.
One California Street
San Francisco, California 94111
(415) 658-2000
<TABLE>
<S> <C> <C>
Copies to:
Kristina Veaco Nathaniel M. Cartmell III Peter Darrow
Sharon Le Duy Katharine A. Martin Cleary, Gottlieb, Steen & Hamilton
AirTouch Communications, Inc. Pillsbury Madison & Sutro One Liberty Plaza
One California Street 235 Montgomery Street New York, NY 10006-1470
San Francisco, California 94111 San Francisco, California 94104 (212) 225-2000
(415) 658-2000 (415) 983-1000
</TABLE>
--------------------------
Approximate date of commencement of proposed sale to the public: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box: /x/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /_______
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /_______
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /_______
<PAGE> 2
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Shares to be Aggregate Price Aggregate Registration
to be Registered Registered Per Unit (1) Offering Price (1) Fee
---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01(2)
---------------------------------------------------------------------------------------------------------------------
Preferred Stock (3)
---------------------------------------------------------------------------------------------------------------------
Depositary Shares
---------------------------------------------------------------------------------------------------------------------
Debt Securities (4)
---------------------------------------------------------------------------------------------------------------------
Warrants (5)
---------------------------------------------------------------------------------------------------------------------
Stock Purchase Contracts (6)
---------------------------------------------------------------------------------------------------------------------
Stock Purchase Units (7)
---------------------------------------------------------------------------------------------------------------------
Preferred Securities of ATI Financing I (8)
---------------------------------------------------------------------------------------------------------------------
Preferred Securities of ATI Financing II (8)
---------------------------------------------------------------------------------------------------------------------
Guarantees of Preferred Securities (9)
---------------------------------------------------------------------------------------------------------------------
Total $2,000,000,000 100% (10) $689,655.17
=====================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(2) Subject to note (10) below, there are being registered hereunder an
indeterminate number of shares of Common Stock as may be sold, from time to
time, by the Registrant, including sales upon exercise of Warrants, Stock
Purchase Contracts and Stock Purchase Units. There are also being
registered hereunder an indeterminate number of shares of Common Stock as
shall be issuable upon conversion, redemption or exchange of Preferred
Stock or Debt Securities registered hereby. The Common Stock being
registered includes associated Preferred Stock Purchase Rights.
(3) Subject to note (10) below, there are registered hereunder an indeterminate
number of shares of Preferred Stock as may be sold, from time to time, by
the Registrant, including sales upon exercise of Warrants, Stock Purchase
Contracts and Stock Purchase Units, and an indeterminate number of shares
of Preferred Stock as shall be issuable upon conversion, redemption or
exchange of Debt Securities registered hereby.
(4) Subject to note (10) below, there are being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold from time
to time by the Registrant, including sales upon the exercise of Warrants.
If any Debt Securities are being issued at an original issue discount, then
the offering price shall be in such greater principal amount as shall
result in an aggregate initial offering price not to exceed $2,000,000,000
less the dollar amount of any securities previously issued hereunder.
(5) Subject to note (10) below, there are being registered hereunder an
indeterminate amount and number of Warrants, representing rights to
purchase Debt Securities, Preferred Stock, Common Stock, or shares of
capital stock or debt of another corporation or entity.
(6) Subject to note (10) below, there are being registered hereunder an
indeterminate amount and number of Stock Purchase Contracts, representing
rights to purchase Preferred Stock or Common Stock.
(7) Subject to note (10) below, there are being registered hereunder an
indeterminate amount and number of Stock Purchase Units, representing
ownership of Stock Purchase Contracts and Debt Securities, or debt
obligations of third parties, including U.S. Obligations or Preferred
Securities.
(8) Subject to note (10) below, there are being registered hereunder an
indeterminate amount of Preferred Securities as may be sold from time to
time, including sales pursuant to Stock Purchase Units.
(9) Subject to note (10) below, there are being registered hereunder an
indeterminate amount of Guarantees of Preferred Securities as may be sold
from time to time, including sales pursuant to Stock Purchase Units. No
separate consideration will be received for any Guarantees.
(10) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$2,000,000,000. Any Securities registered hereunder may be sold separately
or as units with other securities registered hereunder.
--------------
The registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment that states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
<PAGE> 3
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE> 4
SUBJECT TO COMPLETION, DATED SEPTEMBER 21, 1995
PROSPECTUS
$2,000,000,000
AIRTOUCH COMMUNICATIONS, INC.
COMMON STOCK, PREFERRED STOCK, DEPOSITARY SHARES, DEBT SECURITIES,
COMMON STOCK WARRANTS, PREFERRED STOCK WARRANTS, THIRD
PARTY WARRANTS, DEBT WARRANTS, STOCK PURCHASE CONTRACTS, AND STOCK
PURCHASE UNITS
ATI FINANCING I
ATI FINANCING II
PREFERRED SECURITIES, GUARANTEED TO THE EXTENT SET FORTH HEREIN
BY AIRTOUCH COMMUNICATIONS, INC.
AirTouch Communications, Inc. (the "Company" or "AirTouch"), a
Delaware corporation, directly or through agents, dealers or underwriters
designated from time to time, may issue and sell from time to time up to
$2,000,000,000 (or, if applicable, the equivalent thereof in other currencies)
in the aggregate, subject to the limitations set forth below, of (a) shares of
common stock, $0.01 par value per share, of the Company ("Common Stock"), (b)
shares of preferred stock, $0.01 par value per share, of the Company
("Preferred Stock"), in one or more series, (c) depositary shares of the
Company ("Depositary Shares"), (d) unsecured senior or subordinated debt
securities of the Company ("Debt Securities"), (e) options, warrants and other
rights to purchase shares of Common Stock ("Common Stock Warrants") or shares
of Preferred Stock ("Preferred Stock Warrants"), (f) options, warrants and
other rights to purchase shares of capital stock or debt of another corporation
or other entity ("Third Party Warrants"), (g) options, warrants and other
rights to purchase Debt Securities ("Debt Warrants"), (h) stock purchase
contracts ("Stock Purchase Contracts") to purchase Common Stock or Preferred
Stock or (i) stock purchase units ("Stock Purchase Units") each representing
ownership of a Stock Purchase Contract and Preferred Stock, Debt Securities,
debt obligations of third parties, including the United States of America or
agencies or instrumentalities thereof ("U.S. Obligations"), Preferred Securities
(as defined below) securing the holder's obligation to purchase Common Stock or
Preferred Stock under the Stock Purchase Contract, or any combination of the
foregoing, either individually or as units consisting of one or more of the
foregoing, each on terms to be determined at the time of sale.
ATI Financing I and ATI Financing II, each of which is a statutory
business trust formed under the laws of the State of Delaware (each an "ATI
Trust") and the Common Securities of which will be wholly-owned by the Company
at the time of issuance of Preferred Securities, may offer preferred securities,
representing undivided beneficial interests in the assets of the respective ATI
Trust ("Preferred Securities"). The payment of periodic cash distributions with
respect to Preferred Securities of each of the ATI Trusts out of moneys held by
each of the ATI Trusts, and payments on liquidation, redemption or otherwise
with respect to such Preferred Securities, will be guaranteed by the Company to
the extent described herein (each a "Guarantee"). See "Description of the
Guarantees." The Company's obligations under the Guarantees are subordinate and
junior in right of payment to all other liabilities of the Company and rank pari
passu with the most senior Preferred Stock, if any, issued from time to time by
the Company. In the event an ATI Trust issues Preferred Securities or Common
Securities (as defined herein), the proceeds to such ATI Trust from such
offering will be invested in subordinated Debt Securities, which will be issued
and sold in one or more series by the Company to such ATI Trust or the trustee
of such trust. The subordinated Debt Securities purchased by an ATI Trust may be
subsequently distributed pro rata to holders of Preferred Securities or Common
Securities in connection with the dissolution of such ATI Trust upon the
occurrence of certain events as may be described in an accompanying Prospectus
Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
ADDITIONAL INFORMATION REGARDING THE SECURITIES IS SET FORTH ON THE
INSIDE FRONT COVER.
FOR A DISCUSSION OF CERTAIN RISKS ASSOCIATED WITH AN INVESTMENT IN THE
SECURITIES, SEE "GENERAL DESCRIPTION OF SECURITIES AND RISK FACTORS" ON PAGE 5.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
The date of this Prospectus is __________, 1995
1
<PAGE> 5
The Common Stock, Preferred Stock, Depositary Shares, Debt Securities,
Common Stock Warrants, Preferred Stock Warrants, Third Party Warrants, Debt
Warrants, Stock Purchase Contracts, Stock Purchase Units, Preferred Securities
and Guarantees are collectively referred to herein as the "Securities."
The Company or either ATI Trust may sell the Securities to or through
underwriters, dealers or agents or directly to purchasers. See "Plan of
Distribution." The Company and each ATI Trust reserve the sole right to accept
and, together with their respective agents from time to time, to reject in
whole or in part any proposed purchase of Securities to be made directly or
through agents. The accompanying Prospectus Supplement sets forth, among other
things, the names of any underwriters, dealers or agents involved in the sale
of the Securities in respect of which this Prospectus is being delivered, and
any applicable fee, commission or discount arrangements with them.
--------------
All specific terms of the offering and sale of Securities, including
the initial public offering price, aggregate amount, listing on any securities
exchange or quotation system, risk factors and the agents, dealers or
underwriters, if any, to be utilized in connection with the sale of the
Securities, will be set forth in an accompanying Prospectus Supplement
("Prospectus Supplement"). With respect to the Preferred Stock, the related
Prospectus Supplement will set forth, among other things, the specific
designation, rights, preferences, privileges and restrictions thereof,
including dividend rate or rates (or method of ascertaining the same), dividend
payment dates, voting rights, liquidation preference, and any conversion,
exchange, redemption or sinking fund provisions. With respect to the Debt
Securities, the related Prospectus Supplement will set forth, among other
things, the specific designation, rights and restrictions, including whether
they are senior or subordinated, the currencies or currency units in which they
are denominated, the aggregate principal amount, the maturity, rate (or method
of ascertaining the same) and time of payment of interest, and any conversion,
exchange, redemption or sinking fund provisions. With respect to the Common
Stock Warrants, Preferred Stock Warrants, Third Party Warrants and Debt
Warrants, the related Prospectus Supplement will contain, among other things, a
description of the Common Stock, Preferred Stock, capital stock or debt of such
third party and Debt Securities, respectively, for which each warrant will be
exercisable and the exercise price, duration, detachability, call provisions
and other principal terms of such Warrants. With respect to the Stock Purchase
Contracts, the related Prospectus Supplement will set forth, among other
things, the designation and number of shares of Common Stock or Preferred Stock
issuable thereunder, the purchase price of the Common Stock or Preferred Stock,
the date or dates on which the Common Stock or Preferred Stock is required to
be purchased by the holders of the Stock Purchase Contracts, any periodic
payments required to be made by the Company to the holders of the Stock
Purchase Contracts or visa versa, and the terms of the offering and sale
thereof. In the case of Stock Purchase Units, the related Prospectus
Supplement will set forth, among other things, the specific terms of the Stock
Purchase Contracts and any Preferred Stock, Debt Securities or debt obligations
of third parties or Preferred Securities securing the holder's obligation to
purchase the Preferred Stock or Common Stock under the Stock Purchase
Contracts, and the terms of the offering and sale thereof. With respect to the
Preferred Securities, the related Prospectus Supplement will set forth, among
other things, the specific designation, rights, preferences, privileges and
restrictions thereof, including dividend rate or rates (or method of
ascertaining the same), dividend payment dates, voting rights, liquidation
preference, and any conversion, exchange, redemption or sinking fund
provisions, the terms upon which the proceeds of the sale of the Preferred
Securities will be used to purchase a specific series of subordinated Debt
Securities of the Company and the terms upon which the obligations of the ATI
Trust to make periodic cash distributions on the Preferred Securities or make
payments upon liquidation or dissolution of the ATI Trust or upon redemption of
the Preferred Securities, to the extent funds are available therefor, shall
be unconditionally guaranteed by AirTouch.
--------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OVERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE ON
WHICH THE SECURITIES ARE LISTED, IN THE OVER-THE-COUNTER MARKET, OR OTHERWISE.
SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
2
<PAGE> 6
INDEX OF TERMS
<TABLE>
<CAPTION>
Page on Which
Term Term is Defined
---- ---------------
<S> <C>
Acquiring Party . . . . . . . . . . . . . . . . . 7
AirTouch . . . . . . . . . . . . . . . . . . . . 1
ATI Trust . . . . . . . . . . . . . . . . . . . . 1
ATI Trustees . . . . . . . . . . . . . . . . . . 5
Certificate of Incorporation . . . . . . . . . . 6
Code . . . . . . . . . . . . . . . . . . . . . . 22
Commission . . . . . . . . . . . . . . . . . . . 4
Common Securities . . . . . . . . . . . . . . . . 5
Common Securities Guarantees . . . . . . . . . . 19
Common Stock . . . . . . . . . . . . . . . . . . 1
Common Stock Warrants . . . . . . . . . . . . . . 1
Company . . . . . . . . . . . . . . . . . . . . . 1
Debt Securities . . . . . . . . . . . . . . . . . 1
Debt Warrants . . . . . . . . . . . . . . . . . . 1
Debt Warrant Agent . . . . . . . . . . . . . . . 17
Debt Warrant Agreement . . . . . . . . . . . . . 17
Debt Warrant Certificates . . . . . . . . . . . . 17
Debt Warrant Provisions . . . . . . . . . . . . . 17
Declaration . . . . . . . . . . . . . . . . . . . 5
Delaware Trustee . . . . . . . . . . . . . . . . 5
Deposit Agreement . . . . . . . . . . . . . . . . 9
Depositary . . . . . . . . . . . . . . . . . . . 9
Depositary Receipts . . . . . . . . . . . . . . . 8
ERISA . . . . . . . . . . . . . . . . . . . . . . 22
Exchange Act . . . . . . . . . . . . . . . . . . 4
Global Debt Securities . . . . . . . . . . . . . 11
Guarantees . . . . . . . . . . . . . . . . . . . 1
Guarantee Payments . . . . . . . . . . . . . . . 19
Guarantee Trustee . . . . . . . . . . . . . . . . 19
Indentures . . . . . . . . . . . . . . . . . . . 11
Mandatory Debt Securities . . . . . . . . . . . . 12
Permitted Offer . . . . . . . . . . . . . . . . . 7
Preferred Securities . . . . . . . . . . . . . . 1
Preferred Stock . . . . . . . . . . . . . . . . . 1
Preferred Stock Warrants . . . . . . . . . . . . 1
Prospectus Supplement . . . . . . . . . . . . . . 2
Property Trustee . . . . . . . . . . . . . . . . 5
Redemption Price . . . . . . . . . . . . . . . . 7
Registration Statement . . . . . . . . . . . . . 4
Regular Trustees . . . . . . . . . . . . . . . . 5
Rights . . . . . . . . . . . . . . . . . . . . . 7
Rights Plan . . . . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . 1
Securities Act . . . . . . . . . . . . . . . . . 4
Senior Debt Securities . . . . . . . . . . . . . 11
Senior Indenture . . . . . . . . . . . . . . . . 11
Sponsor . . . . . . . . . . . . . . . . . . . . . 5
Stock Purchase Contract . . . . . . . . . . . . . 1
Stock Purchase Unit . . . . . . . . . . . . . . . 1
Stock Warrants . . . . . . . . . . . . . . . . . 15
Stock Warrant Agent . . . . . . . . . . . . . . . 15
Stock Warrant Agreement . . . . . . . . . . . . . 15
Stock Warrant Certificates . . . . . . . . . . . 15
Stock Warrant Provisions . . . . . . . . . . . . 15
Subordinated Debt Securities . . . . . . . . . . 11
Subordinated Indenture . . . . . . . . . . . . . 11
Subscrition Right . . . . . . . . . . . . . . . . 7
Third Party Company . . . . . . . . . . . . . . . 11
Third Party Registration Statement . . . . . . . 11
Third Party Securities . . . . . . . . . . . . . 11
Third Party Warrant Agent . . . . . . . . . . . . 16
Third Party Warrant Agreement . . . . . . . . . . 16
Third Party Warrant Certificates . . . . . . . . 16
Third Party Warrants . . . . . . . . . . . . . . 1
Trust Indenture Act . . . . . . . . . . . . . . . 5
Trust Securities . . . . . . . . . . . . . . . . 5
U.S. Dollar, Dollar, U.S. $, $ . . . . . . . . . 3
U.S. Obligations . . . . . . . . . . . . . . . . 1
Voluntary Debt Securities . . . . . . . . . . . . 12
</TABLE>
--------------
References herein to "U.S. dollar," "dollar," "U.S.$" or "$" are to
the lawful currency of the United States of America.
3
<PAGE> 7
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities
and Exchange Commission (the "Commission"). Reports, proxy statements and
other information concerning AirTouch Communications, Inc. can be inspected and
copied at the public reference facilities maintained by the Commission at its
offices at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549, as well as the Regional Offices of the Commission located at Seven World
Trade Center, 13th Floor, New York, New York 10048 and 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained
at prescribed rates from the Public Reference Section of the Commission at its
principal office at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549. Such reports, proxy statements and other information can also be
inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005 and at the offices of the Pacific Stock Exchange,
Inc., 301 Pine Street, San Francisco, California 94104.
The Company and the ATI Trusts have filed with the Commission a
registration statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"). This Prospectus
does not contain all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. For further information, reference is hereby
made to the Registration Statement.
No separate financial statements of the ATI Trusts have been included
herein. The Company does not consider that such financial statements would be
material to holders of the Securities because: (i) the Company, a reporting
company under the Exchange Act, owns, directly or indirectly, all of the voting
securities of each ATI Trust, (ii) neither ATI Trust has any independent
operations but exists for the sole purpose of issuing securities representing
undivided beneficial interests in the assets of the ATI Trusts and investing
the proceeds thereof in subordinated Debt Securities, and (iii) the obligations
of each ATI Trust to make periodic cash payments on Preferred Securities and
payments upon liquidation or dissolution of such ATI Trust or upon redemption
of the Preferred Securities, to the extent funds are available therefor, are
unconditionally guaranteed by the Company. See "Description of the Guarantees"
and "Description of the Debt Securities-Subordinated Debt Securities."
--------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company
pursuant to the Exchange Act are incorporated herein by reference:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994;
(b) the Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1995 and June 30, 1995;
(c) the Company's Current Report on Form 8-K, date of Report: June
30, 1995; and
(d) the Company's Current Report on Form 8-K, date of Report:
September 20, 1995.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the effective date of the
Registration Statement shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing of such documents.
Any statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy
of the Prospectus has been delivered, and who makes a written or oral request,
a copy of any and all of the information that has been incorporated by
reference in the Prospectus or any Prospectus Supplement, excluding exhibits.
Requests should be directed to: Investor Relations, AirTouch Communications,
Inc., One California Street, San Francisco, California 94111, telephone number:
(415) 658-2000.
4
<PAGE> 8
AIRTOUCH COMMUNICATIONS, INC.
AirTouch Communications, Inc. is one of the world's leading wireless
telecommunications companies, with significant cellular interests in the United
States, Western Europe and Asia. In the United States, the Company controls or
shares control over cellular systems in ten of the thirty largest markets,
including Los Angeles, San Francisco, San Diego, Detroit and Atlanta.
Internationally, the Company holds significant ownership interests, with board
representation and substantial operating influence, in national cellular
systems operating in Germany, Japan, Portugal, Sweden and Belgium, and in
systems under construction in Italy, South Korea, Spain and India. The Company
is also one of the leading providers of paging services in the United States.
The Company's executive offices are located at One California Street,
San Francisco, California, 94111, telephone number (415) 658-2000.
THE ATI TRUSTS
Each of AirTouch Financing I and AirTouch Financing II is a statutory
business trust formed under Delaware law pursuant to (i) a separate declaration
of trust executed by AirTouch, as sponsor for such trust (the "Sponsor"), and
the ATI Trustees (as defined herein) of such trust and (ii) the filing of a
certificate of trust with the Secretary of State of the State of Delaware on
September 19, 1995. The declarations will be amended and restated in their
entirety (each as so amended and restated a "Declaration") substantially in the
form filed as an exhibit to the Registration Statement of which this Prospectus
is a part and will be qualified as Indentures under the Trust Indenture Act of
1939. Each ATI Trust exists for the exclusive purposes of (i) issuing the
Preferred Securities and common securities representing undivided beneficial
interests in the assets of the Trust (the "Common Securities" and, together
with the Preferred Securities, the "Trust Securities"), (ii) investing the
proceeds received by the ATI Trust from the sale of the Trust Securities in
subordinated Debt Securities and (iii) engaging in only those other activities
necessary or incidental thereto. All of the Common Securities will be directly
or indirectly owned by the Company. The Common Securities will rank pari
passu, and payments will be made thereon pro rata, with the Preferred
Securities, except that, upon an event of default under a Declaration, the
rights of the holders of the Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of the Preferred Securities. The
Company will directly or indirectly acquire Common Securities in an aggregate
liquidation amount equal to 3% of the total capital of each ATI Trust. Each
ATI Trust has a term of approximately 55 years but may terminate earlier, as
provided in each Declaration. Each ATI Trust's business and affairs will be
conducted by the trustees (the "ATI Trustees") appointed by the Company as the
direct or indirect holder of all the Common Securities. The holder of the
Common Securities of an ATI Trust will be entitled to appoint, remove or
replace any of, or increase or reduce the number of, the ATI Trustees therefor.
The duties and obligations of the ATI Trustees shall be governed by the
Declaration of such ATI Trust. A majority of the ATI Trustees of each ATI
Trust will be persons who are employees or officers of or who are affiliated
with the Company (the "Regular Trustees"). In certain limited circumstances
set forth in a Prospectus Supplement, the holders of a majority of the
Preferred Securities will be entitled to appoint one additional Regular Trustee
who need not be an employee or officer of or otherwise affiliated with ATI.
One ATI Trustee of each ATI Trust will be a financial institution that is not
affiliated with the Company and has combined capital and surplus of not less
than $100,000,000, which shall act as property trustee and as indenture trustee
for the purposes of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), pursuant to the terms set forth in a Prospectus Supplement
(the "Property Trustee"). In addition, unless the Property Trustee maintains a
principal place of business in the State of Delaware and otherwise meets the
requirements of applicable law, one ATI Trustee of each ATI Trust will have a
principal place of business or reside in the State of Delaware (the "Delaware
Trustee"). The Company will pay all fees and expenses related to the ATI
Trusts and the offering of the Trust Securities.
The office of the Delaware Trustee for each AirTouch Trust is The Bank
of New York (Delaware), White Clay Center, Route 273, Newark, Delaware. The
address for each ATI Trust is c/o the Company, the Sponsor of each Trust, at
One California Street, San Francisco, California 94111.
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement,
the net proceeds from the sale of Securities offered hereby will be used for
general corporate purposes.
5
<PAGE> 9
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to combined fixed
charges on a historic basis from continuing operations of the Company for the
periods indicated. For the purpose of calculating this ratio, earnings consist
of income before income taxes and fixed charges included in pre-tax income,
adjusted for equity in net losses and distributed net income of certain
less-than-fifty-percent-owned unconsolidated wireless systems, and minority
interests in net losses of certain consolidated wireless systems. Fixed charges
include interest on indebtedness and the portion of rental expense
representative of the interest factor.
<TABLE>
<CAPTION>
Year ended December 31, Six months ended
-------------------------------------------------------- ----------------
1990 1991 1992 1993 1994 1995
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
3.8 2.8 1.8 4.8 9.9 15.6
</TABLE>
GENERAL DESCRIPTION OF SECURITIES AND RISK FACTORS
The Company may offer under this Prospectus shares of Common Stock or
Preferred Stock, Debt Securities, Common Stock Warrants, Preferred Stock
Warrants, Third Party Warrants, Debt Warrants, Stock Purchase Contracts or
Stock Purchase Units or any combination of the foregoing, either individually
or as units consisting of one or more Securities. Each ATI Trust may offer
under this Prospectus Preferred Securities. The aggregate offering price of
Securities offered by the Company or any ATI Trust under this Prospectus will
not exceed $2,000,000,000 (or the equivalent thereof in other currencies).
CERTAIN OF THE SECURITIES TO BE OFFERED HEREBY THEMSELVES INVOLVE A HIGH
DEGREE OF RISK. SUCH RISKS WILL BE SET FORTH IN THE PROSPECTUS SUPPLEMENT
RELATING TO SUCH SECURITY. IN ADDITION, CERTAIN RISK FACTORS RELATING TO THE
COMPANY'S BUSINESS ARE SET FORTH IN THE COMPANY'S ANNUAL REPORT ON FORM 10-K
FOR THE PERIOD ENDED DECEMBER 31, 1994, BEGINNING ON PAGE 2 UNDER THE HEADING
"INVESTMENT CONSIDERATIONS."
DESCRIPTION OF THE COMMON STOCK
GENERAL
Under the Company's Certificate of Incorporation (the "Certificate of
Incorporation"), the Company is authorized to issue up to 1.1 billion shares of
Common Stock. The Common Stock is not redeemable, does not have any conversion
rights and is not subject to call. Holders of shares of Common Stock have no
preemptive rights to maintain their percentage of ownership in future offerings
or sales of stock of the Company. Holders of shares of Common Stock have one
vote per share in all elections of directors and on all other matters submitted
to a vote of stockholders of the Company. The holders of Common Stock are
entitled to receive dividends, if any, as and when declared from time to time
by the Board of Directors of the Company out of funds legally available
therefor. Upon liquidation, dissolution or winding up of the affairs of the
Company, the holders of Common Stock will be entitled to participate equally
and ratably, in proportion to the number of shares held, in the net assets of
the Company available for distribution to holders of Common Stock. The shares
of Common Stock currently outstanding are fully paid and nonassessable.
CERTAIN CERTIFICATE OF INCORPORATION PROVISIONS
Certain provisions in the Company's Certificate of Incorporation and
By-laws may have the effect of delaying, deferring or preventing a change in
control of the Company. These provisions require that the Company's Board of
Directors be divided into three classes that are elected for staggered
three-year terms; provide that stockholders may act only at annual or special
meetings and may not act by written consent; do not permit stockholders to
cumulate votes in the election of directors; authorize the directors of the
Company to determine the size of the Board of Directors; require a vote of 66
2/3% of the shares outstanding for the amendment of any of the foregoing
provisions; require that stockholder nominations for directors be made to the
Nominating Committee of the Company prior to a meeting of stockholders or
pursuant to timely notice; provide that special meetings of stockholders may be
called only by certain officers of the Company or by the Board of Directors;
and authorize the Board of Directors to establish one or more series of
Preferred Stock, without any further stockholder approval, having rights,
preferences, privileges and limitations that could impede or discourage the
acquisition of control of the Company.
6
<PAGE> 10
RIGHTS AGREEMENT
The Company's Board of Directors has adopted a shareholder rights plan
(the "Rights Plan") that provides for the distribution of rights ("Rights") to
holders of outstanding shares of Common Stock. Except as set forth below, each
Right, when exercisable, entitles the holder thereof to purchase from the
Company one one-hundredth of a share of Series A Preferred Stock at a price of
$80 per share, subject to adjustment. The Rights do not have voting rights.
Initially, the Rights are attached to all Common Stock certificates
representing shares then outstanding, and no separate Rights certificates will
be distributed. The Rights will not separate from the Common Stock and will
not be exercisable until the earlier of either (i) a public announcement that a
person or group of affiliated or associated persons has acquired, or obtained
the right to acquire, beneficial ownership of securities representing 10% or
more of the Common Stock of the Company (an "Acquiring Party") or (ii) 10 days
following the commencement of (or a public announcement of an intention to
make) a tender offer or exchange offer which would result in any person or
group of affiliated persons becoming an Acquiring Party. The Rights will
expire on the earliest of (x) September 19, 2004, (y) consummation of a merger
transaction with a person or group acquiring Common Stock pursuant to a
Permitted Offer (defined below), or (z) redemption by the Company, as described
below.
In the event that a person has become an Acquiring Party, proper
provision will be made so that each holder of a Right (other than an Acquiring
Party) will thereafter have the right (the "Subscription Right") for a 60-day
period to receive, upon the exercise of the Right by the holder at the then
current exercise price, that number of shares of Common Stock of the Company
(or of Series A Preferred Stock or other common stock equivalents if all Common
Stock has been issued) which would have a market value at the time of such
transaction of two times the exercise price for each Right. This provision of
the Rights Plan does not apply, however, to a tender offer or exchange offer
for all outstanding shares of the Company's Common Stock at a price and on
terms determined by at least a majority of the disinterested members of the
Board of Directors to be in the best interests of the Company and its
shareholders (a "Permitted Offer").
If, after a public announcement has been made that a person has become
an Acquiring Party, either (i) the Company is involved in a merger or other
business combination (other than with a person who acquired shares pursuant to
a Permitted Offer) or (ii) 50% or more of the Company's assets are sold in one
or a series of transactions, proper provision will be made so that each holder
of a Right (other than an Acquiring Party) will thereafter have the right to
receive, upon the exercise of the Right by the holder at the then current
exercise price, that number of shares of Common Stock of the Company or of the
acquiring company (whichever remains as the surviving corporation under the
terms of the merger or consolidation) which would have a market value at the
time of such transaction of two times the exercise price for each Right.
The Board of Directors, at its option, may at any time after a person
becomes an Acquiring Party (but not after the acquisition by such person of 50%
or more of the outstanding Common Stock) exchange on behalf of the Company all
or part of the then outstanding and exercisable Rights for shares of Common
Stock (or Common Stock equivalents), at an exchange ratio of one share of
Common Stock or equivalent for each Right.
At any time prior to the earlier to occur of either (i) a person
becoming an Acquiring Party or (ii) the expiration of the Rights, the Company
may redeem the Rights in whole, but not in part, at a price of $0.01 per Right
(the "Redemption Price"). After a person becomes an Acquiring Party, the
Company may also redeem the Rights in whole, but not in part, at the Redemption
Price (x) if such redemption is incidental to a merger or other business
combination transaction or series of transactions involving the Company but not
involving an Acquiring Party or certain other related parties or (y) following
an event giving rise to, and the expiration of the 60-day exercise period for,
the Subscription Right if and for as long as any Acquiring Party owns less than
10% of the Company's voting securities.
The Rights Plan may have the effect of delaying, deferring or
preventing a change in control of the Company without further action of the
stockholders and therefore could have a depressive effect on the price of the
Common Stock.
LISTING
The Common Stock is listed on the New York Stock Exchange and the
Pacific Stock Exchange under the symbol "ATI."
7
<PAGE> 11
DESCRIPTION OF THE PREFERRED STOCK
Under the Certificate of Incorporation, the Board of Directors of the
Company may direct the issuance of up to 50 million shares of Preferred Stock
in one or more series and with rights, preferences, privileges and
restrictions, including dividend rights, voting rights, conversion rights,
terms of redemption and liquidation preferences, that may be fixed or
designated by the Board of Directors pursuant to a certificate of designation
without any further vote or action by the Company's stockholders. The issuance
of Preferred Stock may have the effect of delaying, deferring or preventing a
change in control of the Company. Preferred Stock, upon issuance against full
payment of the purchase price therefor, will be fully paid and nonassessable.
The specific terms of a particular series of Preferred Stock will be described
in the Prospectus Supplement relating to that series. The description of
Preferred Stock set forth below and the description of the terms of a
particular series of Preferred Stock set forth in the related Prospectus
Supplement do not purport to be complete and are qualified in their entirety by
reference to the certificate of designation relating to that series. The
related Prospectus Supplement will contain a description of certain United
States Federal income tax consequences relating to the purchase and ownership
of the series of Preferred Stock described in such Prospectus Supplement.
The rights, preferences, privileges and restrictions of the Preferred
Stock of each series will be fixed by the certificate of designation relating
to such series. A Prospectus Supplement relating to each series will specify
the terms of the Preferred Stock as follows:
(a) The maximum number of shares to constitute the series
and the distinctive designation thereof;
(b) The annual dividend rate, if any, on shares of the
series, whether such rate is fixed or variable or both, the date or
dates from which dividends will begin to accrue or accumulate and
whether dividends will be cumulative;
(c) The price at and the terms and conditions on which
the shares of the series may be redeemed, including the time during
which shares of the series may be redeemed and any accumulated
dividends thereon that the holders of shares of the series shall be
entitled to receive upon the redemption thereof;
(d) The liquidation preference, if any, and any
accumulated dividends thereon, that the holders of shares of the
series shall be entitled to receive upon the liquidation, dissolution
or winding up of the affairs of the Company;
(e) Whether or not the shares of the series will be
subject to operation of a retirement or sinking fund, and, if so, the
extent and manner in which any such fund shall be applied to the
purchase or redemption of the shares of the series for retirement or
for other corporate purposes, and the terms and provisions relating to
the operation of such fund;
(f) The terms and conditions, if any, on which the shares
of the series shall be convertible into, or exchangeable for, shares
of any other class or classes of capital stock of the Company or a
third party or any series of any other class or classes, or of any
other series of the same class, including the price or prices or the
rate or rates of conversion or exchange and the method, if any, of
adjusting the same;
(g) The voting rights, if any, on the shares of the
series; and
(h) Any or all other preferences and relative,
participating, operational or other special rights or qualifications,
limitations or restrictions thereof.
As described under "Depositary Shares," the Company may, at its
option, elect to offer Depositary Shares evidenced by depositary receipts
("Depositary Receipts"), each representing a fractional interest (to be
specified in the Prospectus Supplement relating to the particular series of the
Preferred Stock) in a share of the particular series of the Preferred Stock
issued and deposited with a Depositary (as defined below).
8
<PAGE> 12
DESCRIPTION OF THE DEPOSITARY SHARES
The description set forth below and in the related Prospectus
Supplement of certain provisions of the Deposit Agreement (as defined below)
and of the Depositary Shares and Depositary Receipts does not purport to be
complete and is subject to and qualified in its entirety by reference to the
forms of Deposit Agreement and Depositary Receipts relating to each series of
the Preferred Stock which have been or will be filed with the Commission in
connection with the offering of fractional interests in such series of the
Preferred Stock.
GENERAL
The Company may, at its option, elect to offer fractional interests in
shares of Preferred Stock, rather than shares of Preferred Stock. In the event
such option is exercised, the Company will provide for the issuance by a
Depositary to the public of receipts for Depositary Shares, each of which will
represent a fractional interest as set forth in the Prospectus Supplement
relating to a particular series of the Preferred Stock.
The shares of any series of the Preferred Stock underlying the
Depositary Shares will be deposited under a separate Deposit Agreement (the
"Deposit Agreement") between the Company and a bank or trust company selected
by the Company having its principal office in the United States and having a
combined capital and surplus of at least $100,000,000 (the "Depositary"). The
Prospectus Supplement relating to a series of Depositary Shares will set forth
the name and address of the Depositary. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will be entitled, in proportion to
the applicable fractional interest in a share of Preferred Stock underlying
such Depositary Shares, to all the rights and preferences of the Preferred
Stock underlying such Depositary Shares (including dividend, voting,
redemption, conversion and liquidation rights). The Depositary Shares will be
evidenced by Depositary Receipts issued pursuant to the Deposit Agreement.
Pending the preparation of definitive engraved Depositary Receipts,
the Depositary may, upon the written order of the Company, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts but
not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will
be exchangeable for definitive Depositary Receipts at the Company's expense.
Upon surrender of Depositary Receipts at the office of the Depositary
and upon payment of the charges provided in the Deposit Agreement and subject
to the terms thereof, a holder of Depositary Shares is entitled to have the
Depositary deliver to such holder the whole shares of Preferred Stock
underlying the Depositary Shares evidenced by the surrendered Depositary
Receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares relating to such Preferred Stock in proportion to the
numbers of such Depositary Shares owned by such holders on the relevant record
date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction
of one cent, and any balance not so distributed shall be added to and treated
as part of the next sum received by the Depositary for distribution to record
holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
the Company, sell such property and distribute the net proceeds from such sale
to such holders.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of the Preferred Stock held by the Depositary. The Depositary
shall mail notice of redemption not less than 30 and not more than 60 days
prior to the date fixed for redemption to the record holders of the Depositary
Shares to be so redeemed at their respective addresses appearing in the
Depositary's books. The redemption price per Depositary Share will be equal to
the applicable fraction of the redemption price per share payable with respect
to such series of the Preferred Stock. Whenever the Company redeems shares of
Preferred Stock held by the Depositary, the Depositary will redeem as of the
same redemption date the number of Depositary
9
<PAGE> 13
Shares relating to shares of Preferred Stock so redeemed. If less than all of
the Depositary Shares are to be redeemed, the Depositary Shares to be redeemed
will be selected by lot or pro rata as may be determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called
for redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which
the holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock are entitled to vote, the Depositary will mail the information
contained in such notice of meeting to the record holders of the Depositary
Shares relating to such Preferred Stock. Each record holder of such Depositary
Shares on the record date (which will be the same date as the record date for
the Preferred Stock) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the number of shares of Preferred
Stock underlying such holder's Depositary Shares. The Depositary will
endeavor, insofar as practicable, to vote the number of shares of Preferred
Stock underlying such Depositary Shares in accordance with such instructions,
and the Company will agree to take all action which may be deemed necessary by
the Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting shares of Preferred Stock to the extent it does not receive
specific instructions from the holders of Depositary Shares relating to such
Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and
any provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary. However, any amendment which
materially and adversely alters the rights of the existing holders of
Depositary Shares will not be effective unless such amendment has been approved
by the record holders of at least a majority of the Depositary Shares then
outstanding. A Deposit Agreement may be terminated by the Company or the
Depositary only if (i) all outstanding Depositary Shares relating thereto have
been redeemed or (ii) there has been a final distribution in respect of the
Preferred Stock of the relevant series in connection with any liquidation,
dissolution or winding up of the Company and such distribution has been
distributed to the holders of the related Depositary Shares.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements. The
Company will pay charges of the Depositary in connection with the initial
deposit of the Preferred Stock and any redemption of the Preferred Stock.
Holders of Depositary Shares will pay transfer and other taxes and governmental
charges and such other charges as are expressly provided in the Deposit
Agreement to be for their accounts.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all
reports and communications from the Company which are delivered to the
Depositary and which the Company is required to furnish to the holders of the
Preferred Stock.
Neither the Depositary nor the Company will be liable if it is
prevented or delayed by law or any circumstance beyond its control from
performing its obligations under the Deposit Agreement. The obligations of the
Company and the Depositary under the Deposit Agreement will be limited to
performance in good faith of their duties thereunder and they will not be
obligated to prosecute or defend any legal proceeding in respect of any
Depositary Shares or Preferred Stock unless satisfactory indemnity is
furnished. They may rely upon written advice of counsel or accountants, or
information provided by persons presenting Preferred Stock for deposit, holders
of Depositary Shares or other persons believed to be competent and on documents
believed to be genuine.
10
<PAGE> 14
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company
notice of its election to do so, and the Company may at any time with notice
remove the Depositary, any such resignation or removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment.
Such successor Depositary must be appointed within 90 days after delivery of
the notice of resignation or removal and must be a bank or trust company having
its principal office in the United States and having a combined capital and
surplus of at least $100,000,000.
DESCRIPTION OF THE DEBT SECURITIES
GENERAL
The Company may offer under this Prospectus Senior Debt Securities (as
defined below) or Subordinated Debt Securities (as defined below) or any
combination of the foregoing. The Debt Securities will represent unsecured
general obligations of the Company, and will either (i) rank prior to all
subordinated indebtedness of the Company and pari passu with all other
indebtedness of the Company (the "Senior Debt Securities") or (ii) be
subordinate in right of payment to certain other debt obligations of the
Company (the "Subordinated Debt Securities"). The Senior Debt Securities and
the Subordinated Debt Securities may be issued under indentures substantially
in the forms filed as exhibits to the Registration Statement. In this
Prospectus, the indenture relating to Senior Debt Securities is referred to as
a "Senior Indenture," the indenture relating to Subordinated Debt Securities is
referred to as a "Subordinated Indenture," and the Senior Indenture and the
Subordinated Indenture are collectively referred to as "Indentures." None of
the Indentures will limit the amount of Debt Securities that may be issued
thereunder, and each Indenture will provide that Debt Securities may be issued
thereunder up to an aggregate principal amount authorized from time to time by
the Company and may be payable in any currency or currency unit designated by
the Company or in amounts determined by reference to an index. The following
summary of certain provisions in the Indentures pursuant to which Debt
Securities are issued or in the Debt Security, as the case may be, does not
purport to be complete and is qualified in its entirety by reference to the
applicable form of Indenture or Debt Security, respectively, filed as an
exhibit to the Registration Statement.
Reference is made to the applicable Prospectus Supplement for any
series of Debt Securities for the following terms: (1) the designation of such
series of Debt Securities, (2) the aggregate principal amount of such series of
Debt Securities, (3) the stated maturity or maturities for payment of principal
of such series of Debt Securities and any sinking fund or analogous provisions,
(4) the rate or rates at which such series of Debt Securities shall bear
interest or the method of calculating such rate or rates of interest and the
interest payment dates for such series of Debt Securities, (5) the currencies,
currency unit or index in or according to which principal of and interest and
any premium on such series of Debt Securities shall be payable (if other than
United States Dollars), (6) the redemption date or dates, if any, and the
redemption price or prices and other applicable redemption provisions for such
series of Debt Securities, (7) whether such series of Debt Securities shall be
issued as one or more global debt securities ("Global Debt Securities"), and, if
so, the identity of the Depositary (the "Debt Depositary") for such Global Debt
Security or Debt Securities, (8) if not issued as one or more Global Debt
Securities, the denominations in which such series of Debt Securities shall be
issuable (if other than denominations of $1,000 and any integral multiple
thereof), (9) the date from which interest on such series of Debt Securities
shall accrue, (10) the basis upon which interest on such series of Debt
Securities shall be computed (if other than on the basis of a 360-day year of
twelve 30-day months), (11) if other than the principal amount thereof, the
portion of the principal amount of such series of Debt Securities which shall be
payable upon declaration of acceleration of the maturity thereof pursuant to the
Indenture, (12) if other than the Trustee, the person or persons who shall be
registrar for such series of Debt Securities, (13) the Record Date, (14) the
identity of the Trustee, (15) any covenants of the Corporation with respect to a
series of Debt Securities, (16) whether the Debt Securities are convertible
into or exchangeable for Securities, or securities of the Company or Third Party
Securities (as herein defined), and the terms of such conversion or exchange and
(17) any other term or provision relating to such series of Debt Securities
which is not inconsistent with the provisions of the Indenture.
Except as described in this Prospectus or the accompanying Prospectus
Supplement, the Indentures do not contain any covenants specifically designed
to protect holders of the Debt Securities against a reduction in the
creditworthiness of the Company in the event of a highly leveraged transaction
or to prohibit other transactions which may adversely affect holders of the
Debt Securities.
In the event Debt Securities of any series are to be offered that are
convertible into or exchangeable for securities of third parties ("Third Party
Securities"), the Prospectus Supplement will identify the Third Party
Securities, the Company of such Third Party Securities (the "Third Party
Company"), all documents filed by the Third Party Company pursuant to
11
<PAGE> 15
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act since the end of such
Third Party Company's last completed fiscal year for which a Form 10-K annual
report has been filed and the document or documents filed under the Exchange
Act which contain a description of the Third Party Securities being sold or, if
no such document or documents exist, the Prospectus Supplement will include a
description of the Third Party Securities being sold. Third Party Securities
will only be securities of third parties that are eligible to use Form S-3 (or
any successor form) for primary offerings under the rules and regulations of
the Commission. To the extent the Securities Act requires registration of the
Third Party Securities by the Third Party Company, such as where the Third
Party Company is an affiliate of the Company, in connection with the issuance,
conversion and/or exchange of such Debt Securities, the Company will cause the
Third Party Company to file a third party registration statement ("Third Party
Registration Statement") under the Securities Act. Where the conversion and/or
exchange of the Debt Securities would require an effective Third Party
Registration Statement at the time of such exchange or conversion, the exchange
or conversion will be subject to the effectiveness of such registration
statement.
For example, Debt Securities that are convertible into or exchangeable
for Third Party Securities may be convertible or exchangeable by their terms at
the election of the Company or mandatorily at the expiration of a specified
period or at other times under specified circumstances ("Mandatory Debt
Securities") or may be convertible or exchangeable by their terms at the
election of the Debt Holder at any time during a specified period or periods or
on a specified date or dates ("Voluntary Debt Securities"). In the case of
both Mandatory Debt Securities and Voluntary Debt Securities, if the Company is
an affiliate of the Third Party Company, the Third Party Securities into which
they may be converted or for which they may be exchanged will be the subject of
a registration statement filed under the Securities Act by the Third Party
Company prior to any offer of such Mandatory or Voluntary Debt Securities, and
a Third Party Registration Statement with respect to such Third Party
Securities will have been declared effective prior to any sale of such
Mandatory or Voluntary Debt securities, except in the case of Voluntary Debt
Securities that are not immediately exercisable or convertible, in which case,
such a Third Party Registration Statement would have to be effective, absent an
exemption, when the Debt Holder elects to convert such Voluntary Debt
Securities into or exchange them for Third Party Securities.
EVENTS OF DEFAULT
The Indentures define an "Event of Default" with respect to any
particular series of the Debt Securities as being any one of the following
events: (1) default in the payment of interest on any Debt Security of such
series and the continuance of such default for a period of 30 days, or, in the
case of the Subordinated Debt Indenture, for a period of 90 days, (2) default
in the payment of all or any part of the principal of or any premium on any
Debt Security of such series when due whether at maturity, by proceedings for
redemption, by declaration or otherwise, or (3) default in the satisfaction of
any sinking fund payment obligation relating to such series of Debt Securities,
when due and payable, or (4) failure on the part of the Company to observe or
perform in any material respect any other agreements or covenants contained in
the Debt Securities of such series, the Indenture or any supplemental indenture
relating thereto, specifically contained for the benefit of the Holders of the
Debt Securities of such series, and continuance of the default for a period of
90 days after notice has been given to the Company by the Trustee, or to the
Company and the Trustee by the Holders of not less than 25% in principal amount
of the Debt Securities of such series and all other series so benefited (all
series voting as one class) at the time outstanding under the Indenture, or (5)
certain events of bankruptcy, insolvency or reorganization involving the
Company. An Event of Default with respect to a series of Debt Securities will
not necessarily constitute an Event of Default with respect to any other series
of Debt Securities. Except as may be described in the accompanying Prospectus
Supplement, the Indentures do not contain any Events of Default other than
those referred to herein.
If an Event of Default occurs with respect to the Debt Securities of
any one or more particular series and is continuing, the Trustee, by notice to
the Company, or the Holders of not less than 25% in principal amount of the
outstanding Debt Securities of each such series, by notice in writing to the
Company and to the Trustee, may declare the principal amount (or, if the Debt
Securities of any such series are original issue discount Debt Securities, such
portion of the principal amount as may be specified in the terms of such series)
of all the Debt Securities of such series, together with any accrued interest,
to be immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal amount of the Debt Securities of any one or
more series (or of all the Debt Securities, as the case may be) shall have been
so declared due and payable, and before any judgment or decree for the payment
of moneys due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay any
matured instalments of interest upon all the Debt Securities of such series
(or upon all the Debt Securities, as the case may be) and the principal of any
and all Debt Securities of such series (or of any and all the Debt Securities,
as the case may be) which shall have become due otherwise than by declaration
(with interest on overdue instalments of interest to the extent permitted by
law and on such principal at the rate or rates
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of interest borne by, or prescribed therefor in, the Debt Securities of such
series to the date of such payment or deposit) and the amounts payable to the
Trustee under the Indenture and any and all defaults under the Indenture with
respect to Debt Securities of such series (or all Debt Securities, as the case
may be), other than the non-payment of principal of and any accrued interest on
Debt Securities of such series (or any Debt Securities, as the case may be)
which shall have become due by declaration shall have been cured, remedied or
waived as provided in the Indenture--then and in every such case the Holders of
a majority in principal amount of the Debt Securities of such series (or of all
the Debt Securities, as the case may be) then outstanding (such series or all
series voting as one class if more than one series are so entitled) by written
notice to the Company and to the Trustee, may rescind and annul such
declaration and its consequences; but no such rescission and annulment shall
extend to or shall affect any subsequent default, or shall impair any right
consequent thereon.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal or any premium or interest on the Debt Securities of the
series to which the default relates or to enforce the performance of any
provision of such series of Debt Securities or the Indenture.
The holders of a majority in principal amount of the outstanding Debt
Securities of any series may waive any past Event of Default with respect of
such series and its consequences, except a continuing default in the payment of
the principal of or any redemption premium or interest on such Debt Securities
or in the satisfaction of any sinking fund obligation relating to such series
of Debt Securities or in respect of a covenant or provision of the Indenture
which cannot be modified or amended without the consent of the Holder of each
Debt Security so affected.
MODIFICATIONS OF THE INDENTURE
Each of the Indentures provides that the Company and the Trustee may
enter into a supplemental indenture to amend the Indenture or the Debt
Securities without the consent of any Debt Security holder: (1) to cure any
ambiguity, defect or inconsistency; (2) to permit a successor to assume the
Company's obligations under the Indenture as permitted by the Indenture; (3) to
eliminate or change any provision of the Indenture if such does not adversely
affect the rights of any outstanding Debt Securityholder; (4) to provide for
the issuance and establish the terms and conditions of Debt Securities of any
series; (5) to add to the covenants of the Company further covenants,
restrictions or conditions for the protection of the Holders of all or any
particular series of Debt Securities and to make the occurrence, or the
occurrence and continuance, of a default in any such additional covenants,
restrictions or conditions an Event of Default permitting the enforcement of
all or any of the several remedies provided in the Indenture; or (6) to
appoint, at the request of the Trustee, a successor Trustee for a particular
series of Debt Securities to act as such pursuant to the provisions of the
Indenture.
Each of the Indentures and the rights and obligations of the Company
and of the holders of the Debt Securities may be modified or amended at any
time with the consent of the holders of not less than a majority in aggregate
principal amount of all series of the Debt Securities at the time outstanding
under such Indenture and affected by such modification or amendment (voting as
one class); provided, however, that without the consent of the holder of the
Debt Securities affected, no such modification or amendment shall, among other
things, change the fixed maturity or redemption date thereof, reduce the rate
of interest thereon or alter the method of determining such rate of interest,
extend the time of payment of interest, reduce the principal amount thereof,
reduce any premium payable upon the redemption thereof, or change the coin or
currency in which any Debt Securities or the interest thereon are payable or
impair the right to institute suit for the enforcement of any such payment, or
reduce the percentage of the holders of such Debt Securities whose consent is
required for any such modification or amendment or change the time of payment
or reduce the amount of any minimum sinking account or fund payment or modify
any provisions of the Indenture relating to the amendment thereof or the
creation of a supplemental indenture (unless the change increases the rights of
the holders).
DEFEASANCE AND DISCHARGE
All liability of the Company in respect to any outstanding Debt
Securities shall cease, terminate and be completely discharged if the Company
shall (a) deposit with the Trustee, in trust, at or before maturity, lawful
money or direct obligations of the United States of America (or in the case of
Debt Securities denominated in a currency other than U.S. Dollars, of the
government that issued such currency), or obligations the principal of and
interest on which are guaranteed by the United States of America (or in the
case of Debt Securities denominated in a currency other than U.S. Dollars,
guaranteed by the government that issued such currency), in such amounts and
maturing at such times that the proceeds of such obligations to be received
upon the respective maturities and interest payment dates will provide funds
sufficient to pay the principal of and interest and any premium to maturity or
to the redemption date, as the case may be, with respect to such Debt
Securities, and (b)
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deliver to the Trustee an opinion of counsel to the effect that the holders of
such Debt Securities will not recognize income, gain or loss for federal income
tax purposes as a result of such discharge. All obligations of the Company to
comply with certain covenants applicable to any outstanding Debt Securities
shall cease if the Company shall deposit with the Trustee, in trust, at or
before maturity, lawful money or direct obligations of the United States of
America (or in the case of Debt Securities denominated in a currency other than
U.S. Dollars, of the government that issued such currency), or obligations the
principal of and interest on which are guaranteed by the United States of
America (or in the case of Debt Securities denominated in a currency other than
U.S. Dollars, by the government that issued such currency), in such amounts
and maturing at such times that the proceeds of such obligations to be received
upon the respective maturities and interest payment dates will provide funds
sufficient to pay the principal of and interest and any premium to maturity or
to the redemption date, as the case may be, with respect to such Debt
Securities.
CONCERNING THE TRUSTEE
The Trustee for the Senior Debt Securities and the Trustee for the
Subordinated Debt Securities will be identified in the relevant Prospectus
Supplement. In certain instances, the Company or the Holders of a majority of
the then outstanding principal amount of the Debt Securities issued under an
Indenture may remove the Trustee and appoint a successor Trustee. The Trustee
may become the owner or pledgee of any of the Debt Securities with the same
rights it would have if it were not the Trustee. The Trustee and any successor
trustee must be a corporation organized and doing business as a commercial bank
under the laws of the United States or of any state thereof or of the District
of Columbia, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $100,000,000 and subject to
examination by federal or state or District of Columbia authority. From time
to time, the Trustee may also serve as Trustee under other indentures relating
to Debt Securities issued by the Company or affiliated companies and may engage
in commercial transactions with the Company and affiliated companies.
SENIOR DEBT SECURITIES
The Senior Debt Securities will be unsecured and will rank equally
with all other unsecured and unsubordinated indebtedness for borrowed money of
the Company.
SUBORDINATED DEBT SECURITIES
Subordinated Debt Securities may be issued from time to time in one or
more series under the Subordinated Debt Indenture. The Subordinated Debt
Securities will be subordinated and junior in right of payment to certain other
indebtedness of the Company to the extent set forth in the Prospectus
Supplement that will accompany this Prospectus.
In the event the Subordinated Debt Securities are issued to an ATI
Trust or a trustee of such trust in connection with the issuance of Trust
Securities by such ATI Trust, such Subordinated Debt Securities subsequently
may be distributed pro rata to the holders of such Trust Securities in
connection with the dissolution of such ATI Trust upon the occurrence of
certain events described in the Prospectus Supplement relating to such Trust
Securities. Only one series of Subordinated Debt Securities will be issued to
an ATI Trust or a trustee of such trust in connection with the issuance of
Trust Securities by such ATI Trust.
Unless otherwise provided in the applicable Prospectus Supplement, if
Subordinated Debt Securities are issued to an ATI Trust or a trustee of such
trust in connection with the issuance of Trust Securities by such ATI Trust and
(i) there shall have occurred an event that would constitute an Event of
Default, (ii) the Company shall be in default with respect to its payment of any
obligations under the related Preferred Securities Guarantee or Common
Securities Guarantee or (iii) the Company shall have given notice of its
election to defer payments of interest on such Subordinated Debt Securities by
extending the interest payment period as provided in the Indenture and such
period, or any extension thereof, shall be continuing, then (a) the Company
shall not declare or pay any dividend on, make any distributions with respect
to, or redeem, purchase or make a liquidation payment with respect to, any of
its capital stock, and (b) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any Debt
Securities which rank pari passu with or junior to such Subordinated Debt
Securities; provided that the foregoing restriction does not apply to any stock
dividends paid by the Company where the dividend stock is of the same class as
that of the stock held by the holders receiving the dividend.
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DESCRIPTION OF THE WARRANTS TO PURCHASE COMMON OR PREFERRED STOCK
The following statements with respect to the Common Stock Warrants and
Preferred Stock Warrants (collectively, the "Stock Warrants") are summaries of,
and subject to, the detailed provisions of a warrant agreement ("Stock Warrant
Agreement") to be entered into by the Company and a warrant agent to be
selected at the time of issue (the "Stock Warrant Agent"), which Stock Warrant
Agreement may include or incorporate by reference standard warrant provisions
substantially in the form of the Standard Stock Warrant Provisions (the "Stock
Warrant Provisions") filed as an exhibit to the Registration Statement or other
provisions set forth in the Stock Warrant Agreement which will be filed as an
exhibit to or incorporated by reference in the Registration Statement.
GENERAL
The Stock Warrants, evidenced by warrant certificates (the "Stock
Warrant Certificates"), may be issued under the Stock Warrant Agreement
independently or together with any Securities offered by any Prospectus
Supplement and may be attached to or separate from such Securities. If Stock
Warrants are offered, the related Prospectus Supplement will describe the terms
of the Stock Warrants, including without limitation the following: (i) the
offering price, if any; (ii) the designation and terms of the Common or
Preferred Stock purchasable upon exercise of the Stock Warrants; (iii) the
number of shares of Common or Preferred Stock purchasable upon exercise of one
Stock Warrant and the initial price at which such shares may be purchased upon
exercise; (iv) the date on which the right to exercise the Stock Warrants shall
commence and the date on which such right shall expire; (v) Federal income tax
consequences; (vi) call provisions, if any; (vii) the currency, currencies or
currency units in which the offering price, if any, and exercise price are
payable; (viii) the antidilution provisions of the Stock Warrants; and (ix) any
other terms of the Stock Warrants. The shares of Common or Preferred Stock
issuable upon exercise of the Stock Warrants will, when issued in accordance
with the Stock Warrant Agreement, be fully paid and nonassessable.
EXERCISE OF STOCK WARRANTS
Stock Warrants may be exercised by surrendering to the Stock Warrant
Agent the Stock Warrant certificate signed by the warrantholder, or its duly
authorized agent, indicating the warrantholder's election to exercise all or a
portion of the Stock Warrants evidenced by the certificate, at the sole cost and
risk of such holder. Surrendered Stock Warrant certificates shall be
accompanied by payment of the aggregate exercise price of the Stock Warrants to
be exercised, as set forth in the related Prospectus Supplement, which payment
may be made in the form of cash or a check equal to the exercise price.
Certificates evidencing duly exercised Stock Warrants will be delivered by the
Stock Warrant Agent to the transfer agent for the Common Stock or the Preferred
Stock, as the case may be. Upon receipt thereof, the transfer agent shall
deliver or cause to be delivered, to or upon the written order of the exercising
warrantholder, a certificate representing the number of shares of Common Stock
or Preferred Stock purchased. If fewer than all of the Stock Warrants evidenced
by any certificate are exercised, the Stock Warrant Agent shall deliver to the
exercising warrantholder a new Stock Warrant certificate representing the
unexercised Stock Warrants.
ANTIDILUTION PROVISIONS
The exercise price payable and the number of shares of Common or
Preferred Stock purchasable upon the exercise of each Stock Warrant will be
subject to adjustment in certain events, including the issuance of a stock
dividend to holders of Common or Preferred Stock, respectively, or a
combination, subdivision or reclassification of Common or Preferred Stock,
respectively. In lieu of adjusting the number of shares of Common or Preferred
Stock purchasable upon exercise of each Stock Warrant, the Company may elect to
adjust the number of Stock Warrants. No adjustment in the number of shares
purchasable upon exercise of the Stock Warrants will be required until
cumulative adjustments require an adjustment of at least 1% thereof. The
Company may, at its option, reduce the exercise price at any time. No
fractional shares will be issued upon exercise of Stock Warrants, but the
Company will pay the cash value of any fractional shares otherwise issuable.
Notwithstanding the foregoing, in case of any consolidation, merger, or sale or
conveyance of the property of the Company as an entirety or substantially as an
entirety, the holder of each outstanding Stock Warrant shall have the right upon
the exercise thereof to the kind and amount of shares of stock and other
securities and property (including cash) receivable by a holder of the number of
shares of Common or Preferred Stock into which such Stock Warrants were
exercisable immediately prior thereto.
NO RIGHTS AS STOCKHOLDERS
Holders of Stock Warrants will not be entitled, by virtue of being
such holders, to vote, to consent, to receive dividends, to receive notice as
stockholders with respect to any meeting of stockholders for the election of
directors of the Company or any other matter, or to exercise any rights
whatsoever as stockholders of the Company.
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DESCRIPTION OF THE THIRD PARTY WARRANTS
The following statements with respect to the Third Party Warrants are
summaries of, and subject to, the detailed provisions of a warrant agreement
(the "Third Party Warrant Agreement") to be entered into by the Company and a
warrant agent to be selected at the time of issue (the "Third Party Warrant
Agent"), which Third Party Warrant Agreement may include or incorporate by
reference standard warrant provisions substantially in the form of the Standard
Stock Warrant Provisions or Standard Debt Securities Warrant Provisions filed as
an exhibit to the Registration Statement or other provisions set forth in the
Third Party Warrant Agreement which will be filed as an exhibit to or
incorporated by reference in the Registration Statement.
GENERAL
The Third Party Warrants, evidenced by warrant certificates (the "Third
Party Warrant Certificates"), may be issued under the Third Party Warrant
Agreement independently or together with any Securities offered by any
Prospectus Supplement and may be attached to or separate from such Securities.
If Third Party Warrants are offered, the related Prospectus Supplement will
describe the terms of the warrants, including without limitation the following:
(i) the offering price, if any; (ii) the designation, aggregate principal amount
and terms of the Third Party Securities purchasable upon exercise of the
warrants; (iii) if applicable, the designation and terms of the Third Party
Securities with which the Third Party Warrants are issued and the number of
Third Party Warrants issued with each such Third Party Security; (iv) if
applicable, the date on and after which the Third Party Warrants and the related
Third Party Securities will be separately transferable; (v) the number or
principal amount of Third Party Securities purchasable upon exercise of one
Third Party Warrant and the price at which such number or principal amount of
Third Party Securities may be purchased upon exercise; (vi) the date on which
the right to exercise the Third Party Warrants shall commence and the date on
which such right shall expire; (vii) Federal income tax consequences; (viii)
whether the warrants represented by the Third Party Warrant Certificates will be
issued in registered or bearer form; (ix) the currency, currencies or currency
units in which the offering price, if any, and exercise price are payable; (x)
the antidilution provisions of the Third Party Warrants; and (xi) any other
terms of the Third Party Warrants.
The Prospectus Supplement will identify the Third Party Securities,
the Third Party Company, all documents filed by the Third Party Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act since the
end of such Third Party Company's last completed fiscal year for which a Form
10-K annual report has been filed and the document or documents filed under the
Exchange Act which contain a description of the Third Party Securities being
sold or, if no such document or documents exist, the Prospectus Supplement will
include a description of the Third Party Securities being sold. Third Party
Warrants may be offered only with respect to Third Party Securities of Third
Party Companies that are eligible to use Form S-3 (or any successor form) for
primary offerings under the rules and regulations of the Commission. To the
extent the Securities Act requires registration of the Third Party Securities
by the Third Party Company, such as where the Third Party is an affiliate of
the Company, in connection with the issuance and/or exercise of Third Party
Warrants, the Company will cause the Third Party Company to file a Third Party
Registration Statement under the Securities Act. Where the exercise of Third
Party Warrants would require the Third Party to have an effective Third Party
Registration Statement at the time of exercise, the exercise will be subject to
the effectiveness of such registration statement.
For example, if the Company is an affiliate of the Third Party
Company, the Third Party Securities that can be acquired upon exercise of the
Third Party Warrants will be the subject of a registration statement filed
under the Securities Act by the Third Party Company prior to any offer of such
Third Party Warrants, and a Third Party Registration Statement will have been
declared effective prior to any sale of Third Party Warrants, except in the
case of Third Party Warrants which are not immediately exercisable, in which
case, such a registration statement would have to be effective, absent an
exemption, when the holder of any Third Party Warrants elects to exercise them
to acquire Third Party Securities.
Third Party Warrant Certificates may be exchanged for new Third Party
Warrant Certificates of different denominations and may (if in registered form)
be presented for registration of transfer at the corporate trust office of the
Third Party Warrant Agent, which will be listed in the related Prospectus
Supplement, or at such other office as may be set forth therein.
Warrantholders do not have any of the rights of holders of Third Party
Securities (except as may be otherwise set forth in the Prospectus Supplement).
EXERCISE OF THIRD PARTY WARRANTS
Third Party Warrants may be exercised by surrendering the Third Party
Warrant Certificate at the corporate trust office of the Third Party Warrant
Agent, with the form of election to purchase on the reverse side of the Third
Party Warrant Certificate properly completed and executed, and by payment in
full of the exercise price, as set forth in the Prospectus Supplement. Upon
the exercise of Third Party Warrants, the Third Party Warrant Agent will, as
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soon as practicable, deliver the Third Party Securities in authorized
denominations in accordance with the instructions of the exercising
warrantholder and at the sole cost and risk of such holder. If less than all
of the Third Party Warrants evidenced by the Third Party Warrant Certificate
are exercised, a new Third Party Warrant Certificate will be issued for the
remaining amount of Third Party Warrants.
DESCRIPTION OF THE WARRANTS TO PURCHASE DEBT SECURITIES
The following statements with respect to the Debt Warrants are
summaries of, and subject to, the detailed provisions of a warrant agreement
(the "Debt Warrant Agreement") to be entered into by the Company and a warrant
agent to be selected at the time of issue (the "Debt Warrant Agent"), which
Debt Warrant Agreement may include or incorporate by reference standard warrant
provisions substantially in the form of the Standard Debt Securities Warrant
Provisions (the "Debt Warrant Provisions") filed as an exhibit to the
Registration Statement, or other provisions set forth in the Debt Warrant
Agreement which will be filed as an exhibit to or incorporated by reference in
the Registration Statement.
GENERAL
The Debt Warrants, evidenced by warrant certificates (the "Debt
Warrant Certificates"), may be issued under the Debt Warrant Agreement
independently or together with any Securities offered by any Prospectus
Supplement and may be attached to or separate from such Securities. If Debt
Warrants are offered, the related Prospectus Supplement will describe the terms
of the warrants, including without limitation the following: (i) the offering
price, if any; (ii) the designation, aggregate principal amount and terms of
the Debt Securities purchasable upon exercise of the warrants; (iii) if
applicable, the designation and terms of the Debt Securities with which the
Debt Warrants are issued and the number of Debt Warrants issued with each such
Debt Security; (iv) if applicable, the date on and after which the Debt
Warrants and the related Securities will be separately transferable; (v) the
principal amount of Debt Securities purchasable upon exercise of one Debt
Warrant and the price at which such principal amount of Debt Securities may be
purchased upon exercise; (vi) the date on which the right to exercise the Debt
Warrants shall commence and the date on which such right shall expire; (vii)
Federal income tax consequences; (viii) whether the warrants represented by the
Debt Warrant Certificates will be issued in registered or bearer form; (ix) the
currency, currencies or currency units in which the offering price, if any, and
exercise price are payable; (x) the antidilution provisions of the Debt
Warrants; and (xi) any other terms of the Debt Warrants.
Debt Warrant Certificates may be exchanged for new Debt Warrant
Certificates of different denominations and may (if in registered form) be
presented for registration of transfer at the corporate trust office of the
Debt Warrant Agent, which will be listed in the related Prospectus Supplement,
or at such other office as may be set forth therein. Warrantholders do not
have any of the rights of holders of Debt Securities (except to the extent that
the consent of warrantholders may be required for certain modifications of the
terms of an Indenture or form of the Debt Security, as the case may be, and the
series of Debt Securities issuable upon exercise of the Debt Warrants) and are
not entitled to payments of principal of and interest, if any, on the Debt
Securities.
EXERCISE OF DEBT WARRANTS
Debt Warrants may be exercised by surrendering the Debt Warrant
Certificate at the corporate trust office of the Debt Warrant Agent, with the
form of election to purchase on the reverse side of the Debt Warrant
Certificate properly completed and executed, and by payment in full of the
exercise price, as set forth in the Prospectus Supplement. Upon the exercise
of Debt Warrants, the Debt Warrant Agent will, as soon as practicable, deliver
the Debt Securities in authorized denominations in accordance with the
instructions of the exercising warrantholder and at the sole cost and risk of
such holder. If less than all of the Debt Warrants evidenced by the Debt
Warrant Certificate are exercised, a new Debt Warrant Certificate will be
issued for the remaining amount of Debt Warrants.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
The Company may issue Stock Purchase Contracts, including contracts
obligating holders to purchase from the Company, and the Company to sell to the
holders, a specified number of shares of Preferred Stock or Common Stock at a
future date or dates. The price per share of Preferred Stock or Common Stock
may be fixed at the time the Stock Purchase Contracts are issued or may be
determined by reference to a specific formula set forth in the Stock Purchase
Contracts. Any such formula may include anti-dilution provisions to adjust the
number of shares issuable pursuant to Stock Purchase Contracts upon certain
events. The Stock Purchase Contracts may be issued separately or as a part of
Stock Purchase Units each representing ownership of a Stock Purchase Contract
and Debt Securities, Preferred Securities or debt obligations of third parties,
including U. S. Obligations, securing the holders' obligations to purchase the
Common Stock or the Preferred Stock under the Purchase Contracts.
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In the case of Stock Purchase Units that include debt obligations of
third parties, unless a holder of Stock Purchase Units settles its obligations
under the Stock Purchase Contracts early through the delivery of consideration
to the Company or its agent in the manner discussed below, the principal of
such debt obligations, when paid at maturity, will automatically be applied to
satisfy the holder's obligation to purchase Common Stock or Preferred Stock
under the Stock Purchase Contracts.
In the case of Stock Purchase Units that include Debt Securities or
Preferred Securities, in the absence of any such early settlement or the
election by a holder to pay the consideration specified in the Stock Purchase
Contracts prior to the stated settlement date, the Debt Securities or Preferred
Securities will automatically be presented to the applicable ATI Trust for
redemption at 100% of face or liquidation value and the ATI Trust will present
Subordinated Debt Securities in an equal principal amount to the Company for
redemption at 100% of face or principal amount. Amounts received in respect of
such redemption will automatically be transferred to AirTouch and applied to
satisfy in full the holder's obligation to purchase Common Stock or Preferred
Stock under the Stock Purchase Contracts. The Stock Purchase Contracts may
require the Company to make periodic payments to the holders of the Stock
Purchase Units or visa versa, and such payments may be unsecured or prefunded on
some basis. The Stock Purchase Contracts may require holders to secure their
obligations thereunder in a specified manner.
Holders of Stock Purchase Units may be entitled to settle the
underlying Stock Purchase Contracts prior to the stated settlement date by
surrendering the certificate evidencing the Stock Purchase Units, accompanied by
the payment due, in such form and calculated pursuant to such formula as may be
prescribed in the Stock Purchase Contracts and described in the applicable
Prospectus Supplement. Upon early settlement, the holder would receive the
number of shares of Common Stock or Preferred Stock deliverable under such Stock
Purchase Contracts, subject to adjustment in certain cases. Holders of Stock
Purchase Units may be entitled to exchange their Stock Purchase Units together
with appropriate collateral, for separate Stock Purchase Contracts and Preferred
Securities, Debt Securities or debt obligations. In the event of either such
early settlement or exchange, Preferred Securities, Debt Securities or debt
obligations that were pledged as security for the obligation of the holder to
perform under the Stock Purchase Contracts would be transferred to the holder
free and clear of the Company's security interest therein.
The applicable Prospectus Supplement will describe the terms of any
Stock Purchase Contracts or Stock Purchase Units.
DESCRIPTION OF THE PREFERRED SECURITIES
Each ATI Trust may issue, only one series of Preferred Securities
having terms described in the Prospectus Supplement relating thereto. The
Declaration of each ATI Trust authorizes the Regular Trustees of each ATI Trust
to issue on behalf of such ATI Trust one series of Preferred Securities. The
Declaration will be qualified as an indenture under the Trust Indenture Act.
The Preferred Securities will have such terms, including distributions,
redemption, voting, liquidation rights and such other preferred, deferred or
other special rights or such restrictions, as shall be set forth in the
Declaration or made part of the Declaration by the Trust Indenture Act.
Reference is made to any Prospectus Supplement relating to the Preferred
Securities for specific terms including (i) the distinctive designation of such
Preferred Securities, (ii) the number of Preferred Securities issued, (iii) the
annual distribution rate (or method of determining such rate) for Preferred
Securities and the date or dates upon which such distributions shall be payable
(provided, however, that distributions on such Preferred Securities shall be
payable on a quarterly basis to holders of such Preferred Securities as of a
record date in each quarter during which such Preferred Securities are
outstanding), (iv) whether distributions on Preferred Securities shall be
cumulative, and, in the case of Preferred Securities having such cumulative
distribution rights, the date or dates or method of determining the date or
dates from which distributions on Preferred Securities shall be cumulative, (v)
the amount or amounts which shall be paid out of the assets of such trust to the
holders of Preferred Securities upon voluntary or involuntary dissolution,
winding-up or termination of such ATI Trust, (vi) the obligation, if any, of
such ATI Trust to purchase or redeem Preferred Securities and the price or
prices at which, the period or periods within which and the terms and conditions
upon which Preferred Securities issued by such ATI Trust shall be purchased or
redeemed, in whole or in part, pursuant to such obligation, (vii) the voting
rights, if any, of Preferred Securities issued by such ATI Trust in addition to
those required by law, including the number of votes per Preferred Security and
any requirement for the approval by the holders of Preferred Securities, or of
Preferred Securities issued by both ATI Trusts, as a condition to specified
action or amendments to the Declaration of such ATI Trust, (viii) whether the
Preferred Securities will be issued in the form of one or more global
securities, and (ix) any other relevant rights, preferences, privileges,
limitations or restrictions of Preferred Securities issued by such ATI Trust
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<PAGE> 22
consistent with the Declaration of such trust or with applicable law. All
Preferred Securities offered hereby will be guaranteed by the Company to the
extent set forth below under "Description of the Guarantees." Certain United
States federal income tax considerations applicable to any offering of
Preferred Securities will be described in the Prospectus Supplement relating
thereto.
In connection with the issuance of Preferred Securities, each ATI
Trust will issue one series of Common Securities. The Declaration of each ATI
Trust authorizes the Regular Trustees to issue on behalf of such ATI Trust one
series of Common Securities having such terms including distributions,
redemption, voting, liquidation rights or such restrictions as shall be set
forth therein. The terms of the Common Securities issued by an ATI Trust will
be substantially identical to the terms of the Preferred Securities issued by
such trust and the Common Securities will rank pari passu, and payments will be
made theron pro rata, with the Preferred Securities except that, upon an event
of default under the Declaration, the rights of the holders of the Common
Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise will be subordinated to the rights of the
holders of the Preferred Securities. Except in certain limited circumstances
the Common Securities will also carry the right to vote and to appoint, remove
or replace any of the ATI Trustees. All of the Common Securities will be
directly or indirectly owned by the Company.
DESCRIPTION OF THE GUARANTEES
Set forth below is a summary of information concerning the Guarantees
that will be executed and delivered by the Company for the benefit of the
holders, from time to time, of Preferred Securities. Each Guarantee will be
qualified as an indenture under the Trust Indenture Act. The indenture trustee
under each Guarantee (the "Guarantee Trustee") will be identified in the
relevant Prospectus Supplement, and will be a financial institution not
affiliated with the Company that has a combined capital and surplus of not less
than $100,000,000. The terms of each Guarantee will be those set forth in such
Guarantee and those made part of such Guarantee by the Trust Indenture Act.
The summary does not purport to be complete and is subject in all respects to
the provisions of, and is qualified in its entirety by reference to, the form
of Guarantee, which is filed as an exhibit to the Registration Statement of
which this Prospectus forms a part, and the Trust Indenture Act. Each
Guarantee will be held by the Guarantee Trustee for the benefit of the holders
of the Preferred Securities of the applicable ATI Trust.
GENERAL
Pursuant to each Guarantee, the Company will irrevocably and
unconditionally agree, to the extent set forth herein, to pay in full to the
holders of the Preferred Securities issued by each ATI Trust, the Guarantee
Payments (as defined herein) (except to the extent paid by such ATI Trust), as
and when due, regardless of any defense, right of set-off or counterclaim which
such ATI Trust may have or assert. The following payments with respect to
Preferred Securities issued by each ATI Trust (the "Guarantee Payments"), to
the extent not paid by such ATI Trust, will be subject to the Guarantee
(without duplication): (i) any accrued and unpaid distributions that are
required to be paid on such Preferred Securities, to the extent such ATI Trust
shall have funds available therefor, (ii) the redemption price, including all
accrued and unpaid distributions (the "Redemption Price"), to the extent such
ATI Trust has funds available therefor with respect to any Preferred Securities
called for redemption by such ATI Trust and (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of such ATI Trust (other
than in connection with the distribution of Subordinated Debt Securities to the
holders of Preferred Securities or the redemption of all of the Preferred
Securities), the lesser of (a) the aggregate of the liquidation amount and all
accrued and unpaid distributions on such Preferred Securities to the date of
payment to the extent such ATI Trust has funds available therefor or (b) the
amount of assets of such ATI Trust remaining available for distribution to
holders of such Preferred Securities in liquidation of such ATI Trust. The
Company's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Company to the holders of Preferred
Securities or by causing the applicable ATI Trust to pay such amounts to such
holders.
Each Guarantee will be an unconditional guarantee with respect to the
Preferred Securities issued by the applicable ATI Trust from the time of
issuance of such Preferred Securities but will not apply to any payment of
distributions except to the extent such ATI Trust shall have funds available
therefor. If the Company does not make interest payments on the Subordinated
Debt Securities purchased by an ATI Trust, such ATI Trust will not pay
distributions on the Preferred Securities issued by such ATI Trust and will not
have funds available therefor. See "Description of the Preferred Securities;
"Description of Debt Securities -- Subordinated Debt Securities."
The Company has also agreed to unconditionally guarantee the
obligations of the ATI Trusts with respect to the Common Securities (the
"Common Securities Guarantees") to the same extent as the Guarantees, except
that, upon an event of default under the Subordinated Indenture, holders of
Preferred Securities under the Guarantees shall have priority
19
<PAGE> 23
over holders of Common Securities under the Common Securities Guarantee with
respect to distributions and payments on liquidations, redemption or otherwise.
CERTAIN COVENANTS OF THE COMPANY
In each Guarantee, the Company will covenant that, so long as any
Preferred Securities issued by the applicable ATI Trust remain outstanding, if
there shall have occurred any event that would constitute an event of default
under such Guarantee or the Declaration of such ATI Trust, then (a) the Company
shall not declare or pay any dividend on, or make any distribution with respect
to, or redeem, purchase, acquire or make a liquidation payment with respect to,
any of its capital stock and (b) the Company shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Company which rank pari passu with or junior to
such Subordinated Debt Securities. However, each Guarantee will except from the
foregoing any stock dividends paid by the Company, or any of its subsidiaries,
where the dividend stock is of the same class as that on which the dividend is
being paid.
MODIFICATION OF THE GUARANTEES; ASSIGNMENT
Except with respect to any changes that do not adversely affect the
rights of holders of Preferred Securities (in which case no vote will be
required), each Guarantee may be amended only with the prior approval of the
holders of not less than a majority in liquidation amount of the outstanding
Preferred Securities issued by the applicable ATI Trust. The manner of
obtaining any such approval of holders of such Preferred Securities will be set
forth in an accompanying Prospectus Supplement. All guarantees and agreements
contained in a Guarantee shall bind the successors, assignees, receivers,
trustees and representatives of AirTouch and shall inure to the benefit of the
holders of the Preferred Securities of the applicable ATI Trust then
outstanding.
EVENTS OF DEFAULT
An Event of Default under the Guarantee will occur upon the failure of
the Company to perform any of its payments or other obligations thereunder.
The holders of a majority in liquidation amount of the Preferred Securities to
which a Guarantee relates have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Guarantee Trustee
in respect of the Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under the Guarantee.
If the Guarantee Trustee fails to enforce such Guarantee, any holder
of Preferred Securities relating to such Guarantee may, after a period of 30
days has elapsed from such holder's written request to the Guarantee Trustee to
enforce the Guarantee, institute a legal proceeding directly against the
Company to enforce the Guarantee Trustee's rights under such Guarantee without
first instituting a legal proceeding against the relevant ATI Trust, the
Guarantee Trustee or any other person or entity.
The Company will be required to provide annually to the Guarantee
Trustee a statement as to the performance by the Company of certain of its
obligations under each of the Guarantees and as to any default in such
performance and an officer's certificate as to the Company's compliance with
all conditions under each of the Guarantees.
TERMINATION OF THE GUARANTEES
Each Guarantee will terminate as to the Preferred Securities issued by
the applicable ATI Trust upon full payment of all distributions relating to the
Preferred Securities or the Redemption Price of all Preferred Securities of such
Trust, upon distribution of the subordinated Debt Securities held by such ATI
Trust to the holders of the Preferred Securities of such ATI Trust or upon full
payment of the amounts payable in accordance with the Declaration of such ATI
Trust upon liquidation of such ATI
20
<PAGE> 24
Trust. Each Guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any holder of Preferred Securities issued by
the applicable ATI Trust must restore payment of any sums paid under such
Preferred Securities or such Guarantee.
STATUS OF THE GUARANTEES
Each Guarantee will constitute an unsecured obligation of the Company
and will rank (i) subordinate and junior in right of payment to all other
liabilities of the Company (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Company and with any guarantee
now or hereafter entered into by the Company in respect of any preferred or
preference stock of any affiliate of the Company and (iii) senior to the
Company's Common Stock. The terms of the Preferred Securities provide that
each holder of Preferred Securities issued by such ATI Trust by acceptance
thereof agrees to the subordination provisions and other terms of the
applicable Guarantee.
Each Guarantee will constitute a guarantee of payment and not of
collection (that is, the guaranteed party may institute a legal proceeding
directly against the guarantor to enforce its rights under a Guarantee without
instituting a legal proceeding against any other person or entity).
PLAN OF DISTRIBUTION
The Company or any ATI Trust may, from time to time, sell Securities
(1) through underwriters or dealers, (2) directly to one or more purchasers, or
(3) through agents. A Prospectus Supplement will set forth the terms of the
offering of the Securities offered thereby, including the name or names of any
underwriters, the purchase price of the Securities, and the proceeds to the
Company or any ATI Trust from the sale, any underwriting discounts and other
items constituting underwriters' compensation, any initial public offering
price, any discounts or concessions allowed or reallowed or paid to dealers,
and any securities exchange or market on which the Securities may be listed.
Only underwriters so named in such Prospectus Supplement are deemed to be
underwriters in connection with the Securities offered thereby.
If underwriters are used in the sale, the Securities will be acquired
by the underwriters for their own account and may be resold from time to time
in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the Securities will be subject to
certain conditions precedent, and the underwriters will be obligated to
purchase all the Securities of the series offered by the Prospectus Supplement
if any of the Securities are purchased. Any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
Securities may also be sold directly by the Company or an ATI Trust or
through agents designated by the Company or any ATI Trust from time to time.
Any agent involved in the offering and sale of Securities in respect of which
this Prospectus is delivered will be named, and any commissions payable by the
Company or an ATI Trust to such agent will be set forth in the Prospectus
Supplement. Unless otherwise indicated in the related Prospectus Supplement,
any such agent will be acting on a best-efforts basis for the period of its
appointment.
If so indicated in the related Prospectus Supplement, the Company or
an ATI Trust will authorize agents, underwriters or dealers to solicit offers
by certain institutional investors to purchase Securities providing for payment
and delivery on a future date specified in such Prospectus Supplement. There
may be limitations on the minimum amount which may be purchased by any such
institutional investor or on the portion of the aggregate principal amount of
the particular Securities which may be sold pursuant to such arrangements.
Institutional investors to which such offers may be made, when authorized,
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions, and such other
institutions as may be approved by the Company or an ATI Trust. The
obligations of any such purchasers pursuant to such delayed delivery and
payment arrangements will not be subject to any conditions except (1) the
purchase by an institution of the particular Securities shall not at the time
of delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject, and (2) if the particular
Securities are being sold to underwriters, the Company or the ATI Trust shall
have sold to such underwriters the total principal amount of such Securities
less the principal amount thereof covered by such arrangements. Underwriters
will not have any responsibility in respect of the validity of such
arrangements or the performance of the Company or any ATI Trust or such
institutional investors thereunder.
Securities offered other than Common Stock may be a new issue of
securities with no established trading market. Any underwriters to whom such
Securities are sold by the Company or an ATI Trust for public offering and
21
<PAGE> 25
sale may make a market in such Securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of or the trading
markets for any such Securities.
Agents and underwriters may be entitled under agreements entered into
with the Company or an ATI Trust to indemnification by the Company or such
trust against certain civil liabilities, including liabilities under the
Securities Act of 1933, as amended, or to contribution with respect to payments
which the agents or underwriters may be required to make in respect thereof.
Agents and underwriters may engage in transactions with, or perform services
for, the Company or any ATI Trust in the ordinary course of business.
ERISA AND TAX CONSIDERATIONS
The Employee Retirement Income Security Act of 1974, as amended
("ERISA"), imposes certain restrictions on investments by employee benefit
plans that are subject to ERISA. The Internal Revenue Code of 1986, as amended
(the "Code"), imposes additional restrictions on investments by tax-exempt
retirement plans, individual retirement accounts, and similar entities. The
Code also provides that certain types of income received by organizations that
generally are exempt from federal income tax will nevertheless be subject to
taxation. Retirement plans, tax-exempt organizations and similar entities
should consult their tax and legal advisors and the applicable Prospectus
Supplement before acquiring Securities.
LEGAL MATTERS
The legality of the Securities (other than the Preferred Securities)
offered hereby will be passed upon by Pillsbury Madison & Sutro, San Francisco,
California, counsel for the Company. The legality of the Preferred Securities
will be passed upon by Morris, Nichols, Arsht & Tunnell, Wilmington, Delaware.
Certain legal matters will be passed upon for the underwriters by Cleary,
Gottlieb, Stein & Hamilton, New York, New York, except as otherwise set forth
in the Prospectus Supplement.
EXPERTS
The consolidated financial statements of the Company as of December 31,
1994 and 1993, and for each of the years in the three-year period ended December
31, 1994, contained in the Company's Annual Report on Form 10-K, have been
audited by Coopers & Lybrand LLP, independent auditors, as set forth in their
report thereon incorporated therein and herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing. The financial statements of CMT Partners as of December 31, 1994 and
1993, and for each of the years in the three-year period ended December 31,
1994, have been incorporated by reference herein in reliance upon the report of
Coopers & Lybrand, independent auditors, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing. The
financial statements of Mannesmann Mobilfunk GmbH as of December 31, 1994 and
1993, and for each of the years in the three-year period ended December 31,
1994, have been incorporated by reference herein in reliance upon the report of
KPMG Deutsche Treuhand-Gesellschaft, independent auditors, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing. The consolidated financial statements of Cellular Communications,
Inc. as of December 31, 1994 and 1993 and for each of the three years in the
period ended December 31, 1994 included in Cellular Communications, Inc.'s
Annual Report (Form 10-K) for the year ended December 31, 1994 have been audited
by Ernst & Young LLP, independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing. The consolidated financial statements of New Par (a partnership) as
of December 31, 1994 and 1993 and for each of the three years in the period
ended December 31, 1994 included in AirTouch Communications, Inc.'s Annual
Report (Form 10-K) for the year ended December 31, 1994 have been audited by
Ernst & Young LLP, independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
22
<PAGE> 26
================================================================================
NO DEALER, SALES REPRESENTATIVE, OR ANY OTHER PERSON HAS BEEN AUTHORIZED
TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THIS
OFFERING OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY AIRTOUCH COMMUNICATIONS, INC. OR BY ANY
AGENT. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION
OF AN OFFER TO PURCHASE, ANY SECURITIES OTHER THAN THE SECURITIES TO WHICH IT
RELATES OR AN OFFER TO OR A SOLICITATION OF ANY PERSON IN ANY JURISDICTION WHERE
SUCH AN OFFER OR SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS
PROSPECTUS, ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF AIRTOUCH COMMUNICATIONS, INC. OR THAT THE INFORMATION
CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE
HEREOF OR THEREOF.
-------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
INDEX OF TERMS . . . . . . . . . . . . . . . . . . . . . . 3
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . 4
INCORPORATION OF CERTAIN DOCUMENTS
BY REFERENCE . . . . . . . . . . . . . . . . . . . . . . 4
AIRTOUCH COMMUNICATIONS, INC. . . . . . . . . . . . . . . . 5
THE ATI TRUSTS . . . . . . . . . . . . . . . . . . . . . . 5
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . 5
RATIO OF EARNINGS TO FIXED CHANGES . . . . . . . . . . . . 6
GENERAL DESCRIPTION OF SECURITIES AND RISK FACTORS . . . . 6
DESCRIPTION OF THE COMMON STOCK . . . . . . . . . . . . . . 6
DESCRIPTION OF THE PREFERRED STOCK . . . . . . . . . . . . 8
DESCRIPTION OF THE DEPOSITARY SHARES . . . . . . . . . . . 9
DESCRIPTION OF THE DEBT SECURITIES . . . . . . . . . . . . 11
DESCRIPTION OF THE WARRANTS TO PURCHASE COMMON
OR PREFERRED STOCK . . . . . . . . . . . . . . . . . . . 15
DESCRIPTION OF THE THIRD PARTY WARRANTS . . . . . . . . . . 16
DESCRIPTION OF THE WARRANTS TO PURCHASE DEBT SECURITIES . . 17
DESCRIPTION OF THE STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS . . . . . . . . . . . . . . . . 17
DESCRIPTION OF THE PREFERRED SECURITIES . . . . . . . . . . 18
DESCRIPTION OF THE GUARANTEES . . . . . . . . . . . . . . . 19
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . 21
ERISA AND TAX CONSIDERATIONS . . . . . . . . . . . . . . . 22
LEGAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . 22
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . 22
</TABLE>
================================================================================
================================================================================
$2,000,000,000
AIRTOUCH COMMUNICATIONS, INC.
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
DEBT SECURITIES
COMMON STOCK WARRANTS
PREFERRED STOCK WARRANTS
THIRD PARTY WARRANTS DEBT WARRANTS
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
ATI FINANCING I
ATI FINANCING II
PREFERRED SECURITIES,
GUARANTEED TO THE
EXTENT SET FORTH HEREIN BY
AIRTOUCH COMMUNICATIONS, INC.
________________, 1995
================================================================================
<PAGE> 27
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
<TABLE>
<S> <C>
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
Securities and Exchange Commission Registration Fee . . . $ 689,655.17
Printing and Engraving Expenses. . . . . . . . . . . . . . 100,000.00
Accounting Fees and Expenses . . . . . . . . . . . . . . . 150,000.00
Legal Fees and Expenses . . . . . . . . . . . . . . . . . 150,000.00
Trustee Fees . . . . . . . . . . . . . . . . . . . . . . . 40,000.00
Fees of Rating Agencies . . . . . . . . . . . . . . . . . 200,000.00
Blue Sky Fees and Expenses . . . . . . . . . . . . . . . . 25,000.00
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . 45,344.83
-------------
TOTAL . . . . . . . . . . . . . . . . . . . . . . . . . . $1,400,000.00
=============
</TABLE>
*Estimated, except for the SEC Registration Fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "Delaware
GCL") permits the Company's board of directors to indemnify any person against
expenses (including attorney's fees), judgements, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with any
threatened, pending or completed action, suit or proceeding in which such
person is made a party by reason of his being or having been a director,
officer, employee or agent of the Company, in terms sufficiently broad to
permit such indemnification under certain circumstances for liabilities
(including reimbursement for expenses incurred) arising under the Securities
Act of 1933, as amended (the "Act"). Section 145 provides that indemnification
pursuant to its provisions is not exclusive of other rights of indemnification
to which a person may be entitled under any By-law, agreement, vote of
stockholders or disinterested directors, or otherwise.
Article EIGHTH of the Company's Certificate of Incorporation provides
for indemnification of its directors, officers, employees and other agents to
the maximum extent permitted by law.
As permitted by Sections 102 and 145 of the Delaware GCL, Article NINTH
of the Company's Certificate of Incorporation eliminates a director's personal
liability for monetary damage to the Company and its stockholders arising from a
breach or alleged breach of director's fiduciary duty except to the extent not
permitted under the Delaware GCL.
In addition the Company has entered into separate indemnification
agreements with its directors and officers that require the Company, among
other things, to indemnify them against certain liabilities that may arise by
reason of their status or service as directors or officers to the fullest
extent not prohibited by law.
The Declaration of each ATI Trust provides that no ATI Trustee,
affiliate of any ATI Trustee, or any officer, director, shareholder, member,
partner, employee, representative or agent of any ATI Trustee, or any employee
or agent of such ATI Trust or its affiliates (each an "Indemnified Person"),
shall be liable, responsible or accountable in damages or otherwise to such ATI
Trust or any employee or agent of the trust or its affilaites for any lloss,
damage or claim incurred by reason of any act or omission performed or amitted
by such Indemnified Person in good faith on behalf of such ATI Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by such Declaration or by
law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's gross
negligence (or, in the case of the Property Trustee, negligence) or willful
misconduct with respect to such acts or omissions. The Declaration of each ATI
Trust also provides that to the fullest extent permitted by applicable law, the
Company shall indemnify and hold harmless each Indemnified Person from and
against any loss, damage or claim incurred by such Indemnified Person by reason
of any act or omission performed or omitted by such Indemnified Person in good
faith on behalf of such ATI Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by such Declaration, except that no Indemnified Person shall
be entitled to be indemnified in respect of any loss, damage or claim incurred
by such Indemnified Person by reason of gross negligence (or, in the case of
the Property Trustee, negligence) or willful misconduct with respect to such
acts or omissions. The Declaration of each ATI Trust, further provides that,
to the fullest extent permitted by applicable law, expenses (including legal
fees) incurred by an
II-1
<PAGE> 28
Indemnified Person in defending any claim, demand, action, suit or proceeding
shall, from time to time, be advanced by the Company prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
or an undertaking by or on behalf of the Indemnified Person to repay such
amount if it shall be determined that the Indemnified Person is not entitled to
be indemnified for the underlying cause of action as authorized by such
Declaration.
The directors and officers of the Company and the Regular Trustees are
covered by insurance policies indemnifying against certain liabilities,
including certain liabilities arising under the Securities Act of 1933, as
amended (the "Securities Act"), which might be incurred by them in such
capacities and against which they cannot be indemnified by the Company or ATI
Trusts.
Any agents, dealers or underwriters who execute any of the agreements
filed as Exhibit 1 to this registration statement will agree to indemnify the
Company's directors and their officers and the ATI Trustees who signed the
registration statement against certain liabilities that may arise under the
Securities Act with respect to information furnished to the Company or any of
the ATI Trusts by or on behalf of any such indemnifying party.
ITEM 16. EXHIBITS.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated by reference as exhibits hereto.
1.1 Form of Underwriting Agreement (Debt Securities).
1.2 Form of Underwriting Agreement (Equity Securities).
4.1 Certificate of Incorporation of the Company (filed as Exhibit
3.1 to Form 8-K, Date of Report: December 15, 1994, filed on
December 19, 1994, File No. 1-12342, and incorporated herein).
4.2 Rights Agreement between the Company and the Bank of New York,
Rights Agent, dated as of September 19, 1994 (filed as Exhibit
4 to the Company's Form 8-K, Date of Report: December 15,
1994, filed on December 19, 1994, File No. 1- 12342, and
incorporated herein).
4.3 Amended and Restated Bylaws of the Company, as of November 18,
1994 (filed as Exhibit 3.3 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1994, filed April 5,
1995, File No. 1-12342, and incorporated herein).
4.4 Certificate of Trust of ATI Financing I.
4.5 Certificate of Trust of ATI Financing II.
4.6 Form of Amended and Restated Declaration of Trust of ATI
Financing I and ATI Financing II.
4.7 Form of Pledge Agreement.
4.8 Form of Senior Indenture.
4.9 Form of Standard Stock Warrant Provisions.
4.10 Form of Standard Debt Securities Warrant Provisions.
4.11 Form of Deposit Agreement.
4.12 Form of Subordinated Indenture.
4.13 Form of Preferred Securities Guarantee Agreement.
4.14 Form of Stock Purchase Contract Agreement.
5.1(a) Opinion of Pillsbury Madison & Sutro.
II-2
<PAGE> 29
5.1(b) Opinion of Morris, Nichols, Arsht & Tunnell (ATI Financing I).
5.1(c) Opinion of Morris, Nichols, Arsht & Tunnell (ATI Financing II).
12.1 Statement re Computation of Ratios.
15.1 Letter re unaudited interim financial information.
23.1 Consent of Coopers & Lybrand L.L.P., independent auditors.
23.2 Consent of Ernst & Young LLP (NewPar).
23.3 Consent of Ernst & Young LLP (CCI).
23.4 Consent of Coopers & Lybrand L.L.P. (CMT Partners).
23.5 Consent of KPMG Deutsche Treuhand-Gesellschaft (Mannesmann
Mobilfunk).
23.6 Consent of Pillsbury Madison & Sutro (included in Exhibits
5.1(a)).
23.7 Consent of Morris, Nichols, Arsht & Tunnell (included in
Exhibit 5.1(b) and 5.1(c)).
24.1 Power of Attorney (AirTouch Communications, Inc.).
24.2 Power of Attorney (included on page II-6).
24.3 Power of Attorney (inlcuded on page II-6).
-------------
ITEM 17. UNDERTAKINGS.
AirTouch Communications, Inc., ATI Financing I and ATI Financing II
(the "Registrants") hereby undertake:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
and of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement.
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) above do not apply if
the information required to be included in a post- effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to
II-3
<PAGE> 30
the Commission by AirTouch Communications, Inc. pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post- effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
The Registrants hereby undertake that, for purposes of determining any
liability under the Securities Act of 1933, each filing of AirTouch
Communications, Inc.'s annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
ATI Trust I and ATI Trust II each hereby undertakes to provide to the
underwriter at the closing specified in the underwriting agreements,
certificates in such denominations and registered in such names as required by
the underwriter to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrants pursuant to the provisions described in Item 15 or
otherwise, the Registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. If a claim for indemnification against such liabilities (other
than the payment by the Registrants of expenses incurred or paid by a director,
officer or controlling person of the Registrants in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrants, will, unless in the opinion of counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
The Registrants hereby undertake to file an application for the
purpose of determining the eligibility of the trustee to act under Subsection
(a) of Section 310 of the Trust Indenture Act of 1939 in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Trust Indenture Act of 1939.
The Registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in a
form of Prospectus filed by the Registrants pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
Prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE> 31
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment
to Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Francisco, State of California,
on September 20, 1995.
AIRTOUCH COMMUNICATIONS, INC.
By /s/ Lydell L. Christensen
--------------------------------------------------
Lydell L. Christensen,
Executive Vice President and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to Registration Statement has been signed below by the following
persons and in the capacities indicated on the 20th day of September, 1995.
<TABLE>
<CAPTION>
Name Title
---- -----
<S> <C>
/s/ Sam Ginn* Chairman of the Board and
-------------------------------------- Chief Executive Officer (principal executive
officer)
(Sam Ginn)
/s/ Lydell L. Christensen* Executive Vice President, Finance and
-------------------------------------- Chief Financial Officer (principal financial
(Lydell L. Christensen) officer)
/s/ Mohan Gyani* Vice President, Finance
-------------------------------------- and Treasurer (principal accounting officer)
(Mohan Gyani)
/s/ Carol A. Bartz* Director
--------------------------------------
(Carol A. Bartz)
/s/ C. Lee Cox* Vice Chairman of the Board
--------------------------------------
(C. Lee Cox)
/s/ Donald G. Fisher* Director
--------------------------------------
(Donald G. Fisher)
/s/ James R. Harvey* Director
--------------------------------------
(James R. Harvey)
/s/ Paul Hazen* Director
--------------------------------------
(Paul Hazen)
/s/ Arthur Rock* Director
--------------------------------------
(Arthur Rock)
/s/ Arun Sarin* Vice Chairman of the Board
--------------------------------------
(Arun Sarin)
/s/ Charles R. Schwab* Director
--------------------------------------
(Charles R. Schwab)
/s/ George P. Schultz* Director
--------------------------------------
(George P. Schultz)
*By /s/ Sam Ginn
--------------------------------------
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 32
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of ATI
Financing I and ATI Financing II certifies that it has reasonable grounds to
believe that it meets all the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of San Francisco, State of
California, on September 20, 1995.
POWER OF ATTORNEY
Each of the undersigned hereby constitutes and appoints Lydell L.
Christensen, Margaret G. Gill, Sam Ginn, Mohan S. Gyani, and Arun Sarin, and
each of them, his/her attorneys for him/her in his/her stead, in each of
his/her offices and capacities as a trustee of ATI Financing I and ATI
Financing II, to sign and to file with the Commission such Registration
Satements on Form S-3, and any and all amendments, modifications, or
supplements thereto, and any exhibits thereto, and grants to each of said
attorneys full power and authority to sign and file any and all other documents
and to perform and do all and every act and thing whatsoever requisite and
necessary to be done in and about the premises as fully, to all intents and
purposes, as he/she might or could do if personally present at the doing
thereof, and hereby ratifies and confirms all that said attorneys may or shall
lawfully do, or cause to be done, by virtue hereof in connection with the
registration of the aforesaid securities.
ATI FINANCING I
By: /s/ Sam Ginn
----------------------------
Sam Ginn, Trustee
By: /s/ Mohan S. Gyani
----------------------------
Mohan S. Gyani, Trustee
By: /s/ Margaret G. Gill
----------------------------
Margaret G. Gill, Trustee
ATI FINANCING II
By: /s/ Sam Ginn
----------------------------
Sam Ginn, Trustee
By: /s/ Mohan S. Gyani
----------------------------
Mohan S. Gyani, Trustee
By: /s/ Margaret G. Gill
----------------------------
Margaret G. Gill, Trustee
II-6
<PAGE> 33
EXHIBIT INDEX
1.1 Form of Underwriting Agreement (Debt Securities).
1.2 Form of Underwriting Agreement (Equity Securities).
4.1 Certificate of Incorporation of the Company (filed as Exhibit
3.1 to Form 8-K, Date of Report: December 15, 1994, filed on
December 19, 1994, File No. 1-12342, and incorporated herein).
4.2 Rights Agreement between the Company and the Bank of New York,
Rights Agent, dated as of September 19, 1994 (filed as Exhibit
4 to the Company's Form 8-K, Date of Report: December 15,
1994, filed on December 19, 1994, File No. 1- 12342, and
incorporated herein).
4.3 Amended and Restated Bylaws of the Company, as of November 18,
1994, (filed as Exhibit 3.3 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1994, filed April 5,
1995, File No. 1-12342, and incorporated herein).
4.4 Certificate of Trust of ATI Financing I.
4.5 Certificate of Trust of ATI Financing II.
4.6 Form of Amended and Restated Declaration of Trust of ATI
Financing I and ATI Financing II.
4.7 Form of Pledge Agreement.
4.8 Form of Senior Indenture.
4.9 Form of Standard Stock Warrant Provisions.
4.10 Form of Standard Debt Securities Warrant Provisions.
4.11 Form of Deposit Agreement.
4.12 Form of Subordinated Indenture.
4.13 Form of Preferred Securities Guarantee Agreement.
4.14 Form of Stock Purchase Contract Agreement.
5.1(a) Opinion of Pillsbury Madison & Sutro.
5.1(b) Opinion of Morris, Nichols, Arsht & Tunnell (ATI Financing I).
5.1(c) Opinion of Morris, Nichols, Arsht & Tunnell (ATI Financing II).
12.1 Statement re Computation of Ratios.
15.1 Letter re unaudited interim financial information.
23.1 Consent of Coopers & Lybrand L.L.P., independent auditors.
23.2 Consent of Ernst & Young LLP (NewPar).
23.3 Consent of Ernst & Young LLP (CCI).
23.4 Consent of Coopers & Lybrand L.L.P. (CMT Partners).
23.5 Consent of KPMG Deutsche Treuhand-Gesellschaft (Mannesmann
Mobilfunk).
23.6 Consent of Pillsbury Madison & Sutro (included in Exhibits
5.1(a) and 8).
23.7 Consent of Morris, Nichols, Arsht & Tunnell (included in
Exhibit 5.1(b) and 5.1(c)).
24.1 Power of Attorney (AirTouch Communications, Inc.).
24.2 Power of Attorney (included on page II-6).
24.3 Power of Attorney (inlcuded on page II-6).
II-7
<PAGE> 1
EXHIBIT 1.1
================================================================================
AIRTOUCH COMMUNICATIONS, INC.
DEBT SECURITIES
_________
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
================================================================================
<PAGE> 2
AIRTOUCH COMMUNICATIONS, INC.
DEBT SECURITIES
_________
UNDERWRITING AGREEMENT STANDARD PROVISIONS
From time to time, AirTouch Communications, Inc., a Delaware
corporation ("AirTouch"), may enter into one or more underwriting agreements
that provide for the sale of certain debt securities (the "Securities"), to the
purchaser or purchasers named therein (the "Underwriters"). The standard
provisions set forth herein may be incorporated by reference in any such
underwriting agreement (the "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is
herein referred to as "this Agreement." Unless otherwise defined herein, terms
defined in the Underwriting Agreement are used herein as therein defined.
Capitalized terms not otherwise defined in this Agreement shall have the
meaning ascribed thereto in the Indenture (as hereinafter defined).
The terms governing of the issuance and sale of any particular series
of Securities shall be as provided in the applicable Underwriting Agreement
(with respect to each Underwriting Agreement, such series of Securities are
herein referred to as the "Designated Securities").
1. Issuance of Designated Securities. Sales of the Designated Securities
may be made from time to time to the Underwriters of the Designated Securities.
Any firm or firms designated as the representative or representatives, as the
case may be, of the Underwriters of the Designated Securities in the
Underwriting Agreement relating thereto will act as the representative or
representatives (the "Representative"). The obligation of AirTouch to issue
and sell any of the Designated Securities and the obligation of any
Underwriters to purchase any of the Designated Securities shall be evidenced by
the Underwriting Agreement with respect to the Designated Securities specified
therein. Each Underwriting Agreement shall specify the aggregate principal
amount of the Designated Securities, the public offering price of the
Designated Securities, the purchase price to the Underwriters of the Designated
Securities, the names of the Underwriters of the Designated Securities, the
name of the Representative, if any, of such Underwriters, the principal amount
of the Designated Securities to be purchased by each Underwriter and the terms
of any Delayed Delivery Contract (as hereinafter defined), and shall set forth
the date, time and manner of delivery of the Designated Securities and payment
therefor. The Underwriting Agreement shall also specify, to the extent not set
forth in the Registration Statement and Prospectus (as hereinafter defined)
with respect thereto, the general terms of the Designated Securities. An
Underwriting Agreement shall be in writing (which may be in counterparts), and
may be evidenced by an exchange of facsimile transmissions. The obligations of
the Underwriters under each Underwriting Agreement shall be several and not
joint.
If AirTouch agrees, the Underwriters may solicit offers to purchase
the Designated Securities pursuant to delayed delivery contracts ("Delayed
Delivery Contracts") in a form agreed upon by AirTouch. The Underwriters shall
be paid their specified commission for Delayed Delivery Contracts upon the full
performance of the Delayed Delivery Contracts. If the Delayed Delivery
Contracts are invalid or are not fully performed, then the Underwriters shall
not be entitled to any compensation for their efforts in securing such Delayed
Delivery Contracts.
If the Delayed Delivery Contracts are executed, valid and fully
performed, the Designated Securities delivered pursuant to them shall be
deducted from the Designated Securities to be purchased
-1-
<PAGE> 3
by the Underwriters and the aggregate principal amount of Designated Securities
to be purchased by each Underwriter shall be reduced pro rata in proportion to
the principal amount of Designated Securities set forth opposite each
Underwriter's name in the Underwriting Agreement, except to the extent that the
Representative determines that such reduction shall be otherwise than in such
proportion and so advises AirTouch in writing; provided, however, that the
total principal amount of securities to be purchased by all Underwriters shall
be the aggregate principal amount set forth in the appropriate schedule
thereto, less the aggregate principal amount of Designated Securities to be
delivered pursuant to the delayed delivery provisions.
2. Representations and Covenants. AirTouch represents to, and covenants
with, each Underwriter that:
(a) AirTouch meets the requirements for the use of Form S-3
and a registration statement on Form S-3 (Registration No. 33-__),
including a prospectus, relating to the Securities of AirTouch has been
filed with the Securities and Exchange Commission (the "Commission") in
accordance with applicable regulations of the Commission under the
Securities Act of 1933, as amended (the "Act"), and has been declared
effective under the Act. Such registration statement, as amended to the
date of this Agreement, is hereinafter referred to as the "Registration
Statement," and such prospectus as proposed to be supplemented by a
prospectus supplement (the "Prospectus Supplement") relating to the
Designated Securities to be filed pursuant to Rule 424 under the Act is
hereinafter referred to as the "Prospectus." Any reference herein to
the Registration Statement or the Prospectus shall be deemed to refer to
and include the documents which were filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") on or before the date of
this Agreement, and incorporated by reference in the Prospectus pursuant
to Item 12 of Form S-3, excluding any documents or portions of such
documents which are deemed under the rules and regulations of the
Commission under the Act not to be incorporated by reference; and any
reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement or the Prospectus shall be deemed
to refer to and include the filing of any document under the Exchange
Act deemed to be incorporated therein by reference after the date of
this Agreement. For purposes of this Agreement, "Effective Time" with
respect to the Registration Statement means (A) if AirTouch has not
advised the Representative that is proposes to amend such registration
statement, the date and time as of which such registration statement, or
the most recent post-effective amendment thereto (if any) filed prior to
the execution and delivery of this Agreement, was declared effective by
the Commission or has become effective upon filing pursuant to Rule
462(c) under the Act, or (B) if AirTouch has advised the Representative
that it proposes to file an amendment or post-effective amendment to
such registration statement, the date and time as of which such
registration statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the Commission.
"Effective Date" with respect to the Registration Statement means the
date of the Effective Time thereof.
(b) At the Effective Time, the Registration Statement and
the Prospectus conformed, and any amendments thereof and supplements
thereto relating to the Designated Securities will conform, in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder; each document filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus
complied when so filed as to form with the Exchange Act and the rules
and regulations of the Commission thereunder; the Indenture conforms in
all material respects to the requirements of the
-2-
<PAGE> 4
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act")
and the rules and regulations of the Commission thereunder; and
neither the Registration Statement on the Effective Date nor the
Prospectus as of the date thereof and on the Closing Date included or
will include any untrue statement of a material fact or omitted or
will omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the case of the
Registration Statement, not misleading, or in the case of the
Prospectus, in light of the circumstances in which they were made, not
misleading; provided, however, that AirTouch makes no representations
as to (i) that part of the Registration Statement which shall
constitute a Trustee's Statement of Eligibility and Qualifications
(Form T-1) under the Trust Indenture Act and (ii) any statements or
omissions made in reliance upon and in conformity with information
furnished to AirTouch by or on behalf of any Underwriter for use in
connection with the preparation of such documents.
(c) Neither AirTouch nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes.
3. Delivery and Payment. Delivery of and payment for the Designated
Securities (except for Designated Securities to be delivered under Delayed
Delivery Contracts) shall be made at the office of counsel for the Underwriters,
on the date and at the time specified in the Underwriting Agreement (the
"Closing Date"), which Closing Date may be postponed by agreement between the
Underwriters, or the Representative, as the case may be, and AirTouch. Delivery
of the Designated Securities shall be made to the Underwriters or, if
appropriate, the Representative for the respective accounts of the Underwriters,
in either case, against payment by the Underwriters directly or through the
Representative of the purchase price thereof to or upon the order of AirTouch by
certified or official bank check or checks payable in New York Clearing House
funds, unless otherwise agreed in the Underwriting Agreement. Certificates for
the Designated Securities shall be registered in such names and in such
denominations as the Representative may request in writing not less than one
full business day in advance of the Closing Date.
If so requested by the Underwriters or the Representative, as the case
may be, AirTouch agrees to have the Designated Securities available for
inspection, checking and packaging in New York, New York, at least one business
day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Designated Securities for sale to the public upon the
terms and conditions set forth in the Prospectus.
5. Agreements. AirTouch agrees with the Underwriters that:
(a) AirTouch will cause the Prospectus Supplement to be
filed pursuant to Rule 424 under the Act and will promptly advise the
Underwriters or the Representative, as the case may be, when the
Prospectus Supplement has been so filed, and prior to the termination
of the offering of the Designated Securities will promptly advise such
Underwriters or Representative (i) when any amendment to the
Registration Statement has been declared effective or has become
effective upon filing pursuant to Rule 462(c) under the Act or any
further supplement to the Prospectus has been filed, (ii) of any
request by the Commission for any amendment of the Registration
Statement or the Prospectus or for any additional information, (iii)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (iv) of the receipt
by AirTouch of any notification with respect to the
-3-
<PAGE> 5
suspension of the qualification of the Designated Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. AirTouch will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof. AirTouch will not file any amendment
to the Registration Statement or supplement to the Prospectus relating
to the Designated Securities unless it has furnished the Underwriters
or the Representative, as the case may be, a copy prior to filing and
will not file any such proposed amendment or supplement to which such
Underwriters or Representative reasonably objects.
(b) If, at any time when a prospectus relating to the
Designated Securities is required to be delivered under the Act or any
other applicable securities law, any event occurs as a result of which
the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend or supplement the Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder,
AirTouch will promptly notify the Underwriters or the Representative,
as the case may be, and will promptly prepare and file with the
Commission, subject to paragraph (a) of this Section 5, an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance.
(c) AirTouch will make generally available to its
security holders and to the Underwriters or the Representative, as the
case may be, as soon as practicable, but not later than 45 days after
the end of the 12-month period beginning at the end of the fiscal
quarter of AirTouch during which the filing of the Prospectus
Supplement pursuant to Rule 424 under the Act first occurs (except not
later than 90 days if such filing date is in the last fiscal quarter),
an earnings statement (which need not be audited) of AirTouch and its
consolidated subsidiaries, covering such 12-month period, which will
satisfy the provisions of Section 11 (a) of the Act.
(d) AirTouch will furnish to the Underwriters or the
Representative, as the case may be, and counsel for such Underwriters
or for such Representative copies of the Registration Statement
(including, if requested, the exhibits thereto and the documents
incorporated by reference in the Prospectus) and each amendment or
supplement thereto relating to the Designated Securities which is
thereafter filed pursuant to paragraph (a) or (b) of this Section 5
and to each Underwriter, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act or other applicable
securities laws, as many copies of the Prospectus and any amendments
thereof and supplements thereto, relating to the Designated
Securities, as such Underwriters or such Representative may reasonably
request.
(e) AirTouch will pay (i) all expenses incurred by it in
the performance of its obligations under this Agreement, (ii)
reasonable fees charged for rating the Designated Securities and for
preparing a Blue Sky and Legal Investment Memorandum with respect to
the sale of the Designated Securities and (iii) the expenses of
printing or otherwise producing and delivering the Designated
Securities, the documents specified in paragraph (d) of this Section 5
and any Blue Sky and Legal Investment Memorandum.
(f) AirTouch will use its best efforts to arrange and pay
for the qualification of the Designated Securities for sale under the
laws of such jurisdictions
-4-
<PAGE> 6
as the Underwriters or the Representative, as the case may be, may
designate and to maintain such qualifications in effect so long as
required for the distribution of the Designated Securities; provided,
however, that AirTouch shall not be required to qualify to do business
in any jurisdiction where it is not now qualified or to take any
action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
(g) If the sale of the Designated Securities provided for
in an Underwriting Agreement is not consummated by reason of any
failure, refusal or inability on the part of AirTouch to perform any
agreement on its part to be performed (except for any failure so to
perform on the part of AirTouch engendered by a failure, refusal or
inability on the part of the Underwriters or any Representative to
perform any agreement on their part to be performed) or the failure of
any condition set forth in Section 6, AirTouch will reimburse the
several Underwriters who are named in such Underwriting Agreement for
all reasonable out-of-pocket disbursements incurred by the
Underwriters in connection with their investigation, marketing and
preparing to market the Designated Securities, and upon such
reimbursement AirTouch shall have no further liability to the
Underwriters except as provided in Section 7.
(h) During the period beginning on the date of this
Agreement and terminating on the later of (i) the Closing Date or
(ii) the date of notice to AirTouch by the Representative or the
Underwriters (which shall not exceed forty-five days from the date of
this Agreement), AirTouch will not offer, sell, contract to sell or
otherwise dispose of any debt securities of AirTouch substantially
similar to the Designated Securities covered by this Agreement,
without the prior written consent of such Representative or such
Underwriters.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Designated Securities shall be subject to the
accuracy of the representations on the part of AirTouch contained herein as of
the date hereof and the Closing Date, to the performance by AirTouch of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted and be pending or threatened
as of the Closing Date;
(b) Pillsbury Madison & Sutro, counsel for AirTouch,
shall have furnished to the Representative their opinion, dated the
Closing Date, substantially in the form attached hereto as Exhibit A;
(c) The Underwriters or the Representative, as the case
may be, shall have received from counsel for the Underwriters such
opinion or opinions, dated the Closing Date, with respect to such
matters as such Underwriters or Representative may reasonably require;
(d) AirTouch shall have furnished to the Underwriters or
the Representative, as the case may be, a certificate, dated the
Closing Date, of AirTouch, signed by any executive officer of
AirTouch, to the effect that the signer of such certificate has
carefully examined the Registration Statement, the Prospectus and this
Agreement and that:
-5-
<PAGE> 7
(1) The representations of AirTouch in this
Agreement are true and correct in all material respects on and
as of the Closing Date with the same effect as if made on the
Closing Date, and AirTouch has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(2) No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted and are pending or, to
his or her knowledge, threatened as of such date; and
(3) Since the date of the most recent financial
statements included in the Prospectus, there has been no
material adverse change in the condition (financial or
otherwise) of AirTouch and its consolidated subsidiaries,
taken as a whole, nor any material increase in the debt of
AirTouch and its consolidated subsidiaries, except as set
forth in or contemplated by the Prospectus.
(e) The Underwriters or the Representative, as the case
may be, shall have received from [Coopers & Lybrand LLP][Price
Waterhouse] a letter, dated the Closing Date, which letter shall be in
form as may be agreed upon among such Underwriters or Representative,
AirTouch and [Coopers & Lybrand LLP][Price Waterhouse], and shall
cover such matters as may be reasonably requested by such Underwriters
or Representative.
(f) Prior to the Closing Date, AirTouch shall have
furnished to the Underwriters or the Representative, as the case may
be, such further information, certificates and documents as they may
reasonably request.
(g) Subsequent to the date hereof, there shall not have
occurred any change, or any development involving a prospective
change, in or affecting the business or properties of AirTouch and its
subsidiaries considered as a whole which the Underwriters or the
Representative, as the case may be, concludes, in its judgment, after
consultation with AirTouch, materially impairs the investment quality
of the Designated Securities so as to make it impractical or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities as contemplated by the Prospectus and there
shall not have been any decrease in the ratings of any of AirTouch's
debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act).
7. Indemnification and Contribution.
(a) AirTouch agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter, and each person, if any, who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory 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 Registration Statement or the Prospectus, or in
any amendment thereof or supplement thereto relating to the Designated
Securities, or arise
-6-
<PAGE> 8
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 not misleading, and agrees to reimburse
each such indemnified party for any legal or other expenses reasonably
incurred by them, as so incurred, in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that AirTouch will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with information furnished in writing to AirTouch by or on
behalf of any Underwriter through the Representative or the
Underwriters, as the case may be, for use in connection with the
preparation thereof. This indemnity agreement will be in addition to
any liability which AirTouch may otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless AirTouch, each of its directors, officers, employees and
agents, and each person who controls AirTouch within the meaning of
either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from AirTouch to each Underwriter, but only with
reference to information furnished in writing to AirTouch by or on
behalf of such Underwriter directly or through any Representative for
use in the preparation of the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 7 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 7, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case any
such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that
it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided that, if the defendants in 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, the indemnified party or parties shall have the
right to select separate counsel, to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by the
representatives representing the indemnified parties who are parties
to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or
(iii) is applicable, such liability shall be only in respect of the
counsel referred to in
-7-
<PAGE> 9
such clause (i) or (iii). An indemnifying party will not, without the
prior written consent of each indemnified party, 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 the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided
for in this Section 7 is due in accordance with its terms but is for
any reason held by a court to be unavailable from AirTouch or the
Underwriters on grounds of policy or otherwise, AirTouch and the
Underwriters shall contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which AirTouch
or one or more of the Underwriters may be subject in such proportion
so that the Underwriters are responsible for that portion represented
by the percentage that the underwriting discount appearing on the
cover page of the Prospectus bears to the public offering price
appearing thereon and AirTouch is responsible for the balance;
provided that (y) in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering
of the Designated Securities) be responsible for any amount in excess
of the underwriting discount applicable to the Designated Securities
purchased by such Underwriter hereunder and (z) 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 7, each person who controls an Underwriter within the meaning
of either the Act or the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person who controls
AirTouch within the meaning of either the Act or the Exchange Act,
each officer of AirTouch who shall have signed the Registration
Statement and each director of AirTouch shall have the same rights to
contribution as AirTouch, subject in each case to clause (y) of this
paragraph (d). Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may
be sought, but the omission to so notify in writing such party or
parties shall not relieve the party or parties from whom contribution
may be sought from any other obligation it or they may have hereunder
or otherwise than under this paragraph (d).
8. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters or the Representative, as the case may
be, by written notice given to AirTouch prior to delivery of and payment for
the Designated Securities, if prior to such time (i) trading in AirTouch's
Common Stock or securities generally on the New York Stock Exchange shall have
been suspended or materially limited, (ii) a general moratorium on commercial
banking activities in New York shall have been declared by either Federal or
New York State authorities or (iii) there shall have occurred any material
outbreak or escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
the reasonable judgment of such Underwriters or such Representative,
impracticable or inadvisable to proceed with the offering or delivery of the
Designated Securities as contemplated by the Prospectus and Prospectus
Supplement.
9. Representations and Indemnities to Survive. The respective
agreements, representations, indemnities and other statements of AirTouch, or
its officers and of the Underwriters and/or any Representative set forth in or
made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter,
AirTouch or any of the
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<PAGE> 10
officers, directors or controlling persons referred to in Section 7 hereof, and
will survive delivery of and payment for the Securities. The provisions of
Sections 5(e) and 7 hereof shall survive the termination or cancellation of
this Agreement.
10. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any Designated Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining Underwriters shall be obligated severally to take
up and pay for (in the respective proportions which the amount of Designated
Securities set forth opposite their names in the appropriate schedule of the
Underwriting Agreement bears to the aggregate amount of Designated Securities
set forth opposite the names of all the remaining Underwriters) the Designated
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase; provided, however, that in the event that the aggregate amount of
Designated Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the amount of Designated Securities
set forth in the appropriate schedule of the Underwriting Agreement, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Designated Securities, and if such
nondefaulting Underwriters do not purchase all the Designated Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
AirTouch. In the event of a default by any Underwriter as set forth in this
Section 10, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representative or Underwriters, as the case may be, shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to AirTouch and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
12. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
-9-
<PAGE> 11
EXHIBIT A
[FORM OF PILLSBURY MADISON & SUTRO OPINION]
[Date]
Underwriter(s)
Gentlemen and Mesdames:
We have acted as counsel to AirTouch Communications, Inc. ("AirTouch")
in connection with your purchase from AirTouch of $000,000,000 of its
Securities (the "Securities"). Such purchase is made pursuant to the
Underwriting Agreement dated _________, 19_ (the "Underwriting Agreement")
between AirTouch and you, the Underwriter[s]. This opinion is furnished
pursuant to Section 6(b) of the Underwriting Agreement. Terms defined in the
Indenture have the same meanings when used in this opinion.
We have examined executed copies of the Securities, the Underwriting
Agreement, the Registration Statement (as hereinafter defined) and the
Prospectus (as hereinafter defined). We have also examined such other
documents and certificates of public officials and representatives of AirTouch
as we have deemed necessary as a basis for the opinions expressed herein. As
to questions of fact material to such opinions, we have, when relevant facts
were not independently established, relied upon certificates of officers or
authorized representatives of AirTouch.
We have assumed the genuineness of all signatures and documents
submitted to us as originals, that all copies submitted to us conform to the
originals, the legal capacity of all natural persons, and as to documents
executed by entities other than AirTouch, that each of such entities has the
power to enter into and perform its respective obligations thereunder, and that
such documents have been duly authorized, executed and delivered by, and are
binding upon and enforceable against, each of such entities.
We express no opinion as to the laws of any jurisdiction other than
California, New York and the general corporate law of Delaware and the Federal
laws of the United States of America, and, with respect to questions of New
York law, we have relied, with your permission, solely upon the opinion of
[_________].
Based upon the foregoing and subject to the qualifications set forth
below, it is our opinion that:
1. AirTouch is validly existing and in good standing under the
laws of the State of Delaware and is duly qualified and in good standing to do
business in each other state identified in Attachment 1 hereto and possesses
the requisite corporate power and authority to own its properties and conduct
its business consistent with any description thereof in the prospectus dated
_________ and the prospectus supplement dated _________, filed with the
Securities and Exchange Commission (the "Commission") pursuant to Rule
424(b)(2) of Regulation C under the Securities Act of 1933, as amended (the
"Act") (the prospectus and the prospectus supplement, including the documents
incorporated by reference therein, are herein collectively referred to as the
"Prospectus").
2. The Underwriting Agreement has been duly authorized, executed
and delivered by AirTouch.
<PAGE> 12
3. The Securities have been duly authorized, executed and
delivered by AirTouch and when delivered to and paid for by the Underwriters
pursuant to the Underwriting Agreement will constitute valid and binding
obligations of AirTouch, enforceable in accordance with their respective terms.
4. The Indenture has been duly authorized, executed and
delivered, has been qualified under the Trust Indenture Act of 1939, as
amended, and constitutes a valid and binding obligation of AirTouch,
enforceable in accordance with its terms and when the Designated Securities
have been executed and authenticated in accordance with the provisions of the
Indenture they will be entitled to the benefits of the Indenture.
5. The Registration Statement on Form S-3 (File No. _________)
filed by AirTouch with the Commission under Rule 415 of the Act on _________,
1995 (such Registration Statement including the documents incorporated by
reference therein being herein collectively referred to as the "Registration
Statement") has become effective under the Act, and, to the best of our
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and, except as may be
otherwise indicated in the Prospectus or required by the blue sky or securities
laws of jurisdictions in which the Securities are offered or Securities or the
offer and sale of the Securities as described in the Prospectus, and the
execution, delivery and performance of the terms of the Underwriting Agreement,
the Indenture and the Securities by AirTouch will not contravene any provision
of the Restated Certificate of Incorporation, as amended, or By-Laws of
AirTouch, any Federal law or regulation or, to the best of our knowledge, any
applicable state law or any material agreement or instrument binding upon
AirTouch.
6. No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any federal or state court is required
to be obtained or made by AirTouch for the consummation of the transactions
contemplated by this Agreement in connection with the sale of the Designated
Securities, except (A) such as have been obtained and made under the Act or the
Exchange Act, or the rules and regulations thereunder, the bylaws and rules of
the National Association of Securities Dealers, Inc. and (B) such as may be
required under state or foreign securities laws.
7. To the best of our knowledge, there is no pending or
threatened action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator involving AirTouch or any of its
subsidiaries of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus or supplement
relating thereto.
8. The Registration Statement and the Prospectus comply as to
form in all material respects with the requirements of the Act and the rules
and regulations of the Commission thereunder; each document filed by AirTouch
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus complied as to form in all material
respects when so filed with the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder; the statements in the Prospectus
with respect to the terms of the Securities fairly summarize the terms of such
instruments and to the best of our knowledge there are no other agreements or
instruments required to be described or referred to in the Registration
Statement which have not been described or referred to therein; and while we
have not ourselves checked the accuracy or completeness of, or otherwise
verified the information furnished in the Registration Statement, we have
considered the information required to be furnished therein and have generally
reviewed and had discussions with certain officers and employees of AirTouch
concerning the information so furnished, whether or not subject to our checking
and verification, and on the basis of such consideration, review and
discussions, but without independent checking or verification, we have no
reason to believe that the
<PAGE> 13
Registration Statement or any amendment thereto at the time the Registration
Statement or amendment became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or the Prospectus or
any supplement thereto at the time it was filed pursuant to Rule 424(b) of the
Act, or on such Closing Date, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances in
which they were made, not misleading; it being understood that with respect to
the matters covered by this paragraph 8, we express no opinion as to the
financial statements and related schedules and other financial, statistical or
numerical data contained in the Registration Statement or the Prospectus.
The opinions set forth in the foregoing are subject to the following
qualifications:
(a) Our opinions in paragraph 3 and 4 are subject to and limited
by: (i) the effect of bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other laws affecting or relating to
the rights of creditors generally; (ii) the rules governing the availability of
specific performance, injunctive relief or other equitable remedies and general
principles of equity, regardless of whether considered in a proceeding in
equity or at law; (iii) to the extent applicable, the effect of court decisions
invoking statutes or principles of equity, which have held that certain
covenants and provisions of agreements are unenforceable where the breach of
such covenants or provisions imposes restrictions or burdens is necessary for
the protection of the creditor, or which have held that the creditor's
enforcement of such covenants or provisions under the circumstances would have
violated the creditor's covenants of good faith and fair dealing implied under
California law, and (iv) to the extent applicable, the effect of California
statutes and rules of law which cannot be waived prospectively by a borrower.
(b) Whenever a statement herein is qualified by "known to us", "to
our knowledge" or similar phrase, it indicates that in the course of our
representation of AirTouch no information that would give us current actual
knowledge of the inaccuracy of such statement has come to the attention of the
attorneys in this firm who have rendered legal services in connection with this
transaction, including the principal partners of this firm who are familiar
with matters relating to AirTouch. We have not made any independent
investigation to determine the accuracy of such statement, except as expressly
described herein. No inference as to our knowledge of any matters bearing on
the accuracy of such statement should be drawn from the fact of our
representation of AirTouch in other matters in which such attorneys are not
involved.
This opinion is rendered by us as counsel for AirTouch solely for your
benefit in connection with the transaction referred to herein and may not be
relied upon by you in connection with any other transaction and may not be
relied upon by any other person without our prior written consent.
Very truly yours,
<PAGE> 1
EXHIBIT 1.2
================================================================================
AIRTOUCH COMMUNICATIONS, INC.
EQUITY SECURITIES
_________
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
================================================================================
<PAGE> 2
AIRTOUCH COMMUNICATIONS, INC.
EQUITY SECURITIES
_________
UNDERWRITING AGREEMENT STANDARD PROVISIONS
From time to time, AirTouch Communications, Inc., a Delaware
corporation ("AirTouch"), may enter into one or more underwriting agreements
that provide for the sale of certain equity securities (the "Securities"), to
the purchaser or purchasers named therein (the "Underwriters"). The standard
provisions set forth herein may be incorporated by reference in any such
underwriting agreement (the "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is
herein referred to as "this Agreement." Unless otherwise defined herein, terms
defined in the Underwriting Agreement are used herein as therein defined.
Capitalized terms not otherwise defined in this Agreement shall have the
meaning ascribed thereto in the Indenture (as hereinafter defined).
The terms governing of the issuance and sale of any particular series
of Securities shall be as provided in the applicable Underwriting Agreement
(with respect to each Underwriting Agreement, such series of Securities are
herein referred to as the "Designated Securities").
1. Issuance of Designated Securities. Sales of the Designated Securities
may be made from time to time to the Underwriters of the Designated Securities.
Any firm or firms designated as the representative or representatives, as the
case may be, of the Underwriters of the Designated Securities in the
Underwriting Agreement relating thereto will act as the representative or
representatives (the "Representative"). The obligation of AirTouch to issue
and sell any of the Designated Securities and the obligation of any
Underwriters to purchase any of the Designated Securities shall be evidenced by
the Underwriting Agreement with respect to the Designated Securities specified
therein. Each Underwriting Agreement shall specify the aggregate principal
amount of the Designated Securities, the public offering price of the
Designated Securities, the purchase price to the Underwriters of the Designated
Securities, the names of the Underwriters of the Designated Securities, the
name of the Representative, if any, of such Underwriters, the principal amount
of the Designated Securities to be purchased by each Underwriter and the terms
of any Delayed Delivery Contract (as hereinafter defined), and shall set forth
the date, time and manner of delivery of the Designated Securities and payment
therefor. The Underwriting Agreement shall also specify, to the extent not set
forth in the Registration Statement and Prospectus (as hereinafter defined)
with respect thereto, the general terms of the Designated Securities. An
Underwriting Agreement shall be in writing (which may be in counterparts), and
may be evidenced by an exchange of facsimile transmissions. The obligations of
the Underwriters under each Underwriting Agreement shall be several and not
joint.
If AirTouch agrees, the Underwriters may solicit offers to purchase
the Designated Securities pursuant to delayed delivery contracts ("Delayed
Delivery Contracts") in a form agreed upon by AirTouch. The Underwriters shall
be paid their specified commission for Delayed Delivery Contracts upon the full
performance of the Delayed Delivery Contracts. If the Delayed Delivery
Contracts are invalid or are not fully performed, then the Underwriters shall
not be entitled to any compensation for their efforts in securing such Delayed
Delivery Contracts.
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<PAGE> 3
If the Delayed Delivery Contracts are executed, valid and fully
performed, the Designated Securities delivered pursuant to them shall be
deducted from the Designated Securities to be purchased by the Underwriters and
the aggregate principal amount of Designated Securities to be purchased by each
Underwriter shall be reduced pro rata in proportion to the principal amount of
Designated Securities set forth opposite each Underwriter's name in the
Underwriting Agreement, except to the extent that the Representative determines
that such reduction shall be otherwise than in such proportion and so advises
AirTouch in writing; provided, however, that the total principal amount of
securities to be purchased by all Underwriters shall be the aggregate principal
amount set forth in the appropriate schedule thereto, less the aggregate
principal amount of Designated Securities to be delivered pursuant to the
delayed delivery provisions.
2. Representations and Covenants. AirTouch represents to, and covenants
with, each Underwriter that:
(a) AirTouch meets the requirements for the use of Form S-3
and a registration statement on Form S-3 (Registration No. 33-__),
including a prospectus, relating to the Securities of AirTouch has been
filed with the Securities and Exchange Commission (the "Commission") in
accordance with applicable regulations of the Commission under the
Securities Act of 1933, as amended (the "Act"), and has been declared
effective under the Act. Such registration statement, as amended to the
date of this Agreement, is hereinafter referred to as the "Registration
Statement," and such prospectus as proposed to be supplemented by a
prospectus supplement (the "Prospectus Supplement") relating to the
Designated Securities to be filed pursuant to Rule 424 under the Act is
hereinafter referred to as the "Prospectus." Any reference herein to
the Registration Statement or the Prospectus shall be deemed to refer to
and include the documents which were filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") on or before the date of
this Agreement, and incorporated by reference in the Prospectus pursuant
to Item 12 of Form S-3, excluding any documents or portions of such
documents which are deemed under the rules and regulations of the
Commission under the Act not to be incorporated by reference; and any
reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement or the Prospectus shall be deemed
to refer to and include the filing of any document under the Exchange
Act deemed to be incorporated therein by reference after the date of
this Agreement. For purposes of this Agreement, "Effective Time" with
respect to the Registration Statement means (A) if AirTouch has not
advised the Representative that is proposes to amend such registration
statement, the date and time as of which such registration statement, or
the most recent post-effective amendment thereto (if any) filed prior to
the execution and delivery of this Agreement, was declared effective by
the Commission or has become effective upon filing pursuant to Rule
462(c) under the Act, or (B) if AirTouch has advised the Representative
that it proposes to file an amendment or post-effective amendment to
such registration statement, the date and time as of which such
registration statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the Commission.
"Effective Date" with respect to the Registration Statement means the
date of the Effective Time thereof.
(b) At the Effective Time, the Registration Statement and
the Prospectus conformed, and any proposed amendments thereof and
supplements thereto relating to the
-2-
<PAGE> 4
Designated Securities will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder; each document filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied when so filed as
to form with the Exchange Act and the rules and regulations of the
Commission thereunder; on the Effective Date neither the Registration
Statement nor the Prospectus as of the date thereof and on the Closing
Date included or will include any untrue statement of a material fact
or omitted or will omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the case
of the Registration Statement, not misleading, or in the case of the
Prospectus, in light of the circumstances in which they were made, not
misleading; provided, however, that AirTouch makes no representations
as to any statements or omissions made in reliance upon and in
conformity with information furnished to AirTouch by or on behalf of
any Underwriter for use in connection with the preparation of such
documents.
(c) Neither AirTouch nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes.
3. Delivery and Payment. Delivery of and payment for the Designated
Securities (except for Designated Securities to be delivered under Delayed
Delivery Contracts) shall be made at the office of counsel to the Underwriters,
on the date and at the time specified in the Underwriting Agreement (the
"Closing Date"), which Closing Date may be postponed by agreement between the
Underwriters, or the Representative, as the case may be, and AirTouch. Delivery
of the Designated Securities shall be made to the Underwriters or, if
appropriate, the Representative for the respective accounts of the Underwriters,
in either case, against payment by the Underwriters directly or through the
Representative of the purchase price thereof to or upon the order of AirTouch by
certified or official bank check or checks payable in New York Clearing House
funds, unless otherwise agreed in the Underwriting Agreement. Certificates for
the Designated Securities shall be registered in such names and in such
denominations as the Representative may request in writing not less than one
full business day in advance of the Closing Date.
If so requested by the Underwriters or the Representative, as the case
may be, AirTouch agrees to have the Designated Securities available for
inspection, checking and packaging in New York, New York, at least one business
day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Designated Securities for sale to the public upon the
terms and conditions set forth in the Prospectus.
5. Agreements. AirTouch agrees with the Underwriters that:
(a) AirTouch will cause the Prospectus Supplement to be
filed pursuant to Rule 424 under the Act and will promptly advise the
Underwriters or the Representative, as the case may be, when the
Prospectus Supplement has been so filed, and prior to the termination
of the offering of the Designated Securities will promptly advise such
Underwriters or Representative (i) when any amendment to the
Registration Statement has been declared effective or has become
effective upon filing pursuant to Rule 462(c) under the Act or any
further supplement to the Prospectus has been filed, (ii) of any
request by the Commission for any amendment of the Registration
Statement or the Prospectus or for any additional information, (iii)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that
-3-
<PAGE> 5
purpose and (iv) of the receipt by AirTouch of any notification with
respect to the suspension of the qualification of the Designated
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. AirTouch will use its
best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
AirTouch will not file any amendment to the Registration Statement or
supplement to the Prospectus relating to the Designated Securities
unless it has furnished the Underwriters or the Representative, as the
case may be, a copy prior to filing and will not file any such
proposed amendment or supplement to which such Underwriters or
Representative reasonably objects.
(b) If, at any time when a prospectus relating to the
Designated Securities is required to be delivered under the Act or any
other applicable securities law, any event occurs as a result of which
the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend or supplement the Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder,
AirTouch will promptly notify the Underwriters or the Representative,
as the case may be, and will promptly prepare and file with the
Commission, subject to paragraph (a) of this Section 5, an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance.
(c) AirTouch will make generally available to its
security holders and to the Underwriters or the Representative, as the
case may be, as soon as practicable, but not later than 45 days after
the end of the 12-month period beginning at the end of the fiscal
quarter of AirTouch during which the filing of the Prospectus
Supplement pursuant to Rule 424 under the Act first occurs (except not
later than 90 days if such filing date is in the last fiscal quarter),
an earnings statement (which need not be audited) of AirTouch and its
consolidated subsidiaries, covering such 12-month period, which will
satisfy the provisions of Section 11 (a) of the Act.
(d) AirTouch will furnish to the Underwriters or the
Representative, as the case may be, and counsel for such Underwriters
or for such Representative copies of the Registration Statement
(including, if requested, the exhibits thereto and the documents
incorporated by reference in the Prospectus) and each amendment or
supplement thereto relating to the Designated Securities which is
thereafter filed pursuant to paragraph (a) or (b) of this Section 5
and to each Underwriter, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act or other applicable
securities laws, as many copies of the Prospectus and any amendments
thereof and supplements thereto, relating to the Designated
Securities, as such Underwriters or such Representative may reasonably
request.
(e) AirTouch will pay (i) all expenses incurred by it in
the performance of its obligations under this Agreement, (ii)
reasonable fees charged for rating the Designated Securities and for
preparing a Blue Sky and Legal Investment Memorandum with respect to
the sale of the Designated Securities and (iii) the expenses of
printing or otherwise producing and delivering the Designated
Securities, the documents specified in paragraph (d) of this Section 5
and any Blue Sky and Legal Investment Memorandum.
-4-
<PAGE> 6
(f) AirTouch will use its best efforts to arrange and pay
for the qualification of the Designated Securities for sale under the
laws of such jurisdictions as the Underwriters or the Representative,
as the case may be, may designate and to maintain such qualifications
in effect so long as required for the distribution of the Designated
Securities; provided, however, that AirTouch shall not be required to
qualify to do business in any jurisdiction where it is not now
qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now
so subject.
(g) If the sale of the Designated Securities provided for
in an Underwriting Agreement is not consummated by reason of any
failure, refusal or inability on the part of AirTouch to perform any
agreement on its part to be performed (except for any failure so to
perform on the part of AirTouch engendered by a failure, refusal or
inability on the part of the Underwriters or any Representative to
perform any agreement on their part to be performed) or the failure of
any condition set forth in Section 6, AirTouch will reimburse the
several Underwriters who are named in such Underwriting Agreement for
all reasonable out-of-pocket disbursements incurred by the
Underwriters in connection with their investigation, marketing and
preparing to market the Designated Securities, and upon such
reimbursement AirTouch shall have no further liability to the
Underwriters except as provided in Section 7.
(h) During the period beginning on the date of this
Agreement and terminating on the later of (i) the Closing Date or
(ii) the date of notice to AirTouch by the Representative or the
Underwriters, (which shall not exceed forty-five days from the date
of this Agreement), AirTouch will not offer, sell, contract to sell
or otherwise dispose of any Designated Securities of AirTouch, or
securities convertible into or exchangeable for Designated Securities,
without the prior written consent of such Representative or such
Underwriters.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Designated Securities shall be subject to the
accuracy of the representations on the part of AirTouch contained herein as of
the date hereof and the Closing Date, to the performance by AirTouch of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted and be pending or threatened
as of the Closing Date;
(b) Pillsbury Madison & Sutro, counsel for AirTouch,
shall have furnished to the Representative their opinion, dated the
Closing Date, substantially in the form attached hereto as Exhibit A;
(c) The Underwriters or the Representative, as the case
may be, shall have received from counsel for the Underwriters such
opinion or opinions, dated the Closing Date, with respect to such
matters as such Underwriters or Representative may reasonably require;
(d) AirTouch shall have furnished to the Underwriters or
the Representative, as the case may be, a certificate, dated the
Closing Date, of AirTouch,
-5-
<PAGE> 7
signed by any executive officer of AirTouch, to the effect that the
signer of such certificate has carefully examined the Registration
Statement, the Prospectus and this Agreement and that:
(1) The representations of AirTouch in this
Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on
the Closing Date, and AirTouch has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(2) No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted and are pending or, to
his or her knowledge, threatened as of such date; and
(3) Since the date of the most recent financial
statements included in or incorporated by reference into the
Prospectus, there has been no material adverse change in the
condition (financial or otherwise) of AirTouch and its
consolidated subsidiaries, taken as a whole.
(e) The Underwriters or the Representative, as the case
may be, shall have received from [Coopers & Lybrand LLP][Price
Waterhouse] a letter, dated the Closing Date, which letter shall be in
form as may be agreed upon among such Underwriters or Representative,
AirTouch and [Coopers & Lybrand LLP][Price Waterhouse], and shall
cover such matters as may be reasonably requested by such Underwriters
or Representative.
(f) Prior to the Closing Date, AirTouch shall have
furnished to the Underwriters or the Representative, as the case may
be, such further information, certificates and documents as they may
reasonably request.
(g) Subsequent to the date hereof, there shall not have
occurred any change, or any development involving a prospective
change, in or affecting the business or properties of AirTouch and its
subsidiaries considered as a whole which the Underwriters or the
Representative, as the case may be, concludes, in its judgment, after
consultation with AirTouch, materially impairs the investment quality
of the Designated Securities so as to make it impractical or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities as contemplated by the Prospectus and there
shall not have been any decrease in the ratings of any of AirTouch's
debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act).
7. Indemnification and Contribution.
(a) AirTouch agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter,
and each person, if any, who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under
-6-
<PAGE> 8
the Act, the Exchange Act or other Federal or state statutory 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 Registration Statement or the Prospectus, or in any amendment thereof or
supplement thereto relating to the Designated Securities, 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
not misleading, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by them, as so incurred, in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that AirTouch will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in conformity
with information furnished in writing to AirTouch by or on behalf of any
Underwriter through the Representative or the Underwriters, as the case may be,
for use in connection with the preparation thereof. This indemnity agreement
will be in addition to any liability which AirTouch may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless AirTouch, each of its directors, officers, employees and agents, and
each person who controls AirTouch within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from AirTouch to
each Underwriter, but only with reference to information furnished in writing
to AirTouch by or on behalf of such Underwriter directly or through any
Representative for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 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 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case any such action
is brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided that, if the defendants in 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, the
indemnified party or parties shall have the right to select separate counsel,
to assert such legal defenses and to otherwise participate in the defense of
such action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its election so
to assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 7 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel,
approved by the representatives representing the indemnified parties who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
-7-
<PAGE> 9
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall be only in respect of
the counsel referred to in such clause (i) or (iii). An indemnifying party
will not, without the prior written consent of each indemnified party, 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 the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is
due in accordance with its terms but is for any reason held by a court to be
unavailable from AirTouch or the Underwriters on grounds of policy or
otherwise, AirTouch and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to
which AirTouch or one or more of the Underwriters may be subject in such
proportion so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus bears to the public offering price appearing
thereon and AirTouch is responsible for the balance; provided that (y) in no
case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Designated Securities) be
responsible for any amount in excess of the underwriting discount applicable to
the Designated Securities purchased by such Underwriter hereunder and (z) 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 7,
each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person who controls AirTouch within the meaning of either
the Act or the Exchange Act, each officer of AirTouch who shall have signed the
Registration Statement and each director of AirTouch shall have the same rights
to contribution as AirTouch, subject in each case to clause (y) of this
paragraph (d). Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties under this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify in writing such party
or parties shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or otherwise
than under this paragraph (d).
8. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters or the Representative, as the case may
be, by written notice given to AirTouch prior to delivery of and payment for
the Designated Securities, if prior to such time (i) trading in AirTouch's
Common Stock or securities generally on the New York Stock Exchange shall have
been suspended or materially limited, (ii) a general moratorium on commercial
banking activities in New York shall have been declared by either Federal or
New York State authorities or (iii) there shall have occurred any material
outbreak or escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
the reasonable judgment of such Underwriters or such Representative,
impracticable or inadvisable to proceed with the offering or delivery of the
Designated Securities as contemplated by the Prospectus and Prospectus
Supplement.
9. Representations and Indemnities to Survive. The respective
agreements, representations, indemnities and other statements of AirTouch, or
its officers and of the Underwriters and/or any
-8-
<PAGE> 10
Representative set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter, AirTouch or any of the officers, directors or controlling
persons referred to in Section 7 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 5(e) and 7 hereof shall
survive the termination or cancellation of this Agreement.
10. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any Designated Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining Underwriters shall be obligated severally to take
up and pay for (in the respective proportions which the amount of Designated
Securities set forth opposite their names in the appropriate schedule of the
Underwriting Agreement bears to the aggregate amount of Designated Securities
set forth opposite the names of all the remaining Underwriters) the Designated
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase; provided, however, that in the event that the aggregate amount of
Designated Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the amount of Designated Securities
set forth in the appropriate schedule of the Underwriting Agreement, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Designated Securities, and if such
nondefaulting Underwriters do not purchase all the Designated Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
AirTouch. In the event of a default by any Underwriter as set forth in this
Section 10, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representative or Underwriters, as the case may be, shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to AirTouch and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
12. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
-9-
<PAGE> 11
EXHIBIT A
[FORM OF PILLSBURY MADISON & SUTRO OPINION]
[Date]
Underwriter(s)
Gentlemen and Mesdames:
We have acted as counsel to AirTouch Communications, Inc. ("AirTouch")
in connection with your purchase from AirTouch of $000,000,000 of its
Securities (the "Securities"). Such purchase is made pursuant to the
Underwriting Agreement dated _________, 19_ (the "Underwriting Agreement")
between AirTouch and you, the Underwriter[s]. This opinion is furnished
pursuant to Section 6(b) of the Underwriting Agreement. Terms defined in the
Indenture have the same meanings when used in this opinion.
We have examined executed copies of the Securities, the Underwriting
Agreement, the Registration Statement (as hereinafter defined) and the
Prospectus (as hereinafter defined). We have also examined such other
documents and certificates of public officials and representatives of AirTouch
as we have deemed necessary as a basis for the opinions expressed herein. As
to questions of fact material to such opinions, we have, when relevant facts
were not independently established, relied upon certificates of officers or
authorized representatives of AirTouch.
We have assumed the genuineness of all signatures and documents
submitted to us as originals, that all copies submitted to us conform to the
originals, the legal capacity of all natural persons, and as to documents
executed by entities other than AirTouch, that each of such entities has the
power to enter into and perform its respective obligations thereunder, and that
such documents have been duly authorized, executed and delivered by, and are
binding upon and enforceable against, each of such entities.
We express no opinion as to the laws of any jurisdiction other than
California, New York and the general corporate law of Delaware and the Federal
laws of the United States of America, and, with respect to questions of New
York law, we have relied, with your permission, solely upon the opinion of
[_________].
Based upon the foregoing and subject to the qualifications set forth
below, it is our opinion that:
1. AirTouch is validly existing and in good standing under the
laws of the State of Delaware and is duly qualified and in good standing to do
business in each other state identified in Attachment 1 hereto and possesses
the requisite corporate power and authority to own its properties and conduct
its business consistent with any description thereof in the prospectus dated
_________ and the prospectus supplement dated _________, filed with the
Securities and Exchange Commission (the "Commission") pursuant to Rule
424(b)(2) of Regulation C under the Securities Act of 1933, as amended (the
"Act") (the prospectus and the prospectus supplement, including the documents
incorporated by reference therein, are herein collectively referred to as the
"Prospectus").
2. The Underwriting Agreement has been duly authorized, executed
and delivered by AirTouch.
<PAGE> 12
3. The [Common/Preferred] Stock has been duly authorized and
validly issued, and when paid for in accordance with the terms of the
Underwriting Agreement, will be fully paid and nonassessable and/or the
[Securities] have been duly authorized, executed and delivered by AirTouch and
constitute valid and binding obligations of AirTouch, enforceable in accordance
with their terms.
4. The Registration Statement on Form S-3 (File No. _________)
filed by AirTouch with the Commission under Rule 415 of the Act on _________,
1995 (such Registration Statement including the documents incorporated by
reference therein being herein collectively referred to as the "Registration
Statement") has become effective under the Act, and, to the best of our
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and, except as may be
otherwise indicated in the Prospectus or required by the blue sky or securities
laws of jurisdictions in which the Securities are offered or Securities or the
offer and sale of the Securities as described in the Prospectus, and the
execution, delivery and performance of the terms of the Underwriting Agreement,
the Indenture and the Securities by AirTouch will not contravene any provision
of the Restated Certificate of Incorporation, as amended, or By-Laws of
AirTouch, any Federal law or regulation or, to the best of our knowledge, any
applicable state law or any material agreement or instrument binding upon
AirTouch.
5. No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any federal or state court is required
to be obtained or made by AirTouch for the consummation of the transactions
contemplated by this Agreement in connection with the sale of the Designated
Securities, except (A) such as have been obtained and made under the Act or the
Exchange Act, or the rules and regulations thereunder, the bylaws and rules of
the National Association of Securities Dealers, Inc. and (B) such as may be
required under state or foreign securities laws.
6. To the best of our knowledge, there is no pending or
threatened action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator involving AirTouch or any of its
subsidiaries of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus or supplement
relating thereto.
7. The Registration Statement and the Prospectus comply as to
form in all material respects with the requirements of the Act and the rules
and regulations of the Commission thereunder; each document filed by AirTouch
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus complied as to form in all material
respects when so filed with the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder; the statements in the Prospectus
with respect to the terms of the Securities fairly summarize the terms of such
instruments and to the best of our knowledge there are no other agreements or
instruments required to be described or referred to in the Registration
Statement which have not been described or referred to therein; and while we
have not ourselves checked the accuracy or completeness of, or otherwise
verified the information furnished in the Registration Statement, we have
considered the information required to be furnished therein and have generally
reviewed and had discussions with certain officers and employees of AirTouch
concerning the information so furnished, whether or not subject to our checking
and verification, and on the basis of such consideration, review and
discussions, but without independent checking or verification, we have no
reason to believe that the Registration Statement or any amendment thereto at
the time the Registration Statement or amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or the Prospectus or any supplement thereto at the time it was filed
pursuant to Rule 424(b) of the Act, or on such Closing Date, contained any
untrue statement of a material fact or omitted to state any material
<PAGE> 13
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances in which they were made, not misleading; it
being understood that with respect to the matters covered by this paragraph 7,
we express no opinion as to the financial statements and related schedules and
other financial, statistical or numerical data contained in the Registration
Statement or the Prospectus.
The opinions set forth in the foregoing are subject to the following
qualifications:
(a) Our opinions in paragraph 3 are subject to and limited by: (i)
the effect of bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other laws affecting or relating to
the rights of creditors generally; (ii) the rules governing the availability of
specific performance, injunctive relief or other equitable remedies and general
principles of equity, regardless of whether considered in a proceeding in
equity or at law; (iii) to the extent applicable, the effect of court decisions
invoking statutes or principles of equity, which have held that certain
covenants and provisions of agreements are unenforceable where the breach of
such covenants or provisions imposes restrictions or burdens is necessary for
the protection of the creditor, or which have held that the creditor's
enforcement of such covenants or provisions under the circumstances would have
violated the creditor's covenants of good faith and fair dealing implied under
California law, and (iv) to the extent applicable, the effect of California
statutes and rules of law which cannot be waived prospectively by a borrower.
(b) Whenever a statement herein is qualified by "known to us", "to
our knowledge" or similar phrase, it indicates that in the course of our
representation of AirTouch no information that would give us current actual
knowledge of the inaccuracy of such statement has come to the attention of the
attorneys in this firm who have rendered legal services in connection with this
transaction, including the principal partners of this firm who are familiar
with matters relating to AirTouch. We have not made any independent
investigation to determine the accuracy of such statement, except as expressly
described herein. No inference as to our knowledge of any matters bearing on
the accuracy of such statement should be drawn from the fact of our
representation of AirTouch in other matters in which such attorneys are not
involved.
This opinion is rendered by us as counsel for AirTouch solely for your
benefit in connection with the transaction referred to herein and may not be
relied upon by you in connection with any other transaction and may not be
relied upon by any other person without our prior written consent.
Very truly yours,
<PAGE> 1
EXHIBIT 4.4
CERTIFICATE OF TRUST
OF
ATI FINANCING I
This Certificate of Trust of AirTouch Financing I (the
"Trust"), dated September 19, 1995, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. Sections 3801 et seq.).
1. Name. The name of the business trust formed hereby
is ATI Financing I.
2. Delaware Trustee. The name and business address of
the trustee of the Trust with a principal place of business in the State of
Delaware are The Bank of New York (Delaware), a Delaware banking corporation,
White Clay Center, Route 273, Newark, Delaware.
3. Effective Date. This certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustees
of the Trust, have executed this Certificate of Trust as of the date first
above written.
/s/
------------------------------------
Sam Ginn
Trustee
/s/
------------------------------------
Mohan S. Gyani
Trustee
/s/
------------------------------------
Margaret G. Gill
Trustee
<PAGE> 2
THE BANK OF NEW YORK,
as trustee
By: /s/
--------------------------------
Name:
Title:
THE BANK OF NEW YORK (Delaware),
as trustee
By: /s/
--------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 4.5
CERTIFICATE OF TRUST
OF
ATI FINANCING II
This Certificate of Trust of AirTouch Financing II (the
"Trust"), dated September 19, 1995, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. Sections 3801 et seq.).
1. Name. The name of the business trust formed hereby
is ATI Financing II.
2. Delaware Trustee. The name and business address of
the trustee of the Trust with a principal place of business in the State of
Delaware are The Bank of New York (Delaware), a Delaware banking corporation,
White Clay Center, Route 273, Newark, Delaware.
3. Effective Date. This certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustees
of the Trust, have executed this Certificate of Trust as of the date first
above written.
/s/
------------------------------------
Sam Ginn
Trustee
/s/
------------------------------------
Mohan S. Gyani
Trustee
/s/
------------------------------------
Margaret G. Gill
Trustee
<PAGE> 2
THE BANK OF NEW YORK,
as trustee
By: /s/
--------------------------------
Name:
Title:
THE BANK OF NEW YORK (Delaware),
as trustee
By: /s/
--------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 4.6
================================================================================
FORM OF
AMENDED AND RESTATED DECLARATION
OF TRUST
ATI FINANCING[]
Dated as of __________, 1995
================================================================================
<PAGE> 2
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
------------------- -----------
<S> <C>
310(a)............................................. 5.3(a)
310(b)............................................. 5.3(d)
310(c)............................................. Inapplicable
311(a)............................................. 2.2(b)
311(b)............................................. 2.2(b)
311(c)............................................. Inapplicable
312(a)............................................. 2.2(a)
312(b)............................................. 2.2(c)
312(c) ............................................. 2.2(d)
313................................................ 2.3
314(a)............................................. 2.4
314(b)............................................. Inapplicable
314(c)............................................. 2.5
314(d)............................................. Inapplicable
314(e) ............................................ 2.4
314(f)............................................. Inapplicable
315(a)............................................. 3.9(b)
315(b)............................................. 2.7
315(c)............................................. 3.9(a)
315(d)............................................. 3.9(b)
315(e)............................................. 2.6(d)
316(a)............................................. Exhibit A, 2.6
316(b)............................................. 2.6(e)
316(c)............................................. 3.6(e)
317(a)............................................. 3.8(g)
317(b)............................................. 3.8(h)
318(a)............................................. 2.1(c)
318(b)............................................. Inapplicable
318(c)............................................. 2.1(c)
-----------------
</TABLE>
* This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
-2-
<PAGE> 3
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
ATI FINANCING [ ]
_______, 1995
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of , 1995 by the undersigned trustees (together with all other
Persons from time to time duly appointed and serving as trustees in accordance
with the provisions of this Declaration, the "Trustees"), AirTouch
Communications, Inc., a Delaware corporation, as trust sponsor, and by the
holders, from time to time, of undivided beneficial interests in the Trust to be
issued pursuant to this Declaration;
WHEREAS, the Trustees and the sponsor established a trust (the "Trust")
under the Delaware Business Trust Act pursuant to a Declaration of Trust, dated
as of , 1995 (the "Original Declaration") and a Certificate of
Trust filed with the Secretary of State of Delaware on , 1995,
for the sole purpose of issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust and investing the
proceeds thereof in certain Subordinated Notes of the Subordinated Note Issuer;
WHEREAS, as of the date hereof, no interests in the Trust have been issued;
WHEREAS, all of the Trustees and the sponsor, by this Declaration, amend
and restate each and every term and provision of the Original Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
1.1 DEFINITIONS
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) A term defined anywhere in this Declaration has the same meaning
throughout;
(c) All references to "the Declaration" or "this Declaration" are to this
Declaration of Trust as modified, supplemented or amended from time to time;
(d) All references in this Declaration to Articles and Sections and
Exhibits are to Articles and Sections of and Exhibits to this Declaration unless
otherwise specified;
-1-
<PAGE> 4
(e) A term defined in the Trust Indenture Act has the same meaning when
used in this Declaration unless otherwise defined in this Declaration or unless
the context otherwise requires; and
(f) A reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Appointment Event" means an event defined in the terms of the Preferred
Securities as set forth in Exhibit A, as such Exhibit A may be amended in
accordance with the terms of this Declaration, which entitles the Holders of a
Majority in Liquidation Amount of the Preferred Securities to appoint a Special
Regular Trustee.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Bankruptcy" means, with respect to an entity, (a) the entry by a court
having jurisdiction in the premises of a decree or order for relief in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidation, assignee,
custodian, trustee, sequestration (or similar official) of such entity or for
any substantial party of its property, or ordering the winding up or liquidation
of its affairs, if such decree or order shall remain unstayed and in effect for
a period of 60 consecutive days or (b) the commencement by such entity of a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or such entity's consent to the entry of an order
for relief in any involuntary case under any such law, or its consent to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestration (or similar official) of such entity or for
any substantial part of its property, or the making by such entity of any
general assignment for the benefit of creditors, or its failure generally to pay
its debts as they become due or the taking by such entity of any corporate
action in furtherance of any of the foregoing
"Business Day" means any day other than a day on which banking institutions
in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
DEL. C. Sections 3801 et seq., as it may be amended from time to time.
"Certificate" means a certificate representing a Security.
"Closing Date" means ____, 1995.
"Code" means the Internal Revenue Code of 1986, as amended, and as may be
amended from time to time after the date hereof.
"Commission" means the Securities and Exchange Commission.
"Common Security" has the meaning specified in Section 7.1.
"Common Securities Guarantee" means the guarantee agreement to be dated as
of , 1995 of the Sponsor in respect of the Common Securities.
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"Covered Person" means:
(a) any officer, director, shareholder, partner, member, representative,
employee or agent of:
(i) the Trust; or
(ii) the Trust s Affiliates; and
(b) any Holder of Securities.
"Definitive Preferred Security Certificates" has the meaning set forth in
Section 9.4.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Depositary" means DTC or its successor.
"Direction" by a Person means a written direction signed:
(a) if the Person is a natural person, by that Person; or
(b) in any other case, in the name of such Person by one or more
Authorized Officers of that Person.
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 6.1.
"DTC" means the Depositary Trust Company, the initial Depositary.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time or any successor legislation.
"Event of Default" in respect of the Securities means an Event of Default
(as defined in the Indenture) has occurred and is continuing in respect of the
Subordinated Notes.
"Global Security" means a certificate representing all or a portion of the
Common Securities or the Preferred Securities issued hereunder, as the case may
be, and delivered to the Depositary in accordance with Section 9.4 and bearing
the legend set forth in Section 9.4.
"Holder" means a Person in whose name a Security is registered, such Person
being a beneficial owner within the meaning of the Business Trust Act.
"Indemnified Person" means:
(a) any Trustee;
(b) any Affiliate of any Trustee;
(c) any officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee; or
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(d) any employee or agent of the Trust or its Affiliates.
"Indenture" means the Subordinated Indenture dated as of , 1995,
as supplemented by the First Supplemental Indenture, each being between the
Subordinated Note Issuer and , as trustee,
as originally executed, or as such Indenture as modified by any amendment or
supplement thereto.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Liquidation Amount" means, with respect to a Preferred Security, $_______.
"Ministerial Action" has the meaning set forth in the terms of the
Securities as set forth in Exhibit A, as such exhibit may be amended or modified
in accordance with this Declaration.
"Majority in Liquidation Amount of the Securities" means, except as
provided in the terms of the Preferred Securities and by the Trust Indenture
Act, Holder(s) of Securities voting together as a single class or, as the
context may require, Holder(s) of Preferred Securities or Common Securities
voting separately as a class, who vote Securities of a relevant class and the
aggregate Liquidation Amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of the Securities
voted by such Holders represents more than 50% of the above stated Liquidation
Amount of all Securities of such class.
"Officer's Certificate" means, with respect to any Person, a certificate
signed by an Authorized Officer of such Person. Any Officer's Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Declaration shall include:
(a) a statement that the officer signing the Certificate has read the
covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation on which the statements or opinions contained in such Certificate
are based;
(c) a statement that, in the opinion of such officer, he or she has made
such examination or investigation as is necessary to enable such officer to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
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"Preferred Securities Guarantee" means the guarantee agreement to be dated
as of , 1995 of the Sponsor in respect of the Preferred Securities.
"Preferred Security" has the meaning specified in Section 7.1.
"Pricing Agreement" means the pricing agreement between the Trust, the
Subordinated Note Issuer, and the underwriter(s) designated by the Regular
Trustees with respect to the offer and sale of the Preferred Securities.
"Property Trustee" means the Trustee meeting the eligibility requirements
set forth in Section 5.3.
"Property Trustee Account" has the meaning set forth in Section 3.8(c).
"Quorum" means a majority of the Regular Trustees or if there are only two
Regular Trustees, both of them.
"Register" means the books for the registration and transfer of
Subordinated Securities which books are kept by the Trustee in accordance with
Section 9.2.
"Regular Trustee" means any Trustee other than the Property Trustee and the
Delaware Trustee.
"Related Party" means, with respect to the Sponsor, any direct or indirect
wholly owned subsidiary of the Sponsor or any other Person which owns, directly
or indirectly, 100% of the outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the Property Trustee, the
chairman of the board of directors, the president, any vice-president, any
assistant vice-president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer or assistant trust officer or any
other officer of the Property Trustee customarily performing functions similar
to those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer s knowledge of and familiarity with
the particular subject.
"Rule 3a-7" means Rule 3a-7 under the Investment Company Act.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended, and as many
be amended from time to time hereafter.
"66-2/3% in liquidation amount of the Securities" means, except as provided
in the terms of the Preferred Securities and by the Trust Indenture Act,
Holder(s) of Securities voting together as a single class or, as the context may
require, Holder(s) of Preferred Securities or Common Securities, voting
separately as a class, who vote Securities of a relevant class and the aggregate
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions, to
the date upon which the voting percentages are determined) of the Securities
voted by such Holders represents 66- 2/3% of the above-stated liquidation amount
of all Securities of such class.
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"Special Event" has the meaning set forth in the terms of the Securities
set forth in Exhibit A, as such Exhibit A may be amended or modified in
accordance with this Declaration.
"Special Regular Trustee" means a Regular Trustee appointed by the Holders
of a Majority in Liquidation Amount of the Preferred Securities in accordance
with Section 5.6(a)(ii)(B).
"Sponsor" means AirTouch Communication, Inc., a Delaware corporation or any
successor entity in a merger, in its capacity as sponsor of the Trust.
"Subordinated Note Issuer" means AirTouch Communication, Inc., a Delaware
corporation or any successor entity in a merger, in its capacity as issuer of
the Subordinated Notes.
"Subordinated Note Trustee" means , as trustee
under the Indenture until a successor is appointed thereunder and thereafter
means such successor trustee.
"Subordinated Notes" means the series of Subordinated Notes to be issued by
the Subordinated Note Issuer under the Indenture to be held by the Property
Trustee pursuant to Section 3.6(c).
"Successor Property Trustee" means a successor Trustee possessing the
qualifications to act as Property Trustee under Section 5.3.
"10% in Liquidation Amount of the Securities" means, except as provided in
the terms of the Preferred Securities by the Trust Indenture Act, Holder(s) of
Securities voting together as a single class or, as the context may require,
Holder(s) of Preferred Securities or Common Securities, voting separately as a
class, who vote Securities of a relevant class and the Liquidation Amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of the Securities voted by such Holders
represents 10% of the above stated Liquidation Amount of all Securities of such
class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended as
of the date of this Agreement.
"25% in Liquidation Amount of the Securities" means, except as provided in
the terms of the Preferred Securities by the Trust Indenture Act, Holder(s) of
Securities voting together as a single class or, as the context may require,
Holder(s) of Preferred Securities or Common Securities, voting separately as a
class, who vote Securities of a relevant class and the Liquidation Amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of the Securities voted by such Holders
represents 25% of the above stated Liquidation Amount of all Securities of such
class.
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"Underwriting Agreement" means the Underwriting Agreement for the offering
and sale of Preferred Securities.
ARTICLE II
TRUST INDENTURE ACT
2.1 TRUST INDENTURE ACT; APPLICATION.
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration and shall, to the extent
applicable, be governed by such provisions
(b) The Property Trustee shall be the only Trustee which is a trustee for
the purposes of the Trust Indenture Act;
(c) If and to the extent that any provision of this Declaration limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control; and
(d) The application of the Trust Indenture Act to this Declaration shall
not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
2.2 LISTS OF HOLDERS OF SECURITIES.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Property Trustee not less than 45 days nor more than 60 days
after each date (month and day) that is a Distribution payment date, but in no
event less frequently than semiannually, and at such other times as the Property
Trustee may request in writing, within 30 days after receipt by the Sponsor and
Regular Trustees of any such request, a list in such form as the Property
Trustee may reasonably require containing all the information in the possession
or control of the Sponsor and the Regular Trustees, or any of its Paying Agents
other than the Property Trustee, as to the names and addresses of the Holders of
Securities, obtained since the date as of which the next previous list, if any,
was furnished, excluding from any such list the names and addresses received by
the Property Trustee in its capacity as registrar (if so acting). Any such list
may be dated as of a date not more than 15 days prior to the time such
information is furnished and need not include information received after such
date.
(b) The Property Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Securities (1)
contained in the most recent list furnished to it as provided in this Section
2.2, (2) received by the Property Trustee in the capacity of Paying Agent or
registrar (if so acting) and (3) filed with the Property Trustee within the two
preceding years as provided for in Section 2.2(a). The Property Trustee may
destroy any list furnished to it as provided in this Section 2.2 upon receipt of
a new list so furnished.
(c) If three or more Holders of Securities (hereinafter referred to as
"applicants") apply in writing to the Property Trustee, and furnish to the
Property Trustee reasonable proof that each such applicant has owned a Security
for a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders of Securities with respect to their rights under this Declaration or
under such Securities, and is accompanied by a copy of the form of proxy or
other
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communication which such applicants propose to transmit, then the Property
Trustee shall, within five Business Days after the receipt of such application,
at its election, either:
(1) afford such applicants access to the information preserved
at the time by the Property Trustee in accordance with the provisions
of this Section 2.2 or
(2) inform such applicants as to the approximate number of
Holders of Securities whose names and addresses appear in the
information preserved at the time by the Property Trustee in accordance
with the provisions of subsection (b) of this Section 2.2, and as to
the approximate cost of mailing to such Holders the form of proxy or
other communications, if any, specified in such application.
If the Property Trustee shall elect not to afford such applicants
access to such information, the Property Trustee shall, upon the written request
of such applicants, mail to each of the Holders of Securities whose name and
address appear in the information preserved at the time by the Property Trustee
in accordance with the provisions of subsection (b) of this Section 2.2, a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Property Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the
Property Trustee shall mail to such applicants and file with the Commission,
together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Property Trustee, such mailing would be
contrary to the best interests of the Holders of Securities or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Property Trustee shall mail
copies of such material to all such Holders of Securities with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(d) Each and every Holder of the Securities, by receiving and holding the
same, agrees with the Sponsor, the Regular Trustees, and the Property Trustees
that none of them nor any Paying Agent nor any registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Securities in accordance with the provisions of
subsection (c) of this Section 2.2, regardless of the source from which such
information was derived, and that the Property Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
said subsection (b).
(e) The Property Trustee shall comply with its obligations under Section
311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
2.3 REPORTS BY THE PROPERTY TRUSTEE.
Within 60 days after May 15 of each year, the Property Trustee shall
provide to the Holders of the Securities such reports as are required by Section
313(a), (b) and (c) of the Trust Indenture Act, if any, in the form and in the
manner provided by Section 313 of the Trust Indenture Act. The Property Trustee
shall also comply with the requirements of Section 313(d) of the Trust Indenture
Act.
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2.4 PERIODIC REPORTS TO PROPERTY TRUSTEE.
Each of the Sponsor, the Subordinated Note Issuer, the Regular Trustees and
any other obligor on behalf of the Trust shall provide to the Property Trustee
such documents, reports and information as required by Section 314 (if any) and
the compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor, the Subordinated Note Issuer and the Regular Trustees
on behalf of the Trust shall provide to the Property Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this
Declaration which relate to any of the matters set forth in Section 314(c) of
the Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form of an Officer's
Certificate.
2.6 EVENTS OF DEFAULT; WAIVER.
The occurrence and continuance of an Event of Default under the Indenture
with respect to the Subordinated Notes shall constitute an Event of Default
hereunder.
(a) The Holders of a Majority in Liquidation Amount of Preferred Securities
may, by vote, on behalf of the Holders of all of the Preferred Securities, waive
any past Event of Default in respect of the Preferred Securities and its
consequences provided that if the underlying Event of Default under the
Indenture :
(i) is not waivable under the Indenture, the Event of Default under
the Declaration shall also not be waivable; or
(ii) requires the consent or vote of the holders of greater than a
majority in principal amount of the Subordinated Notes affected thereby (a
"Super Majority") to be waived, the Event of Default under the Indenture may
only be waived by the vote of the Holders of at least the proportion in
liquidation amount of the Preferred Securities which the relevant Super Majority
represents of the aggregate principal amount of the Subordinated Notes which the
relevant Super Majority represents of the aggregate principal amount of the
Subordinated Notes outstanding.
(b) Upon such waiver by the Holders of a Majority in Liquidation Amount,
any such default or resulting Event of Default shall cease to exist and shall be
deemed to have been cured, for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or Event of Default with
respect to the Preferred Securities or impair any right consequent thereon. Any
waiver by the Holders of the Preferred Securities of an Event of Default with
respect to the Preferred Securities shall also be deemed to constitute a waiver
by the Holders of the Common Securities of any such Event of Default with
respect to the Common Securities for all purposes of this Declaration without
any further act, vote or consent of the Holders of the Common Securities. Each
Holder of Common Securities will be deemed to have waived any Event of Default
with respect to the Common Securities and its consequences until all Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated and until such Events of Default have been so cured, waived
or otherwise eliminated, the Property Trustee will be deemed to be acting solely
on behalf of the Holders of the Preferred Securities and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms of the Securities. Subject to the foregoing provisions
of this Section 2.6(b) upon such waiver, any such default shall cease to exist
and any
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Event of Default with respect to the Common Securities arising therefrom shall
be deemed to have been cured, for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or Event of Default with
respect to the Common Securities or impair any right consequent thereon.
(c) A waiver of any Event of Default under the Indenture by the Property
Trustee at the direction of the Holders of the applicable Liquidation Amount of
Preferred Securities, constitutes a waiver of the corresponding Event of Default
under this Declaration.
(d) Limitation on Suits by Holders. All parties to this Declaration agree,
and each Holder of any Security by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Declaration, or in any
suit against the Property Trustee for any action taken or omitted by it as
Property Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 2.6(d) shall not apply to any suit instituted by the
Property Trustee, to any suit instituted by any Holder Securities, or group of
such Holders, holding in the aggregate more than 10% percent in Liquidation
Amount of the Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of or any interest or premium on any
Security, on or after the due date expressed in such Security or for such
interest (or in the case of any redemption, on or after the Redemption Date).
(e) No Holder of any Security shall have any right by virtue or by availing
of any provision of this Subordinated Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Declaration
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such Holder previously shall have given to the Property
Trustee written notice of a continuing Event of Default, as hereinbefore
provided, and unless also the Holders of not less than 25% in Liquidation Amount
of the Securities then outstanding shall have made written request upon the
Property Trustee to institute such action, suit or proceeding in its own name as
Property Trustee hereunder and shall have offered to the Property Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby (including the reasonable fees of
counsel for the Property Trustee), and the Property Trustee, for 60 days after
its receipt of such notice, request and offer of indemnity, shall have neglected
or refused to institute any such action, suit or proceeding and no direction
inconsistent with such written request shall have been given to the Property
Trustee pursuant to this Section 2.6; it being understood and intended, and
being expressly covenanted by the taker and Holder of every Security with every
other taker and Holder and the Property Trustee, that no one or more Holders of
Securities shall have any right in any manner whatever by virtue or by availing
of any provision of this Subordinated Indenture to affect, disturb or prejudice
the rights of the Holders of any other of such Securities, or to obtain or seek
to obtain priority over or preference to any other such Holder, or to enforce
any right under this Subordinated Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders of
Securities. For the protection and enforcement of the provisions of this Section
2.6, each and every Holder and the Property Trustee shall be entitled to such
relief as can be given either at law or in equity.
Notwithstanding any other provisions in this Declaration, the right of any
Holder of any Security to receive payment of Distributions on such Security on
or after the respective due dates expressed in such Security (or, in the case of
redemption, on or after the date fixed for redemption), or to institute suit for
the enforcement of any such payment on or after such respective dates shall not
be impaired or affected without the consent of such Holder.
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2.7 EVENT OF DEFAULT; NOTICE
(a) The Property Trustee shall, within 90 days after the occurrence
of an Event of Default hereunder, give to the Holders of the Securities notice
of such Event of Default known to the Trustee unless such Event of Default shall
have been cured, remedied or waived before the giving of such notice (the term
"Event of Default" for the purposes of this Section 2.7(a) being hereby defined
to be an Event of Default irrespective of the giving of written notice specified
therein); provided, that except in the case of an Event of Default resulting
from the failure of payment of the principal of or interest on any of the
Subordinated Notes, the Property Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors and/or Responsible Officers of the Property Trustee
in good faith determines that the withholding of such notice is in the interest
of the Holders of the Subordinated Securities of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of any
default except:
(i) A default under Sections 6.01(a) and (b) of the Indenture; or
(ii) Any default as to which the Property Trustee shall have received
written notice or a Responsible Officer charged with the administration of the
Declaration shall have obtained written notice of.
(c) The Sponsor and the Regular Trustees covenant that, as soon as is
practicable, they will furnish the Property Trustee notice of any event which is
an Event of Default or which with the giving of notice or the passage of time or
both would constitute an Event of Default which has occurred and is continuing
on the date of such notice, which notice shall set forth the nature of such
event and the action which the Company proposes to take with respect thereto.
ARTICLE III
ORGANIZATION
3.1 NAME.
The Trust is named "ATI Financing [ ]", as such name may be modified from
time to time by the Regular Trustees following written notice to the Holders of
Securities. The Trust's activities may be conducted under the name of the Trust
or any other name deemed advisable by the Regular Trustees.
3.2 OFFICE.
The address of the principal office of the Trust is One California Street,
San Francisco, California 94111. On ten Business Days written notice to the
Holders of Securities, the Regular Trustees may designate another principal
office.
3.3 PURPOSE.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Securities and use the proceeds from such sale to acquire the Subordinated
Notes, and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would (i) cause the Trust to be classified for United States
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federal income tax purposes as an association taxable as a corporation or a
partnership or (ii) cause each Holder of Securities not to be treated as owning
an undivided beneficial interest in the Subordinated Notes at any time the
Securities are outstanding.
3.4 AUTHORITY.
Subject to the limitations provided in this Declaration and to the specific
duties of the Property Trustee, the Regular Trustees shall have exclusive and
complete authority to carry out the purposes of the Trust. An action taken by
the Regular Trustees in accordance with their powers shall constitute the act of
and serve to bind the Trust and an action taken by the Property Trustee in
accordance with its powers shall constitute the act of and serve to bind the
Trust. In dealing with the Trustees acting on behalf of the Trust, no person
shall be required to inquire into the authority of the Trustees to bind the
Trust. Persons dealing with the Trust are entitled to rely conclusively on the
power and authority of the Trustees as set forth in this Declaration.
3.5 TITLE TO PROPERTY OF THE TRUST.
Except as provided in Section 3.8 with respect to the Subordinated Notes
and the Property Trustee Account or as otherwise provided in this Declaration,
legal title to all assets of the Trust shall be vested in the Trust. The Holders
shall not have legal title to any part of the assets of the Trust, but shall
have an undivided beneficial interest in the assets of the Trust.
3.6 POWERS AND DUTIES OF THE REGULAR TRUSTEES.
The Regular Trustees shall have the exclusive power and authority and duty
to cause the Trust to engage in the following activities:
(a) To issue and sell the Preferred Securities and the Common Securities in
accordance with this Declaration; PROVIDED, HOWEVER, that the Trust may issue no
more than one series of Preferred Securities and no more than one series of
Common Securities, and, PROVIDED FURTHER, there shall be no interests in the
Trust other than the Securities and the issuance of Securities shall be limited
to a one-time, simultaneous issuance of both Preferred Securities and Common
Securities on the Closing Date;
(b) In connection with the issue and sale of the Preferred Securities, at
the direction of the Sponsor, to:
(i) execute and file with the Securities and Exchange Commission (the
"Commission") the registration statement on Form S-3 prepared by the Sponsor in
relation to the Preferred Securities, including any amendments thereto prepared
by the Sponsor;
(ii) execute and file any documents prepared by the Sponsor, or take
any acts as determined by the Sponsor as necessary in order to qualify or
register all or part of the Preferred Securities in any State in which the
Sponsor has determined to qualify or register such Preferred Securities for
sale;
(iii) execute and file an application prepared by the Sponsor to the
New York Stock Exchange or any other national stock exchange or the NASDAQ
National Market for listing upon notice of issuance of any Preferred Securities;
(iv) execute and file with the Commission a registration statement on
Form 8-A prepared by the Sponsor relating to the registration of the Preferred
Securities under Section 12(b) of the Exchange Act, including any amendments
thereto prepared by the Sponsor; and
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(v) execute and enter into the Underwriting Agreement and Pricing
Agreement providing for the sale of the Preferred Securities;
(c) To acquire the Subordinated Notes with the proceeds of the sale of the
Preferred Securities and the Common Securities; PROVIDED, HOWEVER, that the
Regular Trustees shall cause legal title to the Subordinated Notes to be held of
record in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Common Securities;
(d) To give the Subordinated Note Issuer, the Sponsor and the Property
Trustee prompt written notice of the occurrence of a Special Event PROVIDED,
THAT the Regular Trustees shall consult with the Subordinated Note Issuer, the
Sponsor and the Property Trustee before taking or refraining from taking any
Ministerial Action in relation to a Special Event;
(e) To establish a record date with respect to all actions to be taken
hereunder that require a record date be established, Section including for the
purposes of Section 316(c) of the Trust Indenture Act and with respect to
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Common Securities as to such
actions and applicable record dates;
(f) To take all actions and perform such duties as may be required of the
Regular Trustees pursuant to the terms of the Securities;
(g) To bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) To employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) To cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) To give the certificate to the Property Trustee required by Section
314(a)(4) of the Trust Indenture Act which certificate may be executed by any
Regular Trustee;
(k) To incur expenses which are necessary or incidental to carry out any of
the purposes of the Trust;
(l) To act as, or appoint another Person to act as, registrar and transfer
agent for the Securities;
(m) To give prompt written notice to the Holders of the Securities of any
notice received from the Subordinated Note Issuer of its election (i) to defer
payments of interest on the Subordinated Notes by extending the interest payment
period under the Indenture or, (ii) to extend the scheduled maturity date on the
Subordinated Notes;
(n) To execute all documents or instruments, perform all duties and powers,
and do all things for and on behalf of the Trust in all matters necessary or
incidental to the foregoing;
(o) To take all action which may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of
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the State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Securities or
to enable the Trust to effect the purposes for which the Trust was created;
(p) To take any action, not inconsistent with this Declaration or with
applicable law, which the Regular Trustees determine in their discretion to be
necessary or desirable in carrying out the activities of the Trust as set out in
this Section 3.6 including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust not to be characterized for United States
federal income tax purposes as an association taxable as a corporation or a
partnership but for each Holder of Securities to be treated as owning an
undivided beneficial interest in the Subordinated Notes; and
(iii) cooperating with the Subordinated Note Issuer to ensure that the
Subordinated Notes will be treated as indebtedness of the Subordinated Note
Issuer for United States federal income tax purposes, provided that such action
does not adversely affect the interests of Holders; and
(q) To take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to the Trust
to be duly prepared and filed by the Regular Trustees, on behalf of the Trust.
The Regular Trustees must exercise the powers set forth in this Section 3.6
in a manner which is consistent with the purposes and functions of the Trust set
out in Section 3.3 and the Regular Trustees shall not take any action which is
inconsistent with the purposes and functions of the Trust set forth in Section
3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of the
powers or the authority of the Property Trustee set forth in Section 3.8.
3.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.
The Trust shall not, and the Trustees (including the Property Trustee)
shall cause the Trust not to, engage in any activity other than as required or
authorized by this Declaration. In particular, the Trust shall not and the
Trustees (including the Property Trustee) shall cause the Trust not to:
(a) Invest any proceeds received by the Trust from holding the
Subordinated Notes, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the Securities;
(b) Acquire any assets other than as expressly provided herein;
(c) Possess Trust property for other than a Trust purpose;
(d) Make any loans or incur any indebtedness other than loans
represented by the Subordinated Notes;
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<PAGE> 17
(e) Possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever;
(f) Issue any securities or other evidences of beneficial ownership of,
or beneficial interest in, the Trust other than the Securities; or
(g) direct the time, method and place of exercising any trust or power
conferred upon the Subordinated Note Trustee with respect to the Subordinated
Notes, (B) waive any past default that is waivable under Section 6.06 of the
Indenture, (C) exercise any right to rescind or annul any declaration that the
principal of all the Subordinated Notes shall be due and payable or (D) consent
to any amendment, modification or termination of the Indenture or the
Subordinated Notes, where such consent shall be required, unless the Trust shall
have received an opinion of counsel to the effect that such modification will
not cause more than an insubstantial risk that for United States federal income
tax purposes the Trust will be characterized as an association taxable as a
corporation or a partnership and that each Holder of Securities will not be
treated as owning an undivided beneficial interest in the Subordinated Notes.
3.8 POWERS AND DUTIES OF THE PROPERTY TRUSTEE.
(a) The legal title to the Subordinated Notes shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of the
Holders of the Securities. The right, title and interest of the Property Trustee
to the Subordinated Notes shall vest automatically in each Person who may
hereafter be appointed as Property Trustee as set forth in Section 5.6. Such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered;
(b) The Property Trustee shall not transfer its right, title and interest
in the Subordinated Notes to the Regular Trustees or to the Delaware Trustee (if
the Property Trustee does not also act as Delaware Trustee);
(c) The Property Trustee shall:
(i) establish and maintain a segregated bank account (the "Property
Trustee Account") in the name of and under the exclusive control of the Property
Trustee on behalf of the Holders of the Securities and, upon the receipt of
payments of funds made in respect of the Subordinated Notes held by the Property
Trustee, deposit such funds into the Property Trustee Account and make payments
to the Holders of the Preferred Securities and the Common Securities from the
Property Trustee Account in accordance with Section 6.1. Funds in the Property
Trustee Account shall be held uninvested until disbursed in accordance with this
Declaration. If the Preferred Securities are not represented by a Global
Security, the Property Trustee shall hold such funds in an interest-bearing bank
account, and any interest earned on such funds shall be paid by the Property
Trustee to the Sponsor. The Property Trustee Account shall be an account which
is maintained with a banking institution either (a) the rating on whose long
term unsecured indebtedness is rated "A" or above by a "nationally recognized
statistical rating organization," as that term is defined for purposes of Rule
436(g)(2) under the Securities Act, or (b) which has capital and surplus of at
least $100,000,000;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Preferred Securities and the Common
Securities to the extent the Subordinated Notes are redeemed or mature; and
(iii) upon notice of distribution issued by the Regular Trustees in
accordance with the terms of the Preferred Securities and the Common Securities,
engage in such ministerial activities as shall be necessary
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<PAGE> 18
or appropriate to effect the distribution of the Subordinated Notes to Holders
of Securities upon the occurrence of certain special events (as may be defined
in the terms of the Securities) arising from a change in law or a change in
legal interpretation or other specified circumstances pursuant to the terms of
the Securities;
(d) The Property Trustee shall take all actions and perform such duties as
may be specifically required of the Property Trustee pursuant to the terms of
the Securities;
(e) The Property Trustee shall take any Legal Action which arises out of or
in connection with an Event of Default or the Property Trustee s duties and
obligations under this Declaration or the Trust Indenture Act;
(f) The Property Trustee shall not resign as a Trustee unless either:
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders of Securities pursuant to the terms of
the Securities; or
(ii) a Successor Property Trustee has been appointed and accepted that
appointment in accordance with Section 5.6;
(g) The Property Trustee shall have the legal power to exercise all of the
rights, powers and privileges of a holder of Subordinated Notes under the
Indenture and, if an Event of Default occurs and is continuing, the Property
Trustee shall, for the benefit of Holders of the Securities, enforce its rights
as holder of the Subordinated Note, subject to the rights of the Holders
pursuant to the terms of such Securities;
(h) The Property Trustee may authorize one or more Persons (each, a "Paying
Agent") to pay Distributions, redemption payments or liquidation payments on
behalf of the Trust with respect to the Preferred Securities and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Property Trustee at any time and a successor
Paying Agent or additional Paying Agents may be appointed at any time by the
Property Trustee; and
(i) Subject to this Section 3.8, the Property Trustee shall have none of
the powers or the authority of the Regular Trustees set forth in Section 3.6;
The Property Trustee must exercise the powers set forth in this Section 3.8 in
a manner which is consistent with the purposes and functions of the Trust set
forth in Section 3.3 and the Property Trustee shall not take any action which
is inconsistent with the purposes and functions of the Trust set out in Section
3.3.
3.9 CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY TRUSTEE
(a) The Property Trustee, before the occurrence of any Event of Default and
after the curing or waiver of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration in Sections 2.2, 2.3, 2.7, 3.8, 3.9, 3.10 and 6.1 and in the
terms of the Securities, and no implied covenants shall be read into this
Declaration against the Property Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6), the
Property Trustee shall exercise such of the rights and powers vested in it by
this Declaration, and use the same degree of care and skill in its exercise, as
a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs;
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(b) No provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) Prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee shall be
determined solely by the express provisions of this Declaration in Sections 2.2,
2.3, 2.7, 3.8, 3.9, 3.10 and 6.1 and in the terms of the Securities, and the
Property Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Declaration, and no
implied covenants or obligations shall be read into this Declaration against the
Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Property Trustee and conforming to the
requirements of this Declaration; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished
to the Property Trustee, the Property Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this
Declaration;
(ii) The Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property Trustee,
unless it shall be proved that the Property Trustee was negligent in
ascertaining the pertinent facts;
(iii) The Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a Majority in Liquidation Amount of
the Securities at the time outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee, or
exercising any trust or power conferred upon the Property Trustee under this
Declaration; and
(iv) No provision of this Declaration shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if it shall have reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to it under the
terms of this Declaration or adequate indemnity against such risk or liability
is not reasonably assured to it.
3.10 CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 3.9:
(a) The Property Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or presented by the
proper party or parties;
(b) Any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced by a Direction
or an Officer s Certificate;
(c) Whenever in the administration of this Declaration, the Property
Trustee shall deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Property
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Trustee (unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part and, if the Trust is excluded from the
definition of an Investment Company solely by means of Rule 3a-7, subject to the
requirements of Rule 3a-7, request and rely upon an Officer s Certificate which,
upon receipt of such request, shall be promptly delivered by the Sponsor or the
Regular Trustees;
(d) The Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (or any rerecording, refiling or
registration thereof);
(e) The Property Trustee may consult with counsel and the written
advice or opinion of such counsel with respect to legal matters shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with such
advice or opinion. Such counsel may be counsel to the Sponsor or any of its
Affiliates, and may include any of its employees. The Property Trustee shall
have the right at any time to seek instructions concerning the administration of
this Declaration from any court of competent jurisdiction;
(f) The Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Declaration at the request or
direction of any Holder, unless such Holder shall have provided to the Property
Trustee adequate security and indemnity which would satisfy a reasonable person
in the position of the Property Trustee, against the costs, expenses (including
attorneys fees and expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable advances as
may be requested by the Property Trustee provided that, nothing contained in
this Section 3.10(f) shall be taken to relieve the Property Trustee, upon
the occurrence of an Event of Default, of its obligation to exercise the rights
and powers vested in it by this Declaration;
(g) The Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Property Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(h) The Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Property Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(i) Any action taken by the Property Trustee or its agents hereunder
shall bind the Trust and the Holders of the Securities and the signature of the
Property Trustee or its agents alone shall be sufficient and effective to
perform any such action; and no third party shall be required to inquire as to
the authority of the Property Trustee to so act, or as to its compliance with
any of the terms and provisions of this Declaration, both of which shall be
conclusively evidenced by the Property Trustee s or its agent s taking such
action;
(j) Whenever in the administration of this Declaration the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders of the Securities which
instructions may only be given by the Holders of the same portion in Liquidation
Amount of the Securities as would be entitled to direct the Property Trustee
under the terms of the Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be protected in acting in
accordance with such instructions; and
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(k) Except as otherwise expressly provided by this Declaration, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Declaration.
No provision of this Declaration shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
3.11 DELAWARE TRUSTEE
Notwithstanding any other provision of this Declaration other than Section
5.2, the Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Regular Trustees and the Property Trustee described in this Declaration. Except
as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for
purposes of the Trust Indenture Act. Any Paying the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Business Trust Act.
3.12 EXECUTION OF DOCUMENTS
Unless otherwise determined by the Regular Trustees and except as otherwise
required by the Business Trust Act, a majority of, or if there are only two,
both of the Regular Trustees are authorized to execute on behalf of the Trust
any documents which the Regular Trustees have the power and authority to execute
pursuant to Section 3.6, PROVIDED THAT any listing application prepared by the
Sponsor referred to in Section 3.6(b)(iii) may be executed by any Regular
Trustee.
3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
3.14 DURATION OF TRUST.
The Trust, unless terminated pursuant to the provisions of Article VIII
hereof, shall have existence for 55 years from the Closing Date.
3.15 MERGERS
(a) The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described in Section 3.15(b) and (c);
(b) The Trust may, with the consent of a majority of the Regular Trustees
or, if there are only two Regular Trustees, with the consent of both Regular
Trustees, and without the consent of the Holders of the Securities, the Delaware
Trustee or the Property Trustee, consolidate, amalgamate, merge with or into, or
be replaced by a trust organized as such under the laws of any State; PROVIDED,
THAT:
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(i) Such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust under
the Securities; or
(B) substitutes for the Securities other securities having
substantially the same terms as the Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the Preferred
Securities rank with respect to Distributions and payments upon liquidation,
redemption and maturity;
(ii) The Subordinated Note Issuer expressly acknowledges a trustee of
the Successor Entity which possesses the same powers and duties as the Property
Trustee as the Holder of the Subordinated Note;
(iii) The Preferred Securities or any Successor Securities are listed,
or any Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed;
(iv) Such merger, consolidation, amalgamation or replacement does not
cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization;
(v) Such merger, consolidation, amalgamation or replacement does not
adversely affect the rights, preferences and privileges of the Holders of the
Securities (including any Successor Securities) in any material respect (other
than with respect to any dilution of the Holders interest in the new entity);
(vi) Such successor entity has a purpose identical to that of the
Trust;
(vii) Prior to such merger, consolidation, amalgamation or replacement,
the Sponsor has received an opinion of a nationally recognized independent
counsel to the Trust experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the Holders of
the Preferred Securities (including any Successor Securities) in any material
respect (other than with respect to any dilution of the Holders interest in the
new entity); and
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will be required to
register as an Investment Company; and
(viii) The Sponsor guarantees the obligations of such Successor Entity
under the Successor Securities at least to the extent provided by the Preferred
Securities Guarantee; and
(c) Notwithstanding Section 3.15(b), the Trust shall not consolidate,
amalgamate, merge with or into, or be replaced by any other entity or permit any
other entity to consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger or replacement would cause the Trust or
Successor Entity for United States federal income tax purposes to be classified
as an association taxable as a corporation or a partnership and each Holder of
the Securities not to be treated as owning an undivided beneficial interest in
the Subordinated Notes, except with the consent of Holders of 100% in
Liquidation Amount of the Securities.
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ARTICLE IV
SPONSOR
4.1 SPONSOR S PURCHASE OF COMMON SECURITIES.
On the Closing Date the Sponsor will purchase all the Common Securities
issued by the Trust, at the same time as the Preferred Securities are sold, in
an amount equal to 3% of the capital of the Trust.
4.2 RESPONSIBILITIES OF THE SPONSOR.
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) To prepare for filing by the Trust with the Commission a registration
statement on Form S-3 in relation to the Preferred Securities, including any
amendments thereto;
(b) To determine the States in which to take appropriate action to qualify
or register for sale all or part of the Preferred Securities and to take any and
all such acts, other than actions which must be taken by the Trust, and advise
the Trust of actions it must take, and prepare for execution and filing any
documents to be executed and filed by the Trust, as the Sponsor deems necessary
or advisable in order to comply with the applicable laws of any such States;
(c) To prepare for filing by the Trust an application to the New York Stock
Exchange or any other national stock exchange or the NASDAQ National Market for
listing upon notice of issuance of any Preferred Securities;
(d) To prepare for filing by the Trust with the Commission a registration
statement on Form 8-A relating to the registration of the Preferred Securities
under Section 12(b) of the Exchange Act, including any amendments thereto; and
(e) To negotiate the terms of the Underwriting Agreement and Pricing
Agreement providing for the sale of the Preferred Securities.
ARTICLE V
TRUSTEES
5.1 NUMBER OF TRUSTEES.
The number of Trustees shall initially be five (5), and:
(a) At any time before the issuance of any Securities, the Sponsor may, by
written instrument, increase or decrease the number of Trustees; and
(b) After the issuance of any Securities,
(i) Except as provided in Section 5.1(b)(ii) and 5.6(a)(ii)(B) with
respect to the Special Regular Trustee, the number of Trustees may be increased
or decreased by vote of the Holders of a Majority in Liquidation Amount of the
Common Securities voting as a class at a meeting of the Holders of the Common
Securities; and
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(ii) The number of Trustees shall be increased automatically by one (1)
if an Appointment Event has occurred and is continuing and the Holders of a
Majority in Liquidation Amount of the Preferred Securities appoint a Special
Regular Trustee in accordance with Section 5.6,
PROVIDED THAT in any case, the number of Trustees shall be at least five (5)
unless the Trustee that acts as the Property Trustee also acts as the Delaware
Trustee pursuant to Section 5.2 in which case the number of Trustees shall be at
least three(3).
5.2 DELAWARE TRUSTEE.
If required by the Business Trust Act, one Trustee (the "Delaware Trustee")
shall be:
(a) A natural person who is a resident of the State of Delaware; or
(b) If not a natural person, an entity which has its principal place of
business in the State of Delaware and otherwise meets the requirements of
applicable law, provided that if the Property Trustee has its principal place of
business in the State of Delaware and otherwise meets the requirements of
applicable law, then the Property Trustee shall also be the Delaware Trustee and
Section 3.11 shall have no application.
5.3 PROPERTY TRUSTEE; ELIGIBILITY.
(a) There shall at all times be one Trustee which shall act as Property
Trustee which shall:
(i) Not be an Affiliate of the Sponsor;
(ii) Be a corporation organized and doing business under the laws of the
United States of America or any State or Territory thereof or of the District of
Columbia, or a corporation or Person permitted by the Commission to act as an
institutional trustee under the Trust Indenture Act, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least $100,000,000, and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the supervising or examining authority referred to above, then for the
purposes of this Section 5.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published; and
(b) If the Trust is excluded from the definition of an Investment Company
solely by means of Rule 3a-7 and to the extent Rule 3a-7 requires a trustee
having certain qualifications to hold title to the "eligible assets" of the
Trust, the Property Trustee shall possess those qualifications; and
(c) If at any time the Property Trustee shall cease to be eligible to so
act under Section 5.3(a), the Property Trustee shall immediately resign in the
manner and with the effect set forth in Section 5.6(c);
(d) If the Property Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Property
Trustee and the Holder of the Common Securities (as if it were the obligor
referred to in Section 310(b) of the Trust Indenture Act) shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act; and
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(e) The Preferred Securities Guarantee shall be deemed to be specifically
described in this Declaration for purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
5.4 QUALIFICATIONS OF REGULAR TRUSTEES AND DELAWARE TRUSTEE GENERALLY.
Each Regular Trustee and the Delaware Trustee (unless the Property Trustee
also acts as Delaware Trustee) shall be either a natural person who is at least
21 years of age or a legal entity which shall act through one or more Authorized
Officers.
5.5 INITIAL TRUSTEES
The initial Regular Trustees shall be:
Sam L. Ginn
AirTouch Communications, Inc.
One California Street
San Francisco, California 94111
Margaret G. Gill
AirTouch Communications, Inc.
One California Street
San Francisco, California 94111
Mohan Gyani
AirTouch Communications, Inc.
One California Street
San Francisco, California 94111
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware
The initial Property Trustee shall be:
5.6 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
(a) Subject to Section 5.6(b), Trustees may be appointed or removed without
cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities:
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(A) other than in respect to a Special Regular Trustee, by vote
of the Holders of a Majority in Liquidation Amount of the Common Securities
voting as a class at a meeting of the Holders of the Common Securities; and
(B) if an Appointment Event has occurred and is continuing, one
(1) additional Regular Trustee (the "Special Regular Trustee") may be appointed
by vote of the Holders of a Majority in Liquidation Amount of the Preferred
Securities, voting as a class at a meeting of the Holders of the Preferred
Securities and such Special Regular Trustee may only be removed (otherwise than
by the operation of Section 5.6(c)), by vote of the Holders of a Majority in
Liquidation Amount of the Preferred Securities voting as a class at a meeting of
the Holders of the Preferred Securities;
(b) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 5.6(a) until a Successor Property Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Property Trustee and delivered to the Regular Trustees and the
Sponsor; and
(c) The Trustee that acts as Delaware Trustee shall not be removed in
accordance with this Section 5.6(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees and the Sponsor; and
(d) A Trustee appointed to office shall hold office until his or her
successor shall have been appointed or until his or her death, removal or
resignation, PROVIDED THAT a Special Regular Trustee shall only hold office
while an Appointment Event is continuing and shall cease to hold office
immediately after the Appointment Event pursuant to which the Special Regular
Trustee was appointed and all other Appointment Events cease to be continuing.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the Sponsor and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; PROVIDED, HOWEVER,
that:
(i) no such resignation of the Trustee that acts as the Property
Trustee shall be effective until:
(A) a Successor Property Trustee has been appointed and has
accepted such appointment by instrument executed by such Successor Property
Trustee and delivered to the Trust, the Sponsor and the resigning Property
Trustee; or
(B) if the Trust is excluded from the definition of an Investment
Company solely by reason of Rule 3a-7, until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to the holders of the
Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been appointed
and has accepted such appointment by instrument executed by such Successor
Delaware Trustee and delivered to the Trust, the Sponsor and the resigning
Delaware Trustee; and
(iii) no such resignation of a Special Regular Trustee shall be
effective until the 60th day following delivery of the instrument of resignation
of the Special Regular Trustee to the Sponsor and the Trust or such
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later date specified in such instrument during which period the Holders of the
Preferred Securities shall have the right to appoint a successor Special Trustee
as provided in this Section 5.6; and
(e) the Holders of the Common Securities shall use their best efforts to
promptly appoint a Successor Delaware Trustee or Successor Property Trustee, as
the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of registration in accordance with this Section 5.6
(f) if no Successor Property Trustee or Successor Delaware Trustee shall
have been appointed and accepted appointment as provided in this Section 5.6
within 60 days after delivery to the Sponsor and the Trust of an instrument of
resignation, the resigning Property Trustee or Delaware Trustee may petition any
court of competent jurisdiction for appointment of a Successor Property Trustee
or Successor Delaware Trustee. Such court may thereupon after such notice, if
any, as it may deem proper and prescribe, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
5.7 VACANCIES AMONG TRUSTEES.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by a majority of the Regular Trustees
shall be conclusive evidence of the existence of such vacancy. The vacancy shall
be filled with a Trustee appointed in accordance with Section 5.6.
5.8 EFFECT OF VACANCIES.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee, or
any one of them, shall not operate to annul the Trust. Whenever a vacancy in the
number of Regular Trustees shall occur, until such vacancy is filled by the
appointment of a Regular Trustee in accordance with Section 5.6, the Regular
Trustees in office, regardless of their number, shall have all the powers
granted to the Regular Trustees and shall discharge all the duties imposed upon
the Regular Trustees by this Declaration.
5.9 MEETINGS.
Meetings of the Regular Trustees shall be held from time to time upon the
call of any Regular Trustee. Regular meetings of the Regular Trustees may be
held at a time and place fixed by resolution of the Regular Trustees. Notice of
any in-person meetings of the Regular Trustees shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 48 hours before such meeting. Notice of any
telephonic meetings of the Regular Trustees or any committee thereof shall be
hand delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before a meeting. Notices
shall contain a brief statement of the time, place and anticipated purposes of
the meeting. The presence (whether in person or by telephone) of a Regular
Trustee at a meeting shall constitute a waiver of notice of such meeting except
where a Regular Trustee attends a meeting for the express purpose of objecting
to the transaction of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this Declaration, any
action of the Regular Trustees may be taken at a meeting by vote of a majority
of the Regular Trustees present (whether in person or by telephone) and eligible
to vote with respect to such matter, provided that a Quorum is present, or
without a meeting by the unanimous written consent of the Regular Trustees.
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5.10 DELEGATION OF POWER.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section 3.6
including any registration statement or amendment thereto filed with the
Commission or making any other governmental filing; and
(b) The Regular Trustees shall have power to delegate from time to time to
such of their number or to officers of the Trust the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Regular Trustees or otherwise as the Regular Trustees may deem expedient,
to the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
ARTICLE VI
DISTRIBUTIONS
6.1 DISTRIBUTIONS.
If and to the extent that the Subordinated Note Issuer makes a payment of
interest (including any interest payments on interest deferred in accordance
with the terms of the Indenture) and/or principal on the Subordinated Notes held
by the Property Trustee (the amount of any such payment being a "Payment
Amount"), the Property Trustee shall and is directed, to the extent funds are
available for that purpose, to make a distribution (a "Distribution") of the
Payment Amount to Holders in accordance with the applicable terms of the
Securities. Distributions shall be made on the Preferred Securities and the
Common Securities in accordance with the preferences set forth in their
respective terms.
ARTICLE VII
ISSUANCE OF SECURITIES
7.1 GENERAL PROVISIONS REGARDING SECURITIES.
(a) The Regular Trustees shall, on behalf of the Trust, issue one class of
preferred securities representing undivided beneficial interests in the assets
of the Trust (the "Preferred Securities") having such terms as are set forth in
Exhibit A, as such Exhibit A may be amended from time to time in accordance with
this Declaration and incorporated herein by reference, and one class of common
securities representing undivided beneficial interests in the assets of the
Trust having such terms as are set forth in Exhibit A, as such Exhibit A may be
amended from time to time in accordance with this Declaration, and incorporated
herein by reference (the "Common Securities"). The Trust shall have no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities;
(b) The Securities shall be signed on behalf of the Trust by the Regular
Trustees (or if there are more than two Regular Trustees by any two of the
Regular Trustees). Such signatures may be the manual or facsimile signatures of
the present or any future Regular Trustee. Typographical and other minor errors
or defects in any such reproduction of any such signature shall not affect the
validity of any Security. In case any Regular Trustee of the Trust who shall
have signed any of the Securities shall cease to be such Regular Trustee before
the Securities so signed shall be delivered by the Trust, such Security
nevertheless may be delivered as though the person who signed such Security had
not ceased to be such Regular Trustee; and any Certificate may be signed on
behalf of the Trust by such persons who shall, at the actual date of the
execution of such Security, be the Regular Trustees of the Trust, although at
the date of the execution and
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delivery of the Declaration any such person was not such a Regular Trustee;
Securities shall be printed, lithographed or engraved or may be produced in any
other manner as is reasonably acceptable to the Regular Trustees, as evidenced
by their execution thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to comply with any law or
with any rule or regulation of any stock exchange on which Securities may be
listed, or to conform to usage;
(c) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust;
(d) Upon issuance of the Securities as provided in this Declaration, the
Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable; and
(e) Every Person, by virtue of having become a Holder in accordance with
the terms of this Declaration, shall be deemed to have expressly assented and
agreed to the terms of, and shall be bound by this Declaration.
ARTICLE VIII
TERMINATION OF TRUST
8.1 TERMINATION OF TRUST.
(a) The Trust shall terminate:
(i) Upon the Bankruptcy of the Holder of the Common Securities, the
Sponsor or the Subordinated Note Issuer;
(ii) Upon the filing of a certificate of dissolution or its equivalent
with respect to the Holder of the Common Securities, the Sponsor or the
Subordinated Note Issuer, the filing of a certificate of cancellation with
respect to the Trust or the revocation of the Holder of the Common Securities,
the Sponsor s or the Subordinated Note Issuer s charter and the expiration of 90
days after the date of revocation without a reinstatement thereof;
(iii) Upon the entry of a decree of judicial dissolution of the Holder
of the Common Securities, the Sponsor, the Subordinated Note Issuer or the
Trust;
(iv) When all of the Securities shall have been called for redemption
and the amounts necessary for redemption thereof shall have been deposited with
the Trustee in accordance with the terms of the Securities;
(v) Upon the occurrence and continuation of a Special Event pursuant
to which the Trust shall have been dissolved in accordance with the terms of the
Securities and all of the Subordinated Notes endorsed thereon shall have been
deposited with the Property Trustee in accordance with the terms of the
Securities; or
(vi) Before the issuance of any Securities, with the consent of all of
the Regular Trustees and the Sponsor; and
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(b) As soon as is practicable after the occurrence of an event referred to
in Section 8.1(a), the Trustees shall file a certificate of cancellation with
the Secretary of State of the State of Delaware; and
ARTICLE IX
TRANSFER OF INTERESTS
9.1 TRANSFER OF SECURITIES.
(a) Securities may only be transferred, in whole or in part, in accordance
with the terms and conditions set forth in this Declaration and in the terms of
the Securities. Any transfer or purported transfer of any Security not made in
accordance with this Declaration shall be null and void;
(b) Subject to this Article IX, the Preferred Securities shall be freely
transferable, provided, however, that the Global Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any nominee to a successor Depositary or a nominee of
any successor Depositary; and
(c) Subject to this Article IX, the Sponsor and any Related Party may only
transfer Common Securities to the Sponsor or a Related Party of the Sponsor,
PROVIDED, THAT, any such transfer is subject to the condition precedent that the
transferor obtain the written opinion of nationally recognized independent
counsel experienced in such matters that such transfer would not cause more than
an insubstantial risk that:
(i) The Trust would be classified for United States federal income tax
purposes as an association taxable as a corporation or a partnership and each
Holder of Securities would not be treated as owning an undivided beneficial
interest in the Subordinated Notes; and
(ii) The Trust or the transferee would be an Investment Company.
9.2 TRANSFER OF CERTIFICATES
Except as specifically otherwise provided herein with respect to Global
Securities, Certificates may be exchanged for Certificates representing a like
aggregate amount of Securities. Securities to be exchanged shall be surrendered
at the offices or agencies of the Property Trustee and the Regular Trustees
shall execute the Securities, and the Property Trustee shall authenticate and
deliver in exchange therefor the Security or Securities which the Securityholder
making the exchange shall be entitled to receive.
The Property Trustees shall keep or cause to be kept, at one or more of the
offices or agencies to be maintained by the Trustee, the Register in which,
subject to such reasonable regulations as it may prescribe, the Property Trustee
shall provide for the registration of the Securities and the transfer of
Securities as in this Article provided. The Register shall be in written form or
in any other form capable of being converted into written form within a
reasonable time. At all reasonable times the Register shall be open for
inspection by the Regular Trustees and any registrar of the Securities other
than the Property Trustee. Upon due presentment for transfer of any Security at
the offices of the Property Trustee, the Regular Trustee shall execute a new
Security and the Property Trustee shall authenticate and deliver in the name of
the transferee or transferees a new Security or Securities for a like aggregate
principal amount of authorized denominations.
Notwithstanding any other provisions of this Section 9.2, unless and until
it is exchanged in whole or in part for Securities in definitive form, a Global
Security representing all or a portion of the Securities
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may not be transferred except as a whole by the Depository to a nominee of such
Depository or by a nominee of such Depository to such Depository or another
nominee of such Depository or by such Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
All Securities presented or surrendered for exchange, transfer, redemption,
conversion or payment shall, if so required by the Property Trustee or any
registrar of the Securities, be accompanied by a written instrument or
instruments of transfer, in form satisfactory to the Regular Trustees and such
registrar, duly executed by the registered Holder or by such Person's attorney
duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Property Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
The Property Trustee shall not be required to exchange or transfer (a) any
Securities during a period beginning at the opening of business 15 days before
the day of the first publication or the mailing (if there is no publication) of
a notice of redemption of Securities and ending at the close of business on the
day of such publication or mailing or (b) any Securities called or selected for
redemption in whole or in part, except, in the case of Securities called for
redemption in part, the portion thereof not so called for redemption in whole or
in part or during a period beginning at the opening of business on any record
date and ending at the close of business on the relevant Distribution payment
date therefor.
9.3 DEEMED SECURITY HOLDERS
The Trustees may treat the Person in whose name any Security shall be
registered on the books and records of the Trust as the sole holder of such
Security for purposes of receiving Distributions and for all other purposes
whatsoever and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such Securities on the part of any Person, whether
or not the Trustees shall have actual or other notice thereof.
9.4 GLOBAL SECURITIES
(a) Unless otherwise specified in the terms of the Preferred
Securities, on original issuance, will be issued in the form of one or more
fully registered Global Securities, to be delivered to the Depositary, by, or on
behalf of, the Trust. Each Global Security shall: (i) represent and be
denominated in an aggregate amount equal to the aggregate amount of Preferred
Securities issued hereunder, (ii) be registered in the name of either the
Depositary for such Global Security or the nominee of such Depositary, (iii) be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
written instruction and (iv) bear a legend substantially to the following
effect: "Unless and until it is exchanged in whole or in part for Preferred
Securities in definitive form, this Global Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any nominee to a successor Depositary or a nominee of
any successor Depositary." The notation of the record owner's interest in such
Global Security upon the original issuance thereof shall be deemed to be
delivery in connection with the original issuance of each beneficial owner's
interest in such Global Security. Without limiting the foregoing, the Regular
Trustees and the Property Trustee shall have no responsibility, obligation or
liability with respect to: (x) the maintenance, review or accuracy of the
records of the Depositary or of any of its participating organizations with
respect to any ownership interest in or payments with respect to such Global
Security, (y) any communication with or delivery of any notice (including
notices of redemption) with respect to the
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Preferred Securities represented by the Global Security to any Person having any
ownership interest in such Global Security or to any of the Depositary's
participating organizations or (z) any payment made on account of any beneficial
ownership interest in such Global Security.
(b) If Preferred Securities are issued in the form of a Global Security
or Securities, each such Global Security may provide that it shall represent the
aggregate amount of outstanding Preferred Securities from time to time endorsed
thereon and may also provide that the aggregate amount of outstanding Preferred
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Global Security to reflect the amount of
outstanding Preferred Securities represented thereby shall be made by the
Trustee and in such manner as shall be specified on such Global Security. Any
instructions by the Regular Trustees with respect to a Global Security, after
its initial issuance, shall be in writing.
(c) The Depositary hereunder shall be a clearing agency registered
under the Securities Exchange Act of 1934, as amended, and any other applicable
statute or regulation If at any time the Depositary for the Preferred Securities
notifies the Regular Trustees that it is unwilling or unable to continue as
Depositary or if at any time the Depositary shall no longer be eligible to serve
as Depositary, the Regular Trustees shall appoint a successor Depositary. If a
successor Depositary is not appointed by the Regular Trustees within 90 days
after they receive such notice or learn of such ineligibility, the Regular
Trustees shall execute and deliver definitive Preferred Securities in authorized
denominations in exchange for the Global Security or Securities (the "Definitive
Preferred Security Certificates") in the same aggregate principal amount as the
Global Security or Securities representing the Preferred Securities in exchange
for such Global Security or Securities, in accordance with the provisions of
subsection (e) of this Section 9.4, without any further corporate action by the
Trustees.
(d) The Regular Trustees may at any time after consultation with the
Sponsor, determine that the Preferred Securities issued in the form of one or
more Global Securities shall no longer be represented by such Global Security or
Securities. In such event, the Regular Trustees will execute and deliver
Preferred Securities in definitive form and in authorized denominations in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing the Preferred Stock in exchange for such Global
Security or Securities, in accordance with the provisions of subsection (e) of
this Section 9.4 without any further corporate action by the Company.
(e) Upon any exchange hereunder of the Global Security or Securities
for Preferred Securities in definitive form, such Global Security or Securities
shall be canceled by the Trust. Preferred Securities issued hereunder in
exchange for the Global Security or Securities shall be registered in such names
and in such authorized denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Regular Trustees. The Regular Trustees shall deliver such
Definitive Preferred Security Certificates in exchange for the Global Security
or Securities to the persons in whose name such definitive Preferred Securities
have been registered in accordance with the directions of the Depositary.
9.5 NOTICES TO DEPOSITARY
Whenever a notice or other communication to the Preferred Security Holders
is required under this Declaration, unless and until Definitive Preferred
Security Certificates shall have been issued pursuant to Section 9.4, the
Regular Trustees shall give all such notices and communications, specified
herein to be given to the Preferred Security Holders, to the Depositary, and
shall have no other notice obligations.
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9.6 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If:
(a) Any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) There shall be delivered to the Regular Trustees, the Sponsor and the
Property Trustee such security or indemnity as may be required by them to keep
each of them harmless, then in the absence of notice that such Certificate shall
have been acquired by a bona fide purchaser, any two Regular Trustees on behalf
of the Trust shall execute and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under this
Section 9.6, the Regular Trustees may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
10.1 LIABILITY
(a) Except as expressly set forth in this Declaration, the Securities
Guarantees and the terms of the Securities the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Securities which
shall be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any Holder of Securities any
deficit upon dissolution of the Trust or otherwise; and
(b) Pursuant to Section 3803(a) of the Business Trust Act, the Holders of
the Securities shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations.
10.2 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person s gross negligence (or, in the
case of the Property Trustee except as otherwise set forth in Section 3.9) or
willful misconduct with respect to such acts or omissions; and
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Trust and upon such information, opinions, reports or
statements presented to the Trust by any Person as to
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matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which Distributions to Holders of Securities might properly be paid.
10.3 FIDUCIARY DUTY
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration, subject to any duties or obligations imposed on the Property
Trustee under Rule 3a-7, shall not be liable to the Trust or to any other
Covered Person for its good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of an Indemnified Person otherwise existing
at law or in equity (other than duties imposed on the Property Trustee under the
Trust Indenture Act), are agreed by the parties hereto to replace such other
duties and liabilities of such Indemnified Person;
(b) Unless otherwise expressly provided herein:
(i) Whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Persons; or
(ii) Whenever this Declaration or any other agreement contemplated
herein or therein provide that an Indemnified Person shall act in a manner that
is, or provides terms that are, fair and reasonable to the Trust or any Holder
of Securities,
(c) The Indemnified Person shall resolve such conflict of interest, take
such action or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made, taken
or provided by the Indemnified Person shall not constitute a breach of this
Declaration or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise; and
whenever in this Declaration an Indemnified Person is permitted or required to
make a decision
(i) In its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests and factors as
it desires, including its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting the Trust or any
other Person; or
(ii) In its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or by
applicable law.
10.4 INDEMNIFICATION.
(a) To the fullest extent permitted by applicable law, the Sponsor shall
indemnify and hold harmless each Indemnified Person from and against any loss,
damage or claim incurred by such Indemnified Person by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
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of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of gross negligence (or, in the case of the Property Trustee,
except as otherwise set forth in Section 3.9) or willful misconduct with respect
to such acts or omissions; and
(b) To the fullest extent permitted by applicable law, expenses (including
legal fees) incurred by an Indemnified Person in defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the Sponsor
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Sponsor of an undertaking by or on behalf of the Indemnified
Person to repay such amount if it shall be determined that the Indemnified
Person is not entitled to be indemnified as authorized in Section 10.4(a).
10.5 OUTSIDE BUSINESSES.
Any Covered Person, the Sponsor, the Subordinated Note Issuer, the Delaware
Trustee and the Property Trustee may engage in or possess an interest in other
business ventures of any nature or description, independently or with others,
similar or dissimilar to the business of the Trust, and the Trust and the
Holders of Securities shall have no rights by virtue of this Declaration in and
to such independent ventures or the income or profits derived therefrom and the
pursuit of any such venture, even if competitive with the business of the Trust,
shall not be deemed wrongful or improper. No Covered Person, the Sponsor, the
Subordinated Note Issuer, the Delaware Trustee, or the Property Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor, the
Subordinated Note Issuer, the Delaware Trustee and the Property Trustee shall
have the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as Depositary for, trustee
or agent for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
11.1 FISCAL YEAR
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or
such other year as is required by the Code.
11.2 CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust, the Regular Trustees
shall keep, or cause to be kept, full books of account, records and supporting
documents, which shall reflect in reasonable detail, each transaction of the
Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes. The books of account and the records
of the Trust shall be examined by and reported upon, as of the end of each
Fiscal Year, by a firm of independent certified public accountants selected by
the Regular Trustees
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(b) The Regular Trustees shall cause to be prepared and delivered to each
of the Holders of Securities, within 90 days after the end of each Fiscal Year
of the Trust, annual financial statements of the Trust, including a balance
sheet of the Trust as of the end of such Fiscal Year, and the related statements
of income or loss;
(c) The Regular Trustees shall cause to be duly prepared and delivered to
each of the Holders of Securities, any annual United States federal income tax
information statement, required by the Code, containing such information with
regard to the Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the Regular Trustees shall endeavor to deliver
all such statements within 30 days after the end of each Fiscal Year of the
Trust; and
(d) The Regular Trustees shall cause to be duly prepared and filed with the
appropriate taxing authority, an annual United States federal income tax return,
on a Form 1041 or such other form required by United States federal income tax
law, and any other annual income tax returns required to be filed by the Regular
Trustees on behalf of the Trust with any state or local taxing authority.
11.3 BANKING.
The Trust shall maintain one or more bank accounts in the name and for the
sole benefit of the Trust; PROVIDED, HOWEVER, that all payments of funds in
respect of the Subordinated Notes held by the Property Trustee shall be made
directly to the Property Trustee Account and no other funds of the Trust shall
be deposited in the Property Trustee Account. The sole signatories for such
accounts shall be designated by the Regular Trustees; PROVIDED, HOWEVER, that
the Property Trustee shall designate the sole signatories for the Property
Trustee Account.
11.4 WITHHOLDING
The Trust and the Trustees shall comply with all withholding requirements
under United States federal, state and local law. The Trust shall request, and
the Holders shall provide to the Trust, such forms or certificates as are
necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over-withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
12.1 AMENDMENTS.
(a) Except as otherwise provided in this Declaration or by any applicable
terms of the Securities, this Declaration may be amended by, and only by, a
written instrument approved and executed by the Regular
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Trustees (or, if there are more than two Regular Trustees a majority of the
Regular Trustees); PROVIDED, HOWEVER, that:
(i) No amendment shall be made, and any such purported amendment
shall be void and ineffective, to the extent the result thereof would be to:
(A) cause the Trust to be characterized for purposes of United
States federal income taxation as an association taxable as a corporation or a
partnership and each Holder of Securities not to be treated as owning an
undivided beneficial interest in the Subordinated Notes;
(B) reduce or otherwise adversely affect the powers of the
Property Trustee; or
(C) cause the Trust to be deemed to be an Investment Company
which is required to be registered under the Investment Company Act;
(ii) At such time after the Trust has issued any Securities which
remain outstanding, any amendment which would adversely affect the rights,
privileges or preferences of any Holder of Securities may be effected only with
such additional requirements as may be set forth in the terms of such
Securities;
(iii) Section 9.1(c) and this Section 12.1 shall not be amended without
the consent of all of the Holders of the Securities;
(iv) Article IV shall not be amended without the consent of the
Holders of a Majority in Liquidation Amount of the Common Securities; and
(v) the rights of the holders of the Common Securities under Article
V to increase or decrease the number of, and appoint and remove Trustees shall
not be amended without the consent of the Holders of a Majority in Liquidation
Amount of the Common Securities (except to the extent that such amendment
relates to the Special Regular Trustee, in which case such amendment may only be
made in accordance with the terms of the Preferred Securities).
(b) Notwithstanding Section 12.1(a)(ii), this Declaration may be amended
without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that may
be defective or inconsistent with any other provision of this Declaration;
(iii) add to the covenants, restrictions or obligations of the Sponsor;
and
(iv) conform to any change in Rule 3a-7 or written change in
interpretation or application of Rule 3a-7 by any legislative body, court,
government agency or regulatory authority which amendment does not have a
material adverse effect on the right, preferences or privileges of the Holders.
(c) Prior to the issuance of the Securities, any terms of the Securities
may be amended by a written instrument approved and executed by the Regular
Trustees (or, if there are more than two Regular Trustees a majority of the
Regular Trustees).
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12.2 MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY WRITTEN CONSENT
(a) Meetings of the Holders of any class of Securities may be called at any
time by the Regular Trustees (or as provided in the terms of the Securities) to
consider and act on any matter on which Holders of such class of Securities are
entitled to act under the terms of this Declaration, the terms of the Securities
or the rules of any stock exchange on which the Preferred Securities are listed
or admitted for trading. The Regular Trustees shall call a meeting of such class
of Holders, if directed to do so by the Holders of at least 10% in Liquidation
Amount of such class of Securities. Such direction shall be given by delivering
to the Regular Trustees one or more calls in a writing stating that the signing
Holders of Securities wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the Security Certificates
held by the Holders of Securities exercising the right to call a meeting and
only those specified shall be counted for purposes of determining whether the
required percentage set forth in the second sentence of this paragraph has been
met; and
(b) Except to the extent otherwise provided in the terms of the Securities,
the following provisions shall apply to meetings:
(i) Notice of any such meeting shall be given to all the Holders of
Securities having a right to vote thereat at least 7 days and not more than 60
days before the date of such meeting. Whenever a vote, consent or approval of
the Holders of Securities is permitted or required under this Declaration or the
rules of any stock exchange on which the Preferred Securities are listed or
admitted for trading, such vote, consent or approval may be given at a meeting
of the Holders of Securities. Any action that may be taken at a meeting of the
Holders of Securities may be taken without a meeting if a consent in writing
setting forth the action so taken is signed by the Holders of Securities owning
not less than the minimum amount of Securities in Liquidation Amount that would
be necessary to authorize or take such action at a meeting at which all Holders
of Securities having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given to the Holders
of Securities entitled to vote who have not consented in writing. The Regular
Trustees may specify that any written ballot submitted to the Security Holder
for the purpose of taking any action without a meeting shall be returned to the
Trust within the time specified by the Regular Trustees;
(ii) Each Holder of a Security may authorize any Person to act for it
by proxy on all matters in which a Holder of Securities is entitled to
participate, including waiving notice of any meeting, or voting or participating
at a meeting. No proxy shall be valid after the expiration of 11 months from the
date thereof unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the Holder of Securities executing it. Except as
otherwise provided herein, all matters relating to the giving, voting or
validity of proxies shall be governed by the General Corporation Law of the
State of Delaware relating to proxies, and judicial interpretations thereunder,
as if the Trust were a Delaware corporation and the Holders of the Securities
were stockholders of a Delaware corporation;
(iii) Each meeting of the Holders of the Securities shall be conducted
by the Regular Trustees or by such other Person that the Regular Trustees may
designate; and
(iv) Unless the Business Trust Act, this Declaration, the terms of the
Securities or the listing rules of any stock exchange on which the Preferred
Securities are then listed or trading, otherwise provides, the Regular Trustees,
in their sole discretion, shall establish all other provisions relating to
meetings of Holders of Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any Holders of
Securities, waiver of any such notice, action by consent without a meeting, the
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establishment of a record date, quorum requirements, voting in person or by
proxy or any other matter with respect to the exercise of any such right to
vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
13.1 REPRESENTATIONS AND WARRANTIES OF PROPERTY TRUSTEE.
The Trustee which acts as initial Property Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Property Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Property Trustee s acceptance of its appointment as
Property Trustee that:
(a) The Property Trustee is a banking association with trust powers, duly
organized, validly existing and in good standing under the laws of the [United
States][States of ________], with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, the
Declaration.
(b) The execution, delivery and performance by the Property Trustee of the
Declaration has been duly authorized by all necessary corporate action on the
part of the Property Trustee. The Declaration has been duly executed and
delivered by the Property Trustee, and it constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law).
(c) The execution, delivery and performance of the Declaration by the
Property Trustee does not conflict with or constitute a breach of the Articles
of Organization or By-laws of the Property Trustee.
(d) No consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the execution,
delivery or performance by the Property Trustee, of the Declaration.
(e) The Property Trustee, pursuant to the Declaration, shall hold legal
title and a valid ownership interest in the Subordinated Notes under the law of
its place of incorporation and Delaware law.
(f) If the Property Trustee does not also act as the Delaware Trustee, the
Delaware Trustee under Delaware law is a natural person who is a resident of the
State of Delaware.
[(g) Pursuant to a Co-Trustee Agreement between the Property Trustee and
the Delaware Trustee dated as of _________, the Delaware Trustee has been
authorized to perform its obligations under the Certificate of Trust and the
Declaration. The Declaration under Delaware law constitutes a legal, valid and
binding obligation of the Delaware Trustee, enforceable against the Delaware
Trustee in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law).]
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ARTICLE XIV
MISCELLANEOUS
14.1 NOTICES.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be electronically communicated
or hand delivered or sent by overnight courier, addressed to the relevant party
as provided in this Section 14.1:
If given to the Trust, in care of the Regular Trustees at the Trust s
mailing address set forth below (or such other address as the Trust may give
notice of to the Holders of the Securities):
AIRTOUCH FINANCING [ ]
One California Street
San Francisco, California 94111
Attention: [ ]
If given to the Property Trustee, at the mailing address set forth below
(or such other address as the Property Trustee may give notice of to the Holders
of the Securities):
Attention: [ ]
If given to the Holder of the Common Securities, at the mailing address of
the Sponsor set forth below (or such other address as the Holder of the Common
Securities may give notice to the Trust):
AirTouch Communications, Inc.
One California Street
San Francisco, California 94111
Attention: [ ]
If given to any other Holder, at the address set forth on the books and
records of the Trust.
For all purposes of this Declaration, a notice or
communication will be deemed effective:
(a) if delivered by hand or sent by overnight courier, on the day
it is delivered unless (i) that day is not a Business Day in the city
specified (a "Local Business Day") in the address for notice provided
by the recipient or (ii) if delivered after the close of business on a
Local Business Day, then on the next succeeding Local Business Day or
(b) if sent by facsimile transmission, on the date transmitted,
provided that oral or written confirmation of receipt is obtained by
the sender unless the date of transmission and confirmation is not a
Local Business Day, in which case, on the next succeeding Local
Business Day.
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Any notice, direction, requires, demand, consent or waiver by the Sponsor,
or any Holder of Securities to or upon the Property Trustee shall be deemed to
have been sufficiently given, made or filed, for all purposes, if given, made or
filed in writing at the principal office of the Property Trustee in accordance
with the provisions of this Section 14.1.
Any notice, request, consent or waiver by the Sponsor, the Regular
Trustees, or the Property Trustee upon the Depository shall have been
sufficiently given, made or filed, for all purposes, if give or made in
accordance with the provisions of this Section 14.1 at the address shown for
such Depository in the Register or at such other address as the Depository shall
have provided for purposes of notice.
14.2 GOVERNING LAW
This Declaration and the rights of the parties hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware and all
rights and remedies shall be governed by such laws without regard to principles
of conflict of laws.
14.3 INTENTION OF THE PARTIES.
It is the intention of the parties hereto that the Trust not be
characterized for United States federal income tax purposes as an association
taxable as a corporation or a partnership but rather, the Trust be characterized
as a grantor trust or otherwise in a manner that each Holder of Securities be
treated as owning an undivided beneficial interest in the Subordinated Notes.
The provisions of this Declaration shall be interpreted to further this
intention of the parties.
14.4 HEADINGS.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
14.5 SUCCESSORS AND ASSIGNS
Whenever in this Declaration any of the parties hereto is named or referred
to, the successors and assigns of such party shall be deemed to be included, and
all covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed.
14.6 PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
14.7 COUNTERPARTS.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
as Trustee
------------------------------------
as Trustee
------------------------------------
as Trustee
------------------------------------
as Trustee
------------------------------------
as Trustee
By:
---------------------------------
Name:
Title:
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EXHIBIT A
TERMS OF
_% TRUST ORIGINATED PREFERRED SECURITIES
__% TRUST ORIGINATED COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust,
dated as of _________, 1995 (as amended from time to time, the "Declaration"),
the designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Preferred Securities and the Common Securities are set out
below (each capitalized term used but not defined herein has the meaning set
forth in the Declaration):
1. DESIGNATION AND NUMBER.
(a) PREFERRED SECURITIES. Preferred Securities of the Trust with an
aggregate Liquidation Amount with respect to the assets of the Trust of $[_____
million ($_________)] and a Liquidation Amount with respect to the assets of the
Trust of $_____ per Preferred Security, are hereby designated for the purposes
of identification only as "____% Trust Originated Preferred Securities" (the
"Preferred Securities").
(b) COMMON SECURITIES. Common Securities of the Trust with an aggregate
Liquidation Amount with respect to the assets of the Trust of $[_______ million
($______)] and a Liquidation Amount with respect to the assets of the Trust of
$_____ per Common Security, are hereby designated for the purposes of
identification only as "__% Trust Originated Common Securities" (the "Common
Securities").
2. DISTRIBUTIONS.
(a) Periodic Distributions payable on each Security will be at a rate per
annum of [*.*]% (the "Coupon Rate") of the stated Liquidation Amount of $__ per
Security, such rate being the rate of interest payable on the Subordinated Notes
to be held by the Property Trustee. Distributions in arrears for more than one
quarter will bear interest thereon at the Coupon Rate (to the extent permitted
by applicable law). The term "Distributions" as used in these terms includes
such periodic cash distributions and any such interest payable unless otherwise
stated. A Distribution is payable only to the extent that payments are made in
respect of the Subordinated Notes held by the Property Trustee. The amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period shorter than a full quarterly Distribution period for which
Distributions are computed.
(b) Distributions on the Securities will be cumulative, will accrue from
_________, 1995 and will be payable quarterly in arrears, on March 31, June 30,
September 30, and December 31 of each year, commencing on __________, 1995,
except as otherwise described below. The Subordinated Note Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period from time to time on the Subordinated Notes for a period not
exceeding [20] consecutive quarters (each, an "Extension Period") and, as a
consequence of such extension, Distributions will also be deferred. Despite such
deferral, quarterly Distributions will continue to accrue with interest thereon
(to the extent permitted by applicable law) at the Coupon Rate during any such
Extension Period. Prior to the termination of any
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such Extension Period, the Subordinated Note Issuer may further extend such
Extension Period; PROVIDED THAT such Extension Period together with all such
previous and further extensions thereof may not exceed [20] consecutive
quarters. Payments of accrued Distributions will be payable to Holders as they
appear on the books and records of the Trust on the first record date after the
end of the Extension Period. Upon the termination of any Extension Period and
the payment of all amounts then due, the Subordinated Note Issuer may commence a
new Extension Period, subject to the above requirements.
(c) Distributions on the Securities will be payable to the Holders thereof
as they appear on the books and records of the Trust on the relevant record
dates. While the Preferred Securities remain in book-entry only form, the
relevant record dates shall correspond with the record dates for the relevant
interest payment dates on the Subordinated Notes. If the Preferred Securities
are not in book-entry form, the relevant record date shall be the date that is
[15 Business Days] prior to the relevant interest payment date on the
Subordinated Notes. Subject to any applicable laws and regulations and the
provisions of the Declaration, each such payment in respect of the Preferred
Securities will be made as described under the heading "Description of the
Preferred Securities -- Book-Entry Only Issuance -- The Depositary Trust
Company" in the Prospectus Supplement dated ______, 1995 to the Prospectus dated
______, 1995 (together, the "Prospectus") of the Trust included in the
Registration Statement on Form S-3 of the Sponsor, the Subordinated Note Issuer,
the Trust and certain other business trusts. The relevant record dates for the
Common Securities shall be the same record date as the Preferred Securities. If
the Preferred Securities shall not continue to remain in book-entry-only form,
the relevant record dates for the Preferred Securities, shall conform to the
rules of any securities exchange on which the securities are listed and, if
none, shall be selected by the Regular Trustees, which dates shall be at least
one Business Day but less than 60 Business Days before the relevant payment
dates, which payment dates correspond to the interest payment dates on the
Subordinated Notes. Distributions payable on any Securities that are not
punctually paid on any Distribution payment date, as a result of the
Subordinated Note Issuer or the Sponsor having failed to make a payment under
the Subordinated Notes will cease to be payable to the Person in whose name such
Securities are registered on the relevant record date, and such defaulted
Distribution will instead be payable to the Person in whose name such Securities
are registered on the special record date or other specified date determined in
accordance with the Indenture. If any date on which Distributions are payable on
the Securities is not a Business Day, then payment of the Distribution payable
on such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date.
(d) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined in Section 8) among the Holders of the
Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION.
(a) In the event of any voluntary or involuntary dissolution, winding-up or
termination of the Trust, the Holders of the Securities on the date of the
dissolution, winding-up or termination as the case may be, will be entitled to
receive out of the assets of the Trust available for distribution to Holders of
Securities after satisfaction of liabilities to creditors, an amount equal to
the aggregate of the stated Liquidation Amount of $__ per Security plus accrued
and unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"), unless, in connection with such dissolution,
winding-up or termination, Subordinated Notes in an aggregate principal amount
equal to the aggregate stated Liquidation Amount of
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such Securities shall be distributed on a Pro Rata basis to the Holders of the
Securities in exchange for such Securities.
(b) If, upon any such dissolution, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Securities shall be paid on a Pro Rata basis.
4. REDEMPTION AND DISTRIBUTION.
(a) Upon the repayment of the Subordinated Notes in whole or in part,
whether at maturity or upon redemption, the proceeds from such repayment or
payment shall be simultaneously applied to redeem Securities having an aggregate
Liquidation Amount equal to the aggregate principal amount of the Subordinated
Notes so repaid or redeemed, at a redemption price of $__ per Security plus an
amount equal to accrued and unpaid Distributions thereon at the date of the
redemption, payable in cash (the "Redemption Price"). Holders will be given not
less than 30 nor more than 60 days notice of such redemption.
(b) If fewer than all the outstanding Securities are to be so redeemed, the
Common Securities and the Preferred Securities will be redeemed Pro Rata and the
Preferred Securities to be redeemed will be as described in Paragraph 4(f)(ii)
below.
(c) If, at any time, a Tax Event or an Investment Company Event (each as
defined below, and each a "Special Event") shall occur and be continuing the
Regular Trustees shall dissolve the Trust and, after satisfaction of creditors,
cause Subordinated Notes held by the Property Trustee, having an aggregate
principal amount equal to the aggregate stated Liquidation Amount of, with an
interest rate identical to the Coupon Rate of, and accrued and unpaid interest
equal to accrued and unpaid Distributions on and having the same record date for
payment as the Securities, to be distributed to the Holders of the Securities,
in satisfaction of such Holders interests in the Trust on a Pro Rata basis,
within 90 days following the occurrence of such Special Event (the "90 Day
Period"), PROVIDED, HOWEVER, that in the case of the occurrence of a Tax Event,
as a condition of such dissolution and distribution, the Regular Trustees shall
have received an opinion of a nationally recognized independent tax counsel
experienced in such matters (a "No Recognition Opinion"), which opinion may rely
on published revenue rulings of the Internal Revenue Service, to the effect that
the Holders of the Securities will not recognize any gain or loss for United
States federal income tax purposes as a result of the dissolution of the Trust
and the distribution of Subordinated Notes and PROVIDED, FURTHER, that, if at
the time there is available to the Trust the opportunity to eliminate, within
the 90 Day Period, the Special Event by taking some ministerial action, such as
filing a form or making an election, or pursuing some other similar reasonable
measure that has no adverse effect on the Trust, the Subordinated Note Issuer,
the Sponsor or the Holders of the Securities ("Ministerial Action"), the Trust
will pursue such Ministerial Action in lieu of dissolution.
If, in the case of the occurrence of a Tax Event (i) the Subordinated Note
Issuer has received an opinion (a "Redemption Tax Opinion") of a nationally
recognized independent tax counsel experienced in such matters that, as a result
of a Tax Event, there is more than an insubstantial risk that the Subordinated
Note Issuer would be precluded from deducting the interest on the Subordinated
Notes for United States federal income tax purposes even after the Subordinated
Notes were distributed to the Holders of Securities in liquidation of such
Holders interests in the Trust as described in this paragraph 4(c), or (ii) the
Regular Trustees shall have been informed by such tax counsel that a No
Recognition Opinion cannot be delivered to the Trust, the Subordinated Note
Issuer shall have the right at any time, upon not less than 30 nor more than 60
days notice, to redeem the Subordinated Notes in whole or in part for cash
within 90 days following
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the occurrence of such Tax Event, and following such redemption, Securities with
an aggregate Liquidation Amount equal to the aggregate principal amount of the
Subordinated Notes so redeemed shall be redeemed by the Trust at the Redemption
Price on a Pro Rata basis; PROVIDED, HOWEVER, that, if at the time there is
available to the Trust the opportunity to eliminate, within such 90 day period,
the Tax Event by taking some Ministerial Action, the Trust or the Subordinated
Note Issuer will pursue such Ministerial Action in lieu of redemption.
"Tax Event" means that the Regular Trustees shall have received an opinion
of a nationally recognized independent tax counsel experienced in such matters
(a "Dissolution Tax Opinion") to the effect that on or after the date of the
Prospectus Supplement, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing authority therefore
or therein, or (b) any amendment to, or change in, an interpretation or
application of any such laws or regulations by any legislative body, court,
governmental agency or regulatory authority, which amendment or change is
enacted, promulgated, issued or announced or which interpretation or
pronouncement is issued or announced or which action is taken, in each case on
or after the date of the Prospectus Supplement, there is more than an
insubstantial risk that (i) the Trust is or will be within 90 days of the date
thereof, subject to United States federal income tax with respect to interest
accrued or received on the Subordinated Notes, (ii) the Trust is, or will be
within 90 days of the date thereof, subject to more than a de minimis amount of
taxes, duties or other governmental charges, or (iii) interest payable by the
Subordinated Note Issuer to the Trust on the Subordinated Notes is not, or
within 90 days of the date thereof will not be, deductible, in whole or in part,
by the Subordinated Note Issuer for United States federal income tax purposes.
"Investment Company Event" means that the Regular Trustees shall have
received an opinion of a nationally recognized independent counsel experienced
in practice under the Investment Company Act that, as a result of the occurrence
of a change in law or regulation or a written change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), there is more than
an insubstantial risk that the Trust is or will be considered an Investment
Company which is required to be registered under the Investment Company Act,
which Change in 1940 Act Law becomes effective on or after the date of the
Prospectus Supplement.
(d) On and from the date fixed by the Regular Trustees for any distribution
of Subordinated Notes and dissolution of the Trust: (i) the Securities will no
longer be deemed to be outstanding, (ii) The Depository Trust Company (the
"Depositary") or its nominee (or any successor Depositary or its nominee), as
the record Holder of the Preferred Securities, will receive a registered global
certificate or certificates representing the Subordinated Notes to be delivered
upon such distribution and any certificates representing Common Securities,
except for certificates representing Preferred Securities held by the Depositary
or its nominee (or any successor Depositary or its nominee), will be deemed to
represent beneficial interests in the Subordinated Notes having an aggregate
principal amount equal to the aggregate stated Liquidation Amount until such
certificates are presented to the Subordinated Note Issuer or its agent for
transfer or reissue.
The Trust may not redeem fewer than all the outstanding Securities unless
all accrued and unpaid Distributions have been paid on all Securities for all
quarterly Distribution periods terminating on or before the date of redemption.
(e) If the Subordinated Notes are distributed to holders of the Securities,
pursuant to the terms of the Indenture, the Subordinated Note Issuer will use
its best efforts to have the Subordinated Notes listed on the
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New York Stock Exchange or on such other exchange as the Preferred Securities
were listed immediately prior to the distribution of the Subordinated Notes.
(f) REDEMPTION OR DISTRIBUTION PROCEDURES.
(i) Notice of any redemption of, or notice of distribution of
Subordinated Notes in exchange for the Securities (a "Redemption/Distribution
Notice") will be given by the Trust by mail to each Holder of Securities to be
redeemed or exchanged not fewer than 30 nor more than 60 days before the date
fixed for redemption or exchange thereof which, in the case of a redemption,
will be the date fixed for redemption of the Subordinated Notes. For purposes of
the calculation of the date of redemption or exchange and the dates on which
notices are given pursuant to this paragraph 4(f)(i), a Redemption/Distribution
Notice shall be deemed to be given on the day such notice is first mailed, by
first-class mail, postage prepaid, to Holders of Securities. Each
Redemption/Distribution Notice shall be addressed to the Holders of Securities
at the address of each such Holder appearing in the books and records of the
Trust. No defect in the Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall affect the validity of the
redemption or exchange proceedings with respect to any other Holder.
(ii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice which notice may only be issued if the
Subordinated Notes are redeemed as set out in this paragraph 4 (which notice
will be irrevocable) then (a) while the Preferred Securities are in book-entry
only form, with respect to the Preferred Securities, by 12:00 noon, New York
City time, on the redemption date, provided that the Subordinated Note Issuer
has paid the Property Trustee a sufficient amount of cash in connection with the
related redemption or maturity of the Subordinated Notes, the Property Trustee
will transfer by wire to the Depositary (or successor Depositary) funds
sufficient to pay the applicable Redemption Price with respect to the Preferred
Securities, and (b) if the Preferred Securities are issued in definitive form,
with respect to the Preferred Securities, and with respect to the Common
Securities, provided that the Subordinated Note Issuer has paid the Property
Trustee a sufficient amount of cash in connection with the related redemption or
maturity of the Subordinated Notes, the Property Trustee will pay the relevant
Redemption Price to the Holders of such Securities by check mailed to the
address of the relevant Holder appearing on the books and records of the Trust
on the record date of the redemption date. If a Redemption/Distribution Notice
shall have been given and funds deposited as required, if applicable, then
immediately prior to the close of business on the date of such deposit, or on
the redemption date, as applicable, Distributions will cease to accrue on the
Securities so called for redemption and all rights of Holders of such Securities
so called for redemption will cease, except the right of the Holders of such
Securities to receive the Redemption Price, but without interest on such
Redemption Price. Neither the Regular Trustees nor the Trust shall be required
to register or cause to be registered the transfer of any Securities which have
been so called for redemption. If any date fixed for redemption of Securities is
not a Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a Business Day (and no interest
shall accrue as a result of such delay) except that, if such Business Day falls
in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date fixed for redemption. If payment of the Redemption Price in respect
of Securities is improperly withheld or refused and not paid either by the
Property Trustee or by the Sponsor as guarantor pursuant to the relevant
Securities Guarantee, Distributions on such Securities will continue to accrue,
from the original redemption date to the actual date of payment, in which case
the actual payment date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price.
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(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to the Holders of the Securities as set forth on
the Register.
(v) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), provided the
acquiror is not the Holder of the Common Securities or the obligor under the
Indenture, the Sponsor or any of its subsidiaries may at any time and from time
to time purchase outstanding Preferred Securities by tender, in the open market
or by private agreement.
5. VOTING RIGHTS - PREFERRED SECURITIES.
(a) Except as provided under paragraphs 5(b) and 7 and as otherwise
required by law and the Declaration, the Holders of the Preferred Securities
will have no voting rights.
(b) If (i) the Trust fails to make Distributions in full on the Preferred
Securities for 6 consecutive quarterly Distribution periods, or (ii) an Event of
Default occurs and is continuing (each of (i) and (ii) being an "Appointment
Event"), then the Holders of the Preferred Securities, acting as a single class,
will be entitled by the vote of a Majority in Liquidation Amount of the
Preferred Securities to appoint a Special Regular Trustee in accordance with
Section 5.6(a)(ii)(b) of the Declaration. Any Holder of Preferred Securities
(other than the Sponsor, or any entity directly or indirectly controlling or
controlled by or under direct or indirect common control with the Sponsor) will
be entitled to nominate any person to be appointed as Special Regular Trustee.
For purposes of determining whether the Trust has failed to make Distributions
in full for 6 consecutive quarterly Distribution periods, Distributions shall be
deemed to remain in arrears, notwithstanding any payments in respect thereof,
until full cumulative Distributions have been or contemporaneously are paid with
respect to all quarterly Distribution periods terminating on or prior to the
date of payment of such cumulative Distributions.
(c) Not later than 30 days after such right to appoint a Special Regular
Trustee arises, the Regular Trustees will convene a meeting for the purpose of
appointing a Special Regular Trustee. If the Regular Trustees fail to convene
such meeting within such 30-day period, the Holders of 10% in Liquidation Amount
of the Preferred Securities will be entitled to convene such meeting in
accordance with Section 12.2 of the Declaration. The record date for such
meeting will be the close of business on the Business Day which is one Business
Day before the day on which notice of the meeting is sent to Holders. The
provisions of the Declaration relating to the convening and conduct of the
meetings of the Holders will apply with respect to any such meeting.
(d) A Special Regular Trustee may be removed without cause at any time by
vote of the Holders of a Majority in Liquidation Amount of the Preferred
Securities at a meeting of the Holders of the Preferred Securities in accordance
with Section 5.6(a)(ii)(b) of the Declaration. The Holders of 10% in Liquidation
Amount of the Preferred Securities will be entitled to convene such a meeting in
accordance with Section 12.2 of the Declaration. The record date for such
meeting will be the close of business on the Business Day which is one Business
Day before the day on which the notice of meeting is sent to Holders.
Notwithstanding the appointment of a Special Regular Trustee, the Subordinated
Note Issuer shall retain all rights under the Indenture, including the right to
extend the interest payment period on the Subordinated Notes.
(e) Subject to the requirements of the second to last sentence of this
paragraph, the Holders of a Majority in Liquidation Amount of the Preferred
Securities voting separately as a class may direct the time, method, and place
of conducting any proceeding for any remedy available to the Property Trustee,
or
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exercising any trust or power conferred upon the Property Trustee under the
Declaration, including (i) directing the time, method, place of conducting any
proceeding for any remedy available to the Subordinated Note Trustee, or
exercising any trust or power conferred on the Subordinated Note Trustee with
respect to the Subordinated Notes, (ii) waive any past default and its
consequences that is waivable under Section 6.09 of the Indenture, or (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Subordinated Notes shall be due and payable. The Property Trustee shall not
revoke any action previously authorized or approved by a vote of the Holders of
the Preferred Securities. Other than with respect to directing the time, method
and place of conducting any remedy available to the Property Trustee or the
Subordinated Note Trustee as set forth above, the Property Trustee shall not
take any action in accordance with the directions of the Holders of the
Preferred Securities under this paragraph unless the Property Trustee has
obtained an opinion of tax counsel to the effect that for the purposes of United
States federal income tax the Trust will not be classified as an association
taxable as a corporation or a partnership and that each Holder of the Securities
will be treated as owning an undivided beneficial interest in the Subordinated
Notes on account of such action. If the Property Trustee fails to enforce its
rights under the Declaration, any Holder of Preferred Securities may, after a
period of 30 days has elapsed from such holder s written request to the Property
Trustee to enforce such rights, institute a legal proceeding directly against
any Person to enforce the Property Trustee s rights under the Declaration,
without first instituting a legal proceeding against the Property Trustee or any
other Person.
(f) Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Preferred Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
or of such matter upon which written consent is sought and (iii) instructions
for the delivery of proxies or consents.
(g) No vote or consent of the Holders of the Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities or to
distribute the Subordinated Notes in accordance with the Declaration and the
terms of the Securities.
(h) Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Sponsor, or by any entity directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Sponsor shall not be entitled to vote or consent and shall, for
purposes of such vote or consent, be treated as if they were not outstanding.
6. VOTING RIGHTS - COMMON SECURITIES.
(a) Except as provided under paragraphs 6(b), 6(c) and 7 and as otherwise
required by law and the Declaration, the Holders of the Common Securities will
have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance with
Article V of the Declaration, to vote to appoint, remove or replace any Trustee
or to increase or decrease the number of Trustees subject to the exclusive right
of the Holders of the Preferred Securities to appoint, remove or replace a
Special Regular Trustee.
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(c) Subject to Section 2.6 of the Declaration and only after all Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated and subject to the requirements of the second to last
sentence of this paragraph, the Holders of a Majority in Liquidation Amount of
the Common Securities voting separately as a class may direct the time, method,
and place of conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the Property Trustee
under the Declaration, including (i) directing the time, method, place of
conducting any proceeding for any remedy available to the Subordinated Note
Trustee, or exercising any trust or power conferred on the Subordinated Note
Trustee with respect to the Subordinated Notes, (ii) waive any past default and
its consequences that is waivable under Section 6.06 of the Indenture, or (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Subordinated Notes shall be due and payable, provided, however, that where a
consent or action under the Indenture would require the consent or act of the
Holders of greater than a majority in principal amount of Subordinated Notes
affected thereby (a "Super Majority"), the Property Trustee may only give such
consent or take such action at the direction of the Holders of at least the
proportion in Liquidation Amount of the Common Securities which the relevant
Super Majority represents of the aggregate principal amount of the Subordinated
Notes outstanding. Pursuant to this paragraph 6(c), the Property Trustee shall
not revoke any action previously authorized or approved by a vote of the Holders
of the Preferred Securities. Other than with respect to directing the time,
method and place of conducting any remedy available to the Property Trustee or
the Subordinated Note Trustee as set forth above, the Property Trustee shall not
take any action in accordance with the directions of the Holders of the Common
Securities under this paragraph unless the Property Trustee has obtained an
opinion of tax counsel to the effect that for the purposes of United States
federal income tax the Trust will not be classified as an association taxable as
a corporation or a partnership and that each Holder of the Securities will be
treated as owning an undivided beneficial interest in the Subordinated Notes on
account of such action. If the Property Trustee fails to enforce its rights
under the Declaration, any Holder of Common Securities may, after a period of 30
days has elapsed from such holder s written request to the Property Trustee to
enforce such rights, institute a legal proceeding directly against any Person to
enforce the Property Trustee s rights under the Declaration, without first
instituting a legal proceeding against the Property Trustee or any other Person.
(d) Any approval or direction of Holders of Common Securities may be given
at a separate meeting of Holders of Common Securities convened for such purpose,
at a meeting of all of the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Common Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to be mailed to
each Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
(e) No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Subordinated Notes in accordance with the Declaration and the terms of the
Securities.
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7. AMENDMENTS TO DECLARATION AND INDENTURE
(a) In addition to any requirements under Section 12.1 of the Declaration,
if any proposed amendment to the Declaration provides for, or the Regular
Trustees otherwise propose to effect, (i) any action that would adversely affect
the powers, preferences or special rights of the Preferred Securities, whether
by way of amendment to the Declaration or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than as described in Section 8.1
of the Declaration, then the Holders of outstanding Preferred Securities as a
class, will be entitled to vote on such amendment or proposal (but not on any
other amendment or proposal) and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in
Liquidation Amount of the Securities, voting together as a single class,
provided, however, that the rights of Holders of Preferred Securities under
Article V of the Declaration to appoint, remove or replace a Special Regular
Trustee shall not be amended without the consent of each Holder of Preferred
Securities, provided, further, if any amendment or proposal referred to in
clause (i) above would adversely affect only the Preferred Securities or the
Common Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a Majority in Liquidation Amount of such class of
Securities.
(b) In the event the consent of the Property Trustee as the holder of the
Subordinated Notes is required under the Indenture with respect to any
amendment, modification or termination of the Indenture, the Subordinated Notes,
the Property Trustee shall request the direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a Majority in Liquidation Amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
the consent of the holders of greater than a majority in aggregate principal
amount of the Subordinated Notes (a "Super Majority"), the Property Trustee may
only give such consent at the direction of the Holders of at least the
proportion in Liquidation Amount of the Securities which the relevant Super
Majority represents of the aggregate principal amount of the Subordinated Notes
outstanding; provided, further, that the Property Trustee shall not take any
action in accordance with the directions of the Holders of the Securities under
this paragraph 7(b) unless the Property Trustee has obtained an opinion of tax
counsel to the effect that for the purposes of United Stated federal income tax
the Trust will not be classified as an association taxable as a corporation or a
partnership and that each Holder of the Securities will be treated as owning an
undivided beneficial interest in the Subordinated Notes on account of such
action.
8. PRO RATA
A reference in these terms of the Securities to any payment, distribution
or treatment as being "Pro Rata" shall mean pro rata to each Holder of
Securities according to the aggregate Liquidation Amount of the Securities held
by the relevant Holder in relation to the aggregate Liquidation Amount of all
Securities outstanding unless, in relation to a payment, an Event of Default
under the Indenture has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate Liquidation Amount of
Preferred Securities held by the relevant Holder relative to the aggregate
Liquidation Amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate Liquidation
Amount of Common Securities held by the relevant Holder relative to the
aggregate Liquidation Amount of all Common Securities outstanding.
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9. RANKING.
The Preferred Securities rank pari passu and payment thereon shall be made
Pro Rata with the Common Securities except that where an Event of Default occurs
and is continuing under the Indenture in respect of the Subordinated Notes held
by the Property Trustee, the rights of Holders of the Common Securities to
payment in respect of Distributions and payments upon liquidation, redemption
and otherwise are subordinated to the rights to payment of the Holders of the
Preferred Securities.
[10. LISTING.
The Regular Trustees shall use their best efforts to cause the Preferred
Securities to be listed for quotation on the New York Stock Exchange Limited.]
11. ACCEPTANCE OF SECURITIES GUARANTEE AND INDENTURE
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
12. NO PREEMPTIVE RIGHTS.
The Holders of the Securities shall have no preemptive rights to subscribe
for any additional Securities.
13. MISCELLANEOUS.
These terms constitute a part of the Declaration.
The Securities shall be governed in accordance with the laws of the State
of ___________.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee and the Indenture to a Holder without charge on written
request to the Trust at its principal place of business.
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EXHIBIT 4.7
FORM OF
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of , 199 (this "Agreement"),
among AirTouch Communications, Inc., a Delaware corporation (the "Company"), The
Bank of New York, as collateral agent (in such capacity, together with its
successors in such capacity, the "Collateral Agent"), and
[______________________], as purchase contract agent and as attorney-in-fact of
the Holders (as hereinafter defined) from time to time of the Securities (as
hereinafter defined) (in such capacity, together with its successors in such
capacity, the "Purchase Contract Agent") under the Purchase Contract Agreement
(as hereinafter defined).
RECITALS
A. The Company and the Purchase Contract Agent are parties to the
Purchase Contract Agreement, dated as of the date hereof (as modified and
supplemented and in effect from time to time, the "Purchase Contract
Agreement"), pursuant to which there will be issued ___% ______________
Securities (the "Securities").
B. Each Security consists of (a) one Purchase Contract (as hereinafter
defined) and (b) ___% ________due _______ ("Collateral Securities") having a
principal amount or liquidation preference equal to $______ (the "Stated
Amount") and maturing on ___________ (the "Final Settlement Date"), subject
to the pledge of such Collateral Securities created hereby.
C. Pursuant to the terms of the Purchase Contract Agreement and the
Purchase Contracts, the Holders (as defined in the Purchase Contract
Agreement) from time to time of the Securities have irrevocably authorized
the Purchase Contract Agent, as attorney-in-fact of such Holders, among other
things to execute and deliver this Agreement on behalf of such Holders and to
grant the pledge provided hereby of the Collateral Securities constituting
part of such Securities as provided herein and subject to the terms hereof.
D. Accordingly, the Company, the Collateral Agent and the Purchase
Contract Agent, on its own behalf and as attorney-in-fact of the Holders from
time to time of the Securities, agree as follows:
Section 1. Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
1. the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular; and
2. the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in the Purchase Contract Agreement.
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<PAGE> 2
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
["Applicable Treasury Regulations" means Subpart O-Book-Entry Procedure
of Title 31 of the Code of Federal Regulations (31 CFR (S) 306.115 et. seq.) and
any other regulations of the United States Treasury Department from time to time
applicable to the transfer or pledge of book-entry U.S. Treasury Securities.]
"Board Resolution" has the meaning specified in the Purchase Contract
Agreement.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which the New York Stock Exchange or banking institutions or trust companies
in The City of New York are authorized or obligated by law or executive order to
be closed.
"Collateral Agent" has the meaning specified in the first paragraph of
this instrument.
"Collateral Securities" has the meaning specified in the Recitals.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor shall have become such, and thereafter
"Company" shall mean such successor.
"Early Settlement" has the meaning specified in the Purchase Contract
Agreement.
"Early Settlement Amount" has the meaning specified in the Purchase
Contract Agreement.
"Final Settlement Date" has the meaning specified in the Recitals.
"Holder" when used with respect to a Security, or a Purchase Contract
constituting a part thereof, has the meaning specified in the Purchase Contract
Agreement.
"Opinion of Counsel" has the meaning specified in the Purchase Contract
Agreement.
"Outstanding Securities" has the meaning specified in the Purchase
Contract Agreement.
"Outstanding Security Certificates" has the meaning specified in the
Purchase Contract Agreement.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pledge" has the meaning specified in Section 2 hereof.
"Pledged Collateral Securities" has the meaning specified in Section 2
hereof.
"Purchase Contract" has the meaning specified in the Purchase Contract
Agreement.
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<PAGE> 3
"Purchase Contract Agent" has the meaning specified in the first
paragraph of this instrument.
"Security" has the meaning specified in the Recitals.
"Security Certificate" has the meaning specified in the Purchase
Contract Agreement.
"Stated Amount" has the meaning specified in the Recitals.
"Termination Event" has the meaning specified in the Purchase Contract
Agreement.
Section 2. The Pledge. The Holders from time to time of the Securities
acting through the Purchase Contract Agent, as their attorney-in-fact, hereby
pledge and grant to the Collateral Agent, as collateral security for the
performance when due by such Holders of their respective obligations under the
Purchase Contracts constituting part of such Securities, for the benefit of the
Company, a security interest in all of the right, title and interest of such
Holders in the Collateral Securities constituting a part of such Securities.
Prior to or concurrently with the execution and delivery of this Agreement, the
initial Holders and the Collateral Agent shall (i) cause the Collateral
Securities to be delivered to the Collateral Agent by Federal Reserve Bank-Wire
or by book-entry transfer through the facilities of the Depositary Trust
Company, as the case may be, to the account of the Collateral Agent designated
by it for such purpose and (ii) take appropriate action so that the applicable
Federal Reserve Bank through which such Collateral Securities have been
purchased will reflect such transfer and the Pledge by appropriate entries in
its records in accordance with Applicable Treasury Regulations. In addition, the
execution and delivery hereof by the Purchase Contract Agent and the Collateral
Agent shall constitute (i) the notification to the Collateral Agent (as bailee
or otherwise) of the Pledge and (ii) an acknowledgment by the Collateral Agent
(as third party in possession or otherwise) of the Pledge and of its holding of
such Collateral Securities subject to the Pledge, in each case, for purposes of
perfecting the Pledge under Applicable Treasury Regulations and other applicable
law, as the case may be, including, to the extent applicable, the Uniform
Commercial Code as adopted and in effect in any applicable jurisdiction. The
pledge provided in this Section 2 is herein referred to as the "Pledge" and the
Collateral Securities subject to the Pledge, excluding any Collateral Securities
released from the Pledge as provided in Section 4 hereof, are hereinafter
referred to as the "Pledged Collateral Securities." Subject to the Pledge, the
Holders from time to time of the Securities shall have full beneficial ownership
of the Collateral Securities constituting a part of such Securities.
Section 3. Payments of Principal, Redemption Price and Distributions.
(a) All payments of principal or redemption price of, or distributions on, any
Collateral Securities constituting part of the Securities received by the
Collateral Agent shall be paid by the Collateral Agent by wire transfer in same
day funds no later than 2:00 p.m., New York City time on the Business Day such
payment is received by the Collateral Agent (provided that in the event such
interest payment is received by the Collateral Agent on a day that is not a
Business Day or after 2:00 p.m., New York City time, on a Business Day, then
such payment shall be made no later than 9:00 a.m., New York City time, on the
next succeeding Business Day) (i) in the case of (A) distributions with respect
to any Collateral Securities and (B) any principal or redemption payments with
respect to any Collateral Securities that have been released from the Pledge
pursuant to Section 4 hereof, to the Purchase Contract Agent to the account
designated by it for such purpose and (ii) in the case of principal or
redemption payments on any Pledged Collateral Securities, to the Company, in
full satisfaction of the respective obligations of the Holders of the Securities
of
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<PAGE> 4
which such Pledged Collateral Securities are a part under the Purchase Contracts
forming a part of such Securities. All such payments received by the Purchase
Contract Agent as provided herein shall be applied by the Purchase Contract
Agent pursuant to the provisions of the Purchase Contract Agreement. If,
notwithstanding the foregoing, the Purchase Contract Agent shall receive any
payments of principal or in respect of redemption on account of any Pledged
Collateral Securities, the Purchase Contract Agent shall hold the same as
trustee of an express trust for the benefit of the Company (and promptly deliver
over to the Company) for application to the obligations of the Holders of the
Securities of which such Collateral Securities are a part under the Purchase
Contracts relating to the Securities of which such Collateral Securities are a
part, and such Holders shall acquire no right, title or interest in any such
payments of principal or in respect of redemption so received.
Section 4. Release of Pledged Collateral Securities. (a) Upon notice to
the Collateral Agent by the Company or the Purchase Contract Agent that there
has occurred a Termination Event, the Collateral Agent shall release all Pledged
Collateral Securities from the Pledge and shall transfer all such Collateral
Securities, free and clear of any lien, pledge or security interest created
hereby, to the Purchase Contract Agent.
(b) Upon notice to the Collateral Agent by the Purchase Contract Agent
that one or more Holders of Securities have elected to effect Early Settlement
of their respective obligations under the Purchase Contracts forming a part of
such Securities in accordance with the terms of the Purchase Contracts and the
Purchase Contract Agreement, and that the Purchase Contract Agent has received
from such Holders, and paid to the Company, the related Early Settlement Amounts
pursuant to the terms of the Purchase Contracts and the Purchase Contract
Agreement and that all conditions to such Early Settlement have been satisfied,
then the Collateral Agent shall release from the Pledge Pledged Collateral
Securities with a principal amount or liquidation preference equal to the
product of (i) the Stated Amount times (ii) the number of such Purchase
Contracts as to which such Holders have elected to effect Early Settlement.
(c) Transfers of Collateral Securities pursuant to Section 4(a) or (b)
shall be by Federal Reserve Bank-Wire, book-entry transfer through the
facilities of the Depository Trust Company or in another appropriate manner, (i)
if the Collateral Agent shall have received such notification at or prior to
1:00 p.m., New York City time, on a Business Day, then no later than 2:00 p.m.,
New York City time, on such Business Day and (ii) if the Collateral Agent shall
have received such notification on a day that is not a Business Day or after
1:00 p.m., New York City time, on a Business Day, then no later than 9:00 a.m.,
New York City time, on the next succeeding Business Day.
Section 5. Rights and Remedies . (a) The Collateral Agent shall have all
of the rights and remedies with respect to the Pledged Collateral Securities of
a secured party under the Uniform Commercial Code as in effect in the State of
New York (the "Code") (whether or not said Code is in effect in the jurisdiction
where the rights and remedies are asserted) and such additional rights and
remedies to which a secured party is entitled under the laws in effect in any
jurisdiction where any rights and remedies hereunder may be asserted.
(b) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, in the event the Collateral Agent is unable
to make payments to the Company on account of principal payments of, or in
respect of the redemption of, any Pledged Collateral Securities as provided in
Section 3 hereof in satisfaction of the obligations of the Holder of the
Securities of which such Pledged Collateral Securities are a part under the
Purchase Contracts
4
<PAGE> 5
forming a part of such Securities, the Collateral Agent shall have and may
exercise, with reference to such Pledged Collateral Securities and such
obligations of such Holder, any and all of the rights and remedies available to
a secured party under the Code after default by a debtor, and as otherwise
granted herein or under any other law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
authorized to receive and collect all payments of principal of, in respect of
redemptions of or distributions on the Pledged Collateral Securities.
(d) The Purchase Contract Agent agrees that, from time to time, upon the
written request of the Collateral Agent, the Purchase Contract Agent shall
execute and deliver such further documents and do such other acts and things as
the Collateral Agent may reasonably request in order to maintain the Pledge, and
the perfection and priority thereof, and to confirm the rights of the Collateral
Agent hereunder.
Section 6. The Collateral Agent. The Collateral Agent and the Company
hereby agree between themselves as follows (it being understood and agreed that
neither the Purchase Contract Agent nor any Holder of Securities shall have any
rights under this Section 6):
6.01. Appointment, Powers and Immunities. The Collateral Agent shall
act as agent for the Company hereunder with such powers as are specifically
vested in the Collateral Agent by the terms of this Agreement, together with
such other powers as are reasonably incidental thereto. The Collateral Agent:
(a) shall have no duties or responsibilities except those expressly set forth in
this Agreement and no implied covenants or obligations shall be inferred from
this Agreement against the Collateral Agent, nor shall the Collateral Agent be
bound by the provisions of any agreement by any party hereto beyond the specific
terms hereof; (b) shall not be responsible to the Company for any recitals
contained in this Agreement, or in any certificate or other document referred to
or provided for in, or received by it under, this Agreement, the Securities or
the Purchase Contract Agreement, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement (other than as
against the Collateral Agent), the Securities or the Purchase Contract Agreement
or any other document referred to or provided for herein or therein or for any
failure by the Company or any other Person (except the Collateral Agent) to
perform any of its obligations hereunder or thereunder; (c) shall not be
required to initiate or conduct any litigation or collection proceedings
hereunder (except pursuant to directions furnished under Section 6.02 hereof);
(d) shall not be responsible for any action taken or omitted to be taken by it
hereunder or under any other document or instrument referred to or provided for
herein or in connection herewith or therewith, except for its own negligence;
and (e) shall not be required to advise any party as to selling or retaining, or
taking or refraining from taking any action with respect to, any securities or
other property deposited hereunder. Subject to the foregoing, during the term of
this Agreement the Collateral Agent shall take all reasonable action in
connection with the safe keeping and preservation of the Pledged Collateral
Securities hereunder.
No provision of this Agreement shall require the Collateral Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder. In no event shall the Collateral
Agent be liable for any amount in excess of the value of the Pledged Collateral
Securities.
5
<PAGE> 6
6.02. Instructions of the Company. The Company shall have the right, by
one or more instruments in writing executed and delivered to the Collateral
Agent, to direct the time, method and place of conducting any proceeding for any
right or remedy available to the Collateral Agent, or of exercising any power
conferred on the Collateral Agent, or to direct the taking or refraining from
taking of any action authorized by this Agreement; provided, however, that (i)
such direction shall not conflict with the provisions of any law or of this
Agreement and (ii) the Collateral Agent shall be adequately indemnified as
provided herein. Nothing in this Section 6.02 shall impair the right of the
Collateral Agent in its discretion to take any action or omit to take any action
which it deems proper and which is not inconsistent with such direction.
6.03. Reliance by Collateral Agent. The Collateral Agent shall be
entitled to rely upon any certification, order, judgment, opinion, notice or
other communication (including, without limitation, any thereof by telephone,
telecopy, telex, telegram or cable) believed by it to be genuine and correct and
to have been signed or sent by or on behalf of the proper Person or Persons
(without being required to determine the correctness of any fact stated
therein), and upon advice and statements of legal counsel and other experts
selected by the Collateral Agent. As to any matters not expressly provided for
by this Agreement, the Collateral Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder in accordance with instructions
given by the Company in accordance with this Agreement.
6.04. Rights in Other Capacities. The Collateral Agent and its
affiliates may (without having to account therefor to the Company) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Purchase Contract Agent and
any Holder of Securities (and any of their subsidiaries or affiliates) as if it
were not acting as the Collateral Agent, and the Collateral Agent and its
affiliates may accept fees and other consideration from the Purchase Contract
Agent and any Holder of Securities without having to account for the same to the
Company, provided that the Collateral Agent covenants and agrees with the
Company that the Collateral Agent shall not accept, receive or permit there to
be created in its favor any security interest, lien or other encumbrance of any
kind in or upon the Pledged Collateral Securities.
6.05. Non-Reliance on Collateral Agent. The Collateral Agent shall not
be required to keep itself informed as to the performance or observance by the
Purchase Contract Agent or any Holder of Securities of this Agreement, the
Purchase Contract Agreement, the Securities or any other document referred to or
provided for herein or therein or to inspect the properties or books of the
Purchase Contract Agent or any Holder of Securities. The Collateral Agent shall
not have any duty or responsibility to provide the Company with any credit or
other information concerning the affairs, financial condition or business of the
Purchase Contract Agent or any Holder of Securities (or any of their affiliates)
that may come into the possession of the Collateral Agent or any of its
affiliates.
6.06. Compensation and Indemnity. The Company agrees: (i) to pay the
Collateral Agent from time to time reasonable compensation for all services
rendered by it hereunder and (ii) to indemnify the Collateral Agent for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of its powers and duties under this Agreement,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of such powers and
duties.
6
<PAGE> 7
6.07. Failure to Act. In the event of any ambiguity in the provisions of
this Agreement or any dispute between or conflicting claims by or among the
undersigned and/or any other person or entity with respect to any funds or
property deposited hereunder, the Collateral Agent shall be entitled, at its
sole option, to refuse to comply with any and all claims, demands or
instructions with respect to such property or funds so long as such dispute or
conflict shall continue, and the Collateral Agent shall not be or become liable
in any way to any of the undersigned for its failure or refusal to comply with
such conflicting claims, demands or instructions. The Collateral Agent shall be
entitled to refuse to act until either (i) such conflicting or adverse claims or
demands shall have been finally determined by a court of competent jurisdiction
or settled by agreement between the conflicting parties as evidenced in a
writing, satisfactory to the Collateral Agent or (ii) the Collateral Agent shall
have received security or an indemnity satisfactory to the Collateral Agent
sufficient to save the Collateral Agent harmless from and against any and all
loss, liability or expense which the Collateral Agent may incur by reason of its
acting. The Collateral Agent may in addition elect to commence an interpleader
action or seek other judicial relief or orders as the Collateral Agent may deem
necessary. Notwithstanding anything contained herein to the contrary, the
Collateral Agent shall not be required to take any action that is in its opinion
contrary to law or to the terms of this Agreement, or which would in its opinion
subject it or any of its officers, employees or directors to liability.
6.08. Resignation of Collateral Agent. Subject to the appointment and
acceptance of a successor Collateral Agent as provided below, (a) the Collateral
Agent may resign at any time by giving notice thereof to the Company and the
Purchase Contract Agent, (b) the Collateral Agent may be removed at any time by
the Company and (c) if the Collateral Agent fails to perform any of its material
obligations hereunder in any material respect for a period of not less than 20
days after receiving notice of such failure by the Purchase Contract Agent and
such failure shall be continuing, the Collateral Agent may be removed by the
Purchase Contract Agent. The Purchase Contract Agent shall promptly notify the
Company of any removal of the Collateral Agent pursuant to clause (c) of the
immediately preceding sentence. Upon any such resignation or removal, the
Company shall have the right to appoint a successor Collateral Agent. If no
successor Collateral Agent shall have been so appointed and shall have accepted
such appointment within 30 days after the retiring Collateral Agent's giving of
notice of resignation or such removal, then the retiring Collateral Agent may
petition any court of competent jurisdiction for the appointment of a successor
Collateral Agent. The Collateral Agent shall be a bank which has an office in
New York, New York with a combined capital and surplus of at least $50,000,000.
Upon the acceptance of any appointment as Collateral Agent hereunder by a
successor Collateral Agent, such successor Collateral Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Collateral Agent, and the retiring Collateral Agent shall take
all appropriate action to transfer any money and property held by it hereunder
(including the Pledged Collateral Securities) to such successor Collateral
Agent. The retiring Collateral Agent shall, upon such succession, be discharged
from its duties and obligations as Collateral Agent hereunder. After any
retiring Collateral Agent's resignation hereunder as Collateral Agent, the
provisions of this Section 6 shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was acting as the
Collateral Agent.
Promptly following the removal or resignation of the Collateral Agent
the Company shall give written notice thereof to Moody's Investors Services,
Inc.
6.09. Right to Appoint Agent or Advisor. The Collateral Agent shall have
the right to appoint agents or advisors in connection with any of its duties
hereunder, and the Collateral
7
<PAGE> 8
Agent shall not be liable for any action taken or omitted by such agents or
advisors selected in good faith.
The provisions of this Section 6 shall survive termination of this
Agreement and the resignation or removal of the Collateral Agent.
Section 7. Amendment.
7.01. Amendment Without Consent of Holders. Without the consent of any
Holders, the Company, the Collateral Agent and the Purchase Contract Agent, at
any time and from time to time, may amend this Agreement, in form satisfactory
to the Company, the Collateral Agent and the Purchase Contract Agent, for any of
the following purposes:
1. to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company; or
2. to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the Company;
or
3. to evidence and provide for the acceptance of appointment
hereunder by a successor Collateral Agent or Purchase Contract Agent; or
4. to cure any ambiguity, to correct or supplement any provisions
herein which may be inconsistent with any other such provisions herein, or to
make any other provisions with respect to such matters or questions arising
under this Agreement, provided such action shall not adversely affect the
interests of the Holders.
7.02. Amendment with Consent of Holders. With the consent of the Holders
of not less than 66 2/3% of the Outstanding Securities, by Act of said Holders
delivered to the Company, the Agent and the Collateral Agent, the Company, when
authorized by a Board Resolution, the Agent and the Collateral Agent may amend
this Agreement for the purpose of modifying in any manner the provisions of this
Agreement or the rights of the Holders in respect of the Securities; provided,
however, that no such supplemental agreement shall, without the consent of the
Holder of each Outstanding Security affected thereby,
1. change the amount or type of Collateral Securities underlying a
Security, impair the right of the Holder of any Security to receive
distributions on the underlying Collateral Securities or otherwise adversely
affect the Holder's rights in or to such Collateral Securities; or
2. otherwise effect any action that would require the consent of
the Holder of each Outstanding Security affected thereby pursuant to the
Purchase Contract Agreement if such action were effected by an agreement
supplemental thereto; or
3. reduce the percentage of Outstanding Securities the consent of
whose Holders is required for any such amendment.
8
<PAGE> 9
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed amendment, but it shall be
sufficient if such Act shall approve the substance thereof.
7.03. Execution of Amendments. In executing any amendment permitted by
this Section, the Collateral Agent and the Purchase Contract Agent shall be
entitled to receive and (subject to Section 6.01 hereof, with respect to the
Collateral Agent, and Section 701 of the Purchase Contract Agreement, with
respect to the Purchase Contract Agent) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement.
7.04. Effect of Amendments. Upon the execution of any amendment under
this Section, this Agreement shall be modified in accordance therewith, and such
amendment shall form a part of this Agreement for all purposes; and every Holder
of Security Certificates theretofore or thereafter authenticated, executed on
behalf of the Holders and delivered under the Purchase Contract Agreement shall
be bound thereby.
7.05. Reference to Amendments. Security Certificates authenticated,
executed on behalf of the Holders and delivered after the execution of any
amendment pursuant to this Section may, and shall if required by the Collateral
Agent or the Purchase Contract Agent, bear a notation in form approved by the
Purchase Contract Agent and the Collateral Agent as to any matter provided for
in such amendment. If the Company shall so determine, new Security Certificates
so modified as to conform, in the opinion of the Collateral Agent, the Purchase
Contract Agent and the Company, to any such amendment may be prepared and
executed by the Company and authenticated, executed on behalf of the Holders and
delivered by the Purchase Contract Agent in accordance with the Purchase
Contract Agreement in exchange for Outstanding Security Certificates.
Section 8. Miscellaneous.
8.01. No Waiver. No failure on the part of the Collateral Agent or any
of its agents to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Collateral Agent
or any of its agents of any right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
8.02. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Company, the
Collateral Agent and the Holders from time to time of the Securities, acting
through the Purchase Contract Agent as their attorney-in-fact, hereby submit to
the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York state court sitting in New
York City for the purposes of all legal proceedings arising out of or relating
to this Agreement or the transactions contemplated hereby. The Company, the
Collateral Agent and the Holders from time to time of the Securities, acting
through the Purchase Contract Agent as their attorney-in-fact, irrevocably
waive, to the fullest extent permitted by applicable law, any objection which
they may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
9
<PAGE> 10
8.03. Notices. All notices, requests, consents and other communications
provided for herein (including, without limitation, any modifications of, or
waivers or consents under, this Agreement) shall be given or made in writing
(including, without limitation, by telecopy) and delivered to the intended
recipient at the "Address for Notices" specified below its name on the signature
pages hereof or, as to any party, at such other address as shall be designated
by such party in a notice to the other parties. Except as otherwise provided in
this Agreement, all such communications shall be deemed to have been duly given
when transmitted by telecopier or personally delivered or, in the case of a
mailed notice, upon receipt, in each case given or addressed as aforesaid.
8.04. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the Company,
the Collateral Agent and the Purchase Contract Agent, and the Holders from time
to time of the Securities, by their acceptance of the same, shall be deemed to
have agreed to be bound by the provisions hereof and to have ratified the
agreements of, and the grant of the Pledge hereunder by, the Purchase Contract
Agent.
8.05. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
8.06. Severability. If any provision hereof is invalid and unenforceable
in any jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in order to carry out the intentions of the parties
hereto as nearly as may be possible and (ii) the invalidity or unenforceability
of any provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
8.07. Expenses, etc. The Company agrees to reimburse the Collateral
Agent for: (a) all reasonable out-of-pocket costs and expenses of the Collateral
Agent (including, without limitation, the reasonable fees and expenses of
counsel to the Collateral Agent), in connection with (i) the negotiation,
preparation, execution and delivery or performance of this Agreement and (ii)
any modification, supplement or waiver of any of the terms of this Agreement;
(b) all reasonable costs and expenses of the Collateral Agent (including,
without limitation, reasonable fees and expenses of counsel) in connection with
(i) any enforcement or proceedings resulting or incurred in connection with
causing any Holder of Securities to satisfy its obligations under the Purchase
Contracts forming a part of the Securities and (ii) the enforcement of this
Section 8.07; and (c) all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any other document referred to herein and all
costs, expenses, taxes, assessments and other charges incurred in connection
with any filing, registration, recording or perfection of any security interest
contemplated hereby.
8.08. Security Interest Absolute. All rights of the Collateral Agent and
security interests hereunder, and all obligations of the Holders from time to
time of the Securities hereunder, shall be absolute and unconditional
irrespective of:
1. any lack of validity or enforceability of any provision of the
Purchase Contracts or the Securities or any other agreement or
instrument relating thereto;
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<PAGE> 11
2. any change in the time, manner or place of payment of, or any other
term of, or any increase in the amount of, all or any of the
obligations of Holders of Securities under the related Purchase
Contracts, or any other amendment or waiver of any term of, or any
consent to any departure from any requirement of, the Purchase
Contract Agreement or any Purchase Contract or any other agreement
or instrument relating thereto; or
3. any other circumstance which might otherwise constitute a defense
available to, or discharge of, a borrower, a guarantor or a
pledgor.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
AIRTOUCH COMMUNICATIONS, INC.
By: /s/
------------------------
Name:
Title:
Address for Notices:
AirTouch Communications, Inc.
One California Street
San Francisco, CA 94111
(415) 658-2000
as Purchase Contract Agent and as
attorney-in-fact of the Holders from
time to time of the Securities
By: /s/
------------------------
Name:
Title:
Address for Notices:
as Collateral Agent
By: /s/
------------------------
Name:
Title:
11
<PAGE> 12
Address for Notices:
12
<PAGE> 1
EXHIBIT 4.8
--------------------------------------------------------------------------------
FORM OF
SENIOR INDENTURE
Between
AIRTOUCH COMMUNICATIONS, INC.
and
________________________, AS TRUSTEE
Dated as of ___________, 1995
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE ONE
DEFINITIONS
Section 1.01 Certain Terms Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Certified Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Principal Office of the Trustee . . . . . . . . . . . . . . . . . . . . . . . 5
Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Security or Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Securityholder; Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . . 6
United States Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION,
TRANSFER AND EXCHANGE OF SECURITIES
Section 2.01 Amount, Series, Execution, Authentication
and Delivery of Securities . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.02 Form of Securities and Trustee's
Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
Section 2.03 Denominations; Payment of Interest
on Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.04 Execution of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.05 Registration, Transfer and Exchange
of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.06 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.07 Mutilated, Destroyed, Lost or Stolen
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.08 Cancellation and Destruction of
Surrendered Securities . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.09 Securities in Global Form;
Depositories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE THREE
REDEMPTION OF SECURITIES
Section 3.01 Redemption of Securities . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.02 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.03 Selection of Securities for Redemption . . . . . . . . . . . . . . . . . . 16
Section 3.04 Partial Redemption of Registered
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 3.05 Effect of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01 Payment of Principal of and Interest
on Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.02 Maintenance of Offices or Agencies for
Transfer, Registration, Exchange and
Payment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.03 Appointment to Fill a Vacancy in the
Office of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.04 Duties of Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.05 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
</TABLE>
<PAGE> 4
ARTICLE FIVE
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
<TABLE>
<S> <C> <C>
Section 5.01 Company to Furnish Trustee
Information as to the Names and
Addresses of Securityholders . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.02 Preservation of Information;
Communication to Securityholders . . . . . . . . . . . . . . . . . . . . . 19
Section 5.03 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 5.04 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01 Events of Default; Acceleration, Waiver
of Default and Restoration of
Position and Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.02 Covenant of Company to Pay to Trustee
Whole Amount Due on Securities on
Default in Payment of Interest or
Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.03 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . 25
Section 6.04 Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.05 Application of Moneys Collected by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.06 Limitation on Suits By Holders of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.07 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.08 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.09 Control By Holders; Waiver of Past
Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.10 Trustee to Give Notice of Defaults
Known to It, But May Withhold in
Certain Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . 28
</TABLE>
<PAGE> 5
<TABLE>
<S> <C> <C>
Section 6.11 Requirement of an Undertaking to Pay
Costs in Certain Suits Under the
Indenture or Against the Trustee . . . . . . . . . . . . . . . . . . . . 28
ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities
of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.02 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 7.03 Trustee Not Responsible for Recitals
or Application of Proceeds . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.04 Trustee May Own Securities . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.05 Moneys Received by Trustee to be Held
in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.06 Trustee Entitled to Compensation,
Reimbursement and Indemnity . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.07 Right of Trustee to Rely on Officer's
Certificate Where No Other Evidence
Specifically Prescribed . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.08 Disqualification; Conflicting Interest . . . . . . . . . . . . . . . . . . 31
Section 7.09 Requirements for Eligibility of
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 7.10 Resignation and Removal of Trustee;
Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.11 Acceptance of Appointment by
Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.12 Successor to Trustee by Merger,
Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.13 Preferential Collection of Claims
Against the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence of Action by Securityholders . . . . . . . . . . . . . . . . . . . 42
</TABLE>
<PAGE> 6
<TABLE>
<S> <C> <C>
Section 8.02 Proof of Execution of Instruments and
of Holding of Securities . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 8.03 Who May be Deemed Owners of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 8.04 Securities Owned by the Company or
Controlled or Controlling Persons
Disregarded for Certain Purposes . . . . . . . . . . . . . . . . . . . . 43
Section 8.05 Instruments Executed by Securityholders
Bind Future Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
Section 9.01 Purposes for Which Meetings May be
Called . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 9.02 Manner of Calling Meetings . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 9.03 Call of Meeting by the Company or
Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 9.04 Who May Attend and Vote at Meetings . . . . . . . . . . . . . . . . . . . . 45
Section 9.05 Regulations May be Made by Trustee;
Conduct of the Meeting; Voting
Rights - Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 9.06 Manner of Voting at Meetings and
Record to be Kept . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 9.07 Exercise of Rights of Trustee and
Securityholders Not to be Hindered
or Delayed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01 Purposes for Which Supplemental
Indentures May be Entered Into
Without Consent of Securityholders . . . . . . . . . . . . . . . . . . . 47
Section 10.02 Modification of Indenture with Consent
of Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 10.03 Effect of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . 49
</TABLE>
<PAGE> 7
<TABLE>
<S> <C> <C>
Section 10.04 Securities May Bear Notation of Changes
by Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE ELEVEN
DISCHARGE; DEFEASANCE
Section 11.01 Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 11.02 Discharge of Liability on Securities . . . . . . . . . . . . . . . . . . . 50
Section 11.03 Discharge of Certain Covenants and Other
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 11.04 Discharge of Certain Obligations Upon
Deposit of Money or Securities with
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 11.05 Unclaimed Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
Section 12.01 Incorporators, Stockholders, Officers
and Directors of Company Exempt
From Individual Liability . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
Section 13.01 Successors and Assigns of the Company
Bound by Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 13.02 Notices; Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 13.03 Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . 53
Section 13.04 Days on Which Payment to be Made,
Notice Given or Other Action
Taken . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 13.05 Provisions Required by Trust Indenture
Act of 1939 to Control . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 13.06 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 13.07 Provisions of the Indenture and
Securities for the Sole Benefit of
the Parties and the Securityholders . . . . . . . . . . . . . . . . . . . 54
</TABLE>
<PAGE> 8
<TABLE>
<S> <C> <C>
Section 13.08 Indenture May be Executed in
Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
</TABLE>
<PAGE> 9
TABLE SHOWING REFLECTION IN THIS INDENTURE OF
CERTAIN PROVISIONS OF THE TRUST INDENTURE ACT OF 1939*
<TABLE>
<CAPTION>
Section Section
of Indenture of Act
----------------------------------------------------------------------------------------------------------
<S> <C>
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
310(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
310(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
310(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
310(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08, 7.10
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13(a), 7.13(c)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13(b), 7.13(c)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.01, 5.02(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.02(b)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.02(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04(a)
313(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
313(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04(c)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04(d)
314(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03(a)
314(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03(b)
314(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03(c)
314(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03(d)
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.03
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.03
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Omitted
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.10
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
316(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Omitted
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.06
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02, 6.03
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.08
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.05
</TABLE>
__________________________________
* This Table is not part of the Indenture.
<PAGE> 10
INDENTURE
THIS INDENTURE, dated as of ___________, 1995, between AIRTOUCH
COMMUNICATIONS, INC., a Delaware corporation (the "Company"), and
________________________, a_____________________ duly organized and existing
under the laws of _______________
WITNESSETH:
WHEREAS, the Company has duly authorized the issuance, sale, execution
and delivery, from time to time, of its unsecured evidences of indebtedness
(hereinafter referred to as the "Securities"), without limit as to principal
amount, issuable in one or more Series, the amount and terms of each such
Series to be determined as hereinafter provided; and, to provide the terms and
conditions upon which the Securities are to be issued, authenticated and
delivered, the Company has duly authorized the execution of this Indenture; and
WHEREAS, all acts and things necessary to make the Securities, when
executed by the Company and authenticated and delivered by the Trustee as in
this Indenture provided, the valid, binding and legal obligations of the
Company, and to constitute this Indenture a valid indenture and agreement
according to its terms, have been done and performed, and the execution of this
Indenture and the issuance hereunder of the Securities have in all respects
been duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Securities are to be issued, authenticated and delivered, and in consideration
of the premises and of the purchase and acceptance of the Securities by the
Holders thereof, the Company covenants and agrees with the Trustee, for the
equal and proportionate benefit of the respective Holders from time to time of
the Securities or of any Series thereof, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. CERTAIN TERMS DEFINED. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article One have the
meanings assigned to them in this Article One, and include the plural
as well as the singular;
-1-
<PAGE> 11
(b) all other terms used herein which are defined in the
Trust Indenture Act of 1939, either directly or by reference therein,
have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein
shall have the meanings assigned to them and all computations herein
provided for shall be made, in accordance with generally accepted
accounting principles, and the term "generally accepted accounting
principles" shall mean such principles as they exist at the date of
applicability thereof; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
BOARD OF DIRECTORS
The term "Board of Directors" shall mean the Board of Directors of the
Company, or any duly authorized committee of such Board of Directors.
BUSINESS DAY
The term "Business Day" shall mean any day which is not a Saturday or
Sunday or which in the City and County of San Francisco or in The City of New
York is neither a legal holiday nor a day on which banking institutions are
authorized by law or regulation to close.
CERTIFIED RESOLUTION
The term "Certified Resolution" shall mean a resolution of the Board
of Directors of the Company certified by the Secretary or by an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors of
the Company and to be in full force and effect on the date of such
certification.
COMMISSION
The term "Commission" shall mean the Securities and Exchange
Commission, as from time to time constituted, created under the Securities
Exchange Act of 1934, as amended, or if at any time after the execution of this
Indenture such Commission is not existing and performing the duties theretofore
assigned to it under the Trust Indenture Act of 1939, then the body performing
such duties at such time.
COMPANY
The term "Company" shall mean Airtouch Communications, Inc., a
Delaware corporation, until a successor corporation shall have become such
pursuant to the applicable provisions hereof, and thereafter "Company" shall
mean such successor Company.
-2-
<PAGE> 12
DEPOSITORY
The term "Depository" shall mean, with respect to the
Securities of any Series issuable or issued in whole or in part in the form of
one or more Global Securities, the Person designated as Depository by the
Company pursuant to Section 2.01 of this Indenture until a successor Depository
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter the term "Depository" shall mean or include each Person who is
then a Depository hereunder, and if at any time there is more than one such
Person, "Depository" as used with respect to the Securities of any such Series
shall mean the Depository with respect to the Securities of that Series.
EVENT OF DEFAULT
The term "Event of Default" with respect to Securities of any Series
shall mean any event specified as such in Section 6.01 and any other event as
may be established with respect to the securities of such Series as permitted
by Section 2.01. An Event of Default shall "exist" if an Event of Default
shall have occurred and be continuing.
GLOBAL SECURITY
The term "Global Security" shall mean a Security evidencing
all or a portion of a Series of Securities, issued under the Indenture and
delivered to the Depository for such Series in accordance with Section 2.09 of
this Indenture, and bearing the legend prescribed in such Section 2.09.
INDENTURE
The term "Indenture" shall mean this instrument as originally
executed, or as it may from time to time be supplemented, modified or amended,
as provided herein, and shall include the form and terms of particular Series
of Securities established in accordance with the provisions of Sections 2.01
and 2.02.
INTEREST PAYMENT DATE
The term "Interest Payment Date" when used with respect to any
Security means the Stated Maturity of an installment of interest on such
Security.
OFFICER'S CERTIFICATE
The term "Officer's Certificate" shall mean a certificate signed by
the Chairman of the Board, any Vice-Chairman of the Board or any
Vice-President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company. Each such certificate shall include the
statements provided for in Section 13.03, if and to the extent required by the
provisions of such Section.
OPINION OF COUNSEL
The term "Opinion of Counsel" shall mean a written opinion of counsel
who may be counsel to the Company. Each such opinion shall include the
statements provided for in Section 13.03, if and to the extent required by the
provisions of such Section.
-3-
<PAGE> 13
ORIGINAL ISSUE DISCOUNT SECURITY
The term "Original Issue Discount Security" shall mean (a) any
Security which provides for an amount less than the principal amount thereof to
be due and payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.01 or (b) any other Security which for United States
Federal income tax purposes would be considered an original issue discount
security.
OUTSTANDING
The term "Outstanding" when used with reference to Securities shall,
subject to the provisions of Section 8.04, mean, as of the date of
determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, for whose payment or redemption moneys in
the necessary amount have been theretofore deposited with the Trustee
or with any Paying Agent in trust for the Holders of such Securities,
provided that if such Securities are to be redeemed, notice of such
redemption has been duly given as provided in Article Three hereof, or
provision therefor satisfactory to the Trustee has been made;
(c) Securities in exchange for or in lieu of which other
Securities shall have been authenticated and delivered under this
Indenture; and
(d) Securities alleged to have been destroyed, lost or
stolen which have been paid as provided in Section 2.07 hereof.
In determining whether the Holders of the requisite principal amount
of Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination as if a declaration of
acceleration of the maturity thereof pursuant to Section 6.01 had been made.
PAYING AGENT
The term "Paying Agent" means any Person authorized by the Company to
pay the principal of and any interest and premium on any Securities on behalf
of the Company.
PERIODIC OFFERING
The term "Periodic Offering" means an offering of Securities
of a Series, from time to time the specific terms of which (including without
limitation, the rate or rates of interest, if any, thereon or any methods of
calculating such, the maturity date or dates thereof and any redemption
provisions with respect thereto) are to be determined by the Company or its
agents upon the issuance of such Series of Securities.
-4-
<PAGE> 14
PERSON
The term "Person" shall mean an individual, a corporation, a
partnership, a joint venture, an association, a joint stock company, a trust,
an unincorporated organization, or a government or any agency, authority or
political subdivision thereof.
PRINCIPAL OFFICE OF THE TRUSTEE
The term "Principal Office of the Trustee" shall mean the principal
office of the Trustee in ______________________ at which at any particular time
its corporate trust business shall be administered, except that with respect to
presentation of Securities for payment such term shall mean the office or
agency of the Trustee at which at any particular time its corporate agency
business shall be conducted. The present address of the principal office at
which the corporate trust business of the Trustee is administered is
_____________, ________________.
RECORD DATE
The term "Record Date" for the interest payable on any Interest
Payment Date on any Series of Securities shall mean the date specified as such
in the Securities of such Series.
REDEMPTION DATE
The term "Redemption Date" when used with respect to any Security to
be redeemed means the date fixed for such redemption pursuant to this
Indenture.
REDEMPTION PRICE
The term "Redemption Price" when used with respect to any Security to
be redeemed means the price at which it is to be redeemed pursuant to this
Indenture. It includes any applicable premium but does not include
installments of interest whose Stated Maturity is on or before the Redemption
Date.
REGISTER
The term "Register" shall mean the books for the registration and
transfer of Securities which books are kept by the Trustee pursuant to Section
2.05.
RESPONSIBLE OFFICER
The term "Responsible Officer" when used with respect to the Trustee
shall mean the chairman and vice-chairman of the board of directors, the
chairman and vice-chairman of the executive committee of said board, the
president, any vice-president or second vice-president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any corporate trust officer, the controller, any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer
of the Trustee to whom such matter is referred because of such Person's
knowledge of and familiarity with the particular subject.
-5-
<PAGE> 15
SECURITY OR SECURITIES
The terms "Security" or "Securities" shall mean any security or
securities of the Company without regard to Series, authenticated and delivered
under this Indenture.
SECURITYHOLDER; HOLDER
The terms "Securityholder" or "Holder", whenever employed herein with
respect to a Security, shall mean the Person in whose name such Security shall
be registered on the Register.
SERIES
The term "Series" shall mean an issue of Securities under this
Indenture.
STATED MATURITY
The term "Stated Maturity" when used with respect to any Security or
any installment of interest thereon means the date specified in such Security
as the fixed date on which the principal of such Security or such installment
of interest is due and payable.
SUPPLEMENTAL INDENTURE
The term "Supplemental Indenture" shall mean an indenture
supplemental hereto as such Supplemental Indenture may be originally executed,
or as it may from time to time be supplemented, modified or amended, as
provided herein and therein.
TRUSTEE
The term "Trustee" shall mean ________________________ until a
successor Trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter "Trustee" shall mean such successor Trustee.
TRUST INDENTURE ACT OF 1939
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture
Act of 1939, as amended as of the date of this Indenture.
UNITED STATES DOLLARS
The term "United States Dollars" shall mean the lawful currency of the
United States of America.
-6-
<PAGE> 16
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION,
TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.01. AMOUNT, SERIES, EXECUTION, AUTHENTICATION AND DELIVERY
OF SECURITIES. The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is not limited. The
Securities may be issued in one or more Series.
(A) The following terms and provisions of each Series of
Securities shall be established by a resolution of the Board of Directors and
set forth in either a Certified Resolution or a Supplemental Indenture:
(1) the designation of the Series of Securities (which
shall distinguish the Securities of such Series from all other Series
of Securities),
(2) any limit upon the aggregate principal amount of the
particular Series of Securities which may be executed, authenticated
and delivered under this Indenture; provided, however, that nothing
contained in this Section 2.01 or elsewhere in this Indenture or in
the Securities or in such Certified Resolution or in a Supplemental
Indenture is intended to or shall limit execution by the Company or
authentication and delivery by the Trustee of Securities under the
circumstances contemplated by Sections 2.05, 2.06, 2.07, 3.04 and
10.04,
(3) the currency or currencies or composite currency in
which principal of and interest and any premium on such Series of
Securities shall be payable (if other than in United States Dollars),
(4) the Stated Maturity for payment of principal of such
Series of Securities and any sinking fund or analogous provisions,
(5) the rate or rates at which such Series of Securities
shall bear interest or the method of calculating such rate or rates of
interest and the Interest Payment Dates for such Series of Securities,
(6) the place or places where such Series of Securities
may be presented for payment and for the other purposes provided in
Section 4.02,
(7) any Redemption Price or Prices, the Redemption Date
or Dates and other applicable redemption or repurchase provisions for
such Series of Securities,
(8) whether such Series of Securities shall be issuable
as one or more Global Securities and the form of such Series of
Securities,
(9) if the Securities of such Series shall be issued in
whole or in part as one or more Global Securities, the Depository for
such Global Security or Securities and any additional terms and
conditions relating to such Global Securities not set forth in this
Indenture,
(10) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which such Series of
Securities shall be issuable,
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(11) the date from which interest on such Securities shall
accrue,
(12) the basis upon which interest on such Series of
Securities shall be computed (if other than on the basis of a 360-day
year of twelve 30-day months),
(13) if other than the principal amount thereof, the
portion of the principal amount of such Series of Securities which
shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.01,
(14) the Person or Persons who shall be registrar for such
Series of Securities, and the place or places where the Register of
such Series of Securities shall be kept,
(15) any additional events of default with respect to the
Securities of a particular Series not set forth herein,
(16) any additional covenants of the Company with respect
to the Securities of a particular Series not set forth herein,
(17) the terms and conditions, if any, upon which any
Securities of such Series may or shall be converted into other
instruments or other forms of property and
(18) any other terms of such Series of Securities (which
terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one Series shall be substantially identical
except that any Series may have serial maturities and different interest rates
for different maturities and except as to denomination and the differences
herein specified between Global Securities and Securities issued in definitive
form and except as may otherwise be provided in or pursuant to the Certified
Resolution or Supplemental Indenture relating to such Series of Securities.
All Securities of any one Series need not be issued at the same time, and,
unless otherwise provided in the Certified Resolution or Supplemental Indenture
relating to such Series, a Series may be reopened for issuances of additional
Securities of such Series.
(B) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver any Series of Securities
executed by the Company to the Trustee for authentication by it, and the
Trustee shall thereupon authenticate and deliver said Securities (or if only a
single Global Security, such Global Security) to or upon the written order of
the Company, signed by an officer of the Company, without any further corporate
action. In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities and except
as hereinafter provided with respect to a Series of Securities subject to a
Periodic Offering, the Trustee shall be entitled to receive, and (subject to
Section 7.01) shall be fully protected in relying upon:
(1) each Certified Resolution relating to such Series of
Securities,
(2) an executed Supplemental Indenture, if any, relating
to such Series of Securities,
(3) an Opinion of Counsel to the effect that:
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(a) the terms and form of such Securities have
been established as permitted by Sections 2.01 and 2.02 in
conformity with the provisions of this Indenture,
(b) such Securities, when executed and issued by
the Company and authenticated and delivered by the Trustee in
accordance with the provisions of this Indenture and subject
to any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Company,
except as any rights thereunder may be limited by the effect
of bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other laws
affecting or relating to the rights of creditors generally;
the rules governing the availability of specific performance,
injunctive relief or other equitable remedies and general
principles of equity, regardless of whether considered in a
proceeding in equity or at law; the effect of applicable court
decisions invoking statutes or principles of equity, which
have held that certain covenants and provisions of agreements
are unenforceable where the breach of such covenants or
provisions imposes restrictions or burdens upon a borrower,
and it cannot be demonstrated that the enforcement of such
restrictions or burdens is necessary for the protection of the
creditor, or which have held that the creditor's enforcement
of such covenants or provisions under the circumstances would
have violated the creditor's covenants of good faith and fair
dealing implied under California law; and the effect of
California statutes and rules of law which cannot be waived
prospectively by a borrower, and
(c) the Company has complied with all applicable
Federal laws and requirements in respect of the execution and
delivery of such Securities.
With respect to a Series of Securities subject to a Periodic Offering, the
Trustee shall be entitled to receive, and, subject to Section 7.01, shall be
fully protected in relying upon the documents described in the foregoing
subsections (1), (2) and (3) of this Section 2.01; provided that (i) the
Certified Resolution may be delivered to the Trustee prior to the delivery to
the Trustee of such Securities for authentication and delivery, (ii) the
Trustee shall authenticate and deliver Securities of such Series for original
issue from time to time, in an aggregate principal amount not exceeding the
aggregate principal amount, if any, established for such Series, pursuant to
such Certified Resolution or pursuant to such procedures as may be specified
from time to time by a Certified Resolution, (iii) the maturity date or dates,
original issue date or dates, interest rate or rates or the method or methods
of calculating such and any other terms of the Securities of such Series shall
be determined by the Certified Resolution or pursuant to such procedures, (iv)
if provided for in such procedures, such Certified Resolution may authorize
authentication and delivery pursuant to oral or electronic instructions from
the Company or its duly authorized agent or agents, which oral instructions
shall be promptly confirmed in writing and (v) the Trustee shall be entitled to
receive an Opinion of Counsel only once at or prior to the time of the first
authentication of Securities of such Series and that the opinions described in
the foregoing subsections (3)(a) and (3)(b) of this Section 2.01 may be to the
effect that:
(x) the form of the Securities of such Series has been
duly authorized by the Company and has been established in conformity
with the provisions of this Indenture and that, when the terms of such
Securities shall have been established pursuant to a Certified
Resolution or pursuant to such procedures as maybe specified from time
to time
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<PAGE> 19
by a Certified Resolution, such terms will have been duly authorized
by the Company and will have been established in conformity with the
provisions of this Indenture and
(y) Securities of such Series, when executed and issued
by the Company and completed, authenticated and delivered by the
Trustee in accordance with the provisions of this Indenture and
subject to any conditions specified in such Opinion of Counsel and
when paid for, all as contemplated by and in accordance with the
Certified Resolution or specified procedures, as the case may be, will
constitute valid and binding obligations of the Company, except as any
rights thereunder may be limited by the effect of bankruptcy,
insolvency, reorganization, receivership, conservatorship,
arrangement, moratorium or other laws affecting or relating to the
rights of creditors generally; the rules governing the availability of
specific performance, injunctive relief or other equitable remedies
and general principles of equity, regardless of whether considered in
a proceeding in equity or at law; the effect of applicable court
decisions invoking statutes or principles of equity, which have held
that certain covenants and provisions of agreements are unenforceable
where the breach of such covenants or provisions imposes restrictions
or burdens upon a borrower, and it cannot be demonstrated that the
enforcement of such restrictions or burdens is necessary for the
protection of the creditor, or which have held that the creditor's
enforcement of such covenants or provisions under the circumstances
would have violated the creditor's covenants of good faith and fair
dealing implied under California law; and the effect of California
statutes and rules of law which cannot be waived prospectively by a
borrower.
With respect to Securities of a Series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any such
Securities, the form and terms thereof and the valid and binding effect
thereof, upon the Opinion of Counsel and other documents delivered pursuant to
this Section 2.01 in connection with the first authentication of Securities of
such Series unless and until such Opinion of Counsel or other documents shall
have been superseded or revoked. In connection with the authentication and
delivery of Securities of a Series subject to a Periodic Offering, the Trustee
shall be entitled to assume that the instructions of the Company to
authenticate and deliver such Securities do not violate any rules, regulations
or orders of any governmental agency having jurisdiction over the Company.
SECTION 2.02. FORM OF SECURITIES AND TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. The Securities of each Series shall be substantially of the
tenor and purport as shall be authorized by the related Certified Resolution or
Supplemental Indenture, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements thereon as the
Board of Directors may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Securities of such Series may be
listed, or to conform to usage.
The definitive Securities and each Global Security may be printed,
lithographed or fully or partly engraved or produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution thereof.
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The Trustee's certificate of authentication shall be in substantially
the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the Series designated
herein, referred to in the within-mentioned Indenture.
________________________, as Trustee
By
Authorized Officer
SECTION 2.03. DENOMINATIONS; PAYMENT OF INTEREST ON SECURITIES. The
Securities of each Series may be issued as fully registered Securities in
denominations all as shall be specified as contemplated by Section 2.01. In
the absence of such provisions with respect to the Securities of any Series,
the Securities of such Series (other than any Global Securities) shall be
issued in denominations of $1,000 and any integral multiple thereof.
If the Securities of any Series shall bear interest, each Security of
such Series shall bear interest from the applicable date at the rate per annum
specified in the Certified Resolution or Supplemental Indenture with respect to
such Series of Securities. Unless otherwise specified in the Certified
Resolution or Supplemental Indenture with respect to the Securities of any
Series, interest on the Securities of such Series shall be computed on the
basis of a 360-day year of twelve 30-day months. Such interest shall be
payable on the Interest Payment Dates specified in the Certified Resolution or
Supplemental Indenture with respect to such Series of Securities. The Person
in whose name any Security is registered at the close of business on the
applicable Record Date for the Series of which such Security is a part shall be
entitled to receive the interest payable thereon on such Interest Payment Date
notwithstanding the cancellation of such Security upon any transfer or exchange
thereof subsequent to such Record Date and prior to such Interest Payment Date
unless such Security shall have been called for redemption on a Redemption Date
which is subsequent to such Record Date and prior to such Interest Payment Date
or unless the Company shall default in the payment of interest due on such
Interest Payment Date on any Security of such Series.
Any interest on any Security of any Series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Record Date solely by virtue of such Holder
having been such Holder; and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in subsection A or B below:
A. The Company may elect to make payment of any
Defaulted Interest on the Securities of any Series to the Persons in
whose names such Securities are registered at the close of business on
a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment (which date shall be such as will enable the Trustee to comply
with the next sentence hereof), and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment,
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<PAGE> 21
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this subsection
provided. Thereupon the Trustee shall fix a special record date (the
"Special Record Date") for the payment of such Defaulted Interest
which shall be not more than 15 nor less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to
each Holder of a Security of such Series at such Holder's address as
it appears in the Security Register not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such Series are registered on
such Special Record Date and shall no longer be payable pursuant to
the following subsection B.
B. The Company may make payment of any Defaulted
Interest on the Securities of any Series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which such Securities may be listed and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this subsection, such
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.03, each
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Security shall carry all the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security and each
such Security shall bear interest from such date, such that neither gain nor
loss in interest shall result from such transfer, exchange or substitution.
SECTION 2.04. EXECUTION OF SECURITIES. The Securities shall be
executed manually or in facsimile, by an officer and the Secretary or an
Assistant Secretary of the Company under its corporate seal, which may be
affixed thereto or printed, engraved or otherwise reproduced thereon, by
facsimile or otherwise. Only such Securities as shall bear thereon a
certificate of authentication substantially in the form recited herein,
executed by the Trustee manually by an authorized officer, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate of authentication of the Trustee upon any Security executed by the
Company shall be conclusive evidence that the Security so authenticated has
been duly authenticated and delivered hereunder and that the Holder is entitled
to the benefits of this Indenture. Typographical or other errors or defects in
the seal or facsimile signature on any Security or in the text thereof shall
not affect the validity or enforceability of such Security if it has been duly
authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities (manually or in facsimile) shall cease to be such officer before the
Securities so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Securities nevertheless may be
authenticated and delivered or disposed of as though the Person who signed such
Securities had not ceased to be such officer of the Company. Also, any
Security may be signed on behalf of the Company by such Persons as on the
actual date of execution of such Security shall be the proper officers of the
Company, although at the date of the execution of this Indenture or on the
nominal date of such Security any such Person was not such officer.
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SECTION 2.05. REGISTRATION, TRANSFER AND EXCHANGE OF SECURITIES.
Except as specifically otherwise provided herein with respect to Global
Securities, Securities of any Series may be exchanged for a like aggregate
principal amount of Securities of the same Series of other authorized
denominations. Securities to be exchanged shall be surrendered at the offices
or agencies to be maintained in accordance with the provisions of Section 4.02
and the Company shall execute the Security or Securities, and the Trustee shall
authenticate and deliver in exchange therefor the Security or Securities which
the Securityholder making the exchange shall be entitled to receive.
The Company shall cause the Trustee to keep or cause to be kept, at
one or more of the offices or agencies to be maintained by the Trustee in
accordance with the provisions of Section 4.02 with respect to the Securities
of each Series, the Register in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of the
Securities of such Series and the transfer of Securities of such Series as in
this Article provided. The Register shall be in written form or in any other
form capable of being converted into written form within a reasonable time. At
all reasonable times the Register shall be open for inspection by the Trustee
and any registrar of the Securities of such Series other than the Trustee.
Upon due presentment for transfer of any Security of any Series at the offices
or agencies of the Company to be maintained in accordance with Section 4.02
with respect to the Securities of such Series, the Company shall execute a new
Security and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Security or Securities of the same Series for a
like aggregate principal amount of authorized denominations.
Notwithstanding any other provisions of this Section 2.05, unless and
until it is exchanged in whole or in part for Securities in definitive form, a
Global Security representing all or a portion of the Securities of a Series may
not be transferred except as a whole by the Depository for such Series to a
nominee of such Depository or by a nominee of such Depository to such
Depository or another nominee of such Depository or by such Depository or any
such nominee to a successor Depository for such Series or a nominee of such
successor Depository.
All Securities of any Series presented or surrendered for
exchange, transfer, redemption, conversion or payment shall, if so required by
the Company or any registrar of the Securities of such Series, be accompanied
by a written instrument or instruments of transfer, in form satisfactory to the
Company and such registrar, duly executed by the registered Holder or by such
Person's attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto.
The Company shall not be required to exchange or transfer (a) any
Securities of any Series during a period beginning at the opening of business
15 days before the day of the first publication or the mailing (if there is no
publication) of a notice of redemption of Securities of such Series and ending
at the close of business on the day of such publication or mailing or (b) any
Securities called or selected for redemption in whole or in part, except, in
the case of Securities called for redemption in part, the portion thereof not
so called for redemption in whole or in part or during a period beginning at
the opening of business on any Record Date for such Series and ending at the
close of business on the relevant Interest Payment Date therefor.
SECTION 2.06. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any Series, the Company may execute and the Trustee
shall authenticate and deliver temporary Securities of such Series which are
printed, lithographed, typewritten or otherwise produced, in any denomination
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<PAGE> 23
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form and with such appropriate omissions, insertions,
substitutions and other variations as the officers executing such Securities
may determine, as evidenced by their execution of such Securities. Every such
temporary Security shall be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Securities. If temporary Securities are issued, the Company
will cause definitive Securities to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities of
such Series shall be exchangeable for definitive Securities upon surrender of
the temporary Securities without charge to the Holder at the offices or
agencies to be maintained by the Trustee as provided in Section 4.02 with
respect to the Securities of such Series. Upon surrender for cancellation of
any one or more temporary Securities the Company shall execute and the Trustee
shall authenticate and deliver in exchange for such temporary Securities an
equal aggregate principal amount of definitive Securities of such Series.
Until so exchanged, the temporary Securities of any Series shall in all
respects be entitled to the benefits of this Indenture and interest thereon,
when and as payable, shall be paid to the registered owners thereof.
SECTION 2.07. MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES. If
(i) any mutilated Security is surrendered to the Trustee, or the Company and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) there is delivered to the Company and the
Trustee such security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Company or the Trustee
that such Security has been acquired by a bona fide purchaser, the Company
shall execute and upon its request the Trustee shall authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Security, a new Security of the same Series and of like tenor and principal
amount, bearing a number not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 2.07, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith.
Every new Security issued pursuant to this Section 2.07 in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the security and benefits of this Indenture equally and ratably
with all other Outstanding Securities of such Series.
The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.08. CANCELLATION AND DESTRUCTION OF SURRENDERED SECURITIES.
All Securities surrendered for payment, redemption, transfer, conversion or
exchange shall, if surrendered to the Company, the Trustee or any agent of the
Company or of the Trustee, be delivered to the Trustee, and the same, together
with Securities surrendered to the Trustee for cancellation, shall be canceled
by it and thereafter disposed of by it as directed by the Company, and no
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee shall destroy canceled
Securities and deliver a certificate of destruction thereof to the Company
unless by an Officer's Certificate of the Company, the Company shall direct
that canceled Securities be returned to it. If the Company shall purchase or
otherwise acquire any of the Securities, however, such purchase or
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<PAGE> 24
acquisition shall not operate as a payment, redemption or satisfaction of the
indebtedness represented by such Securities unless and until the Company, at
its option shall deliver or surrender the same to the Trustee for cancellation.
SECTION 2.09. SECURITIES IN GLOBAL FORM; DEPOSITORIES. (a) Each
Global Security shall: (i) represent and be denominated in an aggregate amount
equal to the aggregate principal amount of the Securities of the Series to be
represented by such Global Security, (ii) be registered in the name of either
the Depository for such Global Security or the nominee of such Depository,
(iii) be delivered by the Trustee to such Depository or pursuant to such
Depository's written instruction and (iv) bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive form, this Global Security may not be transferred
except as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any nominee to a successor Depository or a
nominee of any successor Depository." The notation of the record owner's
interest in such Global Security upon the original issuance thereof shall be
deemed to be delivery in connection with the original issuance of each
beneficial owner's interest in such Global Security. Without limiting the
foregoing, the Company and the Trustee shall have no responsibility, obligation
or liability with respect to: (x) the maintenance, review or accuracy of the
records of the Depository or of any of its participating organizations with
respect to any ownership interest in or payments with respect to such Global
Security, (y) any communication with or delivery of any notice (including
notices of redemption) with respect to the Series of Securities represented by
the Global Security to any Person having any ownership interest in such Global
Security or to any of the Depository's participating organizations or (z) any
payment made on account of any beneficial ownership interest in such Global
Security.
(b) If any Security of a Series is issuable in the form of a
Global Security or Securities, each such Global Security may provide that it
shall represent the aggregate amount of Outstanding Securities of such Series
from time to time endorsed thereon and may also provide that the aggregate
amount of Outstanding Securities of such Series represented thereby may from
time to time be reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount of Outstanding Securities of a Series
represented thereby shall be made by the Trustee and in such manner as shall be
specified on such Global Security. Any instructions by the Company with
respect to a Global Security, after its initial issuance, shall be in writing
but need not comply with Section 13.03 of this Indenture.
(c) Each Depository designated pursuant to the provisions of
Section 2.01 of this Indenture for a Global Security must, at the time of its
designation and at all times while it serves as a depositary, be a clearing
agency registered under the Securities Exchange Act of 1934, as amended, and
any other applicable statute or regulation. If at any time the Depository for
the Securities of a Series notifies the Company that it is unwilling or unable
to continue as Depository for the Securities of such Series or if at any time
the Depository for the Securities of such Series shall no longer be eligible
under this Section 2.09, the Company shall appoint a successor Depository with
respect to the Securities of such Series. If a successor Depository for the
Securities of such Series is not appointed by the Company within 90 days after
the Company receives such notice or learns of such ineligibility, the Company
shall execute and the Company shall direct the Trustee to authenticate and
deliver definitive Securities of such Series in authorized denominations in
exchange for the Global Security or Securities. Upon receipt of such
direction, the Trustee shall thereupon authenticate and deliver the definitive
Securities of such Series in the same aggregate principal amount as the Global
Security or Securities representing such Series in exchange for such Global
Security or Securities, in accordance with the provisions of subsection (e) of
this Section 2.09, without any further corporate action by the Company.
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<PAGE> 25
(d) The Company may at any time and in its sole discretion
determine that the Securities of any Series issued in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In such event, the Company will execute and upon receipt of a
written order from the Company, the Trustee shall thereupon authenticate and
deliver Securities of such Series in definitive form and in authorized
denominations in an aggregate principal amount equal to the principal amount of
the Global Security or Securities representing such Series in exchange for such
Global Security or Securities, in accordance with the provisions of subsection
(e) of this Section 2.09 without any further corporate action by the Company.
(e) Upon any exchange hereunder of the Global Security or
Securities for Securities in definitive form, such Global Security or
Securities shall be canceled by the Trustee. Securities issued hereunder in
exchange for the Global Security or Securities shall be registered in such
names and in such authorized denominations as the Depository for such Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such
definitive Securities in exchange for the Global Security or Securities to the
persons in whose name such definitive Securities have been registered in
accordance with the directions of the Depository.
ARTICLE THREE
REDEMPTION OF SECURITIES
SECTION 3.01. REDEMPTION OF SECURITIES. Securities of any Series may
be made subject to redemption prior to their Stated Maturity, as a whole or in
part, at such time or times, upon payment of the principal amount thereof plus
such premium or premiums, if any, as shall be set forth in the resolution of
the Board of Directors or the Supplemental Indenture relating to such Series.
SECTION 3.02. NOTICE OF REDEMPTION. In all cases other than
redemption at the option of the Holders of Securities, notice of redemption
shall be given by mail, not less than 30 nor more than 60 days prior to the
Redemption Date, to each Person in whose name any Security called for
redemption is registered on the Register as of the date of such notice, but
neither a failure to give notice by mail nor any defect in any notice so mailed
shall affect the validity of the proceedings for such redemption. Each notice
of redemption shall state the Redemption Date, the Redemption Price, the place
of redemption, the principal amount and, if less than all, the distinctive
numbers of the Securities to be redeemed and shall also state that the interest
on the Securities in such notice designated for redemption shall cease to
accrue from and after such Redemption Date.
Notice of redemption of Securities may be given by the Company or, at
the option of the Company, by the Trustee on behalf of the Company. Upon
receipt of any direction to give notice, the Trustee shall immediately give
such notice. The Trustee may rely upon such direction that all conditions
precedent to the giving of such direction have been complied with or done.
SECTION 3.03. SELECTION OF SECURITIES FOR REDEMPTION. Whenever
provision is made for the redemption of any Series of Securities or portion
thereof and less than all of the Securities of such Series or portion thereof
are called for redemption, the Trustee shall select the Securities to be
redeemed, from the Outstanding Securities of such Series or portion thereof not
previously called for redemption, in any manner which the Trustee deems fair
and appropriate. For the purpose of any such selection, the Trustee shall
assign a separate number for each $1,000 principal amount of each Security of a
denomination of more than $1,000 except that if the Securities of any Series
are denominated in a currency other than U.S. dollars, the Trustee shall assign
a separate number for each principal amount equal to the minimum
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denomination of each Security of such Series of a denomination greater than
such minimum denomination.
SECTION 3.04. PARTIAL REDEMPTION OF REGISTERED SECURITY. Upon
surrender of any registered Security (including any Global Security) to be
redeemed in part only, the Company shall execute and the Trustee shall
authenticate and deliver to the registered owner thereof, without service
charge, a new Security or Securities (or in the case of a Global Security, a
new Global Security) of the same Series and maturity and of authorized
denomination or denominations as requested by such registered owners, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
SECTION 3.05. EFFECT OF REDEMPTION. If notice of redemption shall
have been duly given as provided in Section 3.02, the Securities or portions of
Securities specified in such notice shall become due and payable on the
Redemption Date and at the place or places stated in such notice at the
Redemption Price specified in such notice, and on and after such Redemption
Date (unless the Company shall default in the payment of such Securities at the
applicable Redemption Price) such Securities or portions of Securities shall
cease to bear interest, and such Securities shall cease from and after the
Redemption Date to be entitled to any benefit or security under this Indenture,
and the Holders thereof shall have no right in respect of such Securities
except the right to receive the Redemption Price thereof and any unpaid
interest accrued to the Redemption Date. Upon presentation and surrender of
such Securities at said place of payment in said notice specified, the said
Securities or portions thereof shall be paid and redeemed by the Company at the
applicable Redemption Price, together with any interest accrued to the
Redemption Date; provided, however, that any regular payment of interest
becoming due on any Securities on the Redemption Date shall be payable to the
registered owners of such Securities as of the Relevant Record Date as provided
in Article Two hereof. Upon presentation of any Security which is redeemed in
part only, the Company shall execute a new Security and the Trustee shall
authenticate and deliver at the expense of the Company a new Security of the
same Series of authorized denomination in principal amount equal to the
unredeemed portion of the Security so presented.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof shall, to the extent
permitted by law, bear interest from the date fixed for redemption at the rate
borne by the Security, or, in the case of a Security which does not bear
interest, at the rate of interest set forth therefor in the Security in either
case, until paid.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. PAYMENT OF PRINCIPAL OF AND INTEREST ON SECURITIES.
The Company covenants that it will duly and punctually pay or cause to be paid
the principal of and any interest and premium on each of the Securities in
accordance with the terms of the Securities and this Indenture. Except with
respect to any Global Securities, if the Securities of any Series bear
interest, each installment of interest on the Securities of such Series may, at
the option of the Company, be paid by mailing a check or checks for such
interest payable to the Person entitled thereto pursuant to Section 2.03 to the
address of such Person as it appears on the Register of the Securities of such
Series on the applicable Record Date for such interest payment.
SECTION 4.02. MAINTENANCE OF OFFICES OR AGENCIES FOR TRANSFER,
REGISTRATION, EXCHANGE AND PAYMENT OF SECURITIES. So long as any of the
Securities shall remain Outstanding, the Company covenants that it will cause
the Trustee to maintain an office or agency in either The City of [New York,
State of New York],
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or the City and County of San Francisco, State of California, where the
Securities may be presented for registration, exchange and transfer as in this
Indenture provided, and where notices and demands to or upon the Trustee in
respect of the Securities or of this Indenture may be served, and where the
Securities may be presented for payment. In case the Trustee shall fail to
maintain any such office or agency, presentations and demands may be made and
notices may be served at the principal office of the Trustee.
In addition, the Company may from time to time constitute and appoint
one or more other offices or agencies for such purposes with respect to
Securities of any Series, and one or more paying agents for the payment of
Securities of any Series, in such cities or in one or more other cities, and
may from time to time rescind such appointments, as the Company may deem
desirable or expedient, and as to which the Company has notified the Trustee.
SECTION 4.03. APPOINTMENT TO FILL A VACANCY IN THE OFFICE OF TRUSTEE.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, covenants that it will appoint, in the manner provided in Section
7.10, a Trustee, so that there shall at all times be a Trustee with respect to
the Outstanding Securities.
SECTION 4.04. DUTIES OF PAYING AGENT. (a) If the Company shall
appoint a Paying Agent other than the Trustee with respect to Securities of any
Series, it will cause such Paying Agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 4.04 and Section 11.05,
(1) that it will hold all sums held by it as such agent
for the payment of the principal of or interest, if any, on the
Securities of such Series (whether such sums have been paid to it by
the Company or by any other obligor on the Securities of such Series)
in trust for the benefit of the Holders of the Securities entitled to
such principal or interest and will notify the Trustee of the receipt
of sums to be so held,
(2) that it will give the Trustee notice of any failure
by the Company (or by any other obligor on the Securities of such
Series) to make any payment of the principal of or interest on the
Securities of such Series when the same shall be due and payable, and
(3) that it will at any time during the continuance of
any Event of Default, upon the written request of the Trustee, deliver
to the Trustee all sums so held in trust by it.
(b) Whenever the Company shall have one or more Paying Agents with
respect to the Securities of any Series, it will, prior to each due date of the
principal of or any interest on the Securities of such Series, deposit with a
Paying Agent of such Series a sum sufficient to pay the principal or interest
so becoming due, such sum to be held in trust for the benefit of the Holders of
Securities entitled to such principal or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
(c) Anything in this Section 4.04 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture with respect to one or more or all Series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee
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all sums held in trust for such Series by it, or any Paying Agent hereunder, as
required by this Section 4.04, and such sums are to be held by the Trustee upon
the trust herein contained.
SECTION 4.05. NOTICE OF DEFAULT. The Company covenants that, as soon
as is practicable, the Company will furnish the Trustee notice of any event
which is an Event of Default or which with the giving of notice or the passage
of time or both would constitute an Event of Default which has occurred and is
continuing on the date of such notice, which notice shall set forth the nature
of such event and the action which the Company proposes to take with respect
thereto.
ARTICLE FIVE
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. COMPANY TO FURNISH TRUSTEE INFORMATION AS TO THE NAMES
AND ADDRESSES OF SECURITYHOLDERS. The Company will furnish or cause to be
furnished to the Trustee, not less than 45 days nor more than 60 days after
each date (month and day) specified as an Interest Payment Date for the
Securities of the first Series issued under this Indenture (whether or not any
Securities of that Series are then Outstanding), but in no event less
frequently than semiannually, and at such other times as the Trustee may
request in writing, within 30 days after receipt by the Company of any such
request, a list in such form as the Trustee may reasonably require containing
all the information in the possession or control of the Company, or any of its
Paying Agents other than the Trustee, as to the names and addresses of the
Holders of Securities, obtained since the date as of which the next previous
list, if any, was furnished, excluding from any such list the names and
addresses received by the Trustee in its capacity as registrar (if so acting).
Any such list may be dated as of a date not more than 15 days prior to the time
such information is furnished and need not include information received after
such date.
SECTION 5.02. PRESERVATION OF INFORMATION; COMMUNICATION TO
SECURITYHOLDERS. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Securities of
each Series (1) contained in the most recent list furnished to it as provided
in Section 5.01, (2) received by the Trustee in the capacity of Paying Agent or
registrar (if so acting) and (3) filed with the Trustee within the two
preceding years as provided for in Section 5.04(c). The Trustee may destroy
any list furnished to it as provided in Section 5.01 upon receipt of a new list
so furnished.
(b) If three or more Holders of Securities (hereinafter referred
to as "applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Securities of any Series or with Holders of all Securities with respect to
their rights under this Indenture or under such Securities, and is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five Business Days after
the receipt of such application, at its election, either:
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 5.02 or
(2) inform such applicants as to the approximate number
of Holders of Securities of such Series or all Securities, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 5.02, and as to the approximate cost
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of mailing to such Securityholders the form of proxy or other
communications, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each of the Holders of Securities of such Series, or all
Securities, as the case may be, whose name and address appear in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 5.02, a copy of the form of proxy
or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material
to be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Securities of such Series or all Securities, as the case may be, or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Securityholders with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every Holder of the Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any Paying Agent nor any registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Securities in accordance with the provisions of
subsection (b) of this Section 5.02, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under said subsection
(b).
SECTION 5.03. REPORTS BY COMPANY. (a) The Company covenants and
agrees to file with the Trustee within 15 days after the Company is required to
file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in
such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to time
by such rules and regulations.
(c) The Company covenants and agrees to transmit to the Holders of
Securities within 30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in subsection (c)
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of Section 5.04 with respect to reports pursuant to subsection (a) of said
Section 5.04, such summaries of any information, documents and reports required
to be filed by the Company pursuant to subsections (a) and (b) of this Section
5.03 as may be required by rules and regulations prescribed from time to time
by the Commission.
(d) The Company and any other obligor on the Securities each
covenant and agree to furnish to the Trustee, not less than annually, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants of this Indenture (which
compliance shall be determined without regard to any period of grace or
requirement of notice as provided in this Indenture). Such certificates need
not comply with Section 13.03 of this Indenture.
SECTION 5.04. REPORTS BY TRUSTEE. (a) On or before the first July
15th following the date of execution of this Indenture, and on or before July
15 in every year thereafter, if and so long as any Securities are Outstanding
hereunder, the Trustee shall transmit to the Securityholders as hereinafter in
this Section 5.04 provided, a brief report dated as of the preceding May 15
with respect to any of the following events which may have occurred within the
previous 12 months (but if no such event has occurred within such period no
report need be transmitted):
(1) any change to its eligibility under Section 7.09, and
its qualifications under Section 7.08;
(2) the creation of or any material change to a
relationship specified in paragraph (1) through (10) of Section
7.08(d);
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities of any Series,
on any property or funds held or collected by it as Trustee, except
that the Trustee shall not be required (but may elect) to state such
advances if such advances so remaining unpaid aggregate not more than
one-half of one percent of the principal amount of the Securities of
such Series Outstanding on the date of such report;
(4) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on
the Securities) to the Trustee in its individual capacity, on the date
of such report, with a brief description of any property held as
collateral security therefor, except indebtedness based upon a
creditor relationship arising in any manner described in paragraph
(2), (3), (4) or (6) of subsection (b) of Section 7.13;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee (as such) on the date of
such report;
(6) any additional issue of Securities which the Trustee
has not previously reported; and
(7) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously reported
and which in its opinion materially
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affects the Securities, except action in respect of a default, notice
of which has been or is to be withheld by it in accordance with the
provisions of Section 6.10.
(b) The Trustee shall transmit to the Securityholders, as
hereinafter provided, a brief report with respect to the character and amount
of any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to the provisions of subsection (a) of
this Section 5.04 (or if no such report has yet been so transmitted, since the
date of execution of this Indenture), for the reimbursement of which it claims
or may claim a lien or charge prior to that of the Securities of any Series on
property or funds held or collected by it as Trustee, and which it has not
previously reported pursuant to this subsection, except that the Trustee shall
not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate ten percent or less of the principal
amount of Securities of such Series Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) Reports pursuant to this Section 5.04 shall be transmitted by
mail (i) to all Holders of Securities of any Series, as the names and addresses
of such Holders shall appear upon the Register of the Securities of such
Series, (ii) to such Holders of Securities as have, within the two years
preceding such transmission, filed their names and addresses with the Trustee
for that purpose and (iii) except in the case of reports pursuant to subsection
(b) of this Section 5.04 to each Holder whose name and address are preserved at
the time by the Trustee as provided in Section 5.02(a) hereof.
(d) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each stock
exchange upon which the Securities of any Series are listed and also with the
Commission. The Company will notify the Trustee when and as the Securities of
any Series become listed on any stock exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT; ACCELERATION, WAIVER OF DEFAULT AND
RESTORATION OF POSITION AND RIGHTS. The term "Event of Default" whenever used
herein with respect to any particular Series of Securities shall mean any one
of the following events:
(a) default in the payment of any installment of interest
on any Security of such Series as and when the same shall become due
and payable, and continuance of such default for a period of 30 days,
or
(b) default in the payment of all or any part of the
principal of or any premium on any Security of such Series as and when
the same shall become due and payable whether at maturity, by
proceedings for redemption, by declaration or otherwise, or
(c) default in the satisfaction of any sinking fund
payment obligation relating to such Series of Securities, when and as
such obligation shall become due and payable, or
(d) failure on the part of the Company to observe or
perform in any material respect any other of the covenants or
agreements on its part in the Securities or in this
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Indenture (including any Supplemental Indenture or pursuant to any
Certified Resolution, as contemplated by Section 2.01) specifically
contained for the benefit of the Holders of the Securities of such
Series, for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee, or to the
Company and the Trustee by the Holders of not less than 25% in
principal amount of the Securities of such Series and all other Series
so benefited (all Series voting as one class) at the time Outstanding
under this Indenture a written notice specifying such failure and
stating that such is a "Notice of Default" hereunder, or
(e) the entry by a court having jurisdiction in the
premises of a decree or order for relief in respect of the Company in
an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Company or for any substantial part of its
property, or ordering the winding up or liquidation of its affairs, if
such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days, or
(f) the commencement by the Company of a voluntary case
under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or the Company's consent to the entry of an
order for relief in any involuntary case under any such law, or its
consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or similar
official) of the Company or for any substantial part of its property,
or the making by the Company of any general assignment for the benefit
of creditors, or its failure generally to pay its debts as they become
due or the taking by the Company of any corporate action in
furtherance of any of the foregoing.
If an Event of Default shall have occurred and be continuing with
respect to any one or more Series of Outstanding Securities, then and in each
and every such case, unless the principal amount of all the Securities of each
Series as to which there is an Event of Default shall have already become due
and payable, either the Trustee or the Holders of not less than 25% in
principal amount of the Securities of such Series then Outstanding hereunder
(each such Series voting as a separate class) by notice in writing to the
Company (and to the Trustee if given by Securityholders) may declare the
principal amount (or, if the Securities of any such Series are Original Issue
Discount Securities, such portion of the principal amount as may be specified
in the terms of such Series) of all the Securities of such Series, together
with any accrued interest, to be due and payable immediately, and upon any such
declaration the same shall be immediately due and payable, anything in this
Indenture or in the Securities of such Series contained to the contrary
notwithstanding. The foregoing provisions, however, are subject to the
condition that if, at any time after the principal amount of the Securities of
any one or more Series (or of all the Securities, as the case may be) shall
have been so declared due and payable, and before any judgment or decree for
the payment of moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Securities
of such Series (or upon all the Securities, as the case may be) and the
principal of any and all Securities of such Series (or of any and all the
Securities, as the case may be) which shall have become due otherwise than by
declaration (with interest on overdue installments of interest to the extent
permitted by law and on such principal at the rate or rates of interest borne
by, or prescribed therefor in the Securities of such Series to the date of such
payment or deposit) and the amounts payable to the Trustee under Section 7.06
and any and all defaults under the Indenture with respect to Securities of such
Series (or all Securities, as the case may be), other than the non-payment of
principal of and any accrued interest on Securities of such Series (or any
Securities, as the case may be) which shall have become due
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by declaration shall have been cured, remedied or waived as provided in Section
6.09 -- then and in every such case the Holders of a majority in principal
amount of the Securities of such Series (or of all the Securities, as the case
may be) then Outstanding (such Series or all Series voting as one class if more
than one Series are so entitled) by written notice to the Company and to the
Trustee, may rescind and annul such declaration and its consequences; but no
such rescission and annulment shall extend to or shall affect any subsequent
default, or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the Trustee and the Holders of the Securities of such Series (or of
all the Securities, as the case may be) shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee and the Holders of the Securities of such Series
(or of all the Securities, as the case may be) shall continue as though no such
proceedings had been taken.
SECTION 6.02. COVENANT OF COMPANY TO PAY TO TRUSTEE WHOLE AMOUNT DUE
ON SECURITIES ON DEFAULT IN PAYMENT OF INTEREST OR PRINCIPAL. The Company
covenants that:
(1) in case default shall be made in the payment of any
installment of interest on any of the Securities of any Series as and
when the same shall become due and payable, and such default shall
have continued for a period of 30 days or
(2) in case default shall be made in the payment of all
or any part of the principal of any of the Securities of any Series
when the same shall have become due and payable, whether at the Stated
Maturity of such Series or by any call for redemption or by
declaration of acceleration or otherwise or
(3) in case default shall be made in the satisfaction of
any sinking fund obligation when and as such obligation becomes due
and payable,
upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the Holders of the Securities of such Series, the whole amount that
then shall have become due and payable on all such Securities of such Series
for principal (and any premium) and interest and for any overdue sinking fund
payment together with interest upon the overdue principal and installments of
interest (to the extent permitted by law) at the rate or rates of interest
borne by, or prescribed therefor in, the Securities of such Series; and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expense of collection, including a reasonable compensation to the Trustee,
its agents and counsel, and any expenses or liabilities incurred, and all
advances made, by the Trustee hereunder other than through its negligence or
bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as Trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against the Company or any other obligor upon
such Securities, and collect in the manner provided by law out of the property
of the Company or any other obligor upon such Securities wherever situated the
moneys adjudged or decreed to be payable.
If an Event of Default with respect to Securities of any Series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of
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Securities of such Series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 6.03. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities of any Series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, to the fullest extent permitted by law, by intervention in such
proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities (or, if the Securities are Original Issue
Discount Securities, such portion of the principal amount as may be
specified in the terms of such Securities) and to file such other
papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.04. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee to the fullest extent
permitted by law without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
SECTION 6.05. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys
collected by the Trustee pursuant to Section 6.02 shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities in respect of
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which moneys have been collected, and stamping thereon the payment, if only
partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee under
Section 7.06;
SECOND: In case the principal of the Outstanding Securities
in respect of which moneys have been collected shall not have become
due and be unpaid, to the payment of any interest on such Securities,
in the order of the maturity of the installments of such interest,
with interest upon the overdue installments of interest (so far as
permitted by law and to the extent that such interest has been
collected by the Trustee at the rate or rates of interest borne by
such Securities or prescribed therefor therein) such payments to be
made ratably to the Persons entitled thereto, without discrimination
or preference;
THIRD: In case the principal of the Outstanding Securities in
respect of which such moneys have been collected shall have become
due, by declaration or otherwise, to the payment of the whole amount
then owing and unpaid upon such Securities for principal and interest,
if any, with interest on the overdue principal and any installments of
interest (so far as permitted by law and to the extent that such
interest has been collected by the Trustee) at the rate or rates of
interest borne by, or prescribed therefor in, such Securities; and in
case such moneys shall be insufficient to pay in full the whole amount
so due and unpaid upon such Securities, then to the payment of such
principal and interest, without preference or priority of principal
over interest, or of interest over principal, or of any installment of
interest over any other installment of interest, or of any Security
over any other Security, ratably to the aggregate of such principal
and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, with appropriate
interest to the Company or its successors or assigns, or to whomsoever
may be lawfully entitled to receive the same, or as a court of
competent jurisdiction may direct.
SECTION 6.06. LIMITATION ON SUITS BY HOLDERS OF SECURITIES. No
Holder of any Security of any Series shall have any right by virtue or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee
written notice of a continuing Event of Default, as hereinbefore provided, and
unless also the Holders of not less than 25% in principal amount of the
Securities of such Series then Outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby (including the reasonable fees of counsel for the
Trustee), and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute
any such action, suit or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee pursuant to this Section
6.06; it being understood and intended, and being expressly covenanted by the
taker and Holder of every Security with every other taker and Holder and the
Trustee, that no one or more Holders of Securities shall have any right in any
manner whatever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the Holders of any other of such
Securities, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities. For the protection and enforcement of the provisions of
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this Section 6.06, each and every Holder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
Notwithstanding any other provisions in this Indenture, the right of
any Holder of any Security to receive payment of the principal of and interest
on such Security on or after the respective due dates expressed in such
Security (or, in the case of redemption, on or after the date fixed for
redemption), or to institute suit for the enforcement of any such payment on or
after such respective dates shall not be impaired or affected without the
consent of such Holder.
SECTION 6.07. RIGHTS AND REMEDIES CUMULATIVE. All powers and
remedies given by this Article Six to the Trustee or to the Holders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
Holders, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture, and no
delay or omission of the Trustee or of any Holder of any of the Securities to
exercise any right or power accruing upon any default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be
a waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 6.06, every power and remedy given by this Article Six or
by law to the Trustee or to the Holders may be exercised from time to time, and
as often as shall be deemed expedient, by the Trustee or by the Holders. The
assertion or employment of any right or remedy hereunder or otherwise shall not
prevent the concurrent assertion or employment of any other appropriate right
or remedy.
SECTION 6.08. DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Subject to the provisions of Section 6.06, every right and remedy given by this
Article Six or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 6.09. CONTROL BY HOLDERS; WAIVER OF PAST DEFAULTS. The
Holders of a majority in principal amount of the Securities of all Series
(voting as one class) at the time Outstanding (determined as provided in
Section 8.04) shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee; provided, however,
that, subject to Section 7.01 the Trustee shall have the right to decline to
follow any such direction if the Trustee in reliance upon an Opinion of Counsel
determines that the action so directed may not lawfully be taken, or if the
Trustee in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceedings so directed would be illegal or involve
it in personal liability or be unduly prejudicial to the rights of Holders not
parties to such direction, and provided further that nothing in this Indenture
shall impair the right of the Trustee to take any action deemed proper by the
Trustee and which is not inconsistent with such direction by the Holders.
The Company may set a special record date for purposes of determining
the identity of the Holders of Securities entitled to vote or consent to any
action by vote or consent authorized or permitted by this Section 6.09. Such
record date shall be the later of 15 days prior to the first solicitation of
such consent or the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 5.01 of this Indenture prior to such solicitation.
The Holders of not less than a majority in principal amount of the
Securities of any Series at the time Outstanding (determined as provided in
Section 8.04) may on behalf of the Holders of all the Securities of such Series
waive any past Event of Default with respect to such Series and its
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consequences (subject to Section 6.02), except a continuing Event of Default
specified in Section 6.01(a), (b) or (c), or in respect of a covenant or
provision of this Indenture which under Article Ten cannot be modified or
amended without the consent of the Holder of each Security so affected. Upon
any such waiver, the Company, the Trustee and the Holders of the Securities of
such Series shall be restored to their former positions and rights hereunder,
respectively, and such Event of Default shall be deemed to have been cured and
not continuing for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Event of Default or impair any right
consequent thereon.
SECTION 6.10. TRUSTEE TO GIVE NOTICE OF DEFAULTS KNOWN TO IT, BUT MAY
WITHHOLD IN CERTAIN CIRCUMSTANCES. The Trustee shall, within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
Series, give to the Holders of the Securities of such Series in the manner and
to the extent provided in subsection (c) of Section 5.04 with respect to
reports pursuant to subsection (a) of said Section 5.04, notice of such default
known to the Trustee unless such default shall have been cured, remedied or
waived before the giving of such notice (the term "default" for the purposes of
this Section 6.10 being hereby defined to be the events specified in Section
6.01 and any additional events specified in the terms of any Series of
Securities pursuant to Section 2.01 not including any periods of grace provided
for therein, and irrespective of the giving of written notice specified in
clause (d) of Section 6.01 and in any such terms); provided, that except in the
case of default in the payment of the principal of or interest on any of the
Securities of such Series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders of the Securities of such Series.
SECTION 6.11. REQUIREMENT OF AN UNDERTAKING TO PAY COSTS IN CERTAIN
SUITS UNDER THE INDENTURE OR AGAINST THE TRUSTEE. All parties to this
Indenture agree, and each Holder of any Security by such Holder's acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted
by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 6.11 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder of Securities of any Series, or
group of such Holders, holding in the aggregate more than ten percent in
principal amount of the Securities of such Series Outstanding, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
or any interest or premium on any Security, on or after the due date expressed
in such Security or for such interest (or in the case of any redemption, on or
after the Redemption Date).
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. CERTAIN DUTIES AND RESPONSIBILITIES OF TRUSTEE. The
Trustee, prior to the occurrence of an Event of Default and after the curing,
remedying or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default has occurred (which has
not been cured, remedied or waived), the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his or her own affairs.
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No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, provided, however, that:
(a) prior to the occurrence of an Event of Default and
after the curing, remedying or waving of all Events of Default which
may have occurred:
(1) the duties and obligations of the Trustee
shall be determined solely by the express provisions of this
Indenture and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of Securities pursuant to Section
6.09 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers, if there is reasonable ground for believing
that the repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 7.02. CERTAIN RIGHTS OF TRUSTEE. Except as otherwise
provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties,
(b) Any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by an
Officer's Certificate (unless other evidence in respect thereof shall
be herein specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a Certified Resolution,
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(c) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance
with such written advice or Opinion of Counsel,
(d) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Securityholders, pursuant to
the provisions of this Indenture, unless such Securityholders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which may be incurred therein or
thereby,
(e) The Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture,
(f) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other paper or
document, unless requested in writing so to do by the Holders of
Securities pursuant to Section 6.09; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against
such costs, expenses or liabilities as a condition to such proceeding;
and provided further, that nothing in this subsection (f) shall
require the Trustee to give the Securityholders any notice other than
that required by Section 6.10. The reasonable expense of every such
examination shall be paid by the Company or, if paid by the Trustee,
shall be reimbursed by the Company upon demand,
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder and
(h) The Trustee shall be under no responsibility for the
approval by it in good faith of any expert for any of the purposes
expressed in this Indenture.
SECTION 7.03. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR APPLICATION OF
PROCEEDS. The recitals contained herein and in the Securities (other than the
certificate of authentication on the Securities) shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Company of any of
the Securities or of the proceeds thereof.
SECTION 7.04. TRUSTEE MAY OWN SECURITIES. The Trustee, any Paying
Agent, registrar or any agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Trustee, Paying Agent,
registrar or such other agent.
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SECTION 7.05. MONEYS RECEIVED BY TRUSTEE TO BE HELD IN TRUST. Moneys
held by the Trustee in trust need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed with
the Company.
SECTION 7.06. TRUSTEE ENTITLED TO COMPENSATION, REIMBURSEMENT AND
INDEMNITY. The Company agrees to pay to the Trustee from time to time
reasonable compensation (which shall not be limited by any provision of law in
regard to the compensation of a trustee of any express trust), and the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in connection with
the acceptance or administration of its trust under this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also agrees to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Trustee and arising out of or in connection with the
acceptance or administration of this trust, including the reasonable costs and
expenses of defending itself against any claim of liability in the premises.
The obligations of the Company under this Section to compensate the Trustee, to
pay or reimburse the Trustee for expenses, disbursements and advances and to
indemnify and hold harmless the Trustee shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be secured by a lien prior to
that of the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of principal of or
interest or redemption premium on particular Securities.
SECTION 7.07. RIGHT OF TRUSTEE TO RELY ON OFFICER'S CERTIFICATE WHERE
NO OTHER EVIDENCE SPECIFICALLY PRESCRIBED. Except as otherwise provided in
Section 7.01, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking, suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officer's Certificate of the Company delivered to the Trustee, and such
Officer's Certificate, in the absence of negligence or bad faith on the part of
the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the faith
thereof.
SECTION 7.08. DISQUALIFICATION; CONFLICTING INTEREST. (a) If the
Trustee has or shall acquire any conflicting interest, as defined in this
Section 7.08, it shall, within 90 days after ascertaining that it has such
conflicting interest, and if the Event of Default to which such conflicting
interest relates has not been cured or duly waived or otherwise eliminated
before the end of such 90-day period, the Trustee shall either eliminate such
conflicting interest or, except as otherwise provided in this Section 7.08,
resign in the manner and with the effect specified in Section 7.10, such
resignation to become effective upon the appointment of a successor trustee and
such successor's acceptance of such appointment, and the Company shall take
prompt steps to appoint a successor in accordance with Section 7.10.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section 7.08, the Trustee shall, within
ten days after the expiration of such 90-day period, transmit notice of such
failure to the Securityholders in the manner and to the extent provided in
subsection (c) of Section 5.04 with respect to reports pursuant to subsection
(a) of said Section 5.04.
(c) Subject to the provisions of Section 6.11 of this Indenture,
unless the Trustee's duty to resign is stayed as provided in subsection (f) of
this Section 7.08, any Holder who has been a bona fide Holder of Securities for
at least six months may, on such Holder's behalf and on behalf of all other
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Holders similarly situated, petition any court of competent jurisdiction for
the removal of such Trustee and the appointment of a successor, if such Trustee
fails after written request thereof by such Holder to comply with the
provisions of subsection (a) of this Section 7.08.
(d) For the purposes of this Section 7.08 the Trustee shall be
deemed to have a conflicting interest with respect to the Securities of any
Series if an Event of Default (exclusive of any period of grace or requirement
of notice) has occurred with respect to Securities of such Series and:
(1) the Trustee is trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the Company or any other
obligor on the Securities are outstanding or is trustee for more than
one outstanding series of securities, as hereinafter defined, under a
single indenture of the Company or any other obligor on the
Securities, unless such other indenture is a collateral trust
indenture under which the only collateral consists of Securities
issued under this Indenture, provided that there shall be excluded
from the operation of this paragraph, this Indenture with respect to
the Securities of any other Series Outstanding, and any other
indenture or indentures under which other securities, or certificates
of interest or participation in other securities, of the Company or
any other obligor on the Securities are outstanding, if (A) this
Indenture is and such other indenture or indentures (and all series of
securities issued thereunder) are wholly unsecured and rank equally,
and such other indenture or indentures (and such series) are hereafter
qualified under the Trust Indenture Act of 1939, unless the Commission
shall have found and declared by order pursuant to subsection (b) of
Section 305 or subsection (c) of Section 307 of the Trust Indenture
Act of 1939, that differences exist between the provisions of this
Indenture with respect to Securities of such Series and one or more
other Series, or the provisions of this Indenture and the provisions
of such other indenture or indentures (or such series), which are so
likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Indenture with
respect to Securities of such Series and such other Series, or under
this Indenture and such other indenture or indentures, or (B) the
Company shall have sustained the burden of proving, on application to
the Commission and after opportunity for hearing thereon, that the
trusteeship under this Indenture with respect to Securities of such
Series and such other Series, or under this Indenture and such other
indenture, is not so likely to involve a material conflict of interest
as to make it necessary in the public interest or for the protection
of investors to disqualify the Trustee from acting as such under this
Indenture with respect to Securities of such Series and such other
Series, or under this Indenture and one of such indentures,
(2) the Trustee or any of its directors or executive
officers is an underwriter for the Company or any other obligor on the
Securities,
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with an underwriter for the Company or any other
obligor on the Securities,
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee or
representative of the Company or any other obligor on the Securities,
or of an underwriter (other than the Trustee itself) for the Company
or any other obligor on the Securities who is currently engaged in the
business of underwriting, except that (A) one individual may be a
director and/or an executive
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officer of the Trustee and a director and/or an executive officer of
the Company or any other obligor on the Securities, but may not be at
the same time an executive officer of both the Trustee and the Company
or any other obligor on the Securities; (B) if and so long as the
number of directors of the Trustee in office is more than nine, one
additional individual may be a director and/or an executive officer of
the Trustee and a director of the Company or any other obligor on the
Securities; and (C) the Trustee may be designated by the Company or
any other obligor on the Securities or by an underwriter for the
Company or any other obligor on the Securities to act in the capacity
of transfer agent, registrar, custodian, paying agent, fiscal agent,
escrow agent or depositary, or in any other similar capacity, or,
subject to the provisions of paragraph (1) of this subsection (d), to
act as trustee whether under an indenture or otherwise,
(5) ten percent or more of the voting securities of the
Trustee is beneficially owned either by the Company or any other
obligor on the Securities or by any director, partner or executive
officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such Persons;
or ten percent or more of the voting securities of the Trustee is
beneficially owned either by an underwriter for the Company or any
other obligor on the Securities or by any director, partner or
executive officer thereof or is beneficially owned, collectively, by
any two or more such Persons,
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, as
hereinafter defined, (A) five percent or more of the voting
securities, or ten percent or more of any other class of security, of
the Company or any other obligor on the Securities, not including the
Securities issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or (B) ten
percent or more of any class of security of an underwriter for the
Company or any other obligor on the Securities,
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, as
hereinafter defined, five percent or more of the voting securities of
any Person who, to the knowledge of the Trustee, owns ten percent or
more of the voting securities of, or controls directly or indirectly
or is under direct or indirect common control with the Company or any
other obligor on the Securities,
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, as
hereinafter defined, ten percent or more of any class of security of
any Person who, to the knowledge of the Trustee, owns 50% or more of
the voting securities of the Company or any other obligor on the
Securities or
(9) the Trustee owns on the date of the occurrence of
such Event of Default (exclusive of any period of grace or requirement
of notice) or any anniversary thereof while such Event of Default
remains outstanding, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity an aggregate of 25% or
more of the voting securities or of any class of security, of any
Person, the beneficial ownership of a specified percentage of which
would have constituted a conflicting interest under paragraph (6), (7)
or (8) of this subsection (d). As to any such securities of which the
Trustee acquired ownership through becoming executor, administrator or
testamentary trustee of an estate which included them, the provisions
of the preceding sentence shall not apply, for a period of
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two years from the date of such acquisition, to the extent that such
securities included in such estate do not exceed 25% of such voting
securities or 25% of any such class of security. Promptly after the
date of the occurrence of any such Event of Default and annually in
each succeeding year that the Securities or any Series thereof remain
in default, the Trustee shall make a check of its holdings of such
securities in any of the above-mentioned capacities as of such date.
If the Company or any other obligor on the Securities fails to make
payment in full of principal of or interest on any of the Securities
when and as the same become due and payable and such failure continues
for 30 days thereafter, the Trustee shall make a prompt check of its
holdings of such securities in any of the above-mentioned capacities
as of the date of the expiration of such 30-day period, and after such
date, notwithstanding the foregoing provisions of this paragraph (9),
all such securities so held by the Trustee, with sole or joint control
over such securities vested in it, shall, but only so long as such
failure shall continue, be considered as though beneficially owned by
the Trustee for the purposes of paragraphs (6), (7) and (8) of this
subsection (d), or
(10) except under the circumstances described in
paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee
shall be or become a creditor of the Company or any other obligor on
the Securities.
The specifications of percentages in paragraphs (5) to (9), inclusive,
of this subsection (d) shall not be construed as indicating that the ownership
of such percentages of the securities of a Person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection (d).
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection (d) only, (A) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but shall
not include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a Person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (B) an obligation shall be deemed to
be in default when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (C) the Trustee shall not be
deemed to be the owner or Holder of (i) any security which it holds as
collateral security (as trustee or otherwise) for an obligation which is not in
default as defined in clause (B) above, or (ii) any security which it holds as
collateral security under this Indenture, irrespective of any default
hereunder, or (iii) any security which it holds as agent for collection, or as
custodian, escrow agent or depositary, or in any similar representative
capacity.
(e) For the purposes of this Section 7.08:
(1) The term "underwriter" when used with reference to
the Company or any other obligor on the Securities shall mean every
Person who, within one year prior to the time as of which the
determination is made, has purchased from the Company or any other
obligor on the Securities with a view to, or has offered or sold for
the Company or any other obligor on the Securities in connection with,
the distribution of any security of the Company or any other obligor
on the Securities outstanding at such time, or has participated or has
had a direct or indirect participation in any such undertaking, or has
participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not include
a Person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
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(2) The term "director" shall mean any director of a
Company or any individual performing similar functions with respect to
any organization whether incorporated or unincorporated.
(3) The term "trust" shall include only a trust where the
interest or interests of the beneficiary or beneficiaries are
evidenced by a security.
(4) The term "voting security" shall mean any security
presently entitling the owner or Holder thereof to vote in the
direction or management of the affairs of a Person, or any security
issued under or pursuant to any trust, agreement or arrangement
whereby a trustee or trustees or agent or agents for the owner or
Holder of such security are presently entitled to vote in the
direction or management of the affairs of a Person.
(5) The term "executive officer" shall mean the
president, every vice-president, every trust officer, the cashier, the
secretary and the treasurer of a Company, and any individual
customarily performing similar functions with respect to any
organization whether incorporated or unincorporated, but shall not
include the chairman of the board of directors.
(6) Except for purposes of paragraphs (6), (7), (8) and
(9) of subsection (d) of this Section 7.08, the term "security" or
"securities" shall mean any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or
participation in any profit-sharing agreement, collateral-trust
certificate, pre-organization certificate or subscription,
transferable share, investment contract, voting-trust certificate,
certificate of deposit for a security, fractional undivided interest
in oil, gas or other mineral rights, or, in general, any interest or
instrument commonly known as a "security" or any certificate of
interest or participation in, temporary or interim certificate for,
receipt for, guarantee of, or warrant or right to subscribe to or
purchase, any of the foregoing.
(7) For the purpose of subsection (d)(1) of this Section
7.08, the term "series of securities" or "series" means a series,
class or group of securities issuable under an indenture pursuant to
whose terms Holders of one such series may vote to direct the
indenture trustee, or otherwise take action pursuant to a vote of such
holders, separately from holders of another such series; provided,
that "series of securities" or "series" shall not include any series
of securities issuable under an indenture if all such series rank
equally and are wholly unsecured.
The percentages of voting securities and other securities specified in
this Section shall be calculated in accordance with the following provisions:
(A) A specified percentage of the voting securities of
the Trustee, the Company or any other Person referred to in this
Section 7.08 (each of whom is referred to as a "Person" in this
paragraph) means such amount of the outstanding voting securities of
such Person as entitles the Holder or Holders thereof to cast such
specified percentage of the aggregate votes which the Holders of all
the outstanding voting securities of such Person are entitled to cast
in the direction or management of the affairs of such Person.
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(B) A specified percentage of a class of securities of a
Person means such percentage of the aggregate amount of securities of
the class outstanding.
(C) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(D) The term "outstanding" means issued and not held by
or for the account of the issuer. The following securities shall not
be deemed outstanding within the meaning of this definition:
(i) Securities of an issuer held in a sinking
fund relating to securities of the issuer of the same class;
(ii) Securities of an issuer held in a sinking
fund relating to another class of securities of the issuer, if
the obligation evidenced by such other class of securities is
not in default as to principal or interest or otherwise;
(iii) Securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(iv) Securities held in escrow if placed in
escrow by the issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any Person other than the issuer is entitled to
exercise the voting rights thereof.
(E) A security shall be deemed to be of the same class as
another security if both securities confer upon the Holder or Holders
thereof substantially the same rights and privileges, provided,
however, that, in the case of secured evidences of indebtedness, all
of which are issued under a single indenture, differences in the
interest rates or maturity dates of various series thereof shall not
be deemed sufficient to constitute such series different classes, and
provided further that, in the case of unsecured evidences of
indebtedness, differences in the interest rate or maturity dates
thereof shall not be deemed sufficient to constitute them securities
of different classes, whether or not they are issued under a single
indenture.
(f) Except in the case of a default in the payment of the
principal of or interest on any Securities, or in the payment of any sinking or
purchase fund installment, the Trustee shall not be required to resign as
provided by this Section 7.08 if the Trustee shall have sustained the burden of
proving, on application to the Commission and after opportunity for hearing
thereon, that (i) the default under this Indenture may be cured or waived
during a reasonable period and under the procedures described in such
application, and (ii) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of Holders of such Series of Securities. The
filing of such an application shall automatically stay the performance of the
duty to resign until the Commission orders otherwise. Any resignation of the
Trustee shall become effective only upon the appointment of a successor trustee
and such successor's acceptance of such appointment.
SECTION 7.09. REQUIREMENTS FOR ELIGIBILITY OF TRUSTEE. There shall
always be at least one Trustee hereunder. The Trustee hereunder shall at all
times be a Company organized and doing business as a commercial bank under the
laws of the United States of America or any state thereof or of the
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District of Columbia or a Company or other Person permitted to act as a trustee
by the Commission and, in each case, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$100,000,000, and subject to supervision or examination by Federal, State or
District of Columbia authority. If such Company publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Company shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. No obligor on the Securities or Person directly or indirectly
controlling, controlled by or under common control with such obligor shall
serve as Trustee. In case at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section 7.09, the Trustee shall
resign immediately in the manner and with the effect specified in this Article
Seven.
SECTION 7.10. RESIGNATION AND REMOVAL OF TRUSTEE; APPOINTMENT OF
SUCCESSOR. (a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to one or more or all Series of Securities
by giving written notice of such resignation to the Company and by giving to
the Holders of Securities notice thereof in the manner and to the extent
provided in subsection (c) of Section 5.04 with respect to reports pursuant to
subsection (a) of Section 5.04. Upon receiving such notice of resignation and
if the Company shall deem it appropriate, evidence satisfactory to it of such
mailing to the Holders, the Company shall promptly appoint a successor trustee
with respect to all Series of Securities or, if appropriate, the applicable
Series by written instrument executed by an authorized officer of the Company,
one copy of which instrument shall be delivered to the resigning Trustee and
one copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Holder who has been a bona fide Holder of a Security or Securities for at least
six months may, subject to the provisions of Section 6.11, on such Holder's
behalf and on behalf of all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon after
such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions
of subsection (a) of Section 7.08 after written request therefor by
the Company or by any Securityholder who has been a bona fide Holder
of a Security or Securities of the applicable Series for at least six
months, or
(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 7.09 and shall fail to resign after
written request therefor by the Company or by any such Securityholder,
or
(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, or
(4) the Company shall determine that the Trustee has
failed to perform its obligations under this Indenture in any material
respect,
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument executed by an authorized officer of
the Company, one copy of which instrument shall be
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delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 6.11, any Securityholder who has been a
bona fide Holder of a Security or Securities of the affected Series for at
least six months may, on such Person's behalf and on behalf of all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee with respect
to such Series. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in principal amount of the
Securities Outstanding (determined as provided in Section 8.04) may at any time
remove the Trustee and appoint a successor trustee by written instrument or
instruments signed by such Holders or their attorneys-in-fact duly authorized,
or by the affidavits of the permanent chairman and secretary of a meeting of
the Securityholders evidencing the vote upon a resolution or resolutions
submitted thereto with respect to such removal and appointment (as provided in
Article Nine), and by delivery thereof to the Trustee so removed, to the
successor trustee and to the Company.
(d) Any resignation or removal of the Trustee and any appointment
of a successor trustee pursuant to any of the provisions of this Section 7.10
shall become effective upon acceptance of appointment by the successor trustee
as provided in Section 7.11.
SECTION 7.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any
successor trustee appointed as provided in Section 7.10 shall execute,
acknowledge and deliver to the Company and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations with respect to such Series of
its predecessor hereunder, with like effect as if originally named as trustee
herein; but, nevertheless, on the written request of the Company or of the
successor trustee, the trustee ceasing to act shall, upon payment of any
amounts then due it pursuant to the provisions of Section 7.06, execute and
deliver an instrument transferring to such successor trustee all the rights and
powers with respect to the trustee so ceasing to act. Upon written request of
any such successor trustee, the Company shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 7.06.
No successor trustee shall accept appointment as provided in this
Section 7.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section 7.11, the successor trustee shall at the expense of the Company
transmit notice of the succession of such trustee hereunder to the Holders of
Securities in the manner and to the extent provided in subsection (c) of
Section 5.04 with respect to reports pursuant to subsection (a) of said Section
5.04.
SECTION 7.12. SUCCESSOR TO TRUSTEE BY MERGER, CONSOLIDATION OR
SUCCESSION TO BUSINESS. Any Company into which the Trustee may be merged or
converted or with which it may be consolidated, or any Company resulting from
any merger, conversion or consolidation to which the Trustee shall be a party,
or any Company succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such Company shall be qualified under the provisions of Section 7.08
and eligible under the provisions of Section 7.09, without the execution or
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filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor Trustee, and deliver such
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 7.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. (a)
Subject to the provisions of subsection (b) of this Section 7.13, if the
Trustee shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company or any other obligor on the Securities within three
months prior to a default, as defined in subsection (c) of this Section 7.13,
or subsequent to such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold in a special account for the
benefit of the Trustee individually, the Holders of the Securities for which it
is acting as Trustee, and the holders of other indenture securities (as defined
in subsection (c) of this Section 7.13):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such three
months' period, and valid as against the Company or such other obligor
on the Securities and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Company or such other
obligor on the Securities upon the date of such default; and
(2) all property received by the Trustee in respect of
any claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of
any such property if disposed of, subject, however, to the rights, if
any, of the Company or such other obligor on the Securities and their
respective other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any Person (other than the Company or
such other obligor on the Securities) who is liable thereon, and (ii)
the proceeds of the bona fide sale of any such claim by the Trustee to
a third Person, and (iii) distributions made in cash, securities or
other property in respect of claims filed against the Company or such
other obligor on the Securities in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United
States Code or applicable State laws;
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(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property was so
held prior to the beginning of such three months' period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property held by
it as security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received, the Trustee had no reasonable cause to
believe that a default, as defined in subsection (c) of this Section
7.13, would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property held as
security for such claim as provided in such paragraph (B) or (C), as
the case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any preexisting claim of the Trustee as such creditor, such claim shall have
the same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
among the Trustee, the Holders of Securities for which it is acting as Trustee,
and the holders of other indenture securities in such manner that the Trustee,
such Securityholders and the holders of other indenture securities realize, as
a result of payments from such special account and payments of dividends on
claims filed against the Company or such other obligor on the Securities in
bankruptcy or receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable State law, the same percentage
of their respective claims, figured before crediting to the claim of the
Trustee anything on account of the receipt by it from the Company or such other
obligor on the Securities of the funds and property in such special account and
before crediting to the respective claims of the Trustee, such Securityholders,
and the holders of other indenture securities dividends on claims filed against
the Company or such other obligor on the Securities in bankruptcy or
receivership or in proceedings for reorganization pursuant to Title 11 of the
United States Code or applicable State law, but after crediting thereon
receipts on account of the indebtedness represented by their respective claims
from all sources other than from such dividends and from the funds and property
so held in such special account. As used in this paragraph, with respect to
any claim, the term "dividends" shall include any distribution with respect to
such claim in bankruptcy or receivership or in proceedings for reorganization
pursuant to Title 11 of the United States Code or applicable State law, whether
such distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceeding for
reorganization is pending shall have jurisdiction (i) to apportion among the
Trustee, such Securityholders, and the holders of other indenture securities,
in accordance with the provisions of this paragraph, the funds and property
held in such special account and the proceeds thereof, or (ii) in lieu of such
apportionment in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made
to the Trustee, such Securityholders and the holders of other indenture
securities with respect to their respective claims, in which event it shall not
be necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific
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allocation of such distributions as between the secured and unsecured portions
of such claim, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period,
it shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which
would have given rise to the obligation to account, if such Trustee
had continued, as trustee, occurred after the beginning of such three
months' period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or removal.
In every case commenced under the Bankruptcy Act of 1898, or any
amendment thereto enacted prior to November 6, 1978, all references to periods
of three months shall be deemed to be references to periods of four months.
(b) There shall be excluded from the operation of subsection (a)
of this Section 7.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a maturity
of one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction, or by this Indenture, for the purpose
of preserving any property which shall at any time be subject to the
lien of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the
Securityholders at the time and in the manner provided in Section
5.04(c) with respect to reports pursuant to subsections (a) and (b)
thereof, respectively;
(3) disbursements made in the ordinary course of business
in the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary, or
other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented, or an indebtedness created as a result of
goods or securities sold in a cash transaction as defined in
subsection (c) of this Section 7.13;
(5) the ownership of stock or of other securities of a
Company organized under the provisions of Section 25(a) of the Federal
Reserve Act, as amended, which is directly or indirectly a creditor of
the Company or any other obligor on the Securities; and
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(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances or obligations which
fall within the classification of self-liquidating paper as defined in
subsection (c) of this Section 7.13.
(c) As used in this Section 7.13 the following terms shall be
accorded the following definitions:
(1) the term "default" shall mean any failure to make
payment in full of the principal of or interest on any of the
Securities or on the other indenture securities when and as such
principal or interest becomes due and payable.
(2) the term "other indenture securities" shall mean
securities upon which the Company or any other obligor on the
Securities is an "obligor" (as defined in the Trust Indenture Act of
1939) outstanding under any other indenture (A) under which the
Trustee is also trustee, (B) which contains provisions substantially
similar to the provisions of subsection (a) of this Section 7.13, and
(C) under which a default exists at the time of the apportionment of
the funds and property held in said special account.
(3) the term "cash transaction" shall mean any
transaction in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or bankers and
payable upon demand.
(4) the term "self-liquidating paper" shall mean any
draft, bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company or any other obligor on
the Securities for the purpose of financing the purchase, processing,
manufacture, shipment, storage or sale of goods, wares or merchandise
and which is secured by documents evidencing title to, possession of,
or a lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the
creditor relationship with the Company or any other obligor on the
Securities arising from the making, drawing, negotiating or incurring
of the draft, bill of exchange, acceptance or obligation.
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. EVIDENCE OF ACTION BY SECURITYHOLDERS. Whenever in
this Indenture it is provided that the Holders of a specified percentage in
principal amount of the Securities of any or all Series may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the time
of taking any such action the Holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by such Securityholders in Person or by agent or proxy
appointed in writing, or (b) by the record of such Holders of Securities voting
in favor thereof at any meeting of such Securityholders duly called and held in
accordance with the provisions of Article Nine, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Securityholders.
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SECTION 8.02. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES. Subject to the provisions of Sections 7.01, 7.02 and 9.05, proof
of the execution of any instrument by a Securityholder or such Holder's agent
or proxy and proof of the holding by any Person of any of the Securities shall
be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person
of any instrument may be proved in any reasonable manner acceptable to
the Trustee.
(b) The ownership of Securities of any Series (including
Global Securities) shall be proved by the Register of such Securities
of such Series, or by certificates of the Security registrar or
registrars thereof.
The Trustee shall not be bound to recognize any Person as a
Securityholder unless and until such Person's title to the Securities held by
it is proved in the manner in this Article Eight provided.
The record of any Securityholders' meeting shall be proved in the
manner in Section 9.06.
The Trustee may accept such other proof or require such additional
proof of any matter referred to in this Section 8.02 as it shall deem
reasonable.
SECTION 8.03. WHO MAY BE DEEMED OWNERS OF SECURITIES. Prior to due
presentment for transfer of any Security, the Company, the Trustee and any
agent of the Company or the Trustee may deem and treat the Person in whose name
such Security shall be registered upon the Register of Securities of the Series
of which such Security is a part as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation
of ownership or other writing thereon) for the purpose of receiving payment of
or on account of the principal of and interest, subject to Section 2.03, on
such Security and for all other purposes; and neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. All such payments so made to any such Holder for the
time being, or upon such Holder's order, shall be valid, and, to the extent of
the sum or sums so paid, effectual to satisfy and discharge the liability of
moneys payable upon any such Security.
If the Securities of any Series are issued in the form of one or more
Global Securities, the Depository therefor may grant proxies to Persons having
a beneficial ownership in such Global Security or Securities for purposes of
voting or otherwise responding to any request for consent, waiver or other
action which the Holder of such Security is entitled to grant or take under
this Indenture and the Trustee shall accept such proxies for the purposes
granted; provided that neither the Trustee nor the Company shall have any
obligation with respect to the grant of or solicitation by the Depository of
such proxies.
SECTION 8.04. SECURITIES OWNED BY THE COMPANY OR CONTROLLED OR
CONTROLLING PERSONS DISREGARDED FOR CERTAIN PURPOSES. In determining whether
the Holders of the requisite principal amount of Securities have concurred in
any demand, direction, request, notice, vote, consent, waiver or other action
under this Indenture, Securities which are owned by the Company or any other
obligor on the Securities or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or
any other obligor on the Securities shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, provided that for the
purposes of determining whether the Trustee shall be protected in relying on
any such demand, direction, request, notice, vote, consent, waiver or other
action, only Securities which a Responsible Officer of the Trustee assigned to
its principal office knows are so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding for
the purposes of this Section
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8.04, if the pledgee shall establish to the satisfaction of the Trustee the
pledgee's right to vote such Securities and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor.
Upon request of the Trustee, the Company shall furnish to the Trustee
promptly an Officer's Certificate listing and identifying all Securities, if
any, known by the Company to be owned or held by or for the account of the
Company or any other obligor on the Securities or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any other obligor on the Securities; and, subject
to the provisions of Section 7.01, the Trustee shall be entitled to accept such
Officer's Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
SECTION 8.05. INSTRUMENTS EXECUTED BY SECURITYHOLDERS BIND FUTURE
HOLDERS. At any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 8.01, of the taking of any action by the Holders of the
percentage in principal amount of the Securities specified in this Indenture in
connection with such action, any Holder of a Security which is shown by the
evidence to be included in the Securities the Holders of which have consented
to such action may, by filing written notice with the Trustee at its principal
office and upon proof of holding as provided in Section 8.02, revoke such
action so far as concerns such Security. Except as aforesaid any such action
taken by the Holder of any Security and any direction, demand, request, notice,
waiver, consent, vote or other action of the Holder of any Security which by
any provisions of this Indenture is required or permitted to be given shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Security, and of any Security issued in lieu thereof, irrespective of
whether any notation in regard thereto is made upon such Security. Any action
taken by the Holders of the percentage in principal amount of the Securities of
any or all Series specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Trustee and the Holders of
all of the Securities of such Series subject, however, to the provisions of
Section 7.01.
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
SECTION 9.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting
of Holders of Securities of any or all Series may be called at any time and
from time to time pursuant to the provisions of this Article for any of the
following purposes:
(1) to give any notice to the Company or to the Trustee,
or to give any directions to the Trustee, or to consent to the waiving
of any default hereunder and its consequences, or to take any other
action authorized to be taken by Holders of Securities of any or all
Series, as the case may be, pursuant to any of the provisions of
Article Six;
(2) to remove the Trustee and appoint a successor trustee
pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section
10.02; or
(4) to take any other action authorized to be taken by or
on behalf of the Holders of any specified principal amount of the
Securities of any or all Series, as the case may be, under any other
provision of this Indenture or under applicable law.
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SECTION 9.02. MANNER OF CALLING MEETINGS. The Trustee may at any
time call a meeting of Securityholders to take any action specified in Section
9.01, to be held at such time and at such place in The City of New York, New
York, as the Trustee shall determine. Notice of every meeting of
Securityholders, setting forth the time and place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be mailed
not less than 20 nor more than 60 days prior to the date fixed for the meeting.
SECTION 9.03. CALL OF MEETING BY THE COMPANY OR SECURITYHOLDERS. In
case at any time the Company pursuant to a resolution of its Board of
Directors, or the Holders of not less than ten percent in principal amount of
the Securities of any or all Series, as the case may be, then Outstanding,
shall have requested the Trustee to call a meeting of Holders of Securities of
any or all Series, as the case may be, to take any action authorized in Section
9.01 by written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have mailed notice of
such meeting within 20 days after receipt of such request, then the Company or
such Holders of Securities in the amount above specified may determine the time
and place in either the City and County of San Francisco, California or The
City of New York, New York for such meeting and may call such meeting to take
any action authorized in Section 9.01, by mailing (and publishing, if required)
notice thereof as provided in Section 9.02.
SECTION 9.04. WHO MAY ATTEND AND VOTE AT MEETINGS. To be entitled to
vote at any meeting of Securityholders a Person shall (a) be a Holder of one or
more Securities with respect to which the meeting is being held; or (b) be a
Person appointed by an instrument in writing as proxy by such Holder of one or
more Securities. The only Persons who shall be entitled to be present or to
speak at any meeting of Securityholders shall be the Persons entitled to vote
at such meeting and their counsel and any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
SECTION 9.05. REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF THE
MEETING; VOTING RIGHTS - ADJOURNMENT. Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof of the holding
of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall think fit.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 8.02. and the
appointment of any proxy shall be proved in the manner specified in said
Section 8.02; provided, however, that such regulations may provide that written
instruments appointing proxies regular on their face, may be presumed valid and
genuine without the proof hereinabove or in said Section 8.02 specified.
The Trustee shall by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 9.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the
meeting.
Subject to the provisions of Section 8.04, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000 principal
amount (in the case of Original Issue Discount Securities, such principal
amount shall be equal to such portion of the principal amount as may be
specified in the terms of such Series) of Securities held or represented by
such Holder; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and ruled
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by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Securities held by
such Person or instruments in writing as aforesaid duly designating such Person
as the Person to vote on behalf of other Securityholders. Any meeting of
Securityholders duly called pursuant to the provisions of Section 9.02 or 9.03
may be adjourned from time to time, and the meeting may be held so adjourned
without further notice.
At any meeting of Securityholders, the presence of Persons holding or
representing Securities in principal amount sufficient to take action on the
business for the transaction of which such meeting was called shall constitute
a quorum, but, if less than a quorum is present, the Persons holding or
representing a majority in principal amount of the Securities represented at
the meeting may adjourn such meeting with the same effect for all intents and
purposes, as though a quorum had been present.
SECTION 9.06. MANNER OF VOTING AT MEETINGS AND RECORD TO BE KEPT.
The vote upon any resolution submitted to any meeting of Securityholders shall
be by written ballots on which shall be subscribed the signatures of the
Holders of Securities or of their representatives by proxy and the principal
amount or principal amounts of the Securities held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record in duplicate
of the proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more Persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
mailed as provided in Section 9.02. The record shall show the principal amount
or principal amounts of the Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one copy thereof shall be
delivered to the Company and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 9.07. EXERCISE OF RIGHTS OF TRUSTEE AND SECURITYHOLDERS NOT
TO BE HINDERED OR DELAYED. Nothing in this Article Nine contained shall be
deemed or construed to authorize or permit, by reason of any call of a meeting
of Securityholders or any rights expressly or impliedly conferred hereunder to
make such call, any hindrances or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Securityholders under any
of the provisions of this Indenture or of the Securities.
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ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. PURPOSES FOR WHICH SUPPLEMENTAL INDENTURES MAY BE
ENTERED INTO WITHOUT CONSENT OF SECURITYHOLDERS. Without the consent of the
Holders of any Securities, the Company and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto
(which shall comply with the provisions of the Trust Indenture Act of 1939 as
then in effect) for one or more of the following purposes:
(a) if deemed appropriate by the Company or required by
law, to evidence the succession of another Company to the Company or
successive successions and the assumption by the successor Company of
the covenants, agreements and obligations of the Company pursuant to
Article Four hereof,
(b) to add to the covenants of the Company such further
covenants, restrictions or conditions as its Board of Directors and
the Trustee shall consider to be for the protection of the Holders of
all or any Series of Securities (and if such covenants, restrictions
or conditions are to be for the benefit of less than all Series of
Securities, stating that such covenants, restrictions or conditions
are expressly being included solely for the benefit of such Series),
and to make the occurrence, or the occurrence and continuance, of a
default in any such additional covenants, restrictions or conditions
an Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set forth;
provided, however, that in respect to any such additional covenant,
restriction or condition such Supplemental Indenture may provide for a
particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit
the remedies available to the Trustee upon such default,
(c) to add or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the
issuance of Securities in (i) global form or (ii) bearer form,
registerable or not registerable as to principal or principal and
interest, and with or without coupons,
(d) to change or eliminate any of the provisions of this
Indenture; provided, however, that any such change or elimination
shall become effective only when there is no Security of any Series
Outstanding created prior to the execution of such Supplemental
Indenture which is entitled to the benefit of such provision,
(e) to establish the form or terms of Securities of any
Series as permitted by Sections 2.01 and 2.02,
(f) to appoint, at the request of the Trustee, a
successor Trustee for a particular Series of Securities to act as such
pursuant to the provisions of this Indenture and to add to or change
the provisions of this Indenture to such extent as shall be necessary
to facilitate the performance of the duties of such trustee and
(g) to cure any ambiguity or to correct or supplement any
provisions contained herein or in any Supplemental Indenture which may
be defective or inconsistent with any other provision contained herein
or in any Supplemental Indenture,
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or to make such other provisions in regard to matters or questions
arising under this Indenture or any Supplemental Indenture which shall
not adversely affect the interests of the Holders of the Securities.
SECTION 10.02. MODIFICATION OF INDENTURE WITH CONSENT OF HOLDERS OF
SECURITIES. With the consent (evidenced as provided in Section 8.01) of the
Holders of not less than a majority in principal amount of the Securities of
all Series at the time Outstanding (determined as provided in Section 8.04)
affected by such Supplemental Indenture (voting as one class), the Company and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall comply with the provisions of the
Trust Indenture Act of 1939 as then in effect) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any Supplemental Indenture or of modifying in any manner
the rights of the Holders of the Securities of each such Series; provided,
however, that no such Supplemental Indenture shall, without the consent of the
Holders of each Outstanding Security affect thereby:
(a) Change the fixed maturity or Redemption Date of any
Security or reduce the rate of interest thereon or the method of
determining such rate of interest or extend the time of payment of
interest or reduce the principal amount (including the amount of
principal of an Original Issue Discount Security that would be due
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.01 hereof) thereof or reduce any premium payable upon the
redemption thereof, or change the coin or currency in which any
Security or the interest thereon is payable or impair the right to
institute suit for the enforcement of any such payment on or after the
maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(b) Reduce the percentage in principal amount of the
Outstanding Securities the consent of the Holders of which is required
for any such Supplemental Indenture, or the consent of the Holders of
which is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture or
(c) Change the time of payment or reduce the amount of
any minimum sinking account or fund payment or
(d) Modify any of the provisions of this Section 10.02,
except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Security affected thereby.
A Supplemental Indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular Series of Securities, or which modifies
the rights of Holders of Securities of such Series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other Series.
It shall not be necessary for the consent of the Securityholders under
this Section 10.02 to approve the particular form of any proposed Supplemental
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
Supplemental Indenture pursuant to the provisions of this Section 10.02, the
Company shall mail a notice to the Holders of
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Registered Securities of each Series so affected, setting forth in general
terms the substance of such Supplemental Indenture. Any failure of the Company
to mail or publish such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such Supplemental Indenture.
SECTION 10.03. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution
of any Supplemental Indenture pursuant to the provisions of this Article Ten,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
of Securities shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such Supplemental Indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
The Trustee shall be entitled to receive, and subject to the
provisions of Section 7.01 shall be entitled to rely upon, an Opinion of
Counsel as conclusive evidence that any such Supplemental Indenture complies
with the provisions of this Article Ten and that the Securities affected by the
Supplemental Indenture, when such Securities are authenticated and delivered by
the Trustee and executed and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will be valid and binding
obligations of the Company, except as any rights thereunder may be limited by
bankruptcy, insolvency and other similar laws affecting the enforcement of
creditors' rights generally and by general equity principles.
SECTION 10.04. SECURITIES MAY BEAR NOTATION OF CHANGES BY
SUPPLEMENTAL INDENTURES. Securities authenticated and delivered after the
execution of any Supplemental Indenture pursuant to the provisions of this
Article Ten, or after any action taken at a Securityholders' meeting pursuant
to Article Nine, may bear a notation in form approved by the Trustee as to any
matter provided for in such Supplemental Indenture or as to any action taken at
any such meeting. If the Company or the Trustee shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any modification of this Indenture contained in any such
Supplemental Indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities then Outstanding.
ARTICLE ELEVEN
DISCHARGE; DEFEASANCE
SECTION 11.01. DISCHARGE OF INDENTURE. If the Company shall pay and
discharge or cause to be paid or discharged the entire indebtedness on all
Outstanding Securities by paying or causing to be paid the principal of
(including redemption premium, if any) and interest on the Outstanding
Securities, as and when the same become due and payable or by delivering to the
Trustee, for cancellation by it, all Outstanding Securities, and if the
Company shall also pay or cause to be paid all other sums payable hereunder by
it, thereupon, upon written request of the Company and upon receipt by the
Trustee of such certificates, if any, as the Trustee shall reasonably require,
to the effect that all conditions precedent to the satisfaction and discharge
of the Company's obligations under this Indenture have been complied with, this
Indenture shall be discharged and terminated and the Trustee shall forthwith
execute proper instruments acknowledging satisfaction of and discharging and
terminating this Indenture with respect to the Company's obligations hereunder
and any such other interests.
The Company may at any time surrender to the Trustee for cancellation
by it any Securities previously authenticated and delivered, belonging which
the Company may have acquired in any manner
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whatsoever, and such Securities, upon such surrender and cancellation, shall be
deemed to be paid and retired.
SECTION 11.02. DISCHARGE OF LIABILITY ON SECURITIES Upon the deposit
with the Trustee, in trust, at or before maturity, of money or securities of
the kind and in the necessary amount (as provided in Section 11.04 of this
Indenture) to pay or redeem Outstanding Securities (whether upon or prior to
their maturity or the Redemption Date of such Securities, provided that, if
such Securities are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given as in Article Three hereof provided or
provision satisfactory to the Trustee shall have been made for the giving of
such notice), the obligation of the Company duly and punctually to pay or cause
to be paid the principal of and any interest and premium in respect of such
Securities and all liability of the Company in respect of such payment shall
cease, terminate and be completely discharged and the Holders thereof shall
thereafter be entitled only to payment out of the money or securities deposited
with the Trustee as aforesaid for their payment; provided, however, that this
discharge of the Company's obligation so to pay and of the liability of the
Company in respect of such payment shall not occur unless the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that Holders
of the Securities of such Series will not recognize income, gain or loss for
Federal income tax purposes as a result of such discharge.
SECTION 11.03. DISCHARGE OF CERTAIN COVENANTS AND OTHER OBLIGATIONS.
Upon the deposit with the Trustee, in trust, prior to maturity of money or
securities of the kind and in the necessary amount (as provided in Section
11.04 of this Indenture) to pay or redeem Outstanding Securities of one or more
Series (whether upon or prior to their maturity or the Redemption Date of such
Securities, provided that, if such Securities are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as in Article
Three hereof provided or provision satisfactory to the Trustee shall have been
made for the giving of such notice), all of the obligations, covenants and
agreements of the Company with respect to such Securities, other than the
covenants set forth under Sections 4.01, 4.02, 4.03, 4.04 and 4.05 hereof,
shall cease, terminate and be completely discharged.
SECTION 11.04. DISCHARGE OF CERTAIN OBLIGATIONS UPON DEPOSIT OF MONEY
OR SECURITIES WITH TRUSTEE. The conditions for deposit of money or securities
contained in Sections 11.02 and 11.03 shall have been satisfied whenever with
respect to any Securities denominated in United States Dollars, the Company
shall have deposited or caused to be deposited irrevocably in trust with the
Trustee dedicated solely to the benefit of the Holders of such Securities:
(a) Lawful money of the United States of America in an
amount equal to the principal amount of such Securities and all unpaid
interest thereon to maturity, except that, in the case of Securities
which are to be redeemed prior to maturity, the amount so to be
deposited or held shall be the principal amount of such Securities and
interest thereon to the Redemption Date, together with the redemption
premium, if any; or
(b) Direct obligations of the United States of America or
obligations the principal of and interest on which are guaranteed by
the United States of America (which obligations are not subject to
redemption prior to maturity at the option of the issuer), in such
amounts and maturing at such times that the proceeds of said
obligations to be received upon their respective maturities and
interest payment dates will provide funds sufficient to pay the
principal, premium, if any, and interest to maturity, or to the
Redemption Date, as the case may be, with respect to all of the
Securities to be paid or redeemed, as such principal, premium and
interest become due, provided that the Trustee shall have been
irrevocably instructed to apply the proceeds of said obligations to
the payment of said principal, premium, if any, and interest with
respect to said Securities.
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The conditions for deposit of money or securities contained in Sections 11.02
and 11.03 shall have been satisfied whenever with respect to any Securities
denominated in one or more currencies or composite currency other than United
States Dollars, the Company shall have deposited or caused to be deposited
irrevocably in trust with the Trustee dedicated solely to the benefit of the
Holders of such Securities:
(i) Lawful money in such currency, currencies or
composite currency in which such Securities are payable and in an
amount equal to the principal amount of such Securities and all unpaid
interest thereon to maturity, except than, in the case of Securities
which are to be redeemed prior to maturity, the amount so to be
deposited or held shall be the principal amount of such Securities and
interest thereon to the Redemption Date, together with the redemption
premium, if any; or
(ii) Either (1) direct obligations of the government that
issued or caused to be issued the currency in which such Securities
are payable, for which obligations the full faith and credit of the
government is pledged (which obligations are not subject to redemption
prior to maturity at the option of the issuer) or (2) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of such government the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by
such government (which obligations are not subject to redemption prior
to maturity at the option of the issuer), in either case, in such
amounts and maturing at such times that the proceeds of said
obligations to be received upon their respective maturities and
interest payment dates will provide funds sufficient to pay the
principal, premium, if any, and interest to maturity, or to the
Redemption Date, as the case may be, with respect to all of the
Securities to be paid or redeemed, as such principal, premium and
interest become due, provided that the Trustee shall have been
irrevocably instructed to apply the proceeds of said obligations to
the payment of said principal, premium, if any, and interest with
respect to said Securities.
SECTION 11.05. UNCLAIMED MONEYS. Any moneys deposited with or paid
to the Trustee or any Paying Agent for the payment of the principal of and any
premium and interest on any Security and not so applied but remaining unclaimed
under applicable law shall be transferred by the Trustee to the appropriate
Persons in accordance with applicable laws, and the Holder of such Security
shall thereafter look only to such Persons for any payment which such Holder
may be entitled to collect and all liability of the Trustee and such Paying
Agent with respect to such moneys shall thereupon cease.
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ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01. INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF
COMPANY EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement of this Indenture, or of any Security, or for
any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, as such past, present or
future, of the Company, either directly or through the Company, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate
obligations, and that no personal liability whatever shall attach to, or is or
shall be incurred by, the incorporators, stockholders, officers or directors,
as such, of the Company because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability of every name and nature, either
at common law or in equity or by constitution or statute, of, and any and all
such rights and claims against, every such incorporator, stockholder, officer
or director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom
are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Securities.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01. SUCCESSORS AND ASSIGNS OF THE COMPANY BOUND BY
INDENTURE. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Company shall bind its successors
and assigns, whether so expressed or not.
SECTION 13.02. NOTICES; EFFECTIVENESS. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the Holders of Securities to or on the Company, or by the
Company or by the Holders of Securities to the Trustee or upon the Depository
by the Company or the Trustee may be electronically communicated or hand
delivered or sent by overnight courier, addressed to the relevant party as
provided in this Section 13.02.
All communications intended for the Company shall be sent to:
Airtouch Communications, Inc.
One California Street
San Francisco, CA 94111
Attention: Senior Vice President, Legal
Fax Number: (415) 658-2551
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All communications intended for the Trustee shall be sent to:
Attention:
Fax Number:
or at any other address of which any of the foregoing shall have notified the
others in any manner prescribed in this Section 13.02.
For all purposes of this Indenture, a notice or communication will be
deemed effective:
(a) if delivered by hand or sent by overnight courier, on
the day it is delivered unless (i) that day is not a Business Day in
the city specified (a "Local Business Day") in the address for notice
provided by the recipient or (ii) if delivered after the close of
business on a Local Business Day, then on the next succeeding Local
Business Day or
(b) if sent by facsimile transmission, on the date
transmitted, provided that oral or written confirmation of receipt is
obtained by the sender unless the date of transmission and
confirmation is not a Local Business Day, in which case, on the next
succeeding Local Business Day.
Any notice, direction, requires, demand, consent or waiver by the Company, any
Securityholder to or upon the Trustee shall be deemed to have been sufficiently
given, made or filed, for all purposes, if given, made or filed in writing at
the Principal Office of the Trustee in accordance with the provisions of this
Section 13.02.
Any notice, request, consent or waiver by the Company or the Trustee upon the
Depository shall have been sufficiently given, made or filed, for all purposes,
if give or made in accordance with the provisions of this Section 13.02 at the
address shown for such Depository in the Register or at such other address as
the Depository shall have provided for purposes of notice.
SECTION 13.03. COMPLIANCE CERTIFICATES AND OPINIONS. Upon on any
request or application by the Company to the Trustee to take any action under
any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officer's Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
document is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to Section 5.03(d) shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based; (3) a statement that, in the opinion of such Person, he or she has
made such
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examination or investigation as is necessary to enable such Person to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which such certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon the certificate, statement or
opinion of or representations by an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows that the certificate, statement or
opinion or representations with respect to the matters upon which such Person's
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants, unless such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the accounting
matters upon which his or her certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate or opinion of any firm of independent
public accountants filed with the Trustee shall contain a statement that such
firm is independent.
SECTION 13.04. DAYS ON WHICH PAYMENT TO BE MADE, NOTICE GIVEN OR
OTHER ACTION TAKEN. If any date on which a payment is to be made, notice given
or other action taken hereunder is a Saturday, Sunday or legal holiday in the
state in which the payment, notice or other action is to be made, given or
taken, then such payment, notice or other action shall be made, given or taken
on the next succeeding Business Day in such state, and in the case of any
payment, no interest shall accrue for the delay.
SECTION 13.05. PROVISIONS REQUIRED BY TRUST INDENTURE ACT OF 1939 TO
CONTROL. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included in this Indenture by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939 such required provision shall
control.
SECTION 13.06. GOVERNING LAW. THIS INDENTURE AND EACH SECURITY SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND
FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE.
SECTION 13.07. PROVISIONS OF THE INDENTURE AND SECURITIES FOR THE
SOLE BENEFIT OF THE PARTIES AND THE SECURITYHOLDERS. Nothing in this Indenture
or in the Securities, expressed or implied, shall give or be construed to give
any Person, firm or Company, other than the parties hereto and the Holders of
the Securities, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition and provision
herein contained; all its covenants, conditions and provisions being for the
sole benefit of the parties hereto and of the Holders of the Securities.
SECTION 13.08. INDENTURE MAY BE EXECUTED IN COUNTERPARTS. This
Indenture may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
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<PAGE> 64
________________________ hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, AIRTOUCH COMMUNICATIONS, INC. has caused this
Indenture to be signed by its Chairman of the Board or any Vice- Chairmen of
the Board or one of its Vice-Presidents and ________________________ has caused
this Indenture to be signed and acknowledged by one of its Vice-Presidents and
to be signed and acknowledged by one of its Assistant Secretaries, all as of
the day and year first written above.
AIRTOUCH COMMUNICATIONS, INC.
By
________________________, as Trustee
By
Vice-President
By
Assistant Secretary
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<PAGE> 1
EXHIBIT 4.9
--------------------------------------------------------------------------------
AIRTOUCH COMMUNICATIONS, INC.
STANDARD STOCK WARRANT
AGREEMENT PROVISIONS
--------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
ARTICLE 1 Issuance, Execution and Delivery of Warrant Certificates ...................... 1
SECTION 1.1 Issuance of Warrant Certificates .................................... 1
SECTION 1.2 Execution and Delivery of Warrant Certificates ...................... 1
SECTION 1.3 Registration and Countersignature ................................... 2
ARTICLE 2 Warrant Price, Duration and Exercise of Warrant Certificates .................. 2
SECTION 2.1 Warrant Price ....................................................... 2
SECTION 2.2 Duration of Warrant Certificates .................................... 2
SECTION 2.3 Exercise of Warrant Certificates .................................... 3
ARTICLE 3 Other Provisions Relating to Rights of Holders of Warrant Certificates ........ 4
SECTION 3.1 No Rights as Securityholders Conferred by Warrant Certificate ....... 4
SECTION 3.2 Lost, Stolen, Mutilated or Destroyed Warrant Certificates ........... 4
SECTION 3.3 Holder of Warrant Certificate May Enforce Rights .................... 5
SECTION 3.4 Call of Warrants by the Company ..................................... 5
SECTION 3.5 Optional Reduction of Warrant price ................................. 5
SECTION 3.6 Reservation of Shares ...............................................
SECTION 3.7 Obtaining of Governmental Approvals and
Stock Exchange Listings ...........................................
SECTION 3.8 Adjustment of Exercise Price and Number of Shares
Purchasable or Number of Warrants .................................
SECTION 3.9 Fractional Warrants and Fractional Shares ...........................
SECTION 3.10 Notices to Warrantholders ...........................................
ARTICLE 4 Exchange and Transfer of Warrant Certificates ................................. 6
SECTION 4.1 Exchange and Transfer ............................................... 6
SECTION 4.2 Treatment of Holders of Warrant Certificates ........................ 6
SECTION 4.3 Cancellation of Warrant Certificates ................................ 6
ARTICLE 5 Concerning the Warrant Agent .................................................. 7
SECTION 5.1 Warrant Agent ....................................................... 7
SECTION 5.2 Conditions of Warrant Agent's Obligations ........................... 7
SECTION 5.3 Resignation and Appointment of Successor Warrant Agent .............. 9
ARTICLE 6 Miscellaneous ................................................................. 10
SECTION 6.1 Amendment ........................................................... 10
SECTION 6.2 Notices and Demands to the Company and Warrant Agent ................ 11
SECTION 6.3 Addresses ........................................................... 11
SECTION 6.4 Delivery of Prospectus .............................................. 11
SECTION 6.5 Obtaining of Governmental Approvals ................................. 11
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
SECTION 6.6 Persons Having Rights under Warrant Agreement ....................... 11
SECTION 6.7 Headings ............................................................ 12
SECTION 6.8 Counterparts ........................................................ 12
SECTION 6.9 Inspection of Agreement ............................................. 12
SECTION 6.10 Governing Law ....................................................... 12
</TABLE>
<PAGE> 4
From time to time, AirTouch Communications, Inc., a Delaware corporation
(the "Company"), may enter into one or more warrant agreements that provide for
the issuance and sale of warrants ("Warrants") to purchase shares of the
Company's [Common Stock, $0.01 par value][Preferred Stock, $0.01 par value]
(collectively "Shares"). The standard provisions set forth herein may be
included or incorporated by reference in any such warrant agreement (a "Warrant
Agreement"). The Warrant Agreement, including the provisions incorporated
therein by reference, is herein referred to as this "Agreement." The person
named as the "Warrant Agent" in the first paragraph of the Warrant Agreement is
herein referred to as the "Warrant Agent." Unless otherwise defined in this
Agreement or in the Warrant Agreement, as the case may be, terms defined in the
Warrant Agreement are used herein as therein defined and terms defined herein
are used in the Warrant Agreement as herein defined.
ARTICLE 1
Issuance, Execution and Delivery of Warrant Certificates
1.1 Issuance of Warrant Certificates. Each Warrant Certificate shall
evidence one or more Warrants. Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein, to purchase
such number of Shares as are set forth in the Warrant Agreement. The number of
Warrants which may be issued and delivered under this Agreement is unlimited.
There shall be established in or pursuant to a resolution of the Board of
Directors of the Company or any duly authorized committee thereof or established
in one or more warrant agreements supplemental hereto, prior to the issuance of
any Warrants: the designation of such Warrants; if the Warrants are issued
together as a unit with any other securities of the Company, the date after
which the Warrants shall be freely tradable separately from such other
securities (the "Distribution Date"); if the Company may at its option or under
circumstances described therein provide for an earlier Distribution Date; the
expiration date, pursuant to Section 2.2; the exercise price and any form of
consideration other than lawful money of the United States of America by which
the exercise price may be paid pursuant to Section 2.1; the Call Price, Call
Date and Call Terms pursuant to Section 3.4; the limitations, if any, upon the
Reduced Warrant Price and the Reduced Warrant Price Period, pursuant to Section
3.5; the circumstances, if any, under which the Exercise Price and the number of
Shares purchasable upon the exercise of each Warrant and the number of Warrants
outstanding are subject to adjustment and the manner of making any such
adjustment.
1.2 Execution and Delivery of Warrant Certificates. Each Warrant
Certificate, whenever issued, shall be in registered form substantially in such
form or forms as shall be established by the Company from time to time pursuant
to one or more resolutions of the Board of Directors of the Company or in one or
more warrant agreements supplemental hereto, and in each case shall be dated as
of the date of issuance thereof, and may have such letters, numbers or other
marks of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
Warrant Certificate may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with (i) any law or with any rule or
regulation made pursuant thereto or (ii) any rule or regulation of any stock
exchange on which the Warrant Certificates may be listed, or to conform to
usage. The Warrant Certificates shall be signed on behalf of the Company by its
Chairman of the Board of Directors, a Vice Chairman of the Board of Directors,
its President, a Vice President or its Treasurer and attested by its Secretary
or Assistant Secretary, under its corporate seal. Such signatures may be manual
or facsimile signatures of such authorized officers and may be imprinted or
otherwise reproduced on the Warrant Certificates. The seal of the Company may be
in the form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
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<PAGE> 5
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
delivered hereunder.
If any officer of the Company who shall have signed any of the Warrant
Certificates either manually or by facsimile signature shall cease to be such
officer before the Warrant Certificates so signed shall have been countersigned
and delivered to the Warrant Agent, such Warrant Certificates nevertheless may
be countersigned and delivered as though the person who signed such Warrant
Certificates had not ceased to be such officer of the Company. Any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not an officer.
1.3 Registration and Countersignature. The Warrant Agent shall, upon
receipt of Warrant Certificates, duly executed on behalf of the Company,
countersign the Warrant Certificates evidencing Warrants to purchase the number
of Shares set forth in the Warrant Agreement and shall deliver such Warrant
Certificates to the appropriate person or entity upon the order of the Company.
After the original issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for, or in connection with the registration of transfer
of, one or more previously countersigned Warrant Certificates, as hereinafter
provided. The Warrant Certificates shall not be valid for any purpose unless so
countersigned.
The Warrant Agent's countersignature on all Warrants shall be in
substantially the following form:
[NAME OF WARRANT AGENT],
as Warrant Agent
By _______________________
Authorized Signatory
ARTICLE 2
Warrant Price, Duration and
Exercise of Warrant Certificates
2.1 Warrant Price. The exercise price of each Warrant and any other form
of consideration other than lawful money of the United States of America by
which the exercise price may be paid shall be as set forth in the Warrant
Agreement. The purchase price (including moneys and such other consideration) of
the Shares upon exercise of the Warrants is referred to in this Agreement as the
"Warrant Price" and is payable in full at the time of exercise.
2.2 Duration of Warrant Certificates. Warrant Certificates may be
exercised in whole at any time, and in part from time to time, during the period
set forth in the Warrant Agreement (the "Expiration Date"). Each Warrant
Certificate not exercised on or before the close of business on the
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<PAGE> 6
Expiration Date shall become void, and all rights of the holder thereunder and
under this Agreement shall cease.
2.3 Exercise of Warrant Certificates.
(a) Prior to the Expiration Date, a Warrant Certificate, if countersigned
by the Warrant Agent, may be exercised in whole or in part by providing certain
information set forth on the reverse side of the Warrant Certificate and, unless
otherwise provided pursuant to Section 2.1, by paying in full (in cash or by
certified or official bank check in New York Clearing House funds or by bank
wire transfer in immediately available funds), in United States dollars, the
Warrant Price for the Shares as to which the Warrant Certificate is exercised,
to the Warrant Agent at its corporate trust office at the address set forth in
the Warrant Agreement. The payment must specify the name of the holder and the
number of Warrants exercised by such holder. Warrants will be deemed to have
been exercised upon receipt by the Warrant Agent of the Warrant Price and the
Warrant Certificate properly completed and duly executed by the registered
holder or holders thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney, such signature to be guaranteed (under the
Medallion Program) by a bank or trust company, by a broker or dealer which is a
member of the National Association of Securities Dealers, Inc. ("NASD") or by a
member of a national securities exchange. If the Warrant Agent receives moneys
in payment of the Warrant Price, the Warrant Agent shall deposit all funds
received by it in the account of the Company maintained with it for such
purpose. If the Warrant Agent receives consideration other than moneys for
Warrants, the Warrant Agent shall deliver such consideration directly to the
Company. In either case, the Warrant Agent shall advise the Company by telex or
telecopy at the end of each day as to the Warrant Certificates that have been
exercised and the amount of moneys deposited to its account or the type and
amount of other consideration to be delivered to it.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Warrants exercised, (ii)
the instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Shares to which such holder is entitled
upon such exercise, (iii) delivery of Warrant Certificates evidencing the
balance, if any, of the Warrants remaining after such exercise and (iv) such
other information as the Company shall reasonably require.
(c) As soon as practicable after receipt of payment of the Warrant Price
and the Warrant Certificate properly completed and duly executed at the
corporate trust office of the Warrant Agent, the Company shall issue or deliver,
upon the order of the holder of such Warrant Certificate, the Shares in
authorized denominations to which such holder is entitled, in fully registered
form in such name or names as may be directed by such holder, and if such
Warrant Certificate was not exercised in full, upon request of the holder a new
Warrant Certificate evidencing the number of Warrants remaining unexercised
shall be issued if sufficient time remains prior to the Expiration Date.
(d) The Company will pay all documentary stamp taxes attributable to the
initial issuance of Warrants and of Shares upon the exercise of Warrants;
provided, however, that the Company shall not be required to pay any tax or
taxes which may be payable in respect of any transfer involved in the issue of
any Warrant Certificates or any certificates for Shares in a name other than the
registered holder of a Warrant Certificate surrendered upon the exercise of a
Warrant, and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
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<PAGE> 7
ARTICLE 3
Other Provisions Relating to Rights of Holders of Warrant Certificates
3.1 No Rights as Securityholders Conferred by Warrant Certificates. No
Warrant Certificate shall entitle the holder thereof to any of the rights of a
stockholder of the Company, including the right to receive the payment of
dividends on or vote the Shares.
3.2 Lost, Stolen, Mutilated or Destroyed Warrant Certificates. Upon
receipt by the Company and the Warrant Agent of evidence reasonably satisfactory
to them of the ownership and the loss, theft, destruction or mutilation of the
Warrant Certificate, and of indemnity reasonably satisfactory to them, and, in
the case of mutilation, upon surrender thereof to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the Warrant Agent
that such Warrant Certificate has been acquired by a bona fide purchaser, the
Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, in exchange for or in lieu of the lost,
stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate of
the same tenor and for a like number of Warrants. Upon the issuance of any new
Warrant Certificate under this Section, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expense (including the fees and expenses of
the Warrant Agent) in connection therewith. Every substitute Warrant Certificate
executed and delivered pursuant to this Section in lieu of any lost, stolen or
destroyed Warrant Certificate shall constitute an additional contractual
obligation of the Company, whether or not the lost, stolen or destroyed Warrant
Certificate shall be at any time enforceable by anyone, and shall be entitled to
the benefits of this Agreement equally and proportionately with any and all
other Warrant Certificates duly executed and delivered hereunder. The provisions
of this Section are exclusive and shall preclude (to the extent lawful) any and
all other rights or remedies with respect to the replacement of mutilated, lost,
stolen or destroyed Warrant Certificates.
3.3 Holder of Warrant Certificate May Enforce Rights. Notwithstanding any
of the provisions of this Agreement, any holder of any Warrant Certificate,
without the consent of the Warrant Agent, the holder of any Shares or the holder
of any other Warrant Certificate, may, in his or her own behalf and for his or
her own benefit, enforce, and may institute and maintain any audit, action or
proceeding against the Company to enforce or otherwise in respect of, his right
to exercise his or her Warrant Certificate in the manner provided in his or her
Warrant Certificate and in his or her Agreement.
3.4 Call of Warrants by the Company. If so provided in the Warrant
Agreement, the Company shall have the right to call and repurchase any or all
Warrants at the price (the "Call Price") and on or after the date (the "Call
Date") and upon the terms (the "Call Terms") as shall be established from time
to time in or pursuant to resolutions of the Board of Directors of the Company
or in the Warrant Agreement before the issuance of such Warrants. Notice of such
Call Price, Call Date and Call Terms shall be given to registered holders of
Warrants in writing by the Company or the Warrant Agent.
3.5 Optional Reduction of Warrant Price. Subject to the limits, if any,
established from time to time by the Board of Directors of the Company or in the
Warrant Agreement, the Company shall have the right, at any time or from time to
time, voluntarily to reduce the then current Warrant Price to such amount (the
"Reduced Warrant Price") and for such period or periods of time, which may be
through the close of business on the Expiration Date (the "Reduced Warrant Price
Period"), as may be deemed appropriate by the Board of Directors of the Company.
Notice of any such Reduced Warrant Price and Reduced Warrant Price Period shall
be given to registered holders of Warrants in
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<PAGE> 8
writing by the Company or the Warrant Agent. After the termination of the
Reduced Warrant Price Period, the Warrant Price shall be such Warrant Price that
would have been in effect had there been no reduction in the Warrant Price
pursuant to the provisions of this Section 3.5.
3.6. Reservation of Shares. For the purpose of enabling it to satisfy any
obligation to issue Shares upon exercise of Warrants, the Company will at all
times through the close of business on the Expiration Date, reserve and keep
available, free from preemptive rights and out of its aggregate authorized but
unissued or treasury shares of [Common/Preferred Stock], the number of Shares
deliverable upon the exercise of all outstanding Warrants, and the transfer
agent for the shares is hereby irrevocably authorized and directed at all times
to reserve such number of authorized and unissued or treasury shares of
[Common/Preferred Stock] as shall be required for such purpose. The Company will
keep a copy of this Agreement on file with such transfer agent and with every
transfer agent for any shares of the Company's capital stock issuable upon the
exercise of Warrants. The Warrant Agent is hereby irrevocably authorized to
requisition from time to time from such transfer agent stock certificates
issuable upon exercise of outstanding Warrants, and the Company will supply such
transfer agent with duly executed stock certificates for such purpose.
Before taking any action that would cause an adjustment pursuant to
Section 3.7 reducing the Exercise Price below the then par value (if any) of the
Shares issuable upon exercise of the Warrants, the Company will take any
corporate action that may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid and nonassessable
Shares at the Exercise Price as so adjusted.
The Company covenants that all Shares issued upon exercise of the
Warrants will, upon issuance in accordance with the terms of this Agreement, be
fully paid and nonassessable and free from all taxes, liens, charges and
security interests created by or imposed upon the Company with respect to the
issuance and holding thereof.
3.7. Obtaining of Governmental Approvals and Stock Exchange Listings. So
long as any Warrants remain outstanding, the Company will take all necessary
steps (a) to obtain and keep effective any and all permits, consents and
approvals of governmental agencies and authorities and to make filings under
federal and state securities acts and laws, which may be or become requisite in
connection with the issuance, sale, transfer and delivery of the Warrant
Certificates, the exercise of the Warrants and the issuance, sale, transfer and
delivery of the Shares issued upon exercise of Warrants, and (b) to have the
shares of Stock, immediately upon their issuance upon exercise of Warrants, (i)
listed on each national securities exchange on which the [Common/Preferred
Stock] is then listed or (ii) if the [Common/Preferred Stock] is not then listed
on any national securities exchange, listed for quotation on the NASD Automated
Quotations System ("Nasdaq") National Market ("Nasdaq National Market") or such
other over-the-counter quotation system on which the Stock may then be listed.
3.8. Adjustment of Exercise Price and Number of Shares Purchasable or
Number of Warrants. The Exercise Price, the number of Shares purchasable upon
the exercise of each Warrant and the number of Warrants outstanding are subject
to adjustment from time to time upon the occurrence of the events enumerated in
this Section 3.8.
(a) If the Company shall (i) pay a dividend on its capital stock
(including [Common/Preferred Stock]) in shares of Stock, (ii) subdivide its
outstanding shares of [Common/Preferred Stock], (iii) combine its outstanding
shares of [Common/Preferred Stock] into a smaller number of shares of
[Common/Preferred Stock] or (iv) issue any shares of its capital stock in a
reclassification of the [Common/Preferred Stock] (including any such
reclassification in connection with a consolidation or
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<PAGE> 9
merger in which the Company is the continuing corporation), the number of Shares
purchasable upon exercise of each Warrant immediately prior thereto shall be
adjusted so that the holder of each Warrant shall be entitled to receive the
kind and number of Shares or other securities of the Company which such holder
would have owned or have been entitled to receive after the happening of any of
the events described above, had such Warrant been exercised immediately prior to
the happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event.
(b) In the event of any capital reorganization or any reclassification of
the [Common/Preferred Stock] (except as provided in paragraph (a) above or
paragraph (h) below), any holder of Warrants upon exercise thereof shall be
entitled to receive, in lieu of the [Common/Preferred Stock] to which he would
have become entitled upon exercise immediately prior to such reorganization or
reclassification, the shares (of any class or classes) or other securities or
property of the Company that he or she would have been entitled to receive at
the same aggregate Exercise Price upon such reorganization or reclassification
if his or her Warrants had been exercised immediately prior thereto; and in any
such case, appropriate provision (as determined in good faith by the Board of
Directors of the Company, whose determination shall be conclusive and shall be
evidenced by a resolution filed with the Warrant Agent) shall be made for the
application of this Section 3.8 with respect to the rights and interests
thereafter of the holders of Warrants (including the allocation of the adjusted
Warrant Price between or among shares of classes of capital stock), to the end
that this Section 3.8 (including the adjustments of the number of shares of
[Common/Preferred Stock] or other securities purchasable and the Warrant Price
thereof) shall thereafter be reflected, as nearly as reasonably practicable, in
all subsequent exercises of the Warrants for any shares or securities or other
property thereafter deliverable upon the exercise of the Warrants.
(c) Except for adjustments required by paragraph (h) hereof, no
adjustment in the number of Shares purchasable hereunder shall be required
unless such adjustment would require an increase or decrease of at least one
percent (1%) in the number of Shares purchasable upon the exercise of each
Warrant; provided, however, that any adjustments which by reason of this
paragraph (c) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations shall be made to the
nearest cent and to the nearest one-hundredth of a Share, as the case may be.
(d) Whenever the number of Shares purchasable upon the exercise of each
Warrant is adjusted as herein provided (whether or not the Company then or
thereafter elects to issue additional Warrants in substitution for an adjustment
in the number of Shares as provided in paragraph (f)), the Exercise Price
payable upon exercise of each Warrant shall be adjusted by multiplying such
Exercise Price immediately prior to such adjustment by a fraction, of which the
numerator shall be the number of Shares purchasable upon the exercise of each
Warrant immediately prior to such adjustment, and of which the denominator shall
be the number of Shares so purchasable immediately thereafter.
(e) For the purpose of this Section 3.8, the term "shares of Stock" shall
mean (i) the class of stock designated as the [Common/Preferred Stock] of the
Company at the date of this Agreement, or (ii) any other class of stock
resulting from successive changes or reclassification of such shares consisting
solely of changes in par value, of from par value to no par value, or from no
par value to par value. If at any time, as a result of an adjustment made
pursuant to paragraph (a) or (b) above, the holders of Warrants shall become
entitled to purchase any shares of the Company other than shares of Stock,
thereafter the number of such other shares so purchasable upon exercise of each
Warrant and the Exercise Price of such shares shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Shares contained in paragraphs (a) through
(d), inclusive,
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<PAGE> 10
above, and the provisions of Sections 2.1, 2.2, 2.3, 3.6, 3.7(a) and 3.10, with
respect to the Shares, shall apply on like terms to any such other shares.
(f) The Company may elect, on or after the date of any adjustment
required by paragraphs (a) through (b) of this Section 3.8, to adjust the number
of Warrants in substitution for an adjustment in the number of Shares
purchasable upon the exercise of a Warrant. Each of the Warrants outstanding
after such adjustment of the number of Warrants shall be exercisable for the
same number of Shares as immediately prior to such adjustment. Each Warrant held
of record prior to such adjustment of the number of Warrants shall become that
number of Warrants (calculated to the nearest hundredth) obtained by dividing
the Warrant Price in effect prior to adjustment of the Warrant Price by the
Warrant Price in effect after adjustment of the Warrant Price. The Company shall
notify the holders of Warrants in the same manner as provided in the first
paragraph of Section 3.10, of its election to adjust the number of Warrants,
indicating the record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the date on which
the Exercise Price is adjusted or any day thereafter. Upon each adjustment of
the number of Warrants pursuant to this paragraph (f) the Company shall, as
promptly as practicable, cause to be distributed to holders of record of
Warrants on such record date Warrant Certificates evidencing, subject to Section
3.9, the additional Warrants to which such holders shall be entitled as a result
of such adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for the
Warrant Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new Warrant Certificates
evidencing all the Warrants to be issued, executed and registered in the manner
specified in Section 1.3 and Article 4 (and which may bear, at the option of the
Company, the adjusted Exercise Price) and shall be registered in the names of
the holders of record of Warrant Certificates on the record date specified in
the notice.
(g) Except as provided in paragraph (a) of this Section 3.8, no
adjustment in respect of any dividends shall be made during the term of a
Warrant or upon the exercise of a Warrant.
(h) In case of any consolidation of the Company with or merger of the
Company into another corporation or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as an
entirety, the Company or such successor or purchasing corporation, as the case
may be, shall execute with the Warrant Agent an agreement that each holder of a
Warrant shall have the right thereafter upon payment of the Warrant Price in
effect immediately prior to such action to purchase upon exercise of each
Warrant the kind and amount of shares and other securities and property which he
or she would have owned or have been entitled to receive after the happening of
such consolidation, merger, sale or conveyance had such Warrant been exercised
immediately prior to such action. The Company shall mail by first class mail,
postage prepaid, to each holder of a Warrant, notice of the execution of any
such agreement. Such agreement shall provide for adjustments, which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section 3.8. The provisions of this paragraph (h) shall similarly apply to
successive consolidations, mergers, sales or conveyances. The Warrant Agent
shall be under no duty or responsibility to determine the correctness of any
provisions contained in any provisions contained in any such agreement relating
either to the kind or amount of shares of stock or other securities or property
receivable upon exercise of Warrants or with respect to the method employed and
provided therein for any adjustments and shall be entitled to rely upon the
provisions contained in any such agreement.
(i) Irrespective of any adjustments in the Exercise Price or the number
or kind of shares purchasable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
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<PAGE> 11
3.9. Fractional Warrants and Fractional Shares.
(a) The Company shall not be required to issue fractions of Warrants on
any distribution of Warrants to holders of Warrant Certificates or to distribute
Warrant Certificates that evidence fractional Warrants. In lieu of such
fractional Warrants there shall be paid to the registered holders of the Warrant
Certificates with regard to which such fractional Warrants would otherwise be
issuable, an amount in cash equal to the same fraction of the current market
value of a full Warrant. For purposes of this Section, the current market value
of a Warrant shall be the closing price of one Warrant (as determined pursuant
to paragraph (c) below) for the trading day immediately prior to the date on
which such fractional Warrant would have been otherwise issuable.
(b) Notwithstanding any adjustment pursuant to section 3.9 in the number
of Shares purchasable upon the exercise of a Warrant, the Company shall not be
required to issue fractions of Shares upon exercise of the Warrants or to
distribute certificates which evidence fractional Shares. In lieu of fractional
Shares, there shall be paid to the registered holders of Warrant Certificates at
the time such Warrant Certificates are exercised as herein provided an amount in
cash equal to the same fraction of the current market value of a share of
[Common/Preferred Stock]. For purposes of this Section 3.9, the current market
value of a share of [Common/Preferred Stock] shall be the closing price of a
share of [Common/Preferred Stock] (as determined pursuant to paragraph (c)
below) for the trading day immediately prior to the date of such exercise.
(c) The closing price for each day shall be the last sale price, regular
way, or, if no such sale takes place on such day, the average of the closing bid
and asked prices, regular way, for such day, in either case as reported in the
principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange or, if the Warrants
or Stock, as the case may be, is not listed or admitted to trading on such
exchange, as reported on the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange
on which the Warrants or [Common/Preferred Stock], respectively, is listed or
admitted to trading, or if the Warrants or [Common/Preferred Stock], as the case
may be, is not listed or admitted to trading on any national securities
exchange, as reported on Nasdaq National Market or, if the Warrants or Stock, as
the case may be, is not listed or admitted to trading on Nasdaq National Market,
as reported on Nasdaq.
3.10. Notices to Warrantholders. Upon any adjustment of the number of
Shares purchasable upon exercise of each Warrant, the Warrant Price or the
number of Warrants outstanding, the Company within 20 calendar days thereafter
shall (i) cause to be filed with the Warrant Agent a certificate of a firm of
independent public accountants of recognized standing selected by the Company
(who may be the regular auditors of the Company) setting forth the Warrant Price
and either the number of Shares purchasable upon exercise of each Warrant or the
additional number of Warrants to be issued for each previously outstanding
Warrant, as the case may be, after such adjustment and setting forth in
reasonable detail the method of calculation and the facts upon which such
adjustment was made, which certificate shall be conclusive evidence of the
correctness of the matters set forth therein, and (ii) cause to be given to each
of the registered holders of the Warrant Certificates at such holder's address
appearing on the Warrant Register written notice of such adjustments by first
class mail, postage prepaid. Where appropriate, such notice may be given in
advance and included as a part of the notice required to be mailed under the
other provisions of this Section 3.10.
The Company shall cause written notice of such later Distribution Date,
such later Expiration Date, such Call Price, Call Date and Call Terms and such
Reduced Exercise Price and Reduced Exercise Price Period, as the case may be, to
be given as soon as practicable to the Warrant Agent and to each of the
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<PAGE> 12
registered holders of the Warrant Certificates by first class mail, postage
prepaid, at such holder's address appearing on the Warrant Register. In addition
to the written notice referred to in the preceding sentence, the Company shall
make a public announcement in a daily morning newspaper of general circulation
in New York City and in San Francisco of such earlier Distribution Date, such
later Expiration Date, such Call Price, Call Date and Call Terms and such
Reduced Exercise Price and Reduced Exercise Price Period, as the case may be, at
least once a week for two successive weeks prior to the implementation of such
terms.
If:
(a) the Company shall declare any dividend payable in any securities upon
its shares of [Common/Preferred Stock] or make any distribution (other than a
cash dividend) to the holders of its shares of [Common/Preferred Stock], or
(b) the Company shall offer to the holders of its shares of
[Common/Preferred Stock] any additional shares of [Common/Preferred Stock] or
securities convertible into shares of [Common/Preferred Stock] or any right to
subscribe thereto, or
(c) there shall be a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation, merger or sale of all or
substantially all of its property, assets and business as an entirety),
(d) the Company shall cause written notice of such event to be filed with
the Warrant Agent and shall cause written notice of such event to be given to
each of the registered holders of the Warrant Certificates at such holder's
address appearing on the Warrant Register, by first class mail, postage prepaid,
and (ii) make a public announcement in a daily newspaper of general circulation
in New York City and in San Francisco of such event, such giving of notice and
publication to be completed at least 10 calendar days (or 20 calendar days in
any case specified in clause (c) above) prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution or subscription rights, or
for the determination of stockholders entitled to vote on such proposed
dissolution, liquidation or winding up. Such notice shall specify such record
date or the date of closing the transfer books, as the case may be. The failure
to give the notice required by this Section 3.10 or any defect therein shall not
affect the legality or validity of any distribution, right, warrant,
dissolution, liquidation or winding up or the vote upon or any other action
taken in connection therewith.
ARTICLE 4
Exchange and Transfer of Warrant Certificates
4.1 Exchange and transfer. Upon surrender at the corporate trust office
of the Warrant Agent, Warrant Certificates evidencing Warrants may be exchanged
for Warrant Certificates in other denominations evidencing such Warrants and the
transfer of Warrants may be registered in whole or in part; provided that such
other Warrant Certificates shall evidence the same aggregate number of Warrants
as the Warrant Certificates surrendered for exchange or registration of
transfer. The Warrant Agent shall keep, at its corporate trust office, books in
which it shall register Warrant Certificates and exchanges and transfers of
outstanding Warrant Certificates, upon surrender of the Warrant Certificates to
the Warrant Agent at its corporate trust office for exchange or registration of
transfer, properly completed and duly endorsed and duly signed by the registered
holder or holders thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney, such signature to be guaranteed (under the
Medallion Program) by (a) a bank or trust company, (b) a broker or dealer that
is a member of
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<PAGE> 13
the NASD or (c) a member of a national securities exchange and accompanied by
appropriate instruments of registration of transfer and written instructions for
transfer, all in form satisfactory to the Company and the Warrant Agent. No
service charge shall be made for any exchange or registration of transfer of
Warrant Certificates, but the Company may require payment of a sum sufficient to
cover any stamp or other tax or other governmental charge that may be imposed in
connection with any such exchange or registration of transfer. Whenever any
Warrant Certificates are surrendered for exchange or registration of transfer,
an authorized officer of the Warrant Agent shall mutually countersign and
deliver to the person or persons entitled thereto a Warrant Certificate or
Warrant Certificate duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not be required to effect any exchange or
registration of transfer that will result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant or a number of full Warrants and
a fraction of a Warrant. All Warrant Certificates issued upon any exchange or
registration of transfer of Warrant Certificates shall be the valid obligations
of the Company, evidencing the same obligations and entitled to the same
benefits under this Agreement as the Warrant Certificates surrendered for such
exchange or registration of transfer.
4.2 Treatment of Holders of Warrant Certificates. Every holder of a
Warrant Certificate, by accepting the same, consents and agrees with the
Company, the Warrant Agent and with every subsequent holder of such Warrant
Certificate that, until the transfer of the Warrant Certificate is registered on
the books of the Warrant Agent, the Company and the Warrant Agent may treat the
registered holder as the absolute owner thereof for any purpose and as the
person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.
4.3 Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered for exercise, registration of transfer or exchange shall, if
surrendered to the Company, be delivered to the Warrant Agent, and all Warrant
Certificates surrendered or so delivered to the Warrant Agent shall be promptly
canceled by the Warrant Agent and shall not be reissued and, except as expressly
permitted by this Agreement, no Warrant Certificate shall be issued hereunder in
lieu thereof. The Warrant Agent shall deliver to the Company from time to time,
or otherwise dispose of, canceled Warrant Certificates in a manner satisfactory
to the Company.
ARTICLE 5
Concerning the Warrant Agent
5.1 Warrant Agent. The Company hereby appoints the Warrant Agent as the
Warrant Agent of the Company in respect of the Warrant Certificates upon the
terms and subject to the conditions herein set forth, and the Warrant Agent
hereby accepts such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Warrant Certificates and by
this Agreement, and such further powers and authority to act on behalf of the
Company as the Company may hereafter grant to or confer upon it. All of the
terms and provisions with respect to such powers and authority contained in the
Warrant Certificates are subject to and governed by the terms and provisions
hereof.
5.2 Conditions of Warrant Agent's obligations. The Warrant Agent accepts
its obligations herein set forth upon the terms and conditions hereof, including
the following (to all of which the Company agrees and to all of which the rights
hereunder of the holders from time to time of the Warrant Certificates shall be
subject):
(a) Performance by the Company. The Company agrees that it will take any
corporate action that may be reasonably necessary in order to fulfill its
obligations under this Agreement and the
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<PAGE> 14
Warrant Certificates, and that it will not take any action that would impair its
ability to perform its obligations under this Agreement and the Warrant
Certificates.
(b) Compensation and Indemnification. The Company agrees promptly to pay
the Warrant Agent the compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including reasonable counsel fees) incurred
by the Warrant Agent in connection with the services rendered hereunder by the
Warrant Agent. The Company also agrees to indemnify the Warrant Agent, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as the Warrant Agent hereunder, as well as the costs
and expenses of defending against any claim of liability in the premises.
(c) Agent for the Company. In acting under this Warrant Agreement and in
connection with the Warrant Certificates, the Warrant Agent is acting solely as
an agent of the Company, and the Warrant Agent does not assume any obligation or
relationship of agency or trust for or with any of the owners or holders of the
Warrant Certificates.
(d) Counsel. The Warrant Agent may consult with counsel satisfactory to
it, and the opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion of such counsel.
(e) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(f) Certain Transactions. The Warrant Agent and its officers, directors
and employees may buy, sell or deal in any of the Shares or other securities of
the Company and may become the owner of, or acquire any interest in, any Warrant
Certificates, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, they
may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee or
body of holders of the Shares or other obligations of the Company as freely as
if it were not the Warrant Agent.
(g) No Liability for Interest. Except as set forth in the Warrant
Agreement, the Warrant Agent shall not be under any liability for interest on
any moneys or other consideration at any time received by it pursuant to any of
the provisions of this Agreement or of the Warrant Certificates.
(h) No Liability for Invalidity. The Warrant Agent shall not incur any
liability with respect to the validity of this Agreement or any of the Warrant
Certificates.
(i) No Responsibility for Representations. The Warrant Agent shall not be
responsible for any of the recitals or representations contained herein or in
the Warrant Certificates (except the Warrant Agent shall be responsible for any
representations of the Warrant Agent herein and for its countersignature on the
Warrant Certificates), all of which are made solely by the Company.
(j) No Implied Obligations. The Warrant Agent shall be obligated to
perform such duties as are herein and in the Warrant Certificates specifically
set forth, but no implied duties or obligations shall be read into this
Agreement or the Warrant Certificates against the Warrant Agent. The Warrant
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<PAGE> 15
Agent shall not be under any obligation to take any action hereunder which may
tend to involve it in any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it. The Warrant
Agent shall not be accountable or under any duty or responsibility for the use
by the Company of any of the Warrant Certificates authenticated by the Warrant
Agent and delivered by it to the Company pursuant to this Agreement or for the
application by the Company of the proceeds of the Warrant Certificates. The
Warrant Agent shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained in the
Warrant Certificates or in the case of the receipt of any written demand from a
holder of a Warrant Certificate with respect to such default, including any duty
or responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or to make any demand upon the Company.
(k) Instructions. The Warrant Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder from
the Chairman of the Board, the Chief Executive Officer, the President, any Vice
President, the Treasurer, the Secretary or any Assistant Secretary of the
Company, and to apply to such officers for advice or instructions in connection
with its duties, and shall not be liable for any action taken or suffered to be
taken by it in good faith in accordance with instructions of any such officer or
in good faith reliance upon any statement signed by any one of such officers of
the Company with respect to any fact or matter (unless other evidence in respect
thereof is herein specifically prescribed) which may be deemed to be
conclusively proved and established by such signed statement
5.3 Resignation and Appointment of Successor Warrant Agent.
(a) The Company agrees, for the benefit of the holders from time to time
of the Warrant Certificates, that at all times there shall be a Warrant Agent
hereunder until all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date
shall not be less than 60 days after the date on which such notice is given
unless the Company agrees to accept less notice. The Warrant Agent may be
removed at any time by the filing with it of an instrument in writing signed by
or on behalf of the Company and specifying such removal an the date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company organized and doing business under
the laws of the United States of America or of any State, in good standing, and
authorized under such laws to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. Upon its
resignation or removal, the Warrant Agent shall be entitled to the payment by
the Company of the compensation agreed to under Section 5.2(b) hereof for, and
to the reimbursement of all reasonable out-of-pocket expenses incurred in
connection with, the services rendered hereunder by the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall be removed,
or shall become incapable of acting, or shall be adjudged bankrupt or insolvent,
or shall file a petition seeking relief under the Federal Bankruptcy Code, as
now constituted or hereafter amended, or under any other applicable federal or
state bankruptcy law or similar law or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver or custodian of all or any
substantial part of its property, or shall admit in writing its inability to pay
or meet its debts as they mature, or if a receiver or custodian of it or of all
or any substantial part of its property shall be appointed, or if an order of
any court shall be entered for relief against it under the Federal Bankruptcy
Code, as now constituted or
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<PAGE> 16
hereafter amended, or under any other applicable federal or state bankruptcy or
similar law or if any public officer shall have taken charge or control of the
Warrant Agent or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, a successor Warrant Agent, qualified in accordance
with the terms of this Agreement, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment of a successor Warrant Agent and acceptance by the latter of such
appointment, the Warrant Agent so superseded shall cease to be the Warrant Agent
hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive, all moneys,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged
or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE 6
Miscellaneous
6.1 Supplements and Amendments. This Agreement may be amended or
supplemented from time to time by the parties hereto, without the consent of the
holder of any Warrant Certificate, for the purpose of curing any ambiguity, or
of curing, correcting or supplementing any defective provision contained herein,
or in regard to matters or questions arising under this Agreement as the Company
and the Warrant Agent may deem necessary or desirable, provided such action
shall not adversely affect the interests of the holders of the Warrant
Certificates.
6.2 Notices and demands to the Company and Warrant Agent. If the Warrant
Agent shall receive any notice or demand addressed to the Company by the holder
of a Warrant Certificate pursuant to the provisions of the Warrant Certificates,
the Warrant Agent shall promptly forward such notice or demand to the Company.
6.3 Addresses. Any communication to the Warrant Agent with respect to
this Agreement shall be addressed to the address set forth in the Warrant
Agreement, and any such communication to the Company shall be addressed to the
Company at the following address:
AirTouch Communications, Inc.
One California Street
San Francisco, CA 94111
Attention: Senior Vice President, Legal, External Affairs and Secretary
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<PAGE> 17
or such other address as shall be specified in writing by the Warrant Agent or
by the Company.
6.4 Delivery of Prospectus. If the Company is required under applicable
federal or state securities laws to deliver a prospectus upon exercise of
Warrants, the Company will furnish to the Warrant Agent sufficient copies of a
prospectus, and the Warrant Agent agrees that upon the exercise of any Warrant
Certificate by the holder thereof, the Warrant Agent will deliver to such
holder, prior to or concurrently with the delivery of the Shares issued upon
such exercise, a copy of the prospectus.
6.5 Obtaining of Governmental Approvals. The Company will from time to
time take all action that may be necessary to obtain and keep effective any and
all permits, consents and approvals of governmental agencies and authorities and
securities acts filings under federal and state laws, which may be or become
requisite in connection with the issuance, sale, transfer and delivery of the
Warrant Certificates, the exercise of the Warrants, and the issuance, sale,
transfer and delivery of the Shares issued upon exercise of the Warrants or upon
the expiration of the period during which the Warrants are exercisable.
6.6 Persons Having Rights under Warrant Agreement. Nothing in this
Agreement is intended, or shall be construed, to confer upon, or give to, any
person or corporation other than the Company, the Warrant Agent and the holders
of the Warrant Certificates any right, remedy or claim under or by reason of
this Agreement or of any covenant, condition, stipulation, promise or agreement
hereof. All covenants, conditions, stipulations, promises and agreements
contained in this Agreement shall be for the sole and exclusive benefit of the
Company, the Warrant Agent and their successors and of the holders of the
Warrant Certificates.
6.7 Headings. The descriptive headings of the several Articles and
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
6.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
6.9 Inspection of Agreement. A copy of this Agreement shall be available
at all reasonable times at the principal corporate trust office of the Warrant
Agent for inspection by the holder of any Warrant Certificate. The Warrant Agent
may require such holder to submit his Warrant Certificate for inspection by it.
6.10 Governing Law. This Agreement and each Warrant Certificate issued
hereunder shall be deemed to be a contract made under the laws of the State of
California and for all purposes shall be construed in accordance with the laws
of such State.
6.11 Successors. All the covenants and provisions of this Agreement by or
for the benefit of the Company or the Warrant Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
6.12 Termination. This Agreement shall terminate at the close of business
on the Expiration Date. Notwithstanding the foregoing, this Agreement will
terminate on any earlier date when the Warrants have been exercised.
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<PAGE> 1
EXHIBIT 4.10
--------------------------------------------------------------------------------
AIRTOUCH COMMUNICATIONS, INC.
STANDARD DEBT SECURITIES WARRANT
AGREEMENT PROVISIONS
--------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
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<TABLE>
Page
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<S> <C>
ARTICLE 1 Issuance, Execution and Delivery of Warrant Certificates..................... 1
SECTION 1.1 Issuance of Warrant Certificates.................................... 1
SECTION 1.2 Execution and delivery of Warrant Certificates...................... 1
SECTION 1.3 Countersignature of Warrant Certificates............................ 2
ARTICLE 2 Warrant Price, Duration and Exercise of Warrant Certificates................. 2
SECTION 2.1 Warrant price....................................................... 2
SECTION 2.2 Duration of Warrant Certificates.................................... 2
SECTION 2.3 Exercise of Warrant Certificates.................................... 3
ARTICLE 3 Other Provisions Relating to Rights of Holders of Warrant Certificates....... 4
SECTION 3.1 No rights as securityholders conferred by Warrant Certificates...... 4
SECTION 3.2 Lost, stolen, mutilated or destroyed Warrant Certificates........... 4
SECTION 3.3 Holder of Warrant Certificate may enforce rights.................... 5
SECTION 3.4 Call of Warrants by the Company..................................... 5
SECTION 3.5 Optional reduction of Warrant price................................. 5
ARTICLE 4 Exchange and Transfer of Warrant Certificates................................ 6
SECTION 4.1 Exchange and transfer............................................... 6
SECTION 4.2 Treatment of holders of Warrant Certificates........................ 6
SECTION 4.3 Cancellation of Warrant Certificates................................ 6
ARTICLE 5 Concerning the Warrant Agent................................................. 7
SECTION 5.1 Warrant Agent....................................................... 7
SECTION 5.2 Conditions of Warrant Agent's obligations........................... 7
SECTION 5.3 Resignation and appointment of successor Warrant Agent.............. 9
ARTICLE 6 Miscellaneous................................................................ 10
SECTION 6.1 Amendment........................................................... 10
SECTION 6.2 Notices and demands to the Company and Warrant Agent................ 11
SECTION 6.3 Addresses........................................................... 11
SECTION 6.4 Delivery of prospectus.............................................. 11
SECTION 6.5 Obtaining of governmental approvals................................. 11
SECTION 6.6 Persons having rights under Warrant Agreement....................... 11
SECTION 6.7 Headings............................................................ 12
SECTION 6.8 Counterparts........................................................ 12
SECTION 6.9 Inspection of agreement............................................. 12
SECTION 6.10 Governing law....................................................... 12
</TABLE>
<PAGE> 3
From time to time, AirTouch Communications, Inc., a Delaware
corporation (the "Company"), may enter into one or more warrant agreements that
provide for the issuance and sale of warrants ("Warrants") to purchase debt
securities of the Company ("Debt Securities"). The standard provisions set
forth herein may be included or incorporated by reference in any such warrant
agreement (a "Warrant Agreement"). The Warrant Agreement, including the
provisions incorporated therein by reference, is herein referred to as this
"Agreement." The person named as the "Warrant Agent" in the first paragraph of
the Warrant Agreement is herein referred to as the "Warrant Agent." Unless
otherwise defined in this Agreement or in the Warrant Agreement, as the case
may be, terms defined in the Warrant Agreement are used herein as therein
defined and terms defined herein are used in the Warrant Agreement as herein
defined.
ARTICLE 1
Issuance, Execution and Delivery of Warrant Certificates
1.1 Issuance of Warrant Certificates. Each Warrant Certificate
shall evidence one or more Warrants. Each Warrant evidenced thereby shall
represent the right, subject to the provisions contained herein and therein, to
purchase a Debt Security in the principal amount set forth in the Warrant
Agreement. The number of Warrants which may be issued and delivered under this
Agreement is unlimited.
There shall be established in or pursuant to a resolution of the Board
of Directors of the Company or any duly authorized committee thereof or
established in one or more warrant agreements supplemental hereto, prior to the
issuance of any Warrants: the designation of the Debt Securities for which the
Debt Securities Warrant are exercisable; if the Warrants are issued together as
a unit with any other securities of the Company and, if so, the date after which
the Warrants shall be freely tradable separately from such other securities (the
"Distribution Date") and if the Company may at its option or under circumstances
described therein provide for an earlier Distribution Date; the exercise
periods and the Expiration Date pursuant to Section 2.2; the Warrant Price and
purchase price of the warrants and any form of consideration other than lawful
money of the United States of America by which the Warrant Price and purchase
price of the warrants may be paid pursuant to Section 2.1; the Call Price, Call
Date and Call Terms pursuant to Section 3.4 and the limitations, if any, upon
the Reduced Warrant Price and the Reduced Warrant Price Period pursuant to
Section 3.5 the covenants of the Company, if any.
1.2 Execution and delivery of Warrant Certificates. Each Warrant
Certificate, whenever issued, shall be in registered form substantially in such
form or forms as shall be established by the Company from time to time pursuant
to one or more resolutions of the Board of Directors of the Company or in one
or more warrant agreements supplemental hereto, and in each case shall be dated
as of the date of issuance thereof, and may have such letters, numbers or other
marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the officers of the Company
executing the Warrant Certificate may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with (i) any law
or with any rule or regulation made pursuant thereto or (ii) any rule or
regulation of any stock exchange on which the Warrant Certificates may be
listed, or to conform to usage. The Warrant Certificates shall be signed on
behalf of the Company by its Chairman of the Board of Directors, a Vice
Chairman of the Board of Directors, its President, a Vice President or its
Treasurer and attested by its Secretary or Assistant Secretary, under its
corporate seal. Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
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No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
delivered hereunder.
If any officer of the Company who shall have signed any of the Warrant
Certificates either manually or by facsimile signature shall cease to be such
officer before the Warrant Certificates so signed shall have been countersigned
and delivered to the Warrant Agent, such Warrant Certificates nevertheless may
be countersigned and delivered as though the person who signed such Warrant
Certificates had not ceased to be such officer of the Company. Any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this
Agreement any such person was not an officer.
1.3 Registration and Countersignature. The Warrant Agent shall,
upon receipt of Warrant Certificates, duly executed on behalf of the Company,
countersign the Warrant Certificates evidencing Warrants to purchase the
principal amount of the Debt Securities set forth in the Warrant Agreement and
shall deliver such Warrant Certificates to the appropriate person or entity
upon the order of the Company. After the original issuance of the Warrant
Certificates, the Warrant Agent shall countersign a Warrant Certificate only if
the Warrant Certificate is issued in exchange or substitution for, or in
connection with the registration of transfer of, one or more previously
countersigned Warrant Certificates, as hereinafter provided. The Warrant
Certificates shall not be valid for any purpose unless so countersigned.
The Warrant Agent's countersignature on all Warrants shall be in
substantially the following form:
[NAME OF WARRANT AGENT],
as Warrant Agent
By
----------------------
Authorized Signatory
ARTICLE 2
Warrant Price, Duration and
Exercise of Warrant Certificates
2.1 Warrant Price; Exercise Price. The purchase price of each
Warrant and any other form of consideration other than lawful money of the
United States of America by which the purchase price may be paid shall be as set
forth in the Warrant Agreement. The exercise price (including moneys and such
other consideration) of the Debt Securities upon exercise of the Warrants is
referred to in this Agreement as the "Exercise Price" and is payable in full at
the time of exercise as set forth in the Warrant Agreement.
2.2 Duration of Warrant Certificates. Warrant Certificates may be
exercised in whole at any time, and in part from time to time, during the
period set forth in the Warrant Agreement (the
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<PAGE> 5
"Expiration Date"). Each Warrant Certificate not exercised on or before the
close of business on the Expiration Date shall become void, and all rights of
the holder thereunder and under this Agreement shall cease.
2.3 Exercise of Warrant Certificates.
(a) Prior to the Expiration Date, a Warrant Certificate, if
countersigned by the Warrant Agent, may be exercised in whole or in part by
providing certain information set forth on the reverse side of the Warrant
Certificate and, unless otherwise provided pursuant to Section 2.1, by paying in
full (in cash or by certified or official bank check in New York Clearing House
funds or by bank wire transfer in immediately available funds), in United States
dollars, the Warrant Price for the Debt Securities as to which the Warrant
Certificate is exercised, to the Warrant Agent at its corporate trust office at
the address set forth in the Warrant Agreement. The payment must specify the
name of the holder and the number of Warrants exercised by such holder. Warrants
will be deemed to have been exercised upon receipt by the Warrant Agent of the
Warrant Price and the Warrant Certificate properly completed and duly executed
by the registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, such signature to be
guaranteed by a bank or trust company, by a broker or dealer which is a member
of the NASD or by a member of a national securities exchange. If the Warrant
Agent receives moneys in payment of the purchase price for Warrants, the Warrant
Agent shall deposit all funds received by it in the account of the Company
maintained with it for such purpose. If the Warrant Agent receives
consideration other than moneys for Warrants, the Warrant Agent shall deliver
such consideration directly to the Company. In either case, the Warrant Agent
shall advise the Company by telex or telecopy at the end of each day as to the
Warrant Certificates that have been exercised and the amount of moneys deposited
to its account or the type and amount of other consideration to be delivered to
it.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the Trustee of (i) the number of Warrants
exercised, (ii) the instructions of each holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the Debt Securities to
which such holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining after
such exercise and (iv) such other information as the Company or the Trustee
shall reasonably require.
(c) A Warrant Certificate may be exercised in part to purchase Debt
Securities only in the denominations authorized pursuant to the indenture under
which the Debt Securities are issued (the "Indenture").
(d) As soon as practicable after receipt of payment of the Warrant
Price and the Warrant Certificate properly completed and duly executed at the
corporate trust office of the Warrant Agent, the Company shall issue, pursuant
to the Indenture, to or upon the order of the holder of such Warrant
Certificate, the Debt Securities in authorized denominations to which such
holder is entitled, in fully registered form in such name or names as may be
directed by such holder, and if such Warrant Certificate was not exercised in
full, upon request of the holder a new Warrant Certificate evidencing the number
of Warrants remaining unexercised shall be issued if sufficient time remains
prior to the Expiration Date.
(e) The Company will pay all documentary stamp taxes attributable
to the initial issuance of Warrants and of Debt Securities upon the exercise of
Warrants; provided, however, that the Company shall not be required to pay any
tax or taxes which may be payable in respect of any transfer involved in the
issue of any Warrant Certificates or any certificates for Debt Securities in a
name other
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<PAGE> 6
than the registered holder of a Warrant Certificate surrendered upon the
exercise of a Warrant, and the Company shall not be required to issue or deliver
such certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
ARTICLE 3
Other Provisions Relating to Rights of Holders of Warrant Certificates
3.1 No rights as securityholders conferred by Warrant
Certificates. No Warrant Certificate shall entitle the holder thereof to any
of the rights of a holder of Debt Securities, including the right to receive
the payment of principal of, or interest on, the Debt Securities or to enforce
any of the covenants of the Debt Securities or the Indenture except as
otherwise provided in the Indenture.
3.2 Lost, stolen, mutilated or destroyed Warrant Certificates.
Upon receipt by the Company and the Warrant Agent of evidence reasonably
satisfactory to them of the ownership and the loss, theft, destruction or
mutilation of the Warrant Certificate, and of indemnity reasonably satisfactory
to them, and, in the case of mutilation, upon surrender thereof to the Warrant
Agent for cancellation, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of the
lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant
Certificate of the same tenor and for a like number of Warrants. Upon the
issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expense (including
the fees and expenses of the Warrant Agent) in connection therewith. Every
substitute Warrant Certificate executed and delivered pursuant to this Section
in lieu of any lost, stolen or destroyed Warrant Certificate shall constitute
an additional contractual obligation of the Company, whether or not the lost,
stolen or destroyed Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. The provisions of this Section are exclusive and shall
preclude (to the extent lawful) any and all other rights or remedies with
respect to the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
3.3 Holder of Warrant Certificate may enforce rights.
Notwithstanding any of the provisions of this Agreement, any holder of any
Warrant Certificate, without the consent of the Warrant Agent, the Trustee, the
holder of any Debt Security or the holder of any other Warrant Certificate,
may, in his or her own behalf and for his or her own benefit, enforce, and may
institute and maintain any audit, action or proceeding against the Company to
enforce or otherwise in respect of, his right to exercise his or her Warrant
Certificate in the manner provided in his or her Warrant Certificate and in his
or her Agreement.
3.4 Call of Warrants by the Company. If so provided in the
Warrant Agreement, the Company shall have the right to call and repurchase any
or all Warrants at the price (the "Call Price") and on or after the date (the
"Call Date") and upon the terms (the "Call Terms") as shall be established from
time to time in or pursuant to resolutions of the Board of Directors of the
Company or in the Warrant Agreement before the issuance of such Warrants.
Notice of such Call Price, Call Date and Call Terms shall be given to
registered holders of Warrants in writing by the Company or the Warrant Agent.
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<PAGE> 7
3.5 Optional reduction of Warrant Price. Subject to the limits,
if any, established from time to time by the Board of Directors of the Company
or in the Warrant Agreement, the Company shall have the right, at any time or
from time to time, voluntarily to reduce the then current Warrant Price to such
amount (the "Reduced Warrant Price") and for such period or periods of time,
which may be through the close of business on the Expiration Date (the "Reduced
Warrant Price Period"), as may be deemed appropriate by the Board of directors
of the Company. Notice of any such Reduced Warrant Price and Reduced Warrant
Price Period shall be given to registered holders of Warrants in writing by the
Company or the Warrant Agent. After the termination of the Reduced Warrant
Price Period, the Warrant Price shall be such Warrant Price that would have
been in effect had there been no reduction in the Warrant Price pursuant to the
provisions of this Section 3.5.
ARTICLE 4
Exchange and Transfer of Warrant Certificates
4.1 Exchange and transfer. Upon surrender at the corporate trust
office of the Warrant Agent, Warrant Certificates evidencing Warrants may be
exchanged for Warrant Certificates in other denominations evidencing such
Warrants and the transfer of Warrants may be registered in whole or in part;
provided that such other Warrant Certificates shall evidence the same aggregate
number of Warrants as the Warrant Certificates surrendered for exchange or
registration of transfer. The Warrant Agent shall keep, at its corporate trust
office, books in which it shall register Warrant Certificates and exchanges and
transfers of outstanding Warrant Certificates, upon surrender of the Warrant
Certificates to the Warrant Agent at its corporate trust office for exchange or
registration of transfer, properly completed and duly endorsed and duly signed
by the registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, such signature to be
guaranteed by (a) a bank or trust company, (b) a broker or dealer that is a
member of the National Association of Securities Dealers, Inc. (the "NASD") or
(c) a member of a national securities exchange and accompanied by appropriate
instruments of registration of transfer and written instructions for transfer,
all in form satisfactory to the Company and the Warrant Agent. No service
charge shall be made for any exchange or registration of transfer of Warrant
Certificates, but the Company may require payment of a sum sufficient to cover
any stamp or other tax or other governmental charge that may be imposed in
connection with any such exchange or registration of transfer. Whenever any
Warrant Certificates are surrendered for exchange or registration of transfer,
an authorized officer of the Warrant Agent shall mutually countersign and
deliver to the person or persons entitled thereto a Warrant Certificate or
Warrant Certificate duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not be required to effect any exchange or
registration of transfer that will result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant or a number of full Warrants and
a fraction of a Warrant. All Warrant Certificates issued upon any exchange or
registration of transfer of Warrant Certificates shall be the valid obligations
of the Company, evidencing the same obligations and entitled to the same
benefits under this Agreement as the Warrant Certificates surrendered for such
exchange or registration of transfer.
4.2 Treatment of holders of Warrant Certificates. Every holder of
a Warrant Certificate, by accepting the same, consents and agrees with the
Company, the Warrant Agent and with every subsequent holder of such Warrant
Certificate that, until the transfer of the Warrant Certificate is registered
on the books of the Warrant Agent, the Company and the Warrant Agent may treat
the registered holder as the absolute owner thereof for any purpose and as the
person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.
4.3 Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered for exercise, registration of transfer or exchange shall, if
surrendered to the Company, be delivered to the
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<PAGE> 8
Warrant Agent, and all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be
reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in lieu thereof. The Warrant Agent shall
deliver to the Company from time to time, or otherwise dispose of, canceled
Warrant Certificates in a manner satisfactory to the Company.
ARTICLE 5
Concerning the Warrant Agent
5.1 Warrant Agent. The Company hereby appoints the Warrant Agent
as the Warrant Agent of the Company in respect of the Warrant Certificates upon
the terms and subject to the conditions herein set forth, and the Warrant Agent
hereby accepts such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Warrant Certificates and by
this Agreement, and such further powers and authority to act on behalf of the
Company as the Company may hereafter grant to or confer upon it. All of the
terms and provisions with respect to such powers and authority contained in the
Warrant Certificates are subject to and governed by the terms and provisions
hereof.
5.2 Conditions of Warrant Agent's obligations. The Warrant Agent
accepts its obligations herein set forth upon the terms and conditions hereof,
including the following (to all of which the Company agrees and to all of which
the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject):
(a) Performance by the Company. The Company agrees that it will
take any corporate action that may be reasonably necessary in order to fulfill
its obligations under this Agreement and the Warrant Certificates, and that it
will not take any action that would impair its ability to perform its
obligations under this Agreement and the Warrant Certificates.
(b) Compensation and indemnification. The Company agrees promptly
to pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including reasonable counsel fees)
incurred by the Warrant Agent in connection with the services rendered hereunder
by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent,
and to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as the Warrant Agent hereunder, as well as the costs
and expenses of defending against any claim of liability in the premises.
(c) Agent for the Company. In acting under this Warrant Agreement
and in connection with the Warrant Certificates, the Warrant Agent is acting
solely as an agent of the Company, and the Warrant Agent does not assume any
obligation or relationship of agency or trust for or with any of the owners or
holders of the Warrant Certificates.
(d) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, and the opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the opinion of such
counsel.
(e) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing suffered by it
in reliance upon any Warrant Certificate, notice,
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<PAGE> 9
direction, consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented or signed by
the proper parties.
(f) Certain transactions. The Warrant Agent and its officers,
directors and employees may act as Trustee under the Indenture and may become
the owner of, or acquire any interest in, any Warrant Certificates, with the
same rights that it or they would have if it were not the Warrant Agent
hereunder, and, to the extent permitted by applicable law, they may engage or be
interested in any financial or other transaction with the Company and may act
on, or as depositary, trustee or agent for, any committee or body of holders of
the Debt Securities or other obligations of the Company as freely as if it were
not the Warrant Agent.
(g) No liability for interest. Except as set forth in the Warrant
Agreement, the Warrant Agent shall not be under any liability for interest on
any moneys or other consideration at any time received by it pursuant to any of
the provisions of this Agreement or of the Warrant Certificates.
(h) No liability for invalidity. The Warrant Agent shall not incur
any liability with respect to the validity of this Agreement or any of the
Warrant Certificates.
(i) No responsibility for representations. The Warrant Agent shall
not be responsible for any of the recitals or representations contained herein
or in the Warrant Certificates (except the Warrant Agent shall be responsible
for any representations of the Warrant Agent herein and for its countersignature
on the Warrant Certificates), all of which are made solely by the Company.
(j) No implied obligations. The Warrant Agent shall be obligated
to perform such duties as are herein and in the Warrant Certificates
specifically set forth, but no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any default by
the Company in the performance of its covenants or agreements contained in the
Warrant Certificates or in the case of the receipt of any written demand from a
holder of a Warrant Certificate with respect to such default, including any duty
or responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.2 hereof, to make any demand upon
the Company.
(k) Instructions. The Warrant Agent is hereby authorized and
directed to accept instructions with respect to the performance of its duties
hereunder from the Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Treasurer, the Secretary or any Assistant
Secretary of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and shall not be liable for any
action taken or suffered to be taken by it in good faith in accordance with
instructions of any such officer or in good faith reliance upon any statement
signed by any one of such officers of the Company with respect to any fact or
matter (unless other evidence in respect thereof is herein specifically
prescribed) which may be deemed to be conclusively proved and established by
such signed statement
5.3 Resignation and Appointment of Successor Warrant Agent.
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<PAGE> 10
(a) The Company agrees, for the benefit of the holders from time
to time of the Warrant Certificates, that at all times there shall be a Warrant
Agent hereunder until all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that
such date shall not be less than 60 days after the date on which such notice is
given unless the Company agrees to accept less notice. The Warrant Agent may
be removed at any time by the filing with it of an instrument in writing signed
by or on behalf of the Company and specifying such removal an the date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company organized and doing business
under the laws of the United States of America or of any State, in good
standing, and authorized under such laws to exercise corporate trust powers)
and the acceptance of such appointment by such successor Warrant Agent. Upon
its resignation or removal, the Warrant Agent shall be entitled to the payment
by the Company of the compensation agreed to under Section 5.2(b) hereof for,
and to the reimbursement of all reasonable out-of-pocket expenses incurred in
connection with, the services rendered hereunder by the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or shall file a petition seeking relief under the Federal Bankruptcy
Code, as now constituted or hereafter amended, or under any other applicable
federal or state bankruptcy law or similar law or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the Federal Bankruptcy Code, as now constituted or hereafter amended, or
under any other applicable federal or state bankruptcy or similar law or if any
public officer shall have taken charge or control of the Warrant Agent or of
its property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified in accordance with the terms
of this Agreement, shall be appointed by the Company by an instrument in
writing, filed with the successor Warrant Agent. Upon the appointment of a
successor Warrant Agent and acceptance by the latter of such appointment, the
Warrant Agent so superseded shall cease to be the Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay
over, and such successor Warrant Agent shall be entitled to receive, all
moneys, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the
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<PAGE> 11
successor Warrant Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
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<PAGE> 12
ARTICLE 6
Miscellaneous
6.1 Supplements and Amendments. This Agreement may be amended or
supplemented from time to time by the parties hereto, without the consent of
the holder of any Warrant Certificate, for the purpose of curing any ambiguity,
or of curing, correcting or supplementing any defective provision contained
herein, or in regard to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable, provided
such action shall not adversely affect the interests of the holders of the
Warrant Certificates.
6.2 Notices and demands to the Company and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by
the holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
6.3 Addresses. Any communication to the Warrant Agent with
respect to this Agreement shall be addressed to the address set forth in the
Warrant Agreement, and any such communication to the Company shall be addressed
to the Company at the following address:
AirTouch Communications, Inc.
One California Street
San Francisco, CA 94111
Attention: Senior Vice President, Legal, External Affairs and
Secretary
or such other address as shall be specified in writing by the Warrant Agent or
by the Company.
6.4 Delivery of prospectus. If the Company is required under
applicable federal or state securities laws to deliver a prospectus upon
exercise of Warrants, the Company will furnish to the Warrant Agent sufficient
copies of a prospectus, and the Warrant Agent agrees that upon the exercise of
any Warrant Certificate by the holder thereof, the Warrant Agent will deliver
to such holder, prior to or concurrently with the delivery of the Debt
Securities issued upon such exercise, a copy of the prospectus.
6.5 Obtaining of governmental approvals. The Company will from
time to time take all action that may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and securities acts filings under federal and state laws, which may
be or become requisite in connection with the issuance, sale, transfer and
delivery of the Warrant Certificates, the exercise of the Warrants, and the
issuance, sale, transfer and delivery of the Debt Securities issued upon
exercise of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
6.6 Persons having rights under Warrant Agreement. Nothing in
this Agreement is intended, or shall be construed, to confer upon, or give to,
any person or corporation other than the Company, the Warrant Agent and the
holders of the Warrant Certificates any right, remedy or claim under or by
reason of this Agreement or of any covenant, condition, stipulation, promise or
agreement hereof. All covenants, conditions, stipulations, promises and
agreements contained in this Agreement shall be for the sole and exclusive
benefit of the Company, the Warrant Agent and their successors and of the
holders of the Warrant Certificates.
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<PAGE> 13
6.7 Headings. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
6.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
6.9 Inspection of agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificate for
inspection by it.
6.10 Governing law. This Agreement and each Warrant Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of California and for all purposes shall be construed in accordance with
the laws of such State.
6.11 Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns hereunder.
6.12 Termination. This Agreement shall terminate at the close of
business on the Expiration Date. Notwithstanding the foregoing, this Agreement
will terminate on any earlier date when the Warrants have been exercised.
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<PAGE> 1
EXHIBIT 4.11
DEPOSIT AGREEMENT
dated as of _____________________, 19__
among
AIRTOUCH COMMUNICATIONS, INC.
a Delaware corporation,
_____________________, a [national banking association],
and the holders
from time to time of the Depositary Shares
described herein.
WHEREAS it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of _______ Preferred Stock, Series
__, $.01 par value, of AIRTOUCH COMMUNICATIONS, INC. with the Depositary (as
hereinafter defined) for the purposes set forth in this Deposit Agreement and
for the issuance hereunder of Receipts (as hereinafter defined) evidencing
Depositary Shares (as hereinafter defined) in respect of the Stock (as
hereinafter defined) so deposited:
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE 1
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Certificate" shall mean the certificate of designations filed with the
Secretary of State of Delaware establishing the Stock as a series of preferred
stock of the company.
"Company" shall mean AirTouch Communications, Inc., a Delaware
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean _________________________, a [national banking
association], and any successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing a
one-[half] interest in a share of the Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the office of the Depositary at
__________________, ___________________, ______________________, at which at
any particular time its depositary receipt business shall be administered.
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"Receipt" shall mean one of the depositary receipts issued hereunder,
whether in definitive or temporary form.
"Record Holder" as applied with respect to a Depositary Share shall
mean the person in whose name a Receipt evidencing such Depositary Share is
registered on the books of the Depositary maintained for such purpose.
"Registrar" shall mean any bank or trust company which shall be
appointed to register ownership and transfers of Receipts as herein provided.
"Stock" shall mean shares of the Company's _________ Preferred Stock,
Series __, $.01 par value.
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
2.1 Form and Transfer of Receipts. Definitive Receipts shall be
engraved or printed or lithographed and shall be substantially in the form set
forth in Exhibit A annexed to this Deposition Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided. Pending the
preparation of definitive Receipts, the Depositary, upon the written order of
the Company delivered in compliance with Section 2.2, shall execute and deliver
temporary Receipts which are printed, lithographed, typewritten, mimeographed
or otherwise substantially of the tenor of the definitive Receipts in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the persons executing such Receipts may
determine, as evidenced by their execution of such Receipts. If temporary
Receipts are issued, the Company and the Depositary will cause definitive
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for
definitive Receipts upon surrender of the temporary Receipts at an office
described in the third paragraph of Section 2.2, without charge to the holder.
Upon surrender for cancellation of any one or more temporary Receipts, the
Depositary shall execute and deliver in exchange therefor definitive Receipts
representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts. Such exchange shall be made at the
Company s expense and without any charge therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same benefits under
this Deposit Agreement, and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of
a duly authorized officer of the Depositary; provided, that such signature may
be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such Receipts are countersigned by manual
signature of a duly authorized officer of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall have been executed manually by a duly
authorized officer of the Depositary or, if a Registrar for the Receipts (other
than the Depositary) shall have been appointed, by facsimile signature of a
duly authorized officer of the Depositary and countersigned manually by a duly
authorized officer of such Registrar. The Depositary shall record on its books
each Receipt so signed and delivered as hereinafter provided.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of
this Deposit Agreement as may be required by the Company or the Depositary or
required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any securities exchange upon which the Stock, the
Depositary
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Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall
be transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Depositary Share shall
be registered on the books of the Depositary as provided in Section 2.4, the
Depositary may, notwithstanding any notice to the contrary, treat the Record
Holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
2.2 Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit
Agreement, the Company may from time to time deposit shares of Stock under this
Deposit Agreement by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited, properly endorsed or accompanied,
if required by the Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together with all such
certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement, and together with a written order of the
Company directing the Depositary to execute and deliver to, or upon the written
order of, the person or persons stated in such order a Receipt or Receipts for
the number of Depositary Shares relating to such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together
with the other documents required as above specified, and upon recordation of
the Stock so deposited on the books of the Company in the name of the
Depositary or its nominee, the Depositary, subject to the terms and conditions
of this Deposit Agreement, shall execute and deliver, to or upon the order of
the person or persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section, a Receipt or Receipts for
the number of Depositary Shares relating to the Stock so deposited and
registered in such name or names as may be requested by such person or persons.
The Depositary shall execute and deliver such Receipt or Receipts at the
Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more
than ________________________ shares of Stock.
2.3 Redemption of Stock. Whenever the Company shall elect to
redeem shares of Stock in accordance with the provisions of the Certificate, it
shall (unless otherwise agreed in writing with the Depositary) mail notice to
the Depositary of such proposed redemption, by first class mail, postage
prepaid not less than 40 or more than 70 days prior to the date fixed for
redemption of Stock in accordance with Section [3(b)] of the Certificate. On
the date of such redemption, provided that the Company shall then have paid in
full to the Depositary the redemption price of the Stock to be redeemed, plus
any accrued and unpaid dividends thereon, the Depositary shall redeem the
Depositary Shares relating to such Stock. The Depositary shall mail notice of
such redemption and the proposed simultaneous redemption of the number of
Depositary Shares relating to the Stock to be redeemed, by first-class mail,
postage prepaid, not less than 30 and not more than 60 days prior to the date
fixed for redemption of such Stock and Depositary Shares (the "Redemption
Date"), to the Record Holders of the Depositary Shares to be so redeemed, at
the addresses of such holders as they appear on the records of the Depositary;
but neither failure to mail any such notice to one or more such holders nor any
defect in any notice to one or more such holders shall affect the sufficiency
of the proceedings for redemption as
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to other holders. Each such notice shall state: (i) the Redemption Date; (ii)
the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of
such Depositary Shares held by such holder to be so redeemed; (iii) the
redemption price; (iv) the place or places where Receipts evidencing Depositary
Shares are to be surrendered for payment of the redemption price; and (v) that
dividends in respect of the Stock underlying the Depositary Shares to be
redeemed will cease to accrue and accumulate at the close of business on such
Redemption Date. In case less than all the outstanding Depositary Shares are
to be redeemed, the Depositary Shares to be so redeemed shall be selected by
lot, pro rata or such other method as may be determined by the Depositary to be
equitable.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) all dividends in respect of the
Depositary Shares so called for redemption shall cease to accrue and
accumulate, the Depositary Shares being redeemed from such proceeds shall be
deemed no longer to be outstanding, all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the redemption
price) shall, to the extent of such Depositary Shares, cease and terminate and,
upon surrender in accordance with such notice of the Receipts evidencing any
such Depositary Shares (properly endorsed or assigned for transfer, if the
Depositary shall so require), such Depositary Shares shall be redeemed by the
Depositary at a redemption price per Depositary Share equal to the
proportionate part of the redemption price per share paid in respect of the
shares of Stock plus all money and other property, if any, paid with respect to
such Depositary Shares, including all amounts paid by the Company in respect of
dividends which on the Redemption Date have accumulated on the shares of Stock
to be so redeemed and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the redemption
payment, a new Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption.
2.4 Registration of Transfer of Receipts. Subject to the terms
and conditions of this Deposit Agreement, the Depositary shall register on its
books from time to time transfers of Depositary Shares upon any surrender of
the Receipt or Receipts evidencing such Depositary Shares by the holder in
person or by duly authorized attorney, properly endorsed or accompanied by a
properly executed instrument of transfer. Thereupon the Depositary shall
execute a new Receipt or Receipts evidencing the same aggregate number of
Depositary Shares as those evidenced by the Receipt or Receipts surrendered and
deliver such new Receipt or Receipts to or upon the order of the person
entitled thereto.
2.5 Split-ups and Combinations of Receipts; Surrender of
Depositary Shares and Withdrawal of Stock. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may
designate for the purpose of effecting a split-up or combination of such
Receipt or Receipts, and subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts
in the denominations requested, evidencing the aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered.
Any holder of Depositary Shares may withdraw the number of whole shares
of Stock underlying such Depositary Shares of whole shares of Stock underlying
such Depositary Shares and all money and other property, if any, underlying
such Depositary Shares by surrendering Receipts evidencing such Depositary
Shares at the Depositary's Office or at such other offices as the Depositary
may designate for such withdrawals. Thereafter, without unreasonable delay,
the Depositary shall deliver to such holder, or to the person or persons
designated by such holder as hereinafter provided, the number of whole shares
of Stock and all money and other property, if any, underlying the
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Depositary Shares so surrendered for withdrawal, but holders of such whole
shares of Stock will not thereafter be entitled to deposit such Stock hereunder
or to receive Receipts evidencing Depositary Shares therefor. If a Receipt
delivered by a holder to the Depositary in connection with such withdrawal
shall evidence a number of Depositary Shares relating to other than a number of
whole shares of Stock, the Depositary shall at the same time, in addition to
such number of whole shares of Stock and such money and other property, if any,
to be so withdrawn, deliver to such holder, or (subject to Section 3.2) upon
his order, a new Receipt evidencing such excess number of Depositary Shares.
Delivery of the Stock and money and other property being withdrawn may be made
by delivery of such certificates, documents of title and other instruments as
the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the Record Holder of the Depositary
Shares evidenced by the Receipts being surrendered for withdrawal of Stock,
such holder shall execute and deliver to the Depositary a written order so
directing the Depositary, and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer.
Delivery of the Stock and money and other property, if any, underlying
the Depositary Shares surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Depositary Shares and for the account
of such holder, such delivery may be made at such other place as may be
designated by such holder.
2.6 Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.7, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The delivery of Receipts against Stock may be suspended, the
registration of transfer of Depositary Shares may be refused and the
registration of transfer, surrender or exchange of outstanding Depositary
Shares may be suspended (i) during any period when the register of stockholders
of the Company is closed or (ii) if any such action is deemed necessary or
advisable by the Depositary, any of the Depositary's Agents or the Company at
any time or from time to time because of any requirement of law or of any
government or governmental body or commission or under any provision of this
Deposit Agreement.
2.7 Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt, or in lieu of and in substitution for such destroyed, lost
or stolen Receipt, upon (i) the filing by the holder thereof with the
Depositary of evidence satisfactory to the Depositary of such destruction or
loss or theft of such Receipt, or the authenticity thereof and of his or her
ownership thereof and (ii) the furnishing of the Depositary with reasonable
indemnification satisfactory to it.
2.8 Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
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ARTICLE 3
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
3.1 Filing Proofs, Certificates and Other Information. Any
holder of a Depositary Share may be required from time to time to file such
proof of residence, or other matters or other information, to execute such
certificates and to make such representations and warranties as the Depositary
or the Company may reasonably deem necessary or proper. The Depositary or the
Company may withhold the delivery, or delay the registration of transfer,
redemption or exchange, of any Depositary Share or the withdrawal of any Stock
underlying Depositary Shares or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
3.2 Payment of Taxes or Other Governmental Charges. Holders of
Depositary Shares shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.7. Registration of
transfer of any Depositary Share or any withdrawal of Stock and delivery of all
money or other property, if any, underlying such Depositary Share may be
refused until any such payment due is made, and any dividends or other
distributions may be withheld or all or any part of the Stock or other property
relating to such Depositary Shares and not theretofore sold may be sold for the
account of the holder thereof (after attempting by reasonable means to notify
such holder prior to such sale), and such dividends or other distributions or
the proceeds of any such sale may be applied to any payment of such charges or
expenses, the holder of such Depositary Share remaining liable for any
deficiency.
3.3 Warranty as to Stock. The Company hereby represents and
warrants that the Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of
the Stock and the issuance of the Receipts.
ARTICLE 4
THE DEPOSITED SECURITIES; NOTICES
4.1 Cash Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution on the Stock, the Depositary
shall, subject to Sections 3.1 and 3.2, distribute to the Record Holders of
Depositary Shares on the record date fixed pursuant to Section 4.4 such amounts
of such dividend or distribution as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares held by such holders;
provided, however, that in case the Company or the Depositary shall be required
to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes, the amount
made available for distribution or distributed in respect of Depositary Shares
shall be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount, however, as
can be distributed without attributing to any holder of Depositary Shares a
fraction of one cent, and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
be treated as part of the next sum received by the Depositary for distribution
to Record Holders of Depositary Shares then outstanding.
4.2 Distributions Other than Cash. Whenever the Depositary
shall receive any distribution other than cash on the Stock, the Depositary
shall, subject to Sections 3.1 and 3.2, distribute to the Record Holders of
Depositary Shares on the record date fixed pursuant to Section 4.4 such amounts
of the securities or property received by it as are, as nearly as practicable,
in proportion to
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the respective numbers of Depositary Shares held by such holders, in any manner
that the Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such distribution cannot be
made proportionately among such Record Holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an
amount on account of taxes or governmental charge) the Depositary deems, after
consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received, or any part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
Sections 3.1 and 3.2, be distributed or made available for distribution, as the
case may be, by the Depositary to the Record Holders of Depositary Shares
entitled thereto as provided by Section 4.1 in the case of a distribution
received in cash. The Company shall not make any distribution of such
securities unless the Company shall have provided an opinion of counsel to the
effect that such securities have been registered under the Securities Act of
1933 or do not need to be registered.
4.3 Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the Record Holders of Depositary Shares in such manner as the Depositary may
determine, either by the issue to such Record Holders of warrants representing
such rights, preferences or privileges or by such other method as may be
approved by the Depositary in its discretion with the approval of the Company;
provided, however, that (i) if at the time of issue or offer of any such
rights, preferences or privileges the Depositary determines that it is not
lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of Depositary Shares by
the issue of warrants or otherwise, or (ii) if and to the extent so instructed
by holders of Depositary Shares who do not desire to exercise such rights,
preferences or privileges, then the Depositary, in its discretion (with the
approval of the Company, in any case where the Depositary has determined that
it is not feasible to make such rights, preferences or privileges available),
may, if applicable laws or the terms of such rights, preferences or privileges
permit such transfer, sell such rights, preferences or privileges at public or
private sale, at such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall, subject to Sections 3.1 and
3.2, be distributed by the Depositary to the Record Holders of Depositary
Shares entitled thereto as provided by Section 4.1 in the case of a
distribution received in cash. The Company shall not make any distribution of
such rights, preferences or privileges unless the Company shall have provided
an opinion of counsel to the effect that such rights, preferences or privileges
have been registered under the Securities Act of 1933 or do not need to be
registered.
If registration under the Securities Act of 1933 of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Depositary Shares to be offered or sold the securities to which such
rights, preferences or privileges relate, the Company agrees with the
Depositary that it will file promptly a registration statement pursuant to such
Act with respect to such rights, preferences or privileges and securities to
use its best efforts to take all steps available to it to cause such
registration statement to become effective sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges. In no event shall the
Depositary make available to the holder of Depositary Shares any right,
preference or privilege to subscribe for or to purchase any securities unless
and until such a registration statement shall have become effective, or unless
the offering and sale of such securities to such holders are exempt from
registration under the provision of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to the
holders of Depositary Shares, the Company agrees with the Depositary that the
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Company will use its best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
4.4 Notice of Dividends, etc.; Fixing of Record Date for Holders
of Depositary Shares. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be offered, with respect to
the Stock, or whenever the Depositary shall receive notice of any meeting at
which holders of Stock are entitled to vote, or of which holders of Stock are
entitled to notice, the Depositary shall in each such instance fix a record
date (which shall be the same date as the record date fixed by the Company with
respect to the Stock) for the determination of the holders of Depositary Shares
who shall be entitled to receive a distribution in respect of such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or who shall be entitled to receive notice of such meeting.
4.5 Voting Rights. Upon receipt of notice of any meeting at
which the holders of the Stock are entitled to vote, the Depositary shall, as
soon as practicable thereafter, mail to the Record Holders of Depositary Shares
a notice which shall contain (i) such information as is contained in such
notice of meeting and (ii) a statement informing holders of Depositary Shares
that they may instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock underlying their respective Depositary Shares
and a brief statement as to the manner in which such instructions may be given.
Upon the written request of the holders of Depositary Shares on the record date
established in accordance with Section 4.4, the Depositary shall endeavor
insofar as practicable to vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum number of whole shares of
Stock underlying the Depositary Shares as to which any particular voting or
consent instructions are received. The Company hereby agrees to take all
action which may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted. In the absence
of specific instructions from the holder of a Depositary Share, the Depositary
will abstain from voting (but, at its discretion, not from appearing at any
meeting with respect to such Stock unless directed to the contrary by the
holders of all the Depositary Shares) to the extent of the Stock underlying the
Depositary Shares.
4.6 Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or
liquidation value, split-up, combination or any other reclassification of the
Stock, or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party, the Depositary
may in its discretion, with the approval of, and shall upon the instructions
of, the Company, and (in either case) in such manner as the Depositary may deem
equitable, (i) make such adjustments in (a) the fraction of an interest in one
share of Stock underlying one Depositary Share and (b) the ratio of the
redemption price per Depositary Share to the redemption price of a share of the
Stock, in each case as may be necessary fully to reflect the effects of such
change in par or liquidation value, split-up, combination or other
reclassification of the Stock, or of such recapitalization, reorganization,
merger, amalgamation or consolidation and (ii) treat any securities which shall
be received by the Depositary in exchange for or upon conversion of or in
respect of the Stock as new deposited securities so received in exchange for or
upon conversion of or in respect of such Stock. In any such case the
Depositary may in its discretion, with the approval of the Company, execute and
deliver additional Receipts, or may call for the surrender of all outstanding
Receipts to be exchanged for new Receipts specifically describing such new
deposited securities.
4.7 Delivery of Reports. The Depositary will forward to Record
Holders of Receipts, at their respective addresses appearing in the
Depositary's books, all notices, reports and communications received from the
Company which are delivered to the Depositary and which the Company is required
to furnish to the holders of Stock or Receipts.
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4.8 List of Holders. Promptly upon request from time to time by
the Company, the Depositary shall furnish to it a list, as of a recent date, of
the names, addresses and holdings of Depositary Shares of all persons in whose
names Depositary Shares are registered on the books of the Depositary or
Registrar, as the case may be.
ARTICLE 5
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
5.1 Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar. Upon execution of this Deposit Agreement, the
Depositary shall maintain at the Depositary's Offices, or at any Registrar's
Office, at which the Depositary shall have complete access to all books and
records maintained on the Company's behalf, facilities for the execution and
delivery, surrender and exchange of Receipts and the registration and
registration of transfer of Depositary Shares, and at the offices of the
Depositary's Agents, if any, facilities for the delivery, surrender and
exchange of Receipts and the registration of transfer of Depositary Shares, all
in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Depositary Shares, which books at
all reasonable times shall be open for inspection by the Record Holders of
Depositary Shares; provided, that any such holder requesting to exercise such
right shall certify to the Depositary that such inspection shall be for a
proper purpose reasonably related to such person's interest as an owner of
Depositary Shares.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the Stock
underlying such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, such Depositary Shares or such
Stock are listed on one or more other stock exchanges, the Depositary will, at
the request of the Company, arrange such facilities for the delivery,
registration, registration of transfer, surrender and exchange of such
Receipts, such Depositary Shares or such Stock as may be required by law or
applicable stock exchange regulation.
5.2 Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, any Registrar or the Company. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Depositary Share if by reason of any provision
of any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of the
Depositary, any Depositary's Agent or any Registrar, by reason of any
provision, present or future, of the Company's Certificate of Incorporation
(including the Certifi- cate) or by reason of any event of force majeure or war
or other circumstance beyond the control of the relevant party, the Depositary,
any Depositary's Agent, any Registrar or the Company shall be prevented or
forbidden from doing or performing any act or thing which the terms of this
Deposit Agreement provide shall be done or performed; nor shall the Depositary,
any Depositary's Agent, any Registrar or the Company incur any liability to any
holder of a Depositary Share (i) by reason of any nonperformance or delay,
caused as aforesaid, in the performance of any act or thing which the terms of
this Deposit Agreement provide shall or may be done or performed, or (ii) by
reason
9
<PAGE> 10
of any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement except, in case of any such exercise or failure to exercise
discretion not caused as aforesaid, if caused by the gross negligence or
willful misconduct of the party charged with such exercise or failure to
exercise.
5.3 Obligations of the Depositary, the Depositary's Agents, any
Registrar and the Company. Neither the Depositary nor any Depositary's Agent
nor any Registrar nor the Company assumes any obligation or shall be subject to
any liability under this Deposit Agreement to holders of Depositary Shares
other than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Stock, the Depositary Shares
or the Receipts which in its opinion may involve it in expense or liability
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or
information from any person presenting Stock for deposit, any holder of a
Depositary Share or any other person believed by it in good faith to be
competent to give such information. The Depositary, any Depositary's Agent,
any Registrar and the Company may each rely and shall each be protected in
acting upon any written notice, request, direction or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of Stock or for the manner or effect
of any such vote, as long as any such action or non-action is in good faith.
The Depositary undertakes, and any Registrar shall be required to undertake, to
perform such duties and only such duties as are specifically set forth in this
Deposit Agreement, and no implied covenants or obligations shall be read into
this Deposit Agreement against the Depositary or any Registrar. The Depositary
will indemnify the Company against any liability which may arise out of acts
performed or omitted by the Depositary or its agents due to its or their
negligence or bad faith. The Depositary, the Depositary's Agents, any
Registrar and the Company may own and deal in any class of securities of the
Company and its affiliates and in Depositary Shares. The Depositary may also
act as transfer agent or registrar of any of the securities of the Company and
its affiliates.
5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the
United States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed within 60
days after delivery of such notice, the resigning or removed Depositary may
petition any court of competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this
10
<PAGE> 11
Deposit Agreement, and such predecessor, upon payment of all sums due it and on
the written request of the Company, shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and
interest in the Stock and any moneys or property held hereunder to such
successor and shall deliver to such successor a list of the Record Holders of
all outstanding Depositary Shares. Any successor Depositary shall promptly
mail notice of its appointment to the Record Holders of Depositary Shares.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
Depositary may authenticate the Receipts in the name of the predecessor
Depositary or in the name of the successor Depositary.
5.5 Corporate Notices and Reports. The Company agrees that it
will transmit to the Depositary all notices, reports and communications
(including, without limitation, financial statements) required by law, the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed or by the Company's Certificate of
Incorporation (including the Certificate) to be furnished by the Company to
holders of the Stock.
5.6 Indemnification by the Company. The Company shall indemnify
the Depositary, any Depositary's Agent and any Registrar against, and hold each
of them harmless from, any loss, liability or expense (including the costs and
expenses of defending itself) which may arise out of (i) acts performed or
omitted in connection with this Deposit Agreement and the Depositary Shares (a)
by the Depositary, any Registrar or any of their respective agents (including
any Depositary's Agent), except for any liability arising out of negligence,
willful misconduct or bad faith on the respective parts of any such person or
persons, or (b) by the Company or any of its agents, or (ii) the offer, sale or
registration of the Depositary Shares or the Stock pursuant to the provisions
hereof. The obligations of the Company set forth in this Section 5.6 shall
survive any succession of any Depositary, Registrar or Depositary's Agent.
5.7 Charges and Expenses. The Company shall pay all transfer
and other taxes and governmental charges arising solely from the existence of
the depositary arrangements. The Company shall pay all charges of the
Depositary in connection with the initial deposit of the Stock and the initial
issuance of the Receipts, any redemption of the Stock at the option of the
Company and any withdrawals of Stock by holders of Depositary Shares. All
other transfer and other taxes and governmental charges shall be at the expense
of holders of Depositary Shares. If, at the request of a holder of a
Depositary Share, the Depositary incurs charges or expenses for which it is not
otherwise liable hereunder, such holder will be liable for such charges and
expenses. All other reasonable charges and expenses of the Depositary, any
Depositary's Agent hereunder and any Registrar (including, in each case,
reasonable fees and expenses of counsel) incident to the performance of their
respective obligations hereunder will be paid upon consultation and agreement
between the Depositary and the Company as to the amount and nature of such
charges and expenses. The Depositary shall present its statement for charges
and expenses to the Company once every three months or at such other intervals
as the Company and the Depositary may agree.
ARTICLE 6
AMENDMENT AND TERMINATION
6.1 Amendment. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment which
shall materially and adversely alter the rights of the existing holders of
Depositary
11
<PAGE> 12
Shares shall be effective unless such amendment shall have been approved by the
holders of at least a majority of the Depositary Shares then outstanding. Each
holder of an outstanding Depositary Share at the time any such amendment
becomes effective shall be deemed, by continuing to hold such Depositary Share,
to consent and agree to such amendment and to be bound by this Deposit
Agreement as amended thereby.
6.2 Termination. This Deposit Agreement may be terminated by the
Company or the Depositary only after (i) all outstanding Depositary Shares
shall have been redeemed and any accumulated and unpaid dividends on the Stock
represented by the Depositary Shares, together with all other moneys and
property, if any, to which holders of the related Receipts are entitled under
the terms of such Receipts or this Deposit Agreement, have been paid or
distributed as provided in this Deposit Agreement or provision therefor has
been duly made pursuant to Section 2.3 or (ii) there shall have been made a
final distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Receipts pursuant to Section 4.1 or 4.2, as
applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agents and any Registrar under
Sections 5.6 and 5.7.
ARTICLE 7
MISCELLANEOUS
7.1 Counterparts. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall
constitute one and the same instrument.
7.2 Exclusive Benefit of Parties. This Deposit Agreement is for
the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
7.3 Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein
shall in no way be affected, prejudiced or disturbed thereby.
7.4 Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or telegram or telex
confirmed by letter, addressed to the Company at One California Street, San
Francisco, California 94111 to the attention of the Senior Vice President,
Legal, External Affairs and Secretary, or at any other address of which the
Company shall have notified the Depositary in writing.
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<PAGE> 13
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's office, at
___________________, __________________, ____________________, or at any other
address of which the Depositary shall have notified the Company in writing.
Any and all notices to be given to any Record Holder of a Depositary
Share hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or by telegram
or telex confirmed by letter, addressed to such Record Holder at the address of
such Record Holder as it appears on the books of the Depositary, or if such
holder shall have filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telex message received by it
from the other or from any holder of a Depositary Share, notwithstanding that
such telegram or telex message shall not subsequently be confirmed by letter or
as aforesaid.
7.5 Depositary's Agents. The Depositary may from time to time,
with the prior approval of the Company, appoint Depositary's Agents to act in
any respect for the Depositary for the purposes of this Deposit Agreement and
may at any time appoint additional Depositary's Agents and vary or terminate
the appointment of such Depositary's Agents. The Depositary will notify the
Company of any such action.
7.6 Holders of Receipts Are Parties. The holders of Depositary
Shares from time to time shall be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts
evidencing such Depositary Shares by acceptance of delivery thereof.
7.7 Governing Law. THIS DEPOSIT AGREEMENT AND RECEIPTS AND ALL
RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF [NEW
YORK].
7.8 Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's office
and the respective offices of the Depositary's Agents, if any, by any holder of
a Depository Share.
7.9 Headings. The headings of articles and sections in this
Deposit Agreement and in the form of Receipt set forth in Exhibit A hereto have
been inserted for convenience only and are not to be regarded as part of this
Deposit Agreement or the Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
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<PAGE> 14
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Deposit Agreement as of the day and year first above set forth, and all
holders or Depositary Shares shall become parties hereto by and upon a
acceptance by them of delivery of Receipts evidencing such Depositary Shares
and issued in accordance with the terms hereof.
AIRTOUCH COMMUNICATIONS, INC.
By _________________________________
[Name and Title]
[Name of Depository]
By _________________________________
Authorized Officer
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<PAGE> 15
EXHIBIT A
FORM OF DEPOSITARY RECEIPT
FOR DEPOSITARY SHARES
[GENERAL FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING _________________ PREFERRED STOCK
AIRTOUCH COMMUNICATIONS, INC.
Incorporated under the laws of the State of Delaware
This Depositary Receipt is transferable
in the City of __________________
_____________________________________, as Depositary, (the
"Depositary"), hereby certifies that __________________________ is the
registered owner of ____________________ Depositary Shares ("Depositary
Shares"), each Depositary Share representing __________________) of one share
of _______________________ Preferred Stock, Series ___, par value $.01 per
share (the "Stock"), of AirTouch Communications, Inc., a Delaware corporation
(the "Company"), on deposit with the Depositary, subject to the terms and
entitled to the benefits of the Deposit Agreement dated as of
____________________, 199__ (the "Deposit Agreement", between the Company, the
Depositary and all holders from time to time of Depositary Receipts. By
accepting this Depositary Receipt the holder hereof becomes a party to and
agrees to be bound by all the term and conditions of the Deposit Agreement.
This Depositary Receipt shall not be valid or obligatory for any purpose or
entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual signature of a duly authorized officer
or, if executed in facsimile by the Depositary, countersigned by a Registrar in
respect of the Depositary Receipts by the manual signature of a duly authorize
officer thereof.
Dated: Depositary
By: __________________________
Authorized Officer
Registrar
By: __________________________
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<PAGE> 16
[GENERAL FORM OF REVERSE OF RECEIPT]
AirTouch Communications, Inc. will furnish without charge to each
receiptholder who so requests a copy of the Deposit Agreement and a statement
or summary of the powers, designations, preferences and relative,
participating, option or other special rights of each class of stock or series
thereof which AirTouch Communications, Inc. is authorized to issue and the
qualifications, limitations or restrictions of such preferences and/or rights.
Any such request is to be addressed to the Secretary of AirTouch
Communications, Inc.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right survivorship and not
as tenants in common
UNIF GIFT MIN ACT - ______________ Custodian ___________
(Cust) (State)
Additional abbreviations may also be used though not in the above list.
For value received, _____________________________ hereby sell(s), assign(s) and
transfer(s) onto _____________________________
(Please insert social
security or other
identifying number
of Assignee)
________________________________________________________________
Please print or typewrite Name and address including postal Zip Code of
Assignee
______________________ Depositary Shares represented by the within receipt and
all rights thereunder, and do hereby irrevocably constitute and appoint
_____________________ Attorney to transfer said Depositary Shares on the books
of the within-named Depositary with full power of substitution in the premises.
Dated: _____________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of this instrument in every particular, without
alteration or enlargement or any change whatever.
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<PAGE> 1
================================================================================
EXHIBIT 4.12
FORM OF
SUBORDINATED INDENTURE
Between
AIRTOUCH COMMUNICATIONS, INC.
and
________________________, AS TRUSTEE
Dated as of ___________, 1995
================================================================================
<PAGE> 2
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS
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Section 1.01 Certain Terms Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Certified Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Global Subordinated Security . . . . . . . . . . . . . . . . . . . . . . . . .
Subordinated Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Original Issue Discount Subordinated Security . . . . . . . . . . . . . . . . .
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Principal Office of the Trustee . . . . . . . . . . . . . . . . . . . . . . . .
Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Subordinated Security or Subordinated Securities . . . . . . . . . . . . . . .
Subordinated Securityholder; Holder . . . . . . . . . . . . . . . . . . . . . .
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Supplemental Subordinated Indenture . . . . . . . . . . . . . . . . . . . . . .
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION,
TRANSFER AND EXCHANGE OF SUBORDINATED SECURITIES
Section 2.01 Amount, Series, Execution, Authentication
and Delivery of Subordinated Securities . . . . . . . . . . . . . . . . . .
</TABLE>
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Section 2.02 Form of Subordinated Securities and Trustee's
Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . .
Section 2.03 Denominations; Payment of Interest
on Subordinated Securities . . . . . . . . . . . . . . . . . . . . . . . . .
Section 2.04 Execution of Subordinated Securities . . . . . . . . . . . . . . . . . . . . .
Section 2.05 Registration, Transfer and Exchange
of Subordinated Securities . . . . . . . . . . . . . . . . . . . . . . . . .
Section 2.06 Temporary Subordinated Securities . . . . . . . . . . . . . . . . . . . . . . .
Section 2.07 Mutilated, Destroyed, Lost or Stolen
Subordinated Securities . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 2.08 Cancellation and Destruction of
Surrendered Subordinated Securities . . . . . . . . . . . . . . . . . . . . .
Section 2.09 Subordinated Securities in Global Form;
Depositories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE THREE
REDEMPTION OF SUBORDINATED SECURITIES
Section 3.01 Redemption of Subordinated Securities . . . . . . . . . . . . . . . . . . . . .
Section 3.02 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 3.03 Selection of Subordinated Securities for Redemption . . . . . . . . . . . . . .
Section 3.04 Partial Redemption of Registered
Subordinated Security . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 3.05 Effect of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01 Payment of Principal of and Interest
on Subordinated Securities . . . . . . . . . . . . . . . . . . . . . . . . .
Section 4.02 Corporate Existence of the Company;
Consolidation, Merger, Sale or
Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 4.03 Limitations on Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
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<TABLE>
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Section 4.04 Maintenance of Offices or Agencies for
Transfer, Registration, Exchange and
Payment of Subordinated Securities . . . . . . . . . . . . . . . . . . . . .
Section 4.05 Appointment to Fill a Vacancy in the
Office of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 4.06 Duties of Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 4.07 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE FIVE
SUBORDINATED SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 5.01 Company to Furnish Trustee
Information as to the Names and
Addresses of Subordinated Securityholders . . . . . . . . . . . . . . . . . .
Section 5.02 Preservation of Information;
Communication to Subordinated Securityholders . . . . . . . . . . . . . . . .
Section 5.03 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 5.04 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SUBORDINATED SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01 Events of Default; Acceleration, Waiver
of Default and Restoration of
Position and Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 6.02 Covenant of Company to Pay to Trustee
Whole Amount Due on Subordinated Securities on
Default in Payment of Interest or
Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 6.03 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . .
Section 6.04 Trustee May Enforce Claims Without
Possession of Subordinated Securities . . . . . . . . . . . . . . . . . . . .
Section 6.05 Application of Moneys Collected by
</TABLE>
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<TABLE>
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Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 6.06 Limitation on Suits By Holders of
Subordinated Securities . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 6.07 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . .
Section 6.08 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . .
Section 6.09 Control By Holders; Waiver of Past
Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 6.10 Trustee to Give Notice of Defaults
Known to It, But May Withhold in
Certain Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 6.11 Requirement of an Undertaking to Pay
Costs in Certain Suits Under the
Subordinated Indenture or Against the Trustee . . . . . . . . . . . . . . . .
ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities
of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 7.02 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 7.03 Trustee Not Responsible for Recitals
or Application of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . .
Section 7.04 Trustee May Own Subordinated Securities . . . . . . . . . . . . . . . . . . . .
Section 7.05 Moneys Received by Trustee to be Held
in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 7.06 Trustee Entitled to Compensation,
Reimbursement and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . .
Section 7.07 Right of Trustee to Rely on Officer's
Certificate Where No Other Evidence
Specifically Prescribed . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 7.08 Disqualification; Conflicting Interest . . . . . . . . . . . . . . . . . . . .
Section 7.09 Requirements for Eligibility of
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 7.10 Resignation and Removal of Trustee;
</TABLE>
<PAGE> 6
<TABLE>
<S> <C>
Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 7.11 Acceptance of Appointment by
Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 7.12 Successor to Trustee by Merger,
Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 7.13 Preferential Collection of Claims
Against the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE EIGHT
CONCERNING THE SUBORDINATED SECURITYHOLDERS
Section 8.01 Evidence of Action by Subordinated Securityholders . . . . . . . . . . . . . .
Section 8.02 Proof of Execution of Instruments and
of Holding of Subordinated Securities . . . . . . . . . . . . . . . . . . . .
Section 8.03 Who May be Deemed Owners of
Subordinated Securities . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 8.04 Subordinated Securities Owned by the Company or
Controlled or Controlling Persons
Disregarded for Certain Purposes . . . . . . . . . . . . . . . . . . . . . .
Section 8.05 Instruments Executed by Subordinated Securityholders
Bind Future Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE NINE
SUBORDINATED SECURITYHOLDERS' MEETINGS
Section 9.01 Purposes for Which Meetings May be
Called . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 9.02 Manner of Calling Meetings . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 9.03 Call of Meeting by the Company or
Subordinated Securityholders . . . . . . . . . . . . . . . . . . . . . . . .
Section 9.04 Who May Attend and Vote at Meetings . . . . . . . . . . . . . . . . . . . . . .
Section 9.05 Regulations May be Made by Trustee;
Conduct of the Meeting; Voting
Rights - Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
<PAGE> 7
<TABLE>
<S> <C>
Section 9.06 Manner of Voting at Meetings and
Record to be Kept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 9.07 Exercise of Rights of Trustee and
Subordinated Securityholders Not to be Hindered
or Delayed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE TEN
SUPPLEMENTAL SUBORDINATED INDENTURES
Section 10.01 Purposes for Which Supplemental
Subordinated Indentures May be Entered Into
Without Consent of Subordinated Securityholders . . . . . . . . . . . . . . .
Section 10.02 Modification of Subordinated Indenture with Consent
of Holders of Subordinated Securities . . . . . . . . . . . . . . . . . . . .
Section 10.03 Effect of Supplemental Subordinated Indentures. . . . . . . . . . . . . . . . .
Section 10.04 Subordinated Securities May Bear Notation of Changes
by Supplemental Subordinated Indentures . . . . . . . . . . . . . . . . . . .
ARTICLE ELEVEN
DISCHARGE; DEFEASANCE
Section 11.01 Discharge of Subordinated Indenture . . . . . . . . . . . . . . . . . . . . . .
Section 11.02 Discharge of Liability on Subordinated Securities . . . . . . . . . . . . . .
Section 11.03 Discharge of Certain Covenants and Other
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 11.04 Discharge of Certain Obligations Upon
Deposit of Money or Subordinated Securities with
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 11.05 Unclaimed Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
</TABLE>
<PAGE> 8
<TABLE>
<S> <C>
Section 12.01 Incorporators, Stockholders, Officers
and Directors of Company Exempt
From Individual Liability . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
Section 13.01 Successors and Assigns of the Company
Bound by Subordinated Indenture . . . . . . . . . . . . . . . . . . . . . . .
Section 13.02 Notices; Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 13.03 Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . .
Section 13.04 Days on Which Payment to be Made,
Notice Given or Other Action
Taken . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 13.05 Provisions Required by Trust Indenture
Act of 1939 to Control . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 13.06 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 13.07 Provisions of the Subordinated Indenture and
Subordinated Securities for the Sole Benefit of
the Parties and the Subordinated Securityholders . . . . . . . . . . . . . .
Section 13.08 Subordinated Indenture May be Executed in
Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
<PAGE> 9
TABLE SHOWING REFLECTION IN THIS SUBORDINATED INDENTURE OF
CERTAIN PROVISIONS OF THE TRUST INDENTURE ACT OF 1939*
<TABLE>
<CAPTION>
Section Section
of Act of Subordinated Indenture
------ -------------------------
<S> <C>
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
310(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
310(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
310(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
310(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08, 7.10
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13(a), 7.13(c)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13(b), 7.13(c)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.01, 5.02(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.02(b)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.02(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04(a)
313(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
313(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04(c)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04(d)
314(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03(a)
314(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03(b)
314(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03(c)
314(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03(d)
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.03
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.03
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Omitted
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.10
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
316(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Omitted
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.06
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02, 6.03
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.07
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.05
</TABLE>
______________________
* This Table is not part of the Subordinated Indenture.
<PAGE> 10
SUBORDINATED INDENTURE
THIS SUBORDINATED INDENTURE, dated as of ___________, 1995, between
AIRTOUCH COMMUNICATIONS, INC., a Delaware corporation (the "Company"), and
________________________, a_____________________ duly organized and existing
under the laws of _______________
WITNESSETH:
WHEREAS, the Company has duly authorized the issuance, sale, execution
and delivery, from time to time, of its unsecured evidences of subordinated
indebtedness (hereinafter referred to as the "Subordinated Securities"),
without limit as to principal amount, issuable in one or more Series, the
amount and terms of each such Series to be determined as hereinafter provided;
and, to provide the terms and conditions upon which the Subordinated Securities
are to be issued, authenticated and delivered, the Company has duly authorized
the execution of this Subordinated Indenture; and
WHEREAS, all acts and things necessary to make the Subordinated
Securities, when executed by the Company and authenticated and delivered by the
Trustee as in this Subordinated Indenture provided, the valid, binding and
legal subordinated obligations of the Company, and to constitute this
Subordinated Indenture a valid indenture and agreement according to its terms,
have been done and performed, and the execution of this Subordinated Indenture
and the issuance hereunder of the Subordinated Securities have in all respects
been duly authorized;
NOW, THEREFORE, THIS SUBORDINATED INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Subordinated Securities are to be issued, authenticated and delivered, and in
consideration of the premises and of the purchase and acceptance of the
Subordinated Securities by the Holders thereof, the Company covenants and
agrees with the Trustee, for the equal and proportionate benefit of the
respective Holders from time to time of the Subordinated Securities or of any
Series thereof, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. CERTAIN TERMS DEFINED. For all purposes of this
Subordinated Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article One have the
meanings assigned to them in this Article One, and include the plural
as well as the singular;
1
<PAGE> 11
(b) all other terms used herein which are defined in the
Trust Indenture Act of 1939, either directly or by reference therein,
have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein
shall have the meanings assigned to them and all computations herein
provided for shall be made, in accordance with generally accepted
accounting principles, and the term "generally accepted accounting
principles" shall mean such principles as they exist at the date of
applicability thereof; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Subordinated Indenture as
a whole and not to any particular Article, Section or other
subdivision.
BOARD OF DIRECTORS
The term "Board of Directors" shall mean the Board of Directors of the
Company, or any duly authorized committee of such Board of Directors.
BUSINESS DAY
The term "Business Day" shall mean any day which is not a Saturday or
Sunday or which in the City and County of San Francisco or in The City of New
York is neither a legal holiday nor a day on which banking institutions are
authorized by law or regulation to close.
CERTIFIED RESOLUTION
The term "Certified Resolution" shall mean a resolution of the Board
of Directors of the Company certified by the Secretary or by an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors of
the Company and to be in full force and effect on the date of such
certification.
COMMISSION
The term "Commission" shall mean the Securities and Exchange
Commission, as from time to time constituted, created under the Securities
Exchange Act of 1934, as amended, or if at any time after the execution of this
Subordinated Indenture such Commission is not existing and performing the
duties theretofore assigned to it under the Trust Indenture Act of 1939, then
the body performing such duties at such time.
COMPANY
The term "Company" shall mean Airtouch Communications, Inc., a
Delaware corporation, until a successor corporation shall have become such
pursuant to the applicable provisions hereof, and thereafter "Company" shall
mean such successor Company.
2
<PAGE> 12
DEPOSITORY
The term "Depository" shall mean, with respect to the
Subordinated Securities of any Series issuable or issued in whole or in part in
the form of one or more Global Subordinated Securities, the Person designated
as Depository by the Company pursuant to Section 2.01 of this Subordinated
Indenture until a successor Depository shall have become such pursuant to the
applicable provisions of this Subordinated Indenture, and thereafter the term
"Depository" shall mean or include each Person who is then a Depository
hereunder, and if at any time there is more than one such Person, "Depository"
as used with respect to the Subordinated Securities of any such Series shall
mean the Depository with respect to the Subordinated Securities of that Series.
EVENT OF DEFAULT
The term "Event of Default" with respect to Subordinated Securities of
any Series shall mean any event specified as such in Section 6.01 and any other
event as may be established with respect to the securities of such Series as
permitted by Section 2.01. An Event of Default shall "exist" if an Event of
Default shall have occurred and be continuing.
GLOBAL SUBORDINATED SECURITY
The term "Global Subordinated Security" shall mean a
Subordinated Security evidencing all or a portion of a Series of Subordinated
Securities, issued under the Subordinated Indenture and delivered to the
Depository for such Series in accordance with Section 2.09 of this Subordinated
Indenture, and bearing the legend prescribed in such Section 2.09.
SUBORDINATED INDENTURE
The term "Subordinated Indenture" shall mean this instrument as
originally executed, or as it may from time to time be supplemented, modified
or amended, as provided herein, and shall include the form and terms of
particular Series of Subordinated Securities established in accordance with the
provisions of Sections 2.01 and 2.02.
INTEREST PAYMENT DATE
The term "Interest Payment Date" when used with respect to any
Subordinated Security means the Stated Maturity of an installment of interest
on such Subordinated Security.
OFFICER'S CERTIFICATE
The term "Officer's Certificate" shall mean a certificate signed by
the Chairman of the Board, any Vice-Chairman of the Board or any
Vice-President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company. Each such certificate shall include the
statements provided for in Section 13.03, if and to the extent required by the
provisions of such Section.
OPINION OF COUNSEL
The term "Opinion of Counsel" shall mean a written opinion of counsel
who may be counsel to the Company. Each such opinion shall include the
statements provided for in Section 13.03, if and to the extent required by the
provisions of such Section.
3
<PAGE> 13
ORIGINAL ISSUE DISCOUNT SUBORDINATED SECURITY
The term "Original Issue Discount Subordinated Security" shall mean
(a) any Subordinated Security which provides for an amount less than the
principal amount thereof to be due and payable upon declaration of acceleration
of the maturity thereof pursuant to Section 6.01 or (b) any other Subordinated
Security which for United States Federal income tax purposes would be
considered an original issue discount security.
OUTSTANDING
The term "Outstanding" when used with reference to Subordinated
Securities shall, subject to the provisions of Section 8.04, mean, as of the
date of determination, all Subordinated Securities theretofore authenticated
and delivered under this Subordinated Indenture, except:
(a) Subordinated Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Subordinated Securities, for whose payment or
redemption moneys in the necessary amount have been theretofore
deposited with the Trustee or with any Paying Agent in trust for the
Holders of such Subordinated Securities, provided that if such
Subordinated Securities are to be redeemed, notice of such redemption
has been duly given as provided in Article Three hereof, or provision
therefor satisfactory to the Trustee has been made;
(c) Subordinated Securities in exchange for or in lieu of
which other Subordinated Securities shall have been authenticated and
delivered under this Subordinated Indenture; and
(d) Subordinated Securities alleged to have been
destroyed, lost or stolen which have been paid as provided in Section
2.07 hereof.
In determining whether the Holders of the requisite principal amount
of Outstanding Subordinated Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Subordinated Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination as
if a declaration of acceleration of the maturity thereof pursuant to Section
6.01 had been made.
PAYING AGENT
The term "Paying Agent" means any Person authorized by the Company to
pay the principal of and any interest and premium on any Subordinated
Securities on behalf of the Company.
PERSON
The term "Person" shall mean an individual, a corporation, a
partnership, a joint venture, an association, a joint stock company, a trust,
an unincorporated organization, or a government or any agency, authority or
political subdivision thereof.
PRINCIPAL OFFICE OF THE TRUSTEE
4
<PAGE> 14
The term "Principal Office of the Trustee" shall mean the principal
office of the Trustee in ______________________ at which at any particular time
its corporate trust business shall be administered, except that with respect to
presentation of Subordinated Securities for payment such term shall mean the
office or agency of the Trustee at which at any particular time its corporate
agency business shall be conducted. The present address of the principal
office at which the corporate trust business of the Trustee is administered is
_____________, ________________.
RECORD DATE
The term "Record Date" for the interest payable on any Interest
Payment Date on any Series of Subordinated Securities shall mean the date
specified as such in the Subordinated Securities of such Series.
REDEMPTION DATE
The term "Redemption Date" when used with respect to any Subordinated
Security to be redeemed means the date fixed for such redemption pursuant to
this Subordinated Indenture.
REDEMPTION PRICE
The term "Redemption Price" when used with respect to any Subordinated
Security to be redeemed means the price at which it is to be redeemed pursuant
to this Subordinated Indenture. It includes any applicable premium but does
not include installments of interest whose Stated Maturity is on or before the
Redemption Date.
REGISTER
The term "Register" shall mean the books for the registration and
transfer of Subordinated Securities which books are kept by the Trustee
pursuant to Section 2.05.
RESPONSIBLE OFFICER
The term "Responsible Officer" when used with respect to the Trustee
shall mean the chairman and vice-chairman of the board of directors, the
chairman and vice-chairman of the executive committee of said board, the
president, any vice-president or second vice-president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any corporate trust officer, the controller, any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer
of the Trustee to whom such matter is referred because of such Person's
knowledge of and familiarity with the particular subject.
SUBORDINATED SECURITY OR SUBORDINATED SECURITIES
The terms "Subordinated Security" or "Subordinated Securities" shall
mean any security or securities of the Company without regard to Series,
authenticated and delivered under this Subordinated Indenture.
SUBORDINATED SECURITYHOLDER; HOLDER
The terms "Subordinated Securityholder" or "Holder", whenever employed
herein with respect to a Subordinated Security, shall mean the Person in whose
name such Subordinated Security shall be registered on the Register.
5
<PAGE> 15
SERIES
The term "Series" shall mean an issue of Subordinated Securities under
this Subordinated Indenture.
STATED MATURITY
The term "Stated Maturity" when used with respect to any Subordinated
Security or any installment of interest thereon means the date specified in
such Subordinated Security as the fixed date on which the principal of such
Subordinated Security or such installment of interest is due and payable.
SUPPLEMENTAL SUBORDINATED INDENTURE
The term "Supplemental Subordinated Indenture" shall mean an
indenture supplemental hereto as such Supplemental Subordinated Indenture may
be originally executed, or as it may from time to time be supplemented,
modified or amended, as provided herein and therein.
TRUSTEE
The term "Trustee" shall mean ________________________ until a
successor Trustee shall have become such pursuant to the applicable provisions
of this Subordinated Indenture, and thereafter "Trustee" shall mean such
successor Trustee.
TRUST INDENTURE ACT OF 1939
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture
Act of 1939, as amended as of the date of this Subordinated Indenture.
UNITED STATES DOLLARS
The term "United States Dollars" shall mean the lawful currency of the
United States of America.
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION,
TRANSFER AND EXCHANGE OF SUBORDINATED SECURITIES
SECTION 2.01. AMOUNT, SERIES, EXECUTION, AUTHENTICATION AND DELIVERY
OF SUBORDINATED SECURITIES. The aggregate principal amount of Subordinated
Securities which may be authenticated and delivered under this Subordinated
Indenture is not limited. The Subordinated Securities may be issued in one or
more Series.
(A) The following terms and provisions of each Series of
Subordinated Securities shall be established by a resolution of the Board of
Directors and set forth in either a Certified Resolution or a Supplemental
Subordinated Indenture:
6
<PAGE> 16
(1) the designation of the Series of Subordinated
Securities (which shall distinguish the Subordinated Securities of
such Series from all other Series of Subordinated Securities),
(2) any limit upon the aggregate principal amount of the
particular Series of Subordinated Securities which may be executed,
authenticated and delivered under this Subordinated Indenture;
provided, however, that nothing contained in this Section 2.01 or
elsewhere in this Subordinated Indenture or in the Subordinated
Securities or in such Certified Resolution or in a Supplemental
Subordinated Indenture is intended to or shall limit execution by the
Company or authentication and delivery by the Trustee of Subordinated
Securities under the circumstances contemplated by Sections 2.05,
2.06, 2.07, 3.04 and 10.04,
(3) the currency or currencies or composite currency in
which principal of and interest and any premium on such Series of
Subordinated Securities shall be payable (if other than in United
States Dollars),
(4) the Stated Maturity for payment of principal of such
Series of Subordinated Securities and any sinking fund or analogous
provisions,
(5) the rate or rates at which such Series of
Subordinated Securities shall bear interest or the method of
calculating such rate or rates of interest and the Interest Payment
Dates for such Series of Subordinated Securities and the right, if
any, of the Company to extend the time for payment of interest, the
terms and duration of such extension rights,
(6) the place or places where such Series of Subordinated
Securities may be presented for payment and for the other purposes
provided in Section 4.04,
(7) any Redemption Price or Prices, the Redemption Date
or Dates and other applicable redemption or repurchase provisions for
such Series of Subordinated Securities,
(8) whether such Series of Subordinated Securities shall
be issuable as one or more Global Subordinated Securities and the form
of such Series of Subordinated Securities,
(9) if the Subordinated Securities of such Series shall
be issued in whole or in part as one or more Global Subordinated
Securities, the Depository for such Global Subordinated Security or
Subordinated Securities and any additional terms and conditions
relating to such Global Subordinated Securities not set forth in this
Subordinated Indenture,
(10) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which such Series of
Subordinated Securities shall be issuable,
(11) the date from which interest on such Subordinated
Securities shall accrue,
(12) the basis upon which interest on such Series of
Subordinated Securities shall be computed (if other than on the basis
of a 360-day year of twelve 30-day months),
(13) if other than the principal amount thereof, the
portion of the principal amount of such Series of Subordinated
Securities which shall be payable upon declaration of acceleration of
the maturity thereof pursuant to Section 6.01,
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(14) the Person or Persons who shall be registrar for such
Series of Subordinated Securities, and the place or places where the
Register of such Series of Subordinated Securities shall be kept,
(15) any additional events of default with respect to the
Subordinated Securities of a particular Series not set forth herein,
(16) any additional covenants of the Company with respect
to the Subordinated Securities of a particular Series not set forth
herein,
(17) the terms of subordination applicable to such Series
of Subordinated Securities,
(18) the terms and conditions, if any, upon which any
Subordinated Securities of such Series may or shall be converted into
other instruments or other forms of property and
(19) any other terms of such Series of Subordinated
Securities (which terms shall not be inconsistent with the provisions
of this Subordinated Indenture).
All Subordinated Securities of any one Series shall be substantially
identical except that any Series may have serial maturities and different
interest rates for different maturities and except as to denomination and the
differences herein specified between Global Subordinated Securities and
Subordinated Securities issued in definitive form and except as may otherwise
be provided in or pursuant to the Certified Resolution or Supplemental
Subordinated Indenture relating to such Series of Subordinated Securities. All
Subordinated Securities of any one Series need not be issued at the same time,
and, unless otherwise provided in the Certified Resolution or Supplemental
Subordinated Indenture relating to such Series, a Series may be reopened for
issuances of additional Subordinated Securities of such Series.
(B) At any time and from time to time after the execution and
delivery of this Subordinated Indenture, the Company may deliver any Series of
Subordinated Securities executed by the Company to the Trustee for
authentication by it, and the Trustee shall thereupon authenticate and deliver
said Subordinated Securities (or if only a single Global Subordinated Security,
such Global Subordinated Security) to or upon the written order of the Company,
signed by an officer of the Company, without any further corporate action. In
authenticating such Subordinated Securities and accepting the additional
responsibilities under this Subordinated Indenture in relation to such
Subordinated Securities the Trustee shall be entitled to receive, and (subject
to Section 7.01) shall be fully protected in relying upon:
(1) each Certified Resolution relating to such Series of
Subordinated Securities,
(2) an executed Supplemental Subordinated Indenture, if
any, relating to such Series of Subordinated Securities,
(3) an Opinion of Counsel to the effect that:
(a) the terms and form of such Subordinated
Securities have been established as permitted by Sections 2.01
and 2.02 in conformity with the provisions of this
Subordinated Indenture,
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(b) such Subordinated Securities, when executed
and issued by the Company and authenticated and delivered by
the Trustee in accordance with the provisions of this
Subordinated Indenture and subject to any conditions specified
in such Opinion of Counsel, will constitute valid and binding
obligations of the Company, except as any rights thereunder
may be limited by the effect of bankruptcy, insolvency,
reorganization, receivership, conservatorship, arrangement,
moratorium or other laws affecting or relating to the rights
of creditors generally; the rules governing the availability
of specific performance, injunctive relief or other equitable
remedies and general principles of equity, regardless of
whether considered in a proceeding in equity or at law; the
effect of applicable court decisions invoking statutes or
principles of equity, which have held that certain covenants
and provisions of agreements are unenforceable where the
breach of such covenants or provisions imposes restrictions or
burdens upon a borrower, and it cannot be demonstrated that
the enforcement of such restrictions or burdens is necessary
for the protection of the creditor, or which have held that
the creditor's enforcement of such covenants or provisions
under the circumstances would have violated the creditor's
covenants of good faith and fair dealing implied under
California law; and the effect of California statutes and
rules of law which cannot be waived prospectively by a
borrower, and
(c) the Company has complied with all applicable
Federal laws and requirements in respect of the execution and
delivery of such Subordinated Securities.
SECTION 2.02. FORM OF SUBORDINATED SECURITIES AND TRUSTEE'S
CERTIFICATE OF AUTHENTICATION. The Subordinated Securities of each Series
shall be substantially of the tenor and purport as shall be authorized by the
related Certified Resolution or Supplemental Subordinated Indenture, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Subordinated Indenture, and may
have such letters, numbers or other marks of identification or designation and
such legends or endorsements thereon as the Board of Directors may deem
appropriate and as are not inconsistent with the provisions of this
Subordinated Indenture, or as may be required to comply with any law or with
any rule or regulation made pursuant thereto or with any rule or regulation of
any stock exchange on which the Subordinated Securities of such Series may be
listed, or to conform to usage.
The definitive Subordinated Securities and each Global Subordinated
Security may be printed, lithographed or fully or partly engraved or produced
in any other manner, all as determined by the officers executing such
Subordinated Securities, as evidenced by their execution thereof.
The Trustee's certificate of authentication shall be in substantially
the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Securities, of the Series
designated herein, referred to in the within-mentioned Subordinated
Indenture.
__________________________, as Trustee
By____________________________________
Authorized Officer
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SECTION 2.03. DENOMINATIONS; PAYMENT OF INTEREST ON SUBORDINATED
SECURITIES. The Subordinated Securities of each Series may be issued as fully
registered Subordinated Securities in denominations all as shall be specified
as contemplated by Section 2.01. In the absence of such provisions with
respect to the Subordinated Securities of any Series, the Subordinated
Securities of such Series (other than any Global Subordinated Securities) shall
be issued in denominations of $1,000 and any integral multiple thereof.
If the Subordinated Securities of any Series shall bear interest, each
Subordinated Security of such Series shall bear interest from the applicable
date at the rate per annum specified in the Certified Resolution or
Supplemental Subordinated Indenture with respect to such Series of Subordinated
Securities. Unless otherwise specified in the Certified Resolution or
Supplemental Subordinated Indenture with respect to the Subordinated Securities
of any Series, interest on the Subordinated Securities of such Series shall be
computed on the basis of a 360-day year of twelve 30-day months. Such
interest shall be payable on the Interest Payment Dates specified in the
Certified Resolution or Supplemental Subordinated Indenture with respect to
such Series of Subordinated Securities. The Person in whose name any
Subordinated Security is registered at the close of business on the applicable
Record Date for the Series of which such Subordinated Security is a part shall
be entitled to receive the interest payable thereon on such Interest Payment
Date notwithstanding the cancellation of such Subordinated Security upon any
transfer or exchange thereof subsequent to such Record Date and prior to such
Interest Payment Date unless such Subordinated Security shall have been called
for redemption on a Redemption Date which is subsequent to such Record Date and
prior to such Interest Payment Date or unless the Company shall default in the
payment of interest due on such Interest Payment Date on any Subordinated
Security of such Series.
Any interest on any Subordinated Security of any Series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered Holder on the relevant Record Date solely by virtue
of such Holder having been such Holder; and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in subsection A or B
below:
A. The Company may elect to make payment of any
Defaulted Interest on the Subordinated Securities of any Series to the
Persons in whose names such Subordinated Securities are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Subordinated Security and the
date of the proposed payment (which date shall be such as will enable
the Trustee to comply with the next sentence hereof), and at the same
time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this subsection
provided. Thereupon the Trustee shall fix a special record date (the
"Special Record Date") for the payment of such Defaulted Interest
which shall be not more than 15 nor less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to
each Holder of a Subordinated Security of such Series at such
Holder's address as it appears in the Subordinated Security Register
not less than 10 days prior to such Special Record Date. Notice of
the proposed
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payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Subordinated
Securities of such Series are registered on such Special Record Date
and shall no longer be payable pursuant to the following subsection B.
B. The Company may make payment of any Defaulted
Interest on the Subordinated Securities of any Series in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Subordinated Securities may be listed and upon
such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant
to this subsection, such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section 2.03, each
Subordinated Security delivered under this Subordinated Indenture upon transfer
of or in exchange for or in lieu of any other Subordinated Security shall carry
all the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Subordinated Security and each such Subordinated Security
shall bear interest from such date, such that neither gain nor loss in interest
shall result from such transfer, exchange or substitution.
SECTION 2.04. EXECUTION OF SUBORDINATED SECURITIES. The Subordinated
Securities shall be executed manually or in facsimile, by an officer and the
Secretary or an Assistant Secretary of the Company under its corporate seal,
which may be affixed thereto or printed, engraved or otherwise reproduced
thereon, by facsimile or otherwise. Only such Subordinated Securities as shall
bear thereon a certificate of authentication substantially in the form recited
herein, executed by the Trustee manually by an authorized officer, shall be
entitled to the benefits of this Subordinated Indenture or be valid or
obligatory for any purpose. Such certificate of authentication of the Trustee
upon any Subordinated Security executed by the Company shall be conclusive
evidence that the Subordinated Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Subordinated Indenture. Typographical or other errors or
defects in the seal or facsimile signature on any Subordinated Security or in
the text thereof shall not affect the validity or enforceability of such
Subordinated Security if it has been duly authenticated and delivered by the
Trustee.
In case any officer of the Company who shall have signed any of the
Subordinated Securities (manually or in facsimile) shall cease to be such
officer before the Subordinated Securities so signed shall have been
authenticated and delivered by the Trustee, or disposed of by the Company, such
Subordinated Securities nevertheless may be authenticated and delivered or
disposed of as though the Person who signed such Subordinated Securities had
not ceased to be such officer of the Company. Also, any Subordinated Security
may be signed on behalf of the Company by such Persons as on the actual date of
execution of such Subordinated Security shall be the proper officers of the
Company, although at the date of the execution of this Subordinated Indenture
or on the nominal date of such Subordinated Security any such Person was not
such officer.
SECTION 2.05. REGISTRATION, TRANSFER AND EXCHANGE OF SUBORDINATED
SECURITIES. Except as specifically otherwise provided herein with respect to
Global Subordinated Securities, Subordinated Securities of any Series may be
exchanged for a like aggregate principal amount of Subordinated Securities of
the same Series of other authorized denominations. Subordinated Securities to
be exchanged shall be surrendered at the offices or agencies to be maintained
in accordance with the provisions of Section 4.04 and the Company shall execute
the Subordinated Security or Subordinated Securities, and the Trustee shall
authenticate and deliver in exchange therefor the Subordinated Security or
Subordinated Securities which the Subordinated Securityholder making the
exchange shall be entitled to receive.
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<PAGE> 21
The Company shall cause the Trustee to keep or cause to be kept, at
one or more of the offices or agencies to be maintained by the Trustee in
accordance with the provisions of Section 4.04 with respect to the Subordinated
Securities of each Series, the Register in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of the Subordinated Securities of such Series and the transfer of Subordinated
Securities of such Series as in this Article provided. The Register shall be
in written form or in any other form capable of being converted into written
form within a reasonable time. At all reasonable times the Register shall be
open for inspection by the Trustee and any registrar of the Subordinated
Securities of such Series other than the Trustee. Upon due presentment for
transfer of any Subordinated Security of any Series at the offices or agencies
of the Company to be maintained in accordance with Section 4.04 with respect to
the Subordinated Securities of such Series, the Company shall execute a new
Subordinated Security and the Trustee shall authenticate and deliver in the
name of the transferee or transferees a new Subordinated Security or
Subordinated Securities of the same Series for a like aggregate principal
amount of authorized denominations.
Notwithstanding any other provisions of this Section 2.05, unless and
until it is exchanged in whole or in part for Subordinated Securities in
definitive form, a Global Subordinated Security representing all or a portion
of the Subordinated Securities of a Series may not be transferred except as a
whole by the Depository for such Series to a nominee of such Depository or by a
nominee of such Depository to such Depository or another nominee of such
Depository or by such Depository or any such nominee to a successor Depository
for such Series or a nominee of such successor Depository.
All Subordinated Securities of any Series presented or surrendered for
exchange, transfer, redemption, conversion or payment shall, if so required by
the Company or any registrar of the Subordinated Securities of such Series, be
accompanied by a written instrument or instruments of transfer, in form
satisfactory to the Company and such registrar, duly executed by the registered
Holder or by such Person's attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Subordinated Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto.
The Company shall not be required to exchange or transfer (a) any
Subordinated Securities of any Series during a period beginning at the opening
of business 15 days before the day of the first publication or the mailing (if
there is no publication) of a notice of redemption of Subordinated Securities
of such Series and ending at the close of business on the day of such
publication or mailing or (b) any Subordinated Securities called or selected
for redemption in whole or in part, except, in the case of Subordinated
Securities called for redemption in part, the portion thereof not so called for
redemption in whole or in part or during a period beginning at the opening of
business on any Record Date for such Series and ending at the close of business
on the relevant Interest Payment Date therefor.
SECTION 2.06. TEMPORARY SUBORDINATED SECURITIES. Pending the
preparation of definitive Subordinated Securities of any Series, the Company
may execute and the Trustee shall authenticate and deliver temporary
Subordinated Securities of such Series which are printed, lithographed,
typewritten or otherwise produced, in any denomination substantially of the
tenor of the definitive Subordinated Securities in lieu of which they are
issued, in registered form and with such appropriate omissions, insertions,
substitutions and other variations as the officers executing such Subordinated
Securities may determine, as evidenced by their execution of such Subordinated
Securities. Every such temporary Subordinated Security shall be authenticated
by the Trustee upon the same conditions and in substantially the same manner,
and with the same effect, as the definitive Subordinated Securities. If
temporary Subordinated Securities are issued, the Company will cause definitive
Subordinated Securities to be prepared without unreasonable delay. After the
preparation of definitive Subordinated Securities, the temporary Subordinated
Securities of
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<PAGE> 22
such Series shall be exchangeable for definitive Subordinated Securities upon
surrender of the temporary Subordinated Securities without charge to the Holder
at the offices or agencies to be maintained by the Trustee as provided in
Section 4.04 with respect to the Subordinated Securities of such Series. Upon
surrender for cancellation of any one or more temporary Subordinated Securities
the Company shall execute and the Trustee shall authenticate and deliver in
exchange for such temporary Subordinated Securities an equal aggregate
principal amount of definitive Subordinated Securities of such Series. Until
so exchanged, the temporary Subordinated Securities of any Series shall in all
respects be entitled to the benefits of this Subordinated Indenture and
interest thereon, when and as payable, shall be paid to the registered owners
thereof.
SECTION 2.07. MUTILATED, DESTROYED, LOST OR STOLEN SUBORDINATED
SECURITIES. If (I) any mutilated Subordinated Security is surrendered to the
Trustee, or the Company and the Trustee receive evidence to their satisfaction
of the destruction, loss or theft of any Subordinated Security and (ii) there
is delivered to the Company and the Trustee such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Subordinated Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Subordinated Security, a new
Subordinated Security of the same Series and of like tenor and principal
amount, bearing a number not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Subordinated
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Subordinated Security, pay such
Subordinated Security.
Upon the issuance of any new Subordinated Security under this Section
2.07, the Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any
other expenses connected therewith.
Every new Subordinated Security issued pursuant to this Section 2.07
in lieu of any destroyed, lost or stolen Subordinated Security shall constitute
an original additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Subordinated Security shall be at any time
enforceable by anyone, and shall be entitled to all the security and benefits
of this Subordinated Indenture equally and ratably with all other Outstanding
Subordinated Securities of such Series.
The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Subordinated
Securities.
SECTION 2.08. CANCELLATION AND DESTRUCTION OF SURRENDERED
SUBORDINATED SECURITIES. All Subordinated Securities surrendered for payment,
redemption, transfer, conversion or exchange shall, if surrendered to the
Company, the Trustee or any agent of the Company or of the Trustee, be
delivered to the Trustee, and the same, together with Subordinated Securities
surrendered to the Trustee for cancellation, shall be canceled by it and
thereafter disposed of by it as directed by the Company, and no Subordinated
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Subordinated Indenture. The Trustee shall destroy
canceled Subordinated Securities and deliver a certificate of destruction
thereof to the Company unless by an Officer's Certificate of the Company, the
Company shall direct that canceled Subordinated Securities be returned to it.
If the Company shall purchase or otherwise acquire any of the Subordinated
Securities, however, such purchase or acquisition shall not operate as a
payment, redemption or satisfaction of the indebtedness represented by such
Subordinated Securities unless and until the Company, at its option shall
deliver or surrender the same to the Trustee for cancellation.
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SECTION 2.09. SUBORDINATED SECURITIES IN GLOBAL FORM; DEPOSITORIES.
(a) Each Global Subordinated Security shall: (i) represent and be denominated
in an aggregate amount equal to the aggregate principal amount of the
Subordinated Securities of the Series to be represented by such Global
Subordinated Security, (ii) be registered in the name of either the Depository
for such Global Subordinated Security or the nominee of such Depository, (iii)
be delivered by the Trustee to such Depository or pursuant to such Depository's
written instruction and (iv) bear a legend substantially to the following
effect: "Unless and until it is exchanged in whole or in part for Subordinated
Securities in definitive form, this Global Subordinated Security may not be
transferred except as a whole by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any nominee to a successor Depository or a
nominee of any successor Depository." The notation of the record owner's
interest in such Global Subordinated Security upon the original issuance
thereof shall be deemed to be delivery in connection with the original issuance
of each beneficial owner's interest in such Global Subordinated Security.
Without limiting the foregoing, the Company and the Trustee shall have no
responsibility, obligation or liability with respect to: (x) the maintenance,
review or accuracy of the records of the Depository or of any of its
participating organizations with respect to any ownership interest in or
payments with respect to such Global Subordinated Security, (y) any
communication with or delivery of any notice (including notices of redemption)
with respect to the Series of Subordinated Securities represented by the Global
Subordinated Security to any Person having any ownership interest in such
Global Subordinated Security or to any of the Depository's participating
organizations or (z) any payment made on account of any beneficial ownership
interest in such Global Subordinated Security.
(b) If any Subordinated Security of a Series is issuable in the
form of a Global Subordinated Security or Subordinated Securities, each such
Global Subordinated Security may provide that it shall represent the aggregate
amount of Outstanding Subordinated Securities of such Series from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Subordinated Securities of such Series represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Global Subordinated
Security to reflect the amount of Outstanding Subordinated Securities of a
Series represented thereby shall be made by the Trustee and in such manner as
shall be specified on such Global Subordinated Security. Any instructions by
the Company with respect to a Global Subordinated Security, after its initial
issuance, shall be in writing but need not comply with Section 13.03 of this
Subordinated Indenture.
(c) Each Depository designated pursuant to the provisions of
Section 2.01 of this Subordinated Indenture for a Global Subordinated Security
must, at the time of its designation and at all times while it serves as a
depositary, be a clearing agency registered under the Securities Exchange Act
of 1934, as amended, and any other applicable statute or regulation. If at any
time the Depository for the Subordinated Securities of a Series notifies the
Company that it is unwilling or unable to continue as Depository for the
Subordinated Securities of such Series or if at any time the Depository for the
Subordinated Securities of such Series shall no longer be eligible under this
Section 2.09, the Company shall appoint a successor Depository with respect to
the Subordinated Securities of such Series. If a successor Depository for the
Subordinated Securities of such Series is not appointed by the Company within
90 days after the Company receives such notice or learns of such ineligibility,
the Company shall execute and the Company shall direct the Trustee to
authenticate and deliver definitive Subordinated Securities of such Series in
authorized denominations in exchange for the Global Subordinated Security or
Subordinated Securities. Upon receipt of such direction, the Trustee shall
thereupon authenticate and deliver the definitive Subordinated Securities of
such Series in the same aggregate principal amount as the Global Subordinated
Security or Subordinated Securities representing such Series in exchange for
such Global Subordinated Security or Subordinated Securities, in accordance
with the provisions of subsection (e) of this Section 2.09, without any further
corporate action by the Company.
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(d) The Company may at any time and in its sole discretion
determine that the Subordinated Securities of any Series issued in the form of
one or more Global Subordinated Securities shall no longer be represented by
such Global Subordinated Security or Subordinated Securities. In such event,
the Company will execute and upon receipt of a written order from the Company,
the Trustee shall thereupon authenticate and deliver Subordinated Securities of
such Series in definitive form and in authorized denominations in an aggregate
principal amount equal to the principal amount of the Global Subordinated
Security or Subordinated Securities representing such Series in exchange for
such Global Subordinated Security or Subordinated Securities, in accordance
with the provisions of subsection (e) of this Section 2.09 without any further
corporate action by the Company.
(e) Upon any exchange hereunder of the Global Subordinated
Security or Subordinated Securities for Subordinated Securities in definitive
form, such Global Subordinated Security or Subordinated Securities shall be
canceled by the Trustee. Subordinated Securities issued hereunder in exchange
for the Global Subordinated Security or Subordinated Securities shall be
registered in such names and in such authorized denominations as the Depository
for such Global Subordinated Security, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such definitive Subordinated Securities in exchange for the
Global Subordinated Security or Subordinated Securities to the persons in whose
name such definitive Subordinated Securities have been registered in accordance
with the directions of the Depository.
ARTICLE THREE
REDEMPTION OF SUBORDINATED SECURITIES
SECTION 3.01. REDEMPTION OF SUBORDINATED SECURITIES. Subordinated
Securities of any Series may be made subject to redemption prior to their
Stated Maturity, as a whole or in part, at such time or times, upon payment of
the principal amount thereof plus such premium or premiums, if any, as shall be
set forth in the resolution of the Board of Directors or the Supplemental
Subordinated Indenture relating to such Series.
SECTION 3.02. NOTICE OF REDEMPTION. In all cases other than
redemption at the option of the Holders of Subordinated Securities, notice of
redemption shall be given by mail, not less than 30 nor more than 60 days prior
to the Redemption Date, to each Person in whose name any Subordinated Security
called for redemption is registered on the Register as of the date of such
notice, but neither a failure to give notice by mail nor any defect in any
notice so mailed shall affect the validity of the proceedings for such
redemption. Each notice of redemption shall state the Redemption Date, the
Redemption Price, the place of redemption, the principal amount and, if less
than all, the distinctive numbers of the Subordinated Securities to be redeemed
and shall also state that the interest on the Subordinated Securities in such
notice designated for redemption shall cease to accrue from and after such
Redemption Date.
Notice of redemption of Subordinated Securities may be given by the
Company or, at the option of the Company, by the Trustee on behalf of the
Company. Upon receipt of any direction to give notice, the Trustee shall
immediately give such notice. The Trustee may rely upon such direction that
all conditions precedent to the giving of such direction have been complied
with or done.
SECTION 3.03. SELECTION OF SUBORDINATED SECURITIES FOR REDEMPTION.
Whenever provision is made for the redemption of any Series of Subordinated
Securities or portion thereof and less than all of the Subordinated Securities
of such Series or portion thereof are called for redemption, the Trustee shall
select the Subordinated Securities to be redeemed, from the Outstanding
Subordinated Securities of such Series or
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<PAGE> 25
portion thereof not previously called for redemption, in any manner which the
Trustee deems fair and appropriate. For the purpose of any such selection, the
Trustee shall assign a separate number for each $1,000 principal amount of each
Subordinated Security of a denomination of more than $1,000 except that if the
Subordinated Securities of any Series are denominated in a currency other than
U.S. dollars, the Trustee shall assign a separate number for each principal
amount equal to the minimum denomination of each Subordinated Security of such
Series of a denomination greater than such minimum denomination.
SECTION 3.04. PARTIAL REDEMPTION OF REGISTERED SUBORDINATED SECURITY.
Upon surrender of any registered Subordinated Security (including any Global
Subordinated Security) to be redeemed in part only, the Company shall execute
and the Trustee shall authenticate and deliver to the registered owner thereof,
without service charge, a new Subordinated Security or Subordinated Securities
(or in the case of a Global Subordinated Security, a new Global Subordinated
Security) of the same Series and maturity and of authorized denomination or
denominations as requested by such registered owners, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Subordinated Security so surrendered.
SECTION 3.05. EFFECT OF REDEMPTION. If notice of redemption shall
have been duly given as provided in Section 3.02, the Subordinated Securities
or portions of Subordinated Securities specified in such notice shall become
due and payable on the Redemption Date and at the place or places stated in
such notice at the Redemption Price specified in such notice, and on and after
such Redemption Date (unless the Company shall default in the payment of such
Subordinated Securities at the applicable Redemption Price) such Subordinated
Securities or portions of Subordinated Securities shall cease to bear interest,
and such Subordinated Securities shall cease from and after the Redemption Date
to be entitled to any benefit or security under this Subordinated Indenture,
and the Holders thereof shall have no right in respect of such Subordinated
Securities except the right to receive the Redemption Price thereof and any
unpaid interest accrued to the Redemption Date. Upon presentation and
surrender of such Subordinated Securities at said place of payment in said
notice specified, the said Subordinated Securities or portions thereof shall be
paid and redeemed by the Company at the applicable Redemption Price, together
with any interest accrued to the Redemption Date; provided, however, that any
regular payment of interest becoming due on any Subordinated Securities on the
Redemption Date shall be payable to the registered owners of such Subordinated
Securities as of the Relevant Record Date as provided in Article Two hereof.
Upon presentation of any Subordinated Security which is redeemed in part only,
the Company shall execute a new Subordinated Security and the Trustee shall
authenticate and deliver at the expense of the Company a new Subordinated
Security of the same Series of authorized denomination in principal amount
equal to the unredeemed portion of the Subordinated Security so presented.
If any Subordinated Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal thereof shall, to the
extent permitted by law, bear interest from the date fixed for redemption at
the rate borne by the Subordinated Security, or, in the case of a Subordinated
Security which does not bear interest, at the rate of interest set forth
therefor in the Subordinated Security in either case, until paid.
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ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. PAYMENT OF PRINCIPAL OF AND INTEREST ON SUBORDINATED
SECURITIES. The Company covenants that it will duly and punctually pay or
cause to be paid the principal of and any interest and premium on each of the
Subordinated Securities in accordance with the terms of the Subordinated
Securities and this Subordinated Indenture. Except with respect to any Global
Subordinated Securities, if the Subordinated Securities of any Series bear
interest, each installment of interest on the Subordinated Securities of such
Series may, at the option of the Company, be paid by mailing a check or checks
for such interest payable to the Person entitled thereto pursuant to Section
2.03 to the address of such Person as it appears on the Register of the
Subordinated Securities of such Series on the applicable Record Date for such
interest payment.
SECTION 4.02. CORPORATE EXISTENCE OF THE COMPANY; CONSOLIDATION,
MERGER, SALE OR TRANSFER. The Company covenants that so long as any of the
Subordinated Securities are Outstanding, it will maintain its existence, will
not dissolve, sell or otherwise dispose of all or substantially all of its
assets and will not consolidate with or merge into another entity or permit one
or more other entities to consolidate with or merge into it; provided that the
Company may, without violating the covenants in this Section 4.02 contained,
consolidate with or merge into another entity or permit one or more other
entities to consolidate with or merge into it, or sell or otherwise transfer to
another entity all or substantially all of its assets as an entirety and
thereafter dissolve, if the surviving, resulting or transferee entity, as the
case may be, (I) shall be organized and existing under the laws of one of the
States of the United States of America, (ii) assumes, if such entity is not the
Company, all of the obligations of the Company hereunder and (iii) is not,
after such transaction, otherwise in default under any provisions hereof.
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SECTION 4.03. LIMITATIONS ON DIVIDENDS. The provisions of this Section
shall apply so long as Subordinated Securities of any Series are outstanding,
except to the extent that the provisions contained in this Section 4.03 are
expressly made inapplicable to the Subordinated Securities of a particular
Series, as specified in the terms of such Series in accordance with Section
2.01 hereof at the time of issuance of such series.
(1) If a particular Series of Subordinated Notes are
issued to one or more trusts established under the Delaware Trust Act
in connection with the issuance of securities by such trust and (a)
there shall have occurred any Event of Default or (b) the Company
shall be in default with respect to its payment of any obligation with
respect to any guarantee issued by the Company with respect to
securities issued by such Trust, then (I) the Company shall not
declare or pay any dividend on, make any distributions with respect
to, or redeem, purchase or make a liquidation payment with respect to,
any of its capital stock and (ii) the Company shall not make any
payment of interest, principal or any premium on or repay, repurchase
or redeem any debt securities issued by the Company which rank pari
passu with or junior to such Series of Subordinated Notes.
(2) If a particular Series of Subordinated Securities are
issued to one or more trusts established under the Delaware Trust Act
in connection with the issuance of securities by such trust and the
Company shall have exercised its right to defer payments of interest
on such Series of Subordinated Securities by extending the Interest
Payment Dated in accordance with the provisions of the Supplemental
Indenture establishing the terms of such Series of Subordinated
Securities or any extension thereof shall be continuing, then (a) the
Company shall not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase or make a
liquidation payment with respect to, any of its capital stock and (b)
the Company shall not make any payment of interest, principal or any
premium on or repay or repurchase or redeem any debt securities issued
by the Company which rank pari passu with such Series of Subordinated
Securities.
(3) The restrictions set forth in Section 4.03(1)(a) and
(2)(a) do not apply to any stock dividend paid by the Company where
the dividend stock is of the same class as that of the stock held by
the holder receiving the dividend.
SECTION 4.04. MAINTENANCE OF OFFICES OR AGENCIES FOR TRANSFER,
REGISTRATION, EXCHANGE AND PAYMENT OF SUBORDINATED SECURITIES. So long as any
of the Subordinated Securities shall remain Outstanding, the Company covenants
that it will cause the Trustee to maintain an office or agency in either The
City of [New York, State of New York], or the City and County of San Francisco,
State of California, where the Subordinated Securities may be presented for
registration, exchange and transfer as in this Subordinated Indenture provided,
and where notices and demands to or upon the Trustee in respect of the
Subordinated Securities or of this Subordinated Indenture may be served, and
where the Subordinated Securities may be presented for payment. In case the
Trustee shall fail to maintain any such office or agency, presentations and
demands may be made and notices may be served at the principal office of the
Company.
In addition, the Company may from time to time constitute and appoint
one or more other offices or agencies for such purposes with respect to
Subordinated Securities of any Series, and one or more paying agents for the
payment of Subordinated Securities of any Series, in such cities or in
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one or more other cities, and may from time to time rescind such appointments,
as the Company may deem desirable or expedient, and as to which the Company has
notified the Trustee.
SECTION 4.05. APPOINTMENT TO FILL A VACANCY IN THE OFFICE OF TRUSTEE.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, covenants that it will appoint, in the manner provided in Section
7.10, a Trustee, so that there shall at all times be a Trustee with respect to
the Outstanding Subordinated Securities.
SECTION 4.06. DUTIES OF PAYING AGENT. (a) If the Company shall
appoint a Paying Agent other than the Trustee with respect to Subordinated
Securities of any Series, it will cause such Paying Agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 4.06 and Section 11.05,
(1) that it will hold all sums held by it as such agent
for the payment of the principal of or interest, if any, on the
Subordinated Securities of such Series (whether such sums have been
paid to it by the Company or by any other obligor on the Subordinated
Securities of such Series) in trust for the benefit of the Holders of
the Subordinated Securities entitled to such principal or interest and
will notify the Trustee of the receipt of sums to be so held,
(2) that it will give the Trustee notice of any failure
by the Company (or by any other obligor on the Subordinated Securities
of such Series) to make any payment of the principal of or interest on
the Subordinated Securities of such Series when the same shall be due
and payable, and
(3) that it will at any time during the continuance of
any Event of Default, upon the written request of the Trustee, deliver
to the Trustee all sums so held in trust by it.
(b) Whenever the Company shall have one or more Paying Agents with
respect to the Subordinated Securities of any Series, it will, prior to each
due date of the principal of or any interest on the Subordinated Securities of
such Series, deposit with a Paying Agent of such Series a sum sufficient to pay
the principal or interest so becoming due, such sum to be held in trust for the
benefit of the Holders of Subordinated Securities entitled to such principal or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
(c) Anything in this Section 4.06 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Subordinated Indenture with respect to one or more or all
Series of Subordinated Securities hereunder, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust for such Series by it,
or any Paying Agent hereunder, as required by this Section 4.06, and such sums
are to be held by the Trustee upon the trust herein contained.
SECTION 4.07. NOTICE OF DEFAULT. The Company covenants that, as soon
as is practicable, the Company will furnish the Trustee notice of any event
which is an Event of Default or which with the giving of notice or the passage
of time or both would constitute an Event of Default which has occurred and is
continuing on the date of such notice, which notice shall set forth the nature
of such event and the action which the Company proposes to take with respect
thereto.
ARTICLE FIVE
SUBORDINATED SECURITYHOLDERS' LISTS AND REPORTS
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BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. COMPANY TO FURNISH TRUSTEE INFORMATION AS TO THE NAMES
AND ADDRESSES OF SUBORDINATED SECURITYHOLDERS. The Company will furnish or
cause to be furnished to the Trustee, not less than 45 days nor more than 60
days after each date (month and day) specified as an Interest Payment Date for
the Subordinated Securities of the first Series issued under this Subordinated
Indenture (whether or not any Subordinated Securities of that Series are then
Outstanding), but in no event less frequently than semiannually, and at such
other times as the Trustee may request in writing, within 30 days after receipt
by the Company of any such request, a list in such form as the Trustee may
reasonably require containing all the information in the possession or control
of the Company, or any of its Paying Agents other than the Trustee, as to the
names and addresses of the Holders of Subordinated Securities, obtained since
the date as of which the next previous list, if any, was furnished, excluding
from any such list the names and addresses received by the Trustee in its
capacity as registrar (if so acting). Any such list may be dated as of a date
not more than 15 days prior to the time such information is furnished and need
not include information received after such date.
SECTION 5.02. PRESERVATION OF INFORMATION; COMMUNICATION TO
SUBORDINATED SECURITYHOLDERS. (a) The Trustee shall preserve, in as current a
form as is reasonably practicable, the names and addresses of the Holders of
Subordinated Securities of each Series (1) contained in the most recent list
furnished to it as provided in Section 5.01, (2) received by the Trustee in the
capacity of Paying Agent or registrar (if so acting) and (3) filed with the
Trustee within the two preceding years as provided for in Section 5.04(c). The
Trustee may destroy any list furnished to it as provided in Section 5.01 upon
receipt of a new list so furnished.
(b) If three or more Holders of Subordinated Securities
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Subordinated Security for a period of at least six months preceding the date of
such application, and such application states that the applicants desire to
communicate with other Holders of Subordinated Securities of any Series or with
Holders of all Subordinated Securities with respect to their rights under this
Subordinated Indenture or under such Subordinated Securities, and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either:
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 5.02 or
(2) inform such applicants as to the approximate number
of Holders of Subordinated Securities of such Series or all
Subordinated Securities, as the case may be, whose names and addresses
appear in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section 5.02,
and as to the approximate cost of mailing to such Subordinated
Securityholders the form of proxy or other communications, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each of the Holders of Subordinated Securities of such
Series, or all Subordinated Securities, as the case may be, whose name and
address appear in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section 5.02, a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender, the Trustee shall mail
to such applicants and file with the Commission, together with a copy of the
material
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to be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Subordinated Securities of such Series or all Subordinated Securities, as the
case may be, or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Subordinated Securityholders with reasonable promptness after the entry of such
order and the renewal of such tender; otherwise the Trustee shall be relieved
of any obligation or duty to such applicants respecting their application.
(c) Each and every Holder of the Subordinated Securities, by
receiving and holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any Paying Agent nor any registrar
shall be held accountable by reason of the disclosure of any such information
as to the names and addresses of the Holders of Subordinated Securities in
accordance with the provisions of subsection (b) of this Section 5.02,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under said subsection (b).
SECTION 5.03. REPORTS BY COMPANY. (a) The Company covenants and
agrees to file with the Trustee within 15 days after the Company is required to
file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in
such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Subordinated Indenture as may be required from
time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit to the Holders of
Subordinated Securities within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in subsection (c) of Section
5.04 with respect to reports pursuant to subsection (a) of said Section 5.04,
such summaries of any information, documents and reports required to be filed
by the Company pursuant to subsections (a) and (b) of this Section 5.03 as may
be required by rules and regulations prescribed from time to time by the
Commission.
(d) The Company and any other obligor on the Subordinated
Securities each covenant and agree to furnish to the Trustee, not less than
annually, a brief certificate from the principal executive officer, principal
financial officer or principal accounting officer as to his or her knowledge of
the Company's compliance with all conditions and covenants of this Subordinated
Indenture (which compliance shall be determined without regard to any period of
grace or requirement of notice as provided in this Subordinated Indenture).
Such certificates need not comply with Section 13.03 of this Subordinated
Indenture.
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SECTION 5.04. REPORTS BY TRUSTEE. (a) On or before the first July
15th following the date of execution of this Subordinated Indenture, and on or
before July 15 in every year thereafter, if and so long as any Subordinated
Securities are Outstanding hereunder, the Trustee shall transmit to the
Subordinated Securityholders as hereinafter in this Section 5.04 provided, a
brief report dated as of the preceding May 15 with respect to any of the
following events which may have occurred within the previous 12 months (but if
no such event has occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 7.09, and
its qualifications under Section 7.08;
(2) the creation of or any material change to a
relationship specified in paragraph (1) through (10) of Section
7.08(d);
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Subordinated Securities
of any Series, on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required (but may elect)
to state such advances if such advances so remaining unpaid aggregate
not more than one-half of one percent of the principal amount of the
Subordinated Securities of such Series Outstanding on the date of such
report;
(4) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on
the Subordinated Securities) to the Trustee in its individual
capacity, on the date of such report, with a brief description of any
property held as collateral security therefor, except indebtedness
based upon a creditor relationship arising in any manner described in
paragraph (2), (3), (4) or (6) of subsection (b) of Section 7.13;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee (as such) on the date of
such report;
(6) any additional issue of Subordinated Securities which
the Trustee has not previously reported; and
(7) any action taken by the Trustee in the performance of
its duties under this Subordinated Indenture which it has not
previously reported and which in its opinion materially affects the
Subordinated Securities, except action in respect of a default, notice
of which has been or is to be withheld by it in accordance with the
provisions of Section 6.10.
(b) The Trustee shall transmit to the Subordinated
Securityholders, as hereinafter provided, a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to the provisions of
subsection (a) of this Section 5.04 (or if no such report has yet been so
transmitted, since the date of execution of this Subordinated Indenture), for
the reimbursement of which it claims or may claim a lien or charge prior to
that of the Subordinated Securities of any Series on property or funds held or
collected by it as Trustee, and which it has not previously reported pursuant
to this subsection, except that the Trustee shall not be required (but may
elect) to report such advances if such advances remaining unpaid at any time
aggregate ten percent or less of the principal amount of
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Subordinated Securities of such Series Outstanding at such time, such report to
be transmitted within 90 days after such time.
(c) Reports pursuant to this Section 5.04 shall be transmitted by
mail (i) to all Holders of Subordinated Securities of any Series, as the names
and addresses of such Holders shall appear upon the Register of the
Subordinated Securities of such Series, (ii) to such Holders of Subordinated
Securities as have, within the two years preceding such transmission, filed
their names and addresses with the Trustee for that purpose and (iii) except in
the case of reports pursuant to subsection (b) of this Section 5.04 to each
Holder whose name and address are preserved at the time by the Trustee as
provided in Section 5.02(a) hereof.
(d) A copy of each such report shall, at the time of such
transmission to Subordinated Securityholders, be filed by the Trustee with each
stock exchange upon which the Subordinated Securities of any Series are listed
and also with the Commission. The Company will notify the Trustee when and as
the Subordinated Securities of any Series become listed on any stock exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SUBORDINATED SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT; ACCELERATION, WAIVER OF DEFAULT AND
RESTORATION OF POSITION AND RIGHTS. The term "Event of Default" whenever used
herein with respect to any particular Series of Subordinated Securities shall
mean any one of the following events:
(a) default in the payment of any installment of interest
on any Subordinated Security of such Series as and when the same shall
become due and payable, and continuance of such default for a period
of 90 days provided however, that an extension of one or more Interest
Payment Dates by the Company in accordance with the provisions of any
Supplemental Subordinated Indenture, shall not constitute an Event of
Default, or
(b) default in the payment of all or any part of the
principal of or any premium on any Subordinated Security of such
Series as and when the same shall become due and payable whether at
maturity, by proceedings for redemption, by declaration or otherwise,
provided however, that an extension of the Stated Maturity for payment
of principal of Subordinated Securities of such Series in accordance
with the provisions of any Supplemental Subordinated Indenture, shall
not constitute an Event of Default, or
(c) default in the satisfaction of any sinking fund
payment obligation relating to such Series of Subordinated Securities,
when and as such obligation shall become due and payable provided
however, that an extension of the Stated Maturity for payment of any
sinking fund payment with respect to Subordinated Securities of such
Series in accordance with the provisions of any Supplemental
Subordinated Indenture, shall not constitute an Event of Default, or
(d) failure on the part of the Company to observe or
perform in any material respect any other of the covenants or
agreements on its part in the Subordinated Securities or in this
Subordinated Indenture (including any Supplemental Subordinated
Indenture or pursuant to any Certified Resolution, as contemplated by
Section 2.01) specifically contained for the benefit of the Holders of
the Subordinated Securities of such Series, for a
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period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee, or to the Company and
the Trustee by the Holders of not less than 25% in principal amount of
the Subordinated Securities of such Series and all other Series so
benefited (all Series voting as one class) at the time Outstanding
under this Subordinated Indenture a written notice specifying such
failure and stating that such is a "Notice of Default" hereunder, or
(e) the entry by a court having jurisdiction in the
premises of a decree or order for relief in respect of the Company in
an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Company or for any substantial part of its
property, or ordering the winding up or liquidation of its affairs, if
such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days, or
(f) the commencement by the Company of a voluntary case
under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or the Company's consent to the entry of an
order for relief in any involuntary case under any such law, or its
consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or similar
official) of the Company or for any substantial part of its property,
or the making by the Company of any general assignment for the benefit
of creditors, or its failure generally to pay its debts as they become
due or the taking by the Company of any corporate action in
furtherance of any of the foregoing.
If an Event of Default shall have occurred and be continuing with
respect to any one or more Series of Outstanding Subordinated Securities, then
and in each and every such case, unless the principal amount of all the
Subordinated Securities of each Series as to which there is an Event of Default
shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in principal amount of the Subordinated Securities of such
Series then Outstanding hereunder (each such Series voting as a separate class)
by notice in writing to the Company (and to the Trustee if given by
Subordinated Securityholders) may declare the principal amount (or, if the
Subordinated Securities of any such Series are Original Issue Discount
Subordinated Securities, such portion of the principal amount as may be
specified in the terms of such Series) of all the Subordinated Securities of
such Series, together with any accrued interest, to be due and payable
immediately, and upon any such declaration the same shall be immediately due
and payable, anything in this Subordinated Indenture or in the Subordinated
Securities of such Series contained to the contrary notwithstanding. The
foregoing provisions, however, are subject to the condition that if, at any
time after the principal amount of the Subordinated Securities of any one or
more Series (or of all the Subordinated Securities, as the case may be) shall
have been so declared due and payable, and before any judgment or decree for
the payment of moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all the
Subordinated Securities of such Series (or upon all the Subordinated
Securities, as the case may be) and the principal of any and all Subordinated
Securities of such Series (or of any and all the Subordinated Securities, as
the case may be) which shall have become due otherwise than by declaration
(with interest on overdue installments of interest to the extent permitted by
law and on such principal at the rate or rates of interest borne by, or
prescribed therefor in the Subordinated Securities of such Series to the date
of such payment or deposit) and the amounts payable to the Trustee under
Section 7.06 and any and all defaults under the Subordinated Indenture with
respect to Subordinated Securities of such Series (or all Subordinated
Securities, as the case may be), other than the non- payment of principal of
and any accrued interest on Subordinated Securities of such Series (or any
Subordinated Securities, as the case may be) which shall have become due by
declaration shall have been cured, remedied or waived as provided in Section
6.09 -- then and in every such case the Holders of a majority in principal
amount of the
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Subordinated Securities of such Series (or of all the Subordinated Securities,
as the case may be) then Outstanding (such Series or all Series voting as one
class if more than one Series are so entitled) by written notice to the Company
and to the Trustee, may rescind and annul such declaration and its
consequences; but no such rescission and annulment shall extend to or shall
affect any subsequent default, or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Subordinated Indenture and such proceedings shall have been discontinued
or abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such
case the Company, the Trustee and the Holders of the Subordinated Securities of
such Series (or of all the Subordinated Securities, as the case may be) shall
be restored respectively to their former positions and rights hereunder, and
all rights, remedies and powers of the Company and the Trustee and the Holders
of the Subordinated Securities of such Series (or of all the Subordinated
Securities, as the case may be) shall continue as though no such proceedings
had been taken.
SECTION 6.02. COVENANT OF COMPANY TO PAY TO TRUSTEE WHOLE AMOUNT DUE
ON SUBORDINATED SECURITIES ON DEFAULT IN PAYMENT OF INTEREST OR PRINCIPAL. The
Company covenants that:
(1) in case default shall be made in the payment of any
installment of interest on any of the Subordinated Securities of any
Series as and when the same shall become due and payable and which
payment has not been extended in accordance with the provisions of a
Supplemental Subordinated Indenture, and such default shall have
continued for a period of 90 days or
(2) in case default shall be made in the payment of all
or any part of the principal of any of the Subordinated Securities of
any Series when the same shall have become due and payable and which
payment has not been extended in accordance with the provisions of a
Supplemental Subordinated Indenture, whether at the Stated Maturity of
such Series or by any call for redemption or by declaration of
acceleration or otherwise or
(3) in case default shall be made in the satisfaction of
any sinking fund obligation when and as such obligation becomes due
and payable and which payment has not been extended in accordance with
the provisions of a Supplemental Subordinated Indenture,
upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the Holders of the Subordinated Securities of such Series, the whole
amount that then shall have become due and payable on all such Subordinated
Securities of such Series for principal (and any premium) and interest and for
any overdue sinking fund payment together with interest upon the overdue
principal and installments of interest (to the extent permitted by law) at the
rate or rates of interest borne by, or prescribed therefor in, the Subordinated
Securities of such Series; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expense of collection, including a
reasonable compensation to the Trustee, its agents and counsel, and any
expenses or liabilities incurred, and all advances made, by the Trustee
hereunder other than through its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as Trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against the Company or any other obligor upon
such Subordinated Securities, and collect in the manner
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provided by law out of the property of the Company or any other obligor upon
such Subordinated Securities wherever situated the moneys adjudged or decreed
to be payable.
If an Event of Default with respect to Subordinated Securities of any
Series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Subordinated
Securities of such Series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Subordinated Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 6.03. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Company or any other obligor upon the Subordinated
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the
Subordinated Securities of any Series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, to the fullest extent
permitted by law, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Subordinated Securities (or, if the Subordinated
Securities are Original Issue Discount Subordinated Securities, such
portion of the principal amount as may be specified in the terms of
such Subordinated Securities) and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the
Subordinated Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.04. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SUBORDINATED SECURITIES. All rights of action and claims under this
Subordinated Indenture or the Subordinated Securities may be prosecuted and
enforced by the Trustee to the fullest extent permitted by law without the
possession of any of the Subordinated Securities or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Subordinated Securities in respect of which such judgment has been recovered.
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SECTION 6.05. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys
collected by the Trustee pursuant to Section 6.02 shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Subordinated Securities in
respect of which moneys have been collected, and stamping thereon the payment,
if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee under
Section 7.06;
SECOND: In case the principal of the Outstanding Subordinated
Securities in respect of which moneys have been collected shall not
have become due and be unpaid, to the payment of any interest on such
Subordinated Securities, in the order of the maturity of the
installments of such interest, with interest upon the overdue
installments of interest (so far as permitted by law and to the extent
that such interest has been collected by the Trustee at the rate or
rates of interest borne by such Subordinated Securities or prescribed
therefor therein) such payments to be made ratably to the Persons
entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Outstanding Subordinated
Securities in respect of which such moneys have been collected shall
have become due, by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon such Subordinated Securities
for principal and interest, if any, with interest on the overdue
principal and any installments of interest (so far as permitted by law
and to the extent that such interest has been collected by the
Trustee) at the rate or rates of interest borne by, or prescribed
therefor in, such Subordinated Securities; and in case such moneys
shall be insufficient to pay in full the whole amount so due and
unpaid upon such Subordinated Securities, then to the payment of such
principal and interest, without preference or priority of principal
over interest, or of interest over principal, or of any installment of
interest over any other installment of interest, or of any
Subordinated Security over any other Subordinated Security, ratably to
the aggregate of such principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, with appropriate
interest to the Company or its successors or assigns, or to whomsoever
may be lawfully entitled to receive the same, or as a court of
competent jurisdiction may direct.
SECTION 6.06. LIMITATION ON SUITS BY HOLDERS OF SUBORDINATED
SECURITIES. No Holder of any Subordinated Security of any Series shall have
any right by virtue or by availing of any provision of this Subordinated
Indenture to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Subordinated Indenture or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of a continuing Event
of Default, as hereinbefore provided, and unless also the Holders of not less
than 25% in principal amount of the Subordinated Securities of such Series then
Outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby (including
the reasonable fees of counsel for the Trustee), and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to this Section 6.06; it being understood and intended, and
being expressly covenanted by the taker and Holder of every Subordinated
Security with every other taker and Holder and the Trustee, that no one or more
Holders of Subordinated Securities shall have any right in any manner whatever
by virtue or by availing of any provision of this Subordinated
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Indenture to affect, disturb or prejudice the rights of the Holders of any
other of such Subordinated Securities, or to obtain or seek to obtain priority
over or preference to any other such Holder, or to enforce any right under this
Subordinated Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Subordinated Securities. For the
protection and enforcement of the provisions of this Section 6.06, each and
every Holder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Notwithstanding any other provisions in this Subordinated Indenture,
the right of any Holder of any Subordinated Security to receive payment of the
principal of and interest on such Subordinated Security on or after the
respective due dates expressed in such Subordinated Security (or, in the case
of redemption, on or after the date fixed for redemption), or to institute suit
for the enforcement of any such payment on or after such respective dates shall
not be impaired or affected without the consent of such Holder.
SECTION 6.07. RIGHTS AND REMEDIES CUMULATIVE. All powers and
remedies given by this Article Six to the Trustee or to the Holders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
Holders, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Subordinated
Indenture, and no delay or omission of the Trustee or of any Holder of any of
the Subordinated Securities to exercise any right or power accruing upon any
default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 6.06, every
power and remedy given by this Article Six or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders. The assertion or employment of
any right or remedy hereunder or otherwise shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.08. DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Trustee or of any Holder of any Subordinated Securities to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Subject to the provisions of Section 6.06, every right
and remedy given by this Article Six or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.
SECTION 6.09. CONTROL BY HOLDERS; WAIVER OF PAST DEFAULTS. The
Holders of a majority in principal amount of the Subordinated Securities of all
Series (voting as one class) at the time Outstanding (determined as provided in
Section 8.04) shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee; provided, however,
that, subject to Section 7.01 the Trustee shall have the right to decline to
follow any such direction if the Trustee in reliance upon an Opinion of Counsel
determines that the action so directed may not lawfully be taken, or if the
Trustee in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceedings so directed would be illegal or involve
it in personal liability or be unduly prejudicial to the rights of Holders not
parties to such direction, and provided further that nothing in this
Subordinated Indenture shall impair the right of the Trustee to take any action
deemed proper by the Trustee and which is not inconsistent with such direction
by the Holders.
The Company may set a special record date for purposes of determining
the identity of the Holders of Subordinated Securities entitled to vote or
consent to any action by vote or consent authorized or permitted by this
Section 6.09. Such record date shall be the later of 15 days prior to the
first solicitation of such consent or the date of the most recent list of
Holders furnished to the Trustee pursuant to Section 5.01 of this Subordinated
Indenture prior to such solicitation.
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The Holders of not less than a majority in principal amount of the
Subordinated Securities of any Series at the time Outstanding (determined as
provided in Section 8.04) may on behalf of the Holders of all the Subordinated
Securities of such Series waive any past Event of Default with respect to such
Series and its consequences (subject to Section 6.02), except a continuing
Event of Default specified in Section 6.01(a), (b) or (c), or in respect of a
covenant or provision of this Subordinated Indenture which under Article Ten
cannot be modified or amended without the consent of the Holder of each
Subordinated Security so affected. Upon any such waiver, the Company, the
Trustee and the Holders of the Subordinated Securities of such Series shall be
restored to their former positions and rights hereunder, respectively, and such
Event of Default shall be deemed to have been cured and not continuing for
every purpose of this Subordinated Indenture; but no such waiver shall extend
to any subsequent or other Event of Default or impair any right consequent
thereon.
SECTION 6.10. TRUSTEE TO GIVE NOTICE OF DEFAULTS KNOWN TO IT, BUT MAY
WITHHOLD IN CERTAIN CIRCUMSTANCES. The Trustee shall, within 90 days after the
occurrence of any default hereunder with respect to the Subordinated Securities
of any Series, give to the Holders of the Subordinated Securities of such
Series in the manner and to the extent provided in subsection (c) of Section
5.04 with respect to reports pursuant to subsection (a) of said Section 5.04,
notice of such default known to the Trustee unless such default shall have been
cured, remedied or waived before the giving of such notice (the term "default"
for the purposes of this Section 6.10 being hereby defined to be the events
specified in Section 6.01 and any additional events specified in the terms of
any Series of Subordinated Securities pursuant to Section 2.01 not including
any periods of grace provided for therein, and irrespective of the giving of
written notice specified in clause (d) of Section 6.01 and in any such terms);
provided, that except in the case of default in the payment of the principal of
or interest on any of the Subordinated Securities of such Series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of the
Subordinated Securities of such Series.
SECTION 6.11. REQUIREMENT OF AN UNDERTAKING TO PAY COSTS IN CERTAIN
SUITS UNDER THE SUBORDINATED INDENTURE OR AGAINST THE TRUSTEE. All parties to
this Subordinated Indenture agree, and each Holder of any Subordinated Security
by such Holder's acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Subordinated Indenture, or in any suit against the
Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 6.11 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder of
Subordinated Securities of any Series, or group of such Holders, holding in the
aggregate more than ten percent in principal amount of the Subordinated
Securities of such Series Outstanding, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of or any interest or
premium on any Subordinated Security, on or after the due date expressed in
such Subordinated Security or for such interest (or in the case of any
redemption, on or after the Redemption Date).
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ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. CERTAIN DUTIES AND RESPONSIBILITIES OF TRUSTEE. The
Trustee, prior to the occurrence of an Event of Default and after the curing,
remedying or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Subordinated Indenture. In case an Event of Default has occurred
(which has not been cured, remedied or waived), the Trustee shall exercise such
of the rights and powers vested in it by this Subordinated Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his or her own
affairs.
No provision of this Subordinated Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, provided, however,
that:
(a) prior to the occurrence of an Event of Default and
after the curing, remedying or waving of all Events of Default which
may have occurred:
(1) the duties and obligations of the Trustee
shall be determined solely by the express provisions of this
Subordinated Indenture and the Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Subordinated Indenture, and
no implied covenants or obligations shall be read into this
Subordinated Indenture against the Trustee; and
(2) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this
Subordinated Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Subordinated Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of Subordinated Securities pursuant
to Section 6.09 relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Subordinated
Indenture.
None of the provisions contained in this Subordinated Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 7.02. CERTAIN RIGHTS OF TRUSTEE. Except as otherwise
provided in Section 7.01:
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(a) The Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties,
(b) Any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by an
Officer's Certificate (unless other evidence in respect thereof shall
be herein specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a Certified Resolution,
(c) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance
with such written advice or Opinion of Counsel,
(d) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Subordinated
Indenture at the request, order or direction of any of the
Subordinated Securityholders, pursuant to the provisions of this
Subordinated Indenture, unless such Subordinated Securityholders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which may be incurred therein or
thereby,
(e) The Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Subordinated Indenture,
(f) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other paper or
document, unless requested in writing so to do by the Holders of
Subordinated Securities pursuant to Section 6.09; provided, however,
that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by
the terms of this Subordinated Indenture, the Trustee may require
reasonable indemnity against such costs, expenses or liabilities as a
condition to such proceeding; and provided further, that nothing in
this subsection (f) shall require the Trustee to give the Subordinated
Securityholders any notice other than that required by Section 6.10.
The reasonable expense of every such examination shall be paid by the
Company or, if paid by the Trustee, shall be reimbursed by the Company
upon demand,
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder and
(h) The Trustee shall be under no responsibility for the
approval by it in good faith of any expert for any of the purposes
expressed in this Subordinated Indenture.
SECTION 7.03. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR APPLICATION OF
PROCEEDS. The recitals contained herein and in the Subordinated Securities
(other than the certificate of authentication on the
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Subordinated Securities) shall be taken as the statements of the Company, and
the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this
Subordinated Indenture or of the Subordinated Securities. The Trustee shall
not be accountable for the use or application by the Company of any of the
Subordinated Securities or of the proceeds thereof.
SECTION 7.04. TRUSTEE MAY OWN SUBORDINATED SECURITIES. The Trustee,
any Paying Agent, registrar or any agent of the Company or of the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Subordinated Securities with the same rights it would have if it were not
Trustee, Paying Agent, registrar or such other agent.
SECTION 7.05. MONEYS RECEIVED BY TRUSTEE TO BE HELD IN TRUST. Moneys
held by the Trustee in trust need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed with
the Company.
SECTION 7.06. TRUSTEE ENTITLED TO COMPENSATION, REIMBURSEMENT AND
INDEMNITY. The Company agrees to pay to the Trustee from time to time
reasonable compensation (which shall not be limited by any provision of law in
regard to the compensation of a trustee of any express trust), and the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in connection with
the acceptance or administration of its trust under this Subordinated Indenture
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all Persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Company also agrees to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Trustee and arising out of or in connection with the
acceptance or administration of this trust, including the reasonable costs and
expenses of defending itself against any claim of liability in the premises.
The obligations of the Company under this Section to compensate the Trustee, to
pay or reimburse the Trustee for expenses, disbursements and advances and to
indemnify and hold harmless the Trustee shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Subordinated Indenture. Such additional indebtedness shall be secured by a
lien prior to that of the Subordinated Securities upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
payment of principal of or interest or redemption premium on particular
Subordinated Securities.
SECTION 7.07. RIGHT OF TRUSTEE TO RELY ON OFFICER'S CERTIFICATE WHERE
NO OTHER EVIDENCE SPECIFICALLY PRESCRIBED. Except as otherwise provided in
Section 7.01, whenever in the administration of the provisions of this
Subordinated Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking, suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officer's Certificate of the Company delivered to the Trustee, and such
Officer's Certificate, in the absence of negligence or bad faith on the part of
the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Subordinated Indenture
upon the faith thereof.
SECTION 7.08. DISQUALIFICATION; CONFLICTING INTEREST. (a) If the
Trustee has or shall acquire any conflicting interest, as defined in this
Section 7.08, it shall, within 90 days after ascertaining that it has such
conflicting interest, and if the Event of Default to which such conflicting
interest relates has not been cured or duly waived or otherwise eliminated
before the end of such 90-day period, the Trustee shall either eliminate such
conflicting interest or, except as otherwise provided in this Section 7.08,
resign in the manner and with the effect specified in Section 7.10, such
resignation to become effective upon the appointment of
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a successor trustee and such successor's acceptance of such appointment, and
the Company shall take prompt steps to appoint a successor in accordance with
Section 7.10.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section 7.08, the Trustee shall, within
ten days after the expiration of such 90-day period, transmit notice of such
failure to the Subordinated Securityholders in the manner and to the extent
provided in subsection (c) of Section 5.04 with respect to reports pursuant to
subsection (a) of said Section 5.04.
(c) Subject to the provisions of Section 6.11 of this Subordinated
Indenture, unless the Trustee's duty to resign is stayed as provided in
subsection (f) of this Section 7.08, any Holder who has been a bona fide Holder
of Subordinated Securities for at least six months may, on such Holder's behalf
and on behalf of all other Holders similarly situated, petition any court of
competent jurisdiction for the removal of such Trustee and the appointment of a
successor, if such Trustee fails after written request thereof by such Holder
to comply with the provisions of subsection (a) of this Section 7.08.
(d) For the purposes of this Section 7.08 the Trustee shall be
deemed to have a conflicting interest with respect to the Subordinated
Securities of any Series if an Event of Default (exclusive of any period of
grace or requirement of notice) has occurred with respect to Subordinated
Securities of such Series and:
(1) the Trustee is trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the Company or any other
obligor on the Subordinated Securities are outstanding or is trustee
for more than one outstanding series of securities, as hereinafter
defined, under a single indenture of the Company or any other obligor
on the Subordinated Securities, unless such other indenture is a
collateral trust indenture under which the only collateral consists of
Subordinated Securities issued under this Subordinated Indenture,
provided that there shall be excluded from the operation of this
paragraph, this Subordinated Indenture with respect to the
Subordinated Securities of any other Series Outstanding, and any other
indenture or indentures under which other securities, or certificates
of interest or participation in other securities, of the Company or
any other obligor on the Subordinated Securities are outstanding, if
(A) this Subordinated Indenture is and such other indenture or
indentures (and all series of securities issued thereunder) are wholly
unsecured and rank equally, and such other indenture or indentures
(and such series) are hereafter qualified under the Trust Indenture
Act of 1939, unless the Commission shall have found and declared by
order pursuant to subsection (b) of Section 305 or subsection (c) of
Section 307 of the Trust Indenture Act of 1939, that differences exist
between the provisions of this Subordinated Indenture with respect to
Subordinated Securities of such Series and one or more other Series,
or the provisions of this Subordinated Indenture and the provisions of
such other indenture or indentures (or such series), which are so
likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Subordinated
Indenture with respect to Subordinated Securities of such Series and
such other Series, or under this Subordinated Indenture and such other
indenture or indentures, or (B) the Company shall have sustained the
burden of proving, on application to the Commission and after
opportunity for hearing thereon, that the trusteeship under this
Subordinated Indenture with respect to Subordinated Securities of such
Series and such other Series, or under this Subordinated Indenture and
such other indenture, is not so likely to involve a material conflict
of interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such
under this Subordinated Indenture with respect to Subordinated
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Securities of such Series and such other Series, or under this
Subordinated Indenture and one of such indentures,
(2) the Trustee or any of its directors or executive
officers is an underwriter for the Company or any other obligor on the
Subordinated Securities,
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with an underwriter for the Company or any other
obligor on the Subordinated Securities,
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee or
representative of the Company or any other obligor on the Subordinated
Securities, or of an underwriter (other than the Trustee itself) for
the Company or any other obligor on the Subordinated Securities who is
currently engaged in the business of underwriting, except that (A) one
individual may be a director and/or an executive officer of the
Trustee and a director and/or an executive officer of the Company or
any other obligor on the Subordinated Securities, but may not be at
the same time an executive officer of both the Trustee and the Company
or any other obligor on the Subordinated Securities; (B) if and so
long as the number of directors of the Trustee in office is more than
nine, one additional individual may be a director and/or an executive
officer of the Trustee and a director of the Company or any other
obligor on the Subordinated Securities; and (C) the Trustee may be
designated by the Company or any other obligor on the Subordinated
Securities or by an underwriter for the Company or any other obligor
on the Subordinated Securities to act in the capacity of transfer
agent, registrar, custodian, paying agent, fiscal agent, escrow agent
or depositary, or in any other similar capacity, or, subject to the
provisions of paragraph (1) of this subsection (d), to act as trustee
whether under an indenture or otherwise,
(5) ten percent or more of the voting securities of the
Trustee is beneficially owned either by the Company or any other
obligor on the Subordinated Securities or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such Persons;
or ten percent or more of the voting securities of the Trustee is
beneficially owned either by an underwriter for the Company or any
other obligor on the Subordinated Securities or by any director,
partner or executive officer thereof or is beneficially owned,
collectively, by any two or more such Persons,
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, as
hereinafter defined, (A) five percent or more of the voting
securities, or ten percent or more of any other class of security, of
the Company or any other obligor on the Subordinated Securities, not
including the Subordinated Securities issued under this Subordinated
Indenture and securities issued under any other indenture under which
the Trustee is also trustee, or (B) ten percent or more of any class
of security of an underwriter for the Company or any other obligor on
the Subordinated Securities,
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, as
hereinafter defined, five percent or more of the voting securities of
any Person who, to the knowledge of the Trustee, owns ten percent or
more of the voting securities of, or controls directly or indirectly
or is under direct or indirect common control with the Company or any
other obligor on the Subordinated Securities,
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(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, as
hereinafter defined, ten percent or more of any class of security of
any Person who, to the knowledge of the Trustee, owns 50% or more of
the voting securities of the Company or any other obligor on the
Subordinated Securities or
(9) the Trustee owns on the date of the occurrence of
such Event of Default (exclusive of any period of grace or requirement
of notice) or any anniversary thereof while such Event of Default
remains outstanding, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity an aggregate of 25% or
more of the voting securities or of any class of security, of any
Person, the beneficial ownership of a specified percentage of which
would have constituted a conflicting interest under paragraph (6), (7)
or (8) of this subsection (d). As to any such securities of which the
Trustee acquired ownership through becoming executor, administrator or
testamentary trustee of an estate which included them, the provisions
of the preceding sentence shall not apply, for a period of two years
from the date of such acquisition, to the extent that such securities
included in such estate do not exceed 25% of such voting securities or
25% of any such class of security. Promptly after the date of the
occurrence of any such Event of Default and annually in each
succeeding year that the Subordinated Securities or any Series thereof
remain in default, the Trustee shall make a check of its holdings of
such securities in any of the above-mentioned capacities as of such
date. If the Company or any other obligor on the Subordinated
Securities fails to make payment in full of principal of or interest
on any of the Subordinated Securities when and as the same become due
and payable and such failure continues for 30 days thereafter, the
Trustee shall make a prompt check of its holdings of such securities
in any of the above-mentioned capacities as of the date of the
expiration of such 30-day period, and after such date, notwithstanding
the foregoing provisions of this paragraph (9), all such securities so
held by the Trustee, with sole or joint control over such securities
vested in it, shall, but only so long as such failure shall continue,
be considered as though beneficially owned by the Trustee for the
purposes of paragraphs (6), (7) and (8) of this subsection (d), or
(10) except under the circumstances described in
paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee
shall be or become a creditor of the Company or any other obligor on
the Subordinated Securities.
The specifications of percentages in paragraphs (5) to (9), inclusive,
of this subsection (d) shall not be construed as indicating that the ownership
of such percentages of the securities of a Person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection (d).
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection (d) only, (A) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but shall
not include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a Person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (B) an obligation shall be deemed to
be in default when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (C) the Trustee shall not be
deemed to be the owner or Holder of (I) any security which it holds as
collateral security (as trustee or otherwise) for an obligation which is not in
default as defined in clause (B) above, or (ii) any security which it holds as
collateral security under this Subordinated Indenture, irrespective of any
default hereunder, or (iii) any security which it holds as agent for
collection, or as custodian, escrow agent or depositary, or in any similar
representative capacity.
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(e) For the purposes of this Section 7.08:
(1) The term "underwriter" when used with reference to
the Company or any other obligor on the Subordinated Securities shall
mean every Person who, within one year prior to the time as of which
the determination is made, has purchased from the Company or any other
obligor on the Subordinated Securities with a view to, or has offered
or sold for the Company or any other obligor on the Subordinated
Securities in connection with, the distribution of any security of the
Company or any other obligor on the Subordinated Securities
outstanding at such time, or has participated or has had a direct or
indirect participation in any such undertaking, or has participated or
has had a participation in the direct or indirect underwriting of any
such undertaking, but such term shall not include a Person whose
interest was limited to a commission from an underwriter or dealer not
in excess of the usual and customary distributors' or sellers'
commission.
(2) The term "director" shall mean any director of a
Company or any individual performing similar functions with respect to
any organization whether incorporated or unincorporated.
(3) The term "trust" shall include only a trust where the
interest or interests of the beneficiary or beneficiaries are
evidenced by a security.
(4) The term "voting security" shall mean any security
presently entitling the owner or Holder thereof to vote in the
direction or management of the affairs of a Person, or any security
issued under or pursuant to any trust, agreement or arrangement
whereby a trustee or trustees or agent or agents for the owner or
Holder of such security are presently entitled to vote in the
direction or management of the affairs of a Person.
(5) The term "executive officer" shall mean the
president, every vice-president, every trust officer, the cashier, the
secretary and the treasurer of a Company, and any individual
customarily performing similar functions with respect to any
organization whether incorporated or unincorporated, but shall not
include the chairman of the board of directors.
(6) Except for purposes of paragraphs (6), (7), (8) and
(9) of subsection (d) of this Section 7.08, the term "security" or
"securities" shall mean any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or
participation in any profit-sharing agreement, collateral-trust
certificate, pre-organization certificate or subscription,
transferable share, investment contract, voting-trust certificate,
certificate of deposit for a security, fractional undivided interest
in oil, gas or other mineral rights, or, in general, any interest or
instrument commonly known as a "security" or any certificate of
interest or participation in, temporary or interim certificate for,
receipt for, guarantee of, or warrant or right to subscribe to or
purchase, any of the foregoing.
(7) For the purpose of subsection (d)(1) of this Section
7.08, the term "series of securities" or "series" means a series,
class or group of securities issuable under an indenture pursuant to
whose terms Holders of one such series may vote to direct the
indenture trustee, or otherwise take action pursuant to a vote of such
holders, separately from holders of another such series; provided,
that "series of securities" or "series" shall not include any series
of securities issuable under an indenture if all such series rank
equally and are wholly unsecured.
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The percentages of voting securities and other securities specified in
this Section shall be calculated in accordance with the following provisions:
(A) A specified percentage of the voting securities of
the Trustee, the Company or any other Person referred to in this
Section 7.08 (each of whom is referred to as a "Person" in this
paragraph) means such amount of the outstanding voting securities of
such Person as entitles the Holder or Holders thereof to cast such
specified percentage of the aggregate votes which the Holders of all
the outstanding voting securities of such Person are entitled to cast
in the direction or management of the affairs of such Person.
(B) A specified percentage of a class of securities of a
Person means such percentage of the aggregate amount of securities of
the class outstanding.
(C) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(D) The term "outstanding" means issued and not held by
or for the account of the issuer. The following securities shall not
be deemed outstanding within the meaning of this definition:
(i) Subordinated Securities of an issuer held in
a sinking fund relating to securities of the issuer of the
same class;
(ii) Subordinated Securities of an issuer held in
a sinking fund relating to another class of securities of the
issuer, if the obligation evidenced by such other class of
securities is not in default as to principal or interest or
otherwise;
(iii) Subordinated Securities pledged by the issuer
thereof as security for an obligation of the issuer not in
default as to principal or interest or otherwise; and
(iv) Subordinated Securities held in escrow if
placed in escrow by the issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any Person other than the issuer is entitled to
exercise the voting rights thereof.
(E) A security shall be deemed to be of the same class as
another security if both securities confer upon the Holder or Holders
thereof substantially the same rights and privileges, provided,
however, that, in the case of secured evidences of indebtedness, all
of which are issued under a single indenture, differences in the
interest rates or maturity dates of various series thereof shall not
be deemed sufficient to constitute such series different classes, and
provided further that, in the case of unsecured evidences of
indebtedness, differences in the interest rate or maturity dates
thereof shall not be deemed sufficient to constitute them securities
of different classes, whether or not they are issued under a single
indenture.
(f) Except in the case of a default in the payment of the
principal of or interest on any Subordinated Securities, or in the payment of
any sinking or purchase fund installment, the Trustee shall not be required to
resign as provided by this Section 7.08 if the Trustee shall have sustained the
burden of
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proving, on application to the Commission and after opportunity for hearing
thereon, that (i) the default under this Subordinated Indenture may be cured or
waived during a reasonable period and under the procedures described in such
application, and (ii) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of Holders of such Series of Subordinated
Securities. The filing of such an application shall automatically stay the
performance of the duty to resign until the Commission orders otherwise. Any
resignation of the Trustee shall become effective only upon the appointment of
a successor trustee and such successor's acceptance of such appointment.
SECTION 7.09. REQUIREMENTS FOR ELIGIBILITY OF TRUSTEE. There shall
always be at least one Trustee hereunder. The Trustee hereunder shall at all
times be a Company organized and doing business as a commercial bank under the
laws of the United States of America or any state thereof or of the District of
Columbia or a Company or other Person permitted to act as a trustee by the
Commission and, in each case, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $100,000,000,
and subject to supervision or examination by Federal, State or District of
Columbia authority. If such Company publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Company shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
No obligor on the Subordinated Securities or Person directly or indirectly
controlling, controlled by or under common control with such obligor shall
serve as Trustee. In case at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section 7.09, the Trustee shall
resign immediately in the manner and with the effect specified in this Article
Seven.
SECTION 7.10. RESIGNATION AND REMOVAL OF TRUSTEE; APPOINTMENT OF
SUCCESSOR. (a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to one or more or all Series of
Subordinated Securities by giving written notice of such resignation to the
Company and by giving to the Holders of Subordinated Securities notice thereof
in the manner and to the extent provided in subsection (c) of Section 5.04 with
respect to reports pursuant to subsection (a) of Section 5.04. Upon receiving
such notice of resignation and if the Company shall deem it appropriate,
evidence satisfactory to it of such mailing to the Holders, the Company shall
promptly appoint a successor trustee with respect to all Series of Subordinated
Securities or, if appropriate, the applicable Series by written instrument
executed by an authorized officer of the Company, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Holder who has
been a bona fide Holder of a Subordinated Security or Subordinated Securities
for at least six months may, subject to the provisions of Section 6.11, on such
Holder's behalf and on behalf of all others similarly situated, petition any
such court for the appointment of a successor trustee. Such court may
thereupon after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions
of subsection (a) of Section 7.08 after written request therefor by
the Company or by any Subordinated Securityholder who has been a bona
fide Holder of a Subordinated Security or Subordinated Securities of
the applicable Series for at least six months, or
(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 7.09 and shall fail to resign after
written request therefor by the Company or by any such Subordinated
Securityholder, or
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(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, or
(4) the Company shall determine that the Trustee has
failed to perform its obligations under this Subordinated Indenture in
any material respect,
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument executed by an authorized officer of
the Company, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 6.11, any Subordinated Securityholder who has been a bona fide Holder
of a Subordinated Security or Subordinated Securities of the affected Series
for at least six months may, on such Person's behalf and on behalf of all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee with respect
to such Series. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in principal amount of the
Subordinated Securities Outstanding (determined as provided in Section 8.04)
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments signed by such Holders or their attorneys-in-fact
duly authorized, or by the affidavits of the permanent chairman and secretary
of a meeting of the Subordinated Securityholders evidencing the vote upon a
resolution or resolutions submitted thereto with respect to such removal and
appointment (as provided in Article Nine), and by delivery thereof to the
Trustee so removed, to the successor trustee and to the Company.
(d) Any resignation or removal of the Trustee and any appointment
of a successor trustee pursuant to any of the provisions of this Section 7.10
shall become effective upon acceptance of appointment by the successor trustee
as provided in Section 7.11.
SECTION 7.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any
successor trustee appointed as provided in Section 7.10 shall execute,
acknowledge and deliver to the Company and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations with respect to such Series of
its predecessor hereunder, with like effect as if originally named as trustee
herein; but, nevertheless, on the written request of the Company or of the
successor trustee, the trustee ceasing to act shall, upon payment of any
amounts then due it pursuant to the provisions of Section 7.06, execute and
deliver an instrument transferring to such successor trustee all the rights and
powers with respect to the trustee so ceasing to act. Upon written request of
any such successor trustee, the Company shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 7.06.
No successor trustee shall accept appointment as provided in this
Section 7.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section 7.11, the successor trustee shall at the expense of the Company
transmit notice of the succession of such trustee
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hereunder to the Holders of Subordinated Securities in the manner and to the
extent provided in subsection (c) of Section 5.04 with respect to reports
pursuant to subsection (a) of said Section 5.04.
SECTION 7.12. SUCCESSOR TO TRUSTEE BY MERGER, CONSOLIDATION OR
SUCCESSION TO BUSINESS. Any Company into which the Trustee may be merged or
converted or with which it may be consolidated, or any Company resulting from
any merger, conversion or consolidation to which the Trustee shall be a party,
or any Company succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such Company shall be qualified under the provisions of Section 7.08
and eligible under the provisions of Section 7.09, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Subordinated Indenture any of the Subordinated
Securities shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor
Trustee, and deliver such Subordinated Securities so authenticated; and in case
at that time any of the Subordinated Securities shall not have been
authenticated, any successor to the Trustee may authenticate such Subordinated
Securities either in the name of any predecessor hereunder or in the name of
the successor Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Subordinated Securities or in this
Subordinated Indenture provided that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Subordinated Securities in the name
of any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 7.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. (a)
Subject to the provisions of subsection (b) of this Section 7.13, if the
Trustee shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company or any other obligor on the Subordinated Securities
within three months prior to a default, as defined in subsection (c) of this
Section 7.13, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Subordinated Securities for which it is acting as Trustee, and the holders of
other indenture securities (as defined in subsection (c) of this Section 7.13):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such three
months' period, and valid as against the Company or such other obligor
on the Subordinated Securities and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection, or from the
exercise of any right of set-off which the Trustee could have
exercised if a petition in bankruptcy had been filed by or against the
Company or such other obligor on the Subordinated Securities upon the
date of such default; and
(2) all property received by the Trustee in respect of
any claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of
any such property if disposed of, subject, however, to the rights, if
any, of the Company or such other obligor on the Subordinated
Securities and their respective other creditors in such property or
such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
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(A) to retain for its own account (i) payments made on
account of any such claim by any Person (other than the Company or
such other obligor on the Subordinated Securities) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third Person, and (iii) distributions made in
cash, securities or other property in respect of claims filed against
the Company or such other obligor on the Subordinated Securities in
bankruptcy or receivership or in proceedings for reorganization
pursuant to Title 11 of the United States Code or applicable State
laws;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property was so
held prior to the beginning of such three months' period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property held by
it as security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received, the Trustee had no reasonable cause to
believe that a default, as defined in subsection (c) of this Section
7.13, would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property held as
security for such claim as provided in such paragraph (B) or (C), as
the case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any preexisting claim of the Trustee as such creditor, such claim shall have
the same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
among the Trustee, the Holders of Subordinated Securities for which it is
acting as Trustee, and the holders of other indenture securities in such manner
that the Trustee, such Subordinated Securityholders and the holders of other
indenture securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company or such other
obligor on the Subordinated Securities in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United States Code
or applicable State law, the same percentage of their respective claims,
figured before crediting to the claim of the Trustee anything on account of the
receipt by it from the Company or such other obligor on the Subordinated
Securities of the funds and property in such special account and before
crediting to the respective claims of the Trustee, such Subordinated
Securityholders, and the holders of other indenture securities dividends on
claims filed against the Company or such other obligor on the Subordinated
Securities in bankruptcy or receivership or in proceedings for reorganization
pursuant to Title 11 of the United States Code or applicable State law, but
after crediting thereon receipts on account of the indebtedness represented by
their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United States Code
or applicable State law, whether such distribution is made in cash, securities
or other property, but shall not include any such distribution with respect to
the secured portion, if any, of such claim. The court in which such
bankruptcy, receivership or proceeding for reorganization is pending shall
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have jurisdiction (i) to apportion among the Trustee, such Subordinated
Securityholders, and the holders of other indenture securities, in accordance
with the provisions of this paragraph, the funds and property held in such
special account and the proceeds thereof, or (ii) in lieu of such apportionment
in whole or in part, to give to the provisions of this paragraph due
consideration in determining the fairness of the distributions to be made to
the Trustee, such Subordinated Securityholders and the holders of other
indenture securities with respect to their respective claims, in which event it
shall not be necessary to liquidate or to appraise the value of any securities
or other property held in such special account or as security for any such
claim, or to make a specific allocation of such distributions as between the
secured and unsecured portions of such claim, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period,
it shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which
would have given rise to the obligation to account, if such Trustee
had continued, as trustee, occurred after the beginning of such three
months' period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or removal.
In every case commenced under the Bankruptcy Act of 1898, or any
amendment thereto enacted prior to November 6, 1978, all references to periods
of three months shall be deemed to be references to periods of four months.
(b) There shall be excluded from the operation of subsection (a)
of this Section 7.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a maturity
of one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction, or by this Subordinated Indenture,
for the purpose of preserving any property which shall at any time be
subject to the lien of this Subordinated Indenture or of discharging
tax liens or other prior liens or encumbrances thereon, if notice of
such advance and of the circumstances surrounding the making thereof
is given to the Subordinated Securityholders at the time and in the
manner provided in Section 5.04(c) with respect to reports pursuant to
subsections (a) and (b) thereof, respectively;
(3) disbursements made in the ordinary course of business
in the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary, or
other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented, or an indebtedness created as a result of
goods or securities sold in a cash transaction as defined in
subsection (c) of this Section 7.13;
(5) the ownership of stock or of other securities of a
Company organized under the provisions of Section 25(a) of the Federal
Reserve Act, as amended, which is
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directly or indirectly a creditor of the Company or any other obligor
on the Subordinated Securities; and
(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances or obligations which
fall within the classification of self-liquidating paper as defined in
subsection (c) of this Section 7.13.
(c) As used in this Section 7.13 the following terms shall be
accorded the following definitions:
(1) the term "default" shall mean any failure to make
payment in full of the principal of or interest on any of the
Subordinated Securities or on the other indenture securities when and
as such principal or interest becomes due and payable.
(2) the term "other indenture securities" shall mean
securities upon which the Company or any other obligor on the
Subordinated Securities is an "obligor" (as defined in the Trust
Indenture Act of 1939) outstanding under any other indenture (A) under
which the Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of subsection (a) of this
Section 7.13, and (C) under which a default exists at the time of the
apportionment of the funds and property held in said special account.
(3) the term "cash transaction" shall mean any
transaction in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or bankers and
payable upon demand.
(4) the term "self-liquidating paper" shall mean any
draft, bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company or any other obligor on
the Subordinated Securities for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation
of the creditor relationship with the Company or any other obligor on
the Subordinated Securities arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
ARTICLE EIGHT
CONCERNING THE SUBORDINATED SECURITYHOLDERS
SECTION 8.01. EVIDENCE OF ACTION BY SUBORDINATED SECURITYHOLDERS.
Whenever in this Subordinated Indenture it is provided that the Holders of a
specified percentage in principal amount of the Subordinated Securities of any
or all Series may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the Holders of
such specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by such
Subordinated Securityholders in Person or by agent or proxy appointed in
writing, or (b) by the record of such Holders of Subordinated Securities voting
in favor thereof at any meeting of such Subordinated Securityholders duly
called and held in accordance with the provisions of Article Nine, or (c) by a
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combination of such instrument or instruments and any such record of such a
meeting of such Subordinated Securityholders.
SECTION 8.02. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SUBORDINATED SECURITIES. Subject to the provisions of Sections 7.01, 7.02 and
9.05, proof of the execution of any instrument by a Subordinated Securityholder
or such Holder's agent or proxy and proof of the holding by any Person of any
of the Subordinated Securities shall be sufficient if made in the following
manner:
(a) The fact and date of the execution by any such Person
of any instrument may be proved in any reasonable manner acceptable to
the Trustee.
(b) The ownership of Subordinated Securities of any
Series (including Global Subordinated Securities) shall be proved by
the Register of such Subordinated Securities of such Series, or by
certificates of the Subordinated Security registrar or registrars
thereof.
The Trustee shall not be bound to recognize any Person as a
Subordinated Securityholder unless and until such Person's title to the
Subordinated Securities held by it is proved in the manner in this Article
Eight provided.
The record of any Subordinated Securityholders' meeting shall be
proved in the manner provided in Section 9.06.
The Trustee may accept such other proof or require such additional
proof of any matter referred to in this Section 8.02 as it shall deem
reasonable.
SECTION 8.03. WHO MAY BE DEEMED OWNERS OF SUBORDINATED SECURITIES.
Prior to due presentment for transfer of any Subordinated Security, the
Company, the Trustee and any agent of the Company or the Trustee may deem and
treat the Person in whose name such Subordinated Security shall be registered
upon the Register of Subordinated Securities of the Series of which such
Subordinated Security is a part as the absolute owner of such Subordinated
Security (whether or not such Subordinated Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and interest,
subject to Section 2.03, on such Subordinated Security and for all other
purposes; and neither the Company nor the Trustee nor any agent of the Company
or the Trustee shall be affected by any notice to the contrary. All such
payments so made to any such Holder for the time being, or upon such Holder's
order, shall be valid, and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability of moneys payable upon any such
Subordinated Security.
If the Subordinated Securities of any Series are issued in the form of
one or more Global Subordinated Securities, the Depository therefor may grant
proxies to Persons having a beneficial ownership in such Global Subordinated
Security or Subordinated Securities for purposes of voting or otherwise
responding to any request for consent, waiver or other action which the Holder
of such Subordinated Security is entitled to grant or take under this
Subordinated Indenture and the Trustee shall accept such proxies for the
purposes granted; provided that neither the Trustee nor the Company shall have
any obligation with respect to the grant of or solicitation by the Depository
of such proxies.
SECTION 8.04. SUBORDINATED SECURITIES OWNED BY THE COMPANY OR
CONTROLLED OR CONTROLLING PERSONS DISREGARDED FOR CERTAIN PURPOSES. In
determining whether the Holders of the requisite principal amount of
Subordinated Securities have concurred in any demand, direction, request,
notice, vote, consent, waiver or other action under this Subordinated
Indenture, Subordinated Securities which are owned by the Company or any other
obligor on the Subordinated Securities or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any other
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obligor on the Subordinated Securities shall be disregarded and deemed not to
be Outstanding for the purpose of any such determination, provided that for the
purposes of determining whether the Trustee shall be protected in relying on
any such demand, direction, request, notice, vote, consent, waiver or other
action, only Subordinated Securities which a Responsible Officer of the Trustee
assigned to its principal office knows are so owned shall be so disregarded.
Subordinated Securities so owned which have been pledged in good faith may be
regarded as Outstanding for the purposes of this Section 8.04, if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's right to vote
such Subordinated Securities and that the pledgee is not a Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor.
Upon request of the Trustee, the Company shall furnish to the Trustee
promptly an Officer's Certificate listing and identifying all Subordinated
Securities, if any, known by the Company to be owned or held by or for the
account of the Company or any other obligor on the Subordinated Securities or
by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any other obligor on the
Subordinated Securities; and, subject to the provisions of Section 7.01, the
Trustee shall be entitled to accept such Officer's Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Subordinated
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 8.05. INSTRUMENTS EXECUTED BY SUBORDINATED SECURITYHOLDERS
BIND FUTURE HOLDERS. At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 8.01, of the taking of any action by the
Holders of the percentage in principal amount of the Subordinated Securities
specified in this Subordinated Indenture in connection with such action, any
Holder of a Subordinated Security which is shown by the evidence to be included
in the Subordinated Securities the Holders of which have consented to such
action may, by filing written notice with the Trustee at its principal office
and upon proof of holding as provided in Section 8.02, revoke such action so
far as concerns such Subordinated Security. Except as aforesaid any such
action taken by the Holder of any Subordinated Security and any direction,
demand, request, notice, waiver, consent, vote or other action of the Holder of
any Subordinated Security which by any provisions of this Subordinated
Indenture is required or permitted to be given shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Subordinated
Security, and of any Subordinated Security issued in lieu thereof, irrespective
of whether any notation in regard thereto is made upon such Subordinated
Security. Any action taken by the Holders of the percentage in principal
amount of the Subordinated Securities of any or all Series specified in this
Subordinated Indenture in connection with such action shall be conclusively
binding upon the Company, the Trustee and the Holders of all of the
Subordinated Securities of such Series subject, however, to the provisions of
Section 7.01.
ARTICLE NINE
SUBORDINATED SECURITYHOLDERS' MEETINGS
SECTION 9.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting
of Holders of Subordinated Securities of any or all Series may be called at any
time and from time to time pursuant to the provisions of this Article for any
of the following purposes:
(1) to give any notice to the Company or to the Trustee,
or to give any directions to the Trustee, or to consent to the waiving
of any default hereunder and its consequences, or to take any other
action authorized to be taken by Holders of Subordinated Securities of
any or all Series, as the case may be, pursuant to any of the
provisions of Article Six;
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(2) to remove the Trustee and appoint a successor trustee
pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section
10.02; or
(4) to take any other action authorized to be taken by or
on behalf of the Holders of any specified principal amount of the
Subordinated Securities of any or all Series, as the case may be,
under any other provision of this Subordinated Indenture or under
applicable law.
SECTION 9.02. MANNER OF CALLING MEETINGS. The Trustee may at any
time call a meeting of Subordinated Securityholders to take any action
specified in Section 9.01, to be held at such time and at such place in The
City of New York, New York, as the Trustee shall determine. Notice of every
meeting of Subordinated Securityholders, setting forth the time and place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed not less than 20 nor more than 60 days prior to the
date fixed for the meeting.
SECTION 9.03. CALL OF MEETING BY THE COMPANY OR SUBORDINATED
SECURITYHOLDERS. In case at any time the Company pursuant to a resolution of
its Board of Directors, or the Holders of not less than ten percent in
principal amount of the Subordinated Securities of any or all Series, as the
case may be, then Outstanding, shall have requested the Trustee to call a
meeting of Holders of Subordinated Securities of any or all Series, as the case
may be, to take any action authorized in Section 9.01 by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed notice of such meeting within 20
days after receipt of such request, then the Company or such Holders of
Subordinated Securities in the amount above specified may determine the time
and place in either the City and County of San Francisco, California or The
City of New York, New York for such meeting and may call such meeting to take
any action authorized in Section 9.01, by mailing (and publishing, if required)
notice thereof as provided in Section 9.02.
SECTION 9.04. WHO MAY ATTEND AND VOTE AT MEETINGS. To be entitled to
vote at any meeting of Subordinated Securityholders a Person shall (a) be a
Holder of one or more Subordinated Securities with respect to which the meeting
is being held; or (b) be a Person appointed by an instrument in writing as
proxy by such Holder of one or more Subordinated Securities. The only Persons
who shall be entitled to be present or to speak at any meeting of Subordinated
Securityholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 9.05. REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF THE
MEETING; VOTING RIGHTS - ADJOURNMENT. Notwithstanding any other provisions of
this Subordinated Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Subordinated Securityholders, in
regard to proof of the holding of Subordinated Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit. Except as otherwise permitted or
required by any such regulations, the holding of Subordinated Securities shall
be proved in the manner specified in Section 8.02. and the appointment of any
proxy shall be proved in the manner specified in said Section 8.02; provided,
however, that such regulations may provide that written instruments appointing
proxies regular on their face, may be presumed valid and genuine without the
proof hereinabove or in said Section 8.02 specified.
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The Trustee shall by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Subordinated Securityholders as provided in Section 9.03, in
which case the Company or the Subordinated Securityholders calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
majority vote of the meeting.
Subject to the provisions of Section 8.04, at any meeting each
Subordinated Securityholder or proxy shall be entitled to one vote for each
$1,000 principal amount (in the case of Original Issue Discount Subordinated
Securities, such principal amount shall be equal to such portion of the
principal amount as may be specified in the terms of such Series) of
Subordinated Securities held or represented by such Holder; provided, however,
that no vote shall be cast or counted at any meeting in respect of any
Subordinated Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have
no right to vote other than by virtue of Subordinated Securities held by such
Person or instruments in writing as aforesaid duly designating such Person as
the Person to vote on behalf of other Subordinated Securityholders. Any
meeting of Subordinated Securityholders duly called pursuant to the provisions
of Section 9.02 or 9.03 may be adjourned from time to time, and the meeting may
be held so adjourned without further notice.
At any meeting of Subordinated Securityholders, the presence of
Persons holding or representing Subordinated Securities in principal amount
sufficient to take action on the business for the transaction of which such
meeting was called shall constitute a quorum, but, if less than a quorum is
present, the Persons holding or representing a majority in principal amount of
the Subordinated Securities represented at the meeting may adjourn such meeting
with the same effect for all intents and purposes, as though a quorum had been
present.
SECTION 9.06. MANNER OF VOTING AT MEETINGS AND RECORD TO BE KEPT.
The vote upon any resolution submitted to any meeting of Subordinated
Securityholders shall be by written ballots on which shall be subscribed the
signatures of the Holders of Subordinated Securities or of their
representatives by proxy and the principal amount or principal amounts of the
Subordinated Securities held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes
cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in duplicate
of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of Subordinated Securityholders shall be prepared by the secretary
of the meeting and there shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken thereat and affidavits
by one or more Persons having knowledge of the facts setting forth a copy of
the notice of the meeting and showing that said notice was mailed as provided
in Section 9.02. The record shall show the principal amount or principal
amounts of the Subordinated Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one copy thereof shall be
delivered to the Company and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 9.07. EXERCISE OF RIGHTS OF TRUSTEE AND SUBORDINATED
SECURITYHOLDERS NOT TO BE HINDERED OR DELAYED. Nothing in this Article Nine
contained shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Subordinated Securityholders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrances or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Subordinated Securityholders under any of the provisions of this
Subordinated Indenture or of the Subordinated Securities.
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ARTICLE TEN
SUPPLEMENTAL SUBORDINATED INDENTURES
SECTION 10.01. PURPOSES FOR WHICH SUPPLEMENTAL SUBORDINATED
INDENTURES MAY BE ENTERED INTO WITHOUT CONSENT OF SUBORDINATED SECURITYHOLDERS.
Without the consent of the Holders of any Subordinated Securities, the Company
and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall comply with the provisions of
the Trust Indenture Act of 1939 as then in effect) for one or more of the
following purposes:
(a) if deemed appropriate by the Company or required by
law, to evidence the succession of another Company to the Company or
successive successions and the assumption by the successor Company of
the covenants, agreements and obligations of the Company pursuant to
Article Four hereof,
(b) to add to the covenants of the Company such further
covenants, restrictions or conditions as its Board of Directors and
the Trustee shall consider to be for the protection of the Holders of
all or any Series of Subordinated Securities (and if such covenants,
restrictions or conditions are to be for the benefit of less than all
Series of Subordinated Securities, stating that such covenants,
restrictions or conditions are expressly being included solely for the
benefit of such Series), and to make the occurrence, or the occurrence
and continuance, of a default in any such additional covenants,
restrictions or conditions an Event of Default permitting the
enforcement of all or any of the several remedies provided in this
Subordinated Indenture as herein set forth; provided, however, that in
respect to any such additional covenant, restriction or condition such
Supplemental Subordinated Indenture may provide for a particular
period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default,
(c) to add or change any of the provisions of this
Subordinated Indenture to such extent as shall be necessary to
facilitate the issuance of Subordinated Securities in (i) global form
or (ii) bearer form, registerable or not registerable as to principal
or principal and interest, and with or without coupons,
(d) to change or eliminate any of the provisions of this
Subordinated Indenture; provided, however, that any such change or
elimination shall become effective only when there is no Subordinated
Security of any Series Outstanding created prior to the execution of
such Supplemental Subordinated Indenture which is entitled to the
benefit of such provision,
(e) to establish the form or terms of Subordinated
Securities of any Series as permitted by Sections 2.01 and 2.02,
(f) to appoint, at the request of the Trustee, a
successor Trustee for a particular Series of Subordinated Securities
to act as such pursuant to the provisions of this Subordinated
Indenture and to add to or change the provisions of this Subordinated
Indenture to such extent as shall be necessary to facilitate the
performance of the duties of such trustee and
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(g) to cure any ambiguity or to correct or supplement any
provisions contained herein or in any Supplemental Subordinated
Indenture which may be defective or inconsistent with any other
provision contained herein or in any Supplemental Subordinated
Indenture, or to make such other provisions in regard to matters or
questions arising under this Subordinated Indenture or any
Supplemental Subordinated Indenture which shall not adversely affect
the interests of the Holders of the Subordinated Securities.
SECTION 10.02. MODIFICATION OF SUBORDINATED INDENTURE WITH CONSENT OF
HOLDERS OF SUBORDINATED SECURITIES. With the consent (evidenced as provided in
Section 8.01) of the Holders of not less than a majority in principal amount of
the Subordinated Securities of all Series at the time Outstanding (determined
as provided in Section 8.04) affected by such Supplemental Subordinated
Indenture (voting as one class), the Company and the Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto
(which shall comply with the provisions of the Trust Indenture Act of 1939 as
then in effect) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Subordinated Indenture or
of any Supplemental Subordinated Indenture or of modifying in any manner the
rights of the Holders of the Subordinated Securities of each such Series;
provided, however, that no such Supplemental Subordinated Indenture shall,
without the consent of the Holders of each Outstanding Subordinated Security
affect thereby:
(a) Change the fixed maturity or Redemption Date of any
Subordinated Security or reduce the rate of interest thereon or the
method of determining such rate of interest or extend the time of
payment of interest or reduce the principal amount (including the
amount of principal of an Original Issue Discount Subordinated
Security that would be due upon declaration of acceleration of the
maturity thereof pursuant to Section 6.01 hereof) thereof or reduce
any premium payable upon the redemption thereof, or change the coin or
currency in which any Subordinated Security or the interest thereon is
payable or impair the right to institute suit for the enforcement of
any such payment on or after the maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(b) Reduce the percentage in principal amount of the
Outstanding Subordinated Securities the consent of the Holders of
which is required for any such Supplemental Subordinated Indenture, or
the consent of the Holders of which is required for any waiver (of
compliance with certain provisions of this Subordinated Indenture or
certain defaults hereunder and their consequences) provided for in
this Subordinated Indenture or
(c) Change the time of payment or reduce the amount of
any minimum sinking account or fund payment or
(d) Modify any of the provisions of this Section 10.02,
except to increase any such percentage or to provide that certain
other provisions of this Subordinated Indenture cannot be modified or
waived without the consent of the Holder of each Subordinated Security
affected thereby.
A Supplemental Subordinated Indenture which changes or eliminates any
covenant or other provision of this Subordinated Indenture which has expressly
been included solely for the benefit of one or more particular Series of
Subordinated Securities, or which modifies the rights of Holders of
Subordinated Securities of such Series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Subordinated
Indenture of the Holders of Subordinated Securities of any other Series.
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It shall not be necessary for the consent of the Subordinated
Securityholders under this Section 10.02 to approve the particular form of any
proposed Supplemental Subordinated Indenture, but it shall be sufficient if
such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
Supplemental Subordinated Indenture pursuant to the provisions of this Section
10.02, the Company shall mail a notice to the Holders of Registered
Subordinated Securities of each Series so affected, setting forth in general
terms the substance of such Supplemental Subordinated Indenture. Any failure
of the Company to mail or publish such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such Supplemental
Subordinated Indenture.
SECTION 10.03. EFFECT OF SUPPLEMENTAL SUBORDINATED INDENTURES. Upon
the execution of any Supplemental Subordinated Indenture pursuant to the
provisions of this Article Ten, this Subordinated Indenture shall be and be
deemed to be modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities under this
Subordinated Indenture of the Trustee, the Company and the Holders of
Subordinated Securities shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such Supplemental Subordinated Indenture shall
be and be deemed to be part of the terms and conditions of this Subordinated
Indenture for any and all purposes.
The Trustee shall be entitled to receive, and subject to the
provisions of Section 7.01 shall be entitled to rely upon, an Opinion of
Counsel as conclusive evidence that any such Supplemental Subordinated
Indenture complies with the provisions of this Article Ten and that the
Subordinated Securities affected by the Supplemental Subordinated Indenture,
when such Subordinated Securities are authenticated and delivered by the
Trustee and executed and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will be valid and binding
obligations of the Company, except as any rights thereunder may be limited by
bankruptcy, insolvency and other similar laws affecting the enforcement of
creditors' rights generally and by general equity principles.
SECTION 10.04. SUBORDINATED SECURITIES MAY BEAR NOTATION OF CHANGES
BY SUPPLEMENTAL SUBORDINATED INDENTURES. Subordinated Securities authenticated
and delivered after the execution of any Supplemental Subordinated Indenture
pursuant to the provisions of this Article Ten, or after any action taken at a
Subordinated Securityholders' meeting pursuant to Article Nine, may bear a
notation in form approved by the Trustee as to any matter provided for in such
Supplemental Subordinated Indenture or as to any action taken at any such
meeting. If the Company or the Trustee shall so determine, new Subordinated
Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any modification of this Subordinated Indenture contained in any
such Supplemental Subordinated Indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the Subordinated
Securities then Outstanding.
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ARTICLE ELEVEN
DISCHARGE; DEFEASANCE
SECTION 11.01. DISCHARGE OF SUBORDINATED INDENTURE. If the Company
shall pay and discharge or cause to be paid or discharged the entire
indebtedness on all Outstanding Subordinated Securities by paying or causing to
be paid the principal of (including redemption premium, if any) and interest on
the Outstanding Subordinated Securities, as and when the same become due and
payable or by delivering to the Trustee, for cancellation by it, all
Outstanding Subordinated Securities, and if the Company shall also pay or
cause to be paid all other sums payable hereunder by it, thereupon, upon
written request of the Company and upon receipt by the Trustee of such
certificates, if any, as the Trustee shall reasonably require, to the effect
that all conditions precedent to the satisfaction and discharge of the
Company's obligations under this Subordinated Indenture have been complied
with, this Subordinated Indenture shall be discharged and terminated and the
Trustee shall forthwith execute proper instruments acknowledging satisfaction
of and discharging and terminating this Subordinated Indenture with respect to
the Company's obligations hereunder and any such other interests.
The Company may at any time surrender to the Trustee for cancellation
by it any Subordinated Securities previously authenticated and delivered,
belonging which the Company may have acquired in any manner whatsoever, and
such Subordinated Securities, upon such surrender and cancellation, shall be
deemed to be paid and retired.
SECTION 11.02. DISCHARGE OF LIABILITY ON SUBORDINATED SECURITIES
Upon the deposit with the Trustee, in trust, at or before maturity, of money or
securities of the kind and in the necessary amount (as provided in Section
11.04 of this Subordinated Indenture) to pay or redeem Outstanding Subordinated
Securities (whether upon or prior to their maturity or the Redemption Date of
such Subordinated Securities, provided that, if such Subordinated Securities
are to be redeemed prior to the maturity thereof, notice of such redemption
shall have been given as in Article Three hereof provided or provision
satisfactory to the Trustee shall have been made for the giving of such
notice), the obligation of the Company duly and punctually to pay or cause to
be paid the principal of and any interest and premium in respect of such
Subordinated Securities and all liability of the Company in respect of such
payment shall cease, terminate and be completely discharged and the Holders
thereof shall thereafter be entitled only to payment out of the money or
securities deposited with the Trustee as aforesaid for their payment; provided,
however, that this discharge of the Company's obligation so to pay and of the
liability of the Company in respect of such payment shall not occur unless the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that Holders of the Subordinated Securities of such Series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
discharge.
SECTION 11.03. DISCHARGE OF CERTAIN COVENANTS AND OTHER OBLIGATIONS.
Upon the deposit with the Trustee, in trust, prior to maturity of money or
securities of the kind and in the necessary amount (as provided in Section
11.04 of this Subordinated Indenture) to pay or redeem Outstanding Subordinated
Securities of one or more Series (whether upon or prior to their maturity or
the Redemption Date of such Subordinated Securities, provided that, if such
Subordinated Securities are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as in Article Three hereof
provided or provision satisfactory to the Trustee shall have been made for the
giving of such notice), all of the obligations, covenants and agreements of the
Company with respect to such Subordinated Securities except those set forth in
Section 4.01, 4.03 and 4.04 shall cease, terminate and be completely
discharged.
SECTION 11.04. DISCHARGE OF CERTAIN OBLIGATIONS UPON DEPOSIT OF MONEY
OR SUBORDINATED SECURITIES WITH TRUSTEE. The conditions for deposit of money
or securities contained in Sections 11.02 and 11.03 shall have been satisfied
whenever with respect to any Subordinated Securities denominated in United
51
<PAGE> 61
States Dollars, the Company shall have deposited or caused to be deposited
irrevocably in trust with the Trustee dedicated solely to the benefit of the
Holders of such Subordinated Securities:
(a) Lawful money of the United States of America in an
amount equal to the principal amount of such Subordinated Securities
and all unpaid interest thereon to maturity, except that, in the case
of Subordinated Securities which are to be redeemed prior to maturity,
the amount so to be deposited or held shall be the principal amount of
such Subordinated Securities and interest thereon to the Redemption
Date, together with the redemption premium, if any; or
(b) Direct obligations of the United States of America or
obligations the principal of and interest on which are guaranteed by
the United States of America (which obligations are not subject to
redemption prior to maturity at the option of the issuer), in such
amounts and maturing at such times that the proceeds of said
obligations to be received upon their respective maturities and
interest payment dates will provide funds sufficient to pay the
principal, premium, if any, and interest to maturity, or to the
Redemption Date, as the case may be, with respect to all of the
Subordinated Securities to be paid or redeemed, as such principal,
premium and interest become due, provided that the Trustee shall have
been irrevocably instructed to apply the proceeds of said obligations
to the payment of said principal, premium, if any, and interest with
respect to said Subordinated Securities.
The conditions for deposit of money or securities contained in Sections 11.02
and 11.03 shall have been satisfied whenever with respect to any Subordinated
Securities denominated in one or more currencies or composite currency other
than United States Dollars, the Company shall have deposited or caused to be
deposited irrevocably in trust with the Trustee dedicated solely to the benefit
of the Holders of such Subordinated Securities:
(I) Lawful money in such currency, currencies or
composite currency in which such Subordinated Securities are payable
and in an amount equal to the principal amount of such Subordinated
Securities and all unpaid interest thereon to maturity, except than,
in the case of Subordinated Securities which are to be redeemed prior
to maturity, the amount so to be deposited or held shall be the
principal amount of such Subordinated Securities and interest thereon
to the Redemption Date, together with the redemption premium, if any;
or
(ii) Either (1) direct obligations of the government that
issued or caused to be issued the currency in which such Subordinated
Securities are payable, for which obligations the full faith and
credit of the government is pledged (which obligations are not subject
to redemption prior to maturity at the option of the issuer) or (2)
obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of such government the timely payment of
which is unconditionally guaranteed as a full faith and credit
obligation by such government (which obligations are not subject to
redemption prior to maturity at the option of the issuer), in either
case, in such amounts and maturing at such times that the proceeds of
said obligations to be received upon their respective maturities and
interest payment dates will provide funds sufficient to pay the
principal, premium, if any, and interest to maturity, or to the
Redemption Date, as the case may be, with respect to all of the
Subordinated Securities to be paid or redeemed, as such principal,
premium and interest become due, provided that the Trustee shall have
been irrevocably instructed to apply the proceeds of said obligations
to the payment of said principal, premium, if any, and interest with
respect to said Subordinated Securities.
52
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SECTION 11.05. UNCLAIMED MONEYS. Any moneys deposited with or paid
to the Trustee or any Paying Agent for the payment of the principal of and any
premium and interest on any Subordinated Security and not so applied but
remaining unclaimed under applicable law shall be transferred by the Trustee to
the appropriate Persons in accordance with applicable laws, and the Holder of
such Subordinated Security shall thereafter look only to such Persons for any
payment which such Holder may be entitled to collect and all liability of the
Trustee and such Paying Agent with respect to such moneys shall thereupon
cease.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01. INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF
COMPANY EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement of this Subordinated Indenture, or of any
Subordinated Security, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, stockholder, officer or
director, as such past, present or future, of the Company, either directly or
through the Company, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Subordinated Indenture and the obligations
issued hereunder are solely corporate obligations, and that no personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this
Subordinated Indenture or in any of the Subordinated Securities or implied
therefrom; and that any and all such personal liability of every name and
nature, either at common law or in equity or by constitution or statute, of,
and any and all such rights and claims against, every such incorporator,
stockholder, officer or director, as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Subordinated Indenture or in any of
the Subordinated Securities or implied therefrom are hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Subordinated Indenture and the issue of such Subordinated Securities.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01. SUCCESSORS AND ASSIGNS OF THE COMPANY BOUND BY
SUBORDINATED INDENTURE. All the covenants, stipulations, promises and
agreements in this Subordinated Indenture contained by or in behalf of the
Company shall bind its successors and assigns, whether so expressed or not.
SECTION 13.02. NOTICES; EFFECTIVENESS. Any notice or demand which by
any provision of this Subordinated Indenture is required or permitted to be
given or served by the Trustee or by the Holders of Subordinated Securities to
or on the Company, or by the Company or by the Holders of Subordinated
Securities to the Trustee or upon the Depository by the Company or the Trustee
may be electronically communicated or hand delivered or sent by overnight
courier, addressed to the relevant party as provided in this Section 13.02.
53
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All communications intended for the Company shall be sent to:
Airtouch Communications, Inc.
One California Street
San Francisco, CA 94111
Attention: Senior Vice President, Legal
Fax Number: (415) 658-2551
All communications intended for the Trustee shall be sent to:
Attention:
Fax Number:
or at any other address of which any of the foregoing shall have notified the
others in any manner prescribed in this Section 13.02.
For all purposes of this Subordinated Indenture, a notice or
communication will be deemed effective:
(a) if delivered by hand or sent by overnight courier, on
the day it is delivered unless (I) that day is not a Business Day in
the city specified (a "Local Business Day") in the address for notice
provided by the recipient or (ii) if delivered after the close of
business on a Local Business Day, then on the next succeeding Local
Business Day or
(b) if sent by facsimile transmission, on the date
transmitted, provided that oral or written confirmation of receipt is
obtained by the sender unless the date of transmission and
confirmation is not a Local Business Day, in which case, on the next
succeeding Local Business Day.
Any notice, direction, requires, demand, consent or waiver by the Company, any
Subordinated Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given, made or filed, for all purposes, if given, made or filed in
writing at the Principal Office of the Trustee in accordance with the
provisions of this Section 13.02.
Any notice, request, consent or waiver by the Company or the Trustee upon the
Depository shall have been sufficiently given, made or filed, for all purposes,
if give or made in accordance with the provisions of this Section 13.02 at the
address shown for such Depository in the Register or at such other address as
the Depository shall have provided for purposes of notice.
SECTION 13.03. COMPLIANCE CERTIFICATES AND OPINIONS. Upon on any
request or application by the Company to the Trustee to take any action under
any of the provisions of this Subordinated Indenture, the Company shall furnish
to the Trustee an Officer's Certificate stating that all conditions precedent,
if any, provided for in this Subordinated Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such
54
<PAGE> 64
document is specifically required by any provision of this Subordinated
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Subordinated
Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Subordinated Indenture (other than a
certificate provided pursuant to Section 5.03(d) shall include (1) a statement
that the Person making such certificate or opinion has read such covenant or
condition; (2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
Person, he or she has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (4) a statement as to whether
or not, in the opinion of such Person, such condition or covenant has been
complied with.
Any certificate, statement or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which such certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon the certificate, statement or
opinion of or representations by an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows that the certificate, statement or
opinion or representations with respect to the matters upon which such Person's
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants, unless such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the accounting
matters upon which his or her certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate or opinion of any firm of independent
public accountants filed with the Trustee shall contain a statement that such
firm is independent.
SECTION 13.04. DAYS ON WHICH PAYMENT TO BE MADE, NOTICE GIVEN OR
OTHER ACTION TAKEN. If any date on which a payment is to be made, notice given
or other action taken hereunder is a Saturday, Sunday or legal holiday in the
state in which the payment, notice or other action is to be made, given or
taken, then such payment, notice or other action shall be made, given or taken
on the next succeeding Business Day in such state, and in the case of any
payment, no interest shall accrue for the delay.
SECTION 13.05. PROVISIONS REQUIRED BY TRUST INDENTURE ACT OF 1939 TO
CONTROL. If and to the extent that any provision of this Subordinated
Indenture limits, qualifies or conflicts with another provision included in
this Subordinated Indenture which is required to be included in this
Subordinated Indenture by any of Sections 310 to 317, inclusive, of the Trust
Indenture Act of 1939 such required provision shall control.
SECTION 13.06. GOVERNING LAW. THIS SUBORDINATED INDENTURE AND EACH
SUBORDINATED SECURITY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF
THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF SAID STATE.
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SECTION 13.07. PROVISIONS OF THE SUBORDINATED INDENTURE AND
SUBORDINATED SECURITIES FOR THE SOLE BENEFIT OF THE PARTIES AND THE
SUBORDINATED SECURITYHOLDERS. Nothing in this Subordinated Indenture or in the
Subordinated Securities, expressed or implied, shall give or be construed to
give any Person, firm or Company, other than the parties hereto and the Holders
of the Subordinated Securities, any legal or equitable right, remedy or claim
under or in respect of this Subordinated Indenture, or under any covenant,
condition and provision herein contained; all its covenants, conditions and
provisions being for the sole benefit of the parties hereto and of the Holders
of the Subordinated Securities.
SECTION 13.08. SUBORDINATED INDENTURE MAY BE EXECUTED IN
COUNTERPARTS. This Subordinated Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
________________________ hereby accepts the trusts in this
Subordinated Indenture declared and provided, upon the terms and conditions
hereinabove set forth.
IN WITNESS WHEREOF, AIRTOUCH COMMUNICATIONS, INC. has caused this
Subordinated Indenture to be signed by its Chairman of the Board or any
Vice-Chairmen of the Board or one of its Vice-Presidents and
________________________ has caused this Subordinated Indenture to be signed
and acknowledged by one of its Vice-Presidents and to be signed and
acknowledged by one of its Assistant Secretaries, all as of the day and year
first written above.
AIRTOUCH COMMUNICATIONS, INC.
By _________________________________
________________________, as Trustee
By _________________________________
Vice-President
By _________________________________
Assistant Secretary
56
<PAGE> 1
EXHIBIT 4.13
================================================================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
Dated as of , 1995
------------------
================================================================================
1
<PAGE> 2
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
------------------- --------
<S> <C>
310(a) . . . . . . . . . . . . . . . . . . . . 4.1(a)
310(b) . . . . . . . . . . . . . . . . . . . . 4.1(c)
310(c) . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(b) . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(c) . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . 2.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . 2.2(b)
313 . . . . . . . . . . . . . . . . . . . . . 2.3
314(a) . . . . . . . . . . . . . . . . . . . . 2.4
314(b) . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . 2.5
314(d) . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . 2.4
314(f) . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . . 3.1(d)
315(b) . . . . . . . . . . . . . . . . . . . . 2.7
315(c) . . . . . . . . . . . . . . . . . . . . 3.1(c)
315(d) . . . . . . . . . . . . . . . . . . . . 3.1(d)
315(e) . . . . . . . . . . . . . . . . . . . . 2.12
316(a) . . . . . . . . . . . . . . . . . . . . 5.4(a), 2.6
316(b) . . . . . . . . . . . . . . . . . . . . 2.9
316(c) . . . . . . . . . . . . . . . . . . . . 3.1
317(a) . . . . . . . . . . . . . . . . . . . . 2.10, 2.11
317(b) . . . . . . . . . . . . . . . . . . . . 3.1(e)
318(a) . . . . . . . . . . . . . . . . . . . . 2.1
318(b) . . . . . . . . . . . . . . . . . . . Inapplicable
3.18(c) . . . . . . . . . . . . . . . . . . . 2.1
--------------------
*This Cross-Reference Table does not constitute part of the
Declaration and shall not affect the interpretation of any of its
terms or provisions.
</TABLE>
2
<PAGE> 3
PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of , 1995, is
executed and delivered by AirTouch Communications, Inc., a Delaware corporation
(the "Guarantor"), and ___________________ a Delaware banking corporation, as
trustee (the "Preferred Guarantee Trustee"), for the benefit of the Holders (as
defined herein) from time to time of the Preferred Securities (as defined
herein) of ATI Financing, a Delaware statutory business trust (the "Trust
Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of ___________________, 1995, among the trustees of the
Trust Issuer named therein, the Guarantor as Sponsor and the holders from time
to time of undivided beneficial interests in the assets of the Trust Issuer, the
Trust Issuer is issuing on the date hereof $ aggregate stated Liquidation Amount
of Preferred Securities designated the ______% Trust Originated Preferred
Securities (the "Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred Securities, the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth in this Guarantee Agreement, to pay to the Holders of the Preferred
Securities the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein.
WHEREAS, the Guarantor is also executing and delivering a guarantee agreement
(the "Common Securities Guarantee Agreement") in substantially identical terms
to this Guarantee Agreement for the benefit of the holders of the Common
Securities (as defined herein) except that if an Event of Default (as defined in
the Indenture (as defined herein)), has occurred and is continuing, the rights
of holders of the Common Securities to receive Guarantee Payments under the
Common Securities Guarantee are subordinated to the rights of Holders of
Preferred Securities to receive Guarantee Payments under this Guarantee
Agreement.
NOW, THEREFORE, in consideration of the purchase by each Holder of Preferred
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation.
In this Guarantee Agreement, unless the context otherwise requires:
(a) Capitalized terms used in this Guarantee Agreement but not defined
in the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
3
<PAGE> 4
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in
this Guarantee Agreement or unless the context otherwise requires;
and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act of 1933, as amended, or any successor rule thereunder.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Trust Issuer.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Event of Default" means a default by the Guarantor on any of its
payment obligations under this Guarantee Agreement.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Trust Issuer: (i) any accrued and unpaid Distributions (as
defined in the Declaration) that are required to be paid on such Preferred
Securities to the extent the Trust Issuer shall have funds available therefore,
(ii) the redemption price, including all accrued and unpaid Distributions to the
date of redemption (the "Redemption Price") to the extent the Trust Issuer has
funds available therefor, with respect to any Preferred Securities called for
redemption by the Trust Issuer, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Trust Issuer (other than in
connection with the distribution of Subordinated Notes to the Holders in
exchange for Preferred Securities as provided in the Declaration), the lesser of
(a) the aggregate of the Liquidation Amount and all accrued and unpaid
Distributions on the Preferred Securities to the date of payment, and (b) the
amount of assets of the Trust Issuer remaining available for distribution to
Holders in liquidation of the Trust Issuer (in either case, the "Liquidation
Distribution"). If an event of default under the Indenture has occurred and is
continuing, the rights of holders of the Common Securities to receive payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of Holders of Preferred Securities to receive Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and records
of the Trust Issuer of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives or agents of the
Preferred Guarantee Trustee.
4
<PAGE> 5
"Indenture" means the Indenture dated as of _______________, 1995, as
supplemented by the First Supplemental Indenture, each among the Guarantor (the
"Subordinated Note Trust Issuer") and _____________, as trustee, as originally
executed, and as may be amended from time to time, pursuant to which certain
subordinated debt securities of the Subordinated Note Trust Issuer are to be
issued to the Property Trustee of the Trust Issuer.
"Liquidation Amount" has the meaning set forth in the Declaration.
"Liquidation Distribution" has the meaning set forth in the definition
of Guarantee Payment.
"Majority in Liquidation Amount of the Securities" means, except as
provided by the Trust Indenture Act, Holder(s) of Preferred Securities a vote by
Holder(s) of Preferred Securities, voting separately as a class, and the
aggregate Liquidation Amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all Preferred
Securities voted by such Holders represents more than 50% of the above stated
Liquidation Amount of all Preferred Securities.
"Officer's Certificate" means, with respect to any Person, a
certificate signed by an Authorized Officer of such Person. Any Officer's
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Guarantee Agreement shall include:
(a) a statement that the officer signing the Certificate has read the
covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation on which the statements or opinions contained in such Certificate
are based;
(c) a statement that, in the opinion of such officer, he or she has
made such examination or investigation as is necessary to enable such officer to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Guarantee Trustee" means _________________ until a Successor
Preferred Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter means each such
Successor Preferred Guarantee Trustee.
"Redemption Price" has the meaning set forth in the definition of
Guarantee Payments.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any vice- president, any assistant vice-president, the secretary, any
assistant secretary, the treasurer,
5
<PAGE> 6
any assistant treasurer, any trust officer or assistant trust officer or any
other officer of the Corporate Trust Department of the Preferred Guarantee
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"25% in Liquidation Amount of the Securities" means, except as provided
by the Trust Indenture Act, Holder(s) of Preferred Securities a vote by
Holder(s) of Preferred Securities, voting separately as a class, and the
aggregate Liquidation Amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all Preferred
Securities voted by such Holders represents more than 25% of the above stated
Liquidation Amount of all Preferred Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Section 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control;
SECTION 2.2. Lists of Holders of Securities.
(a) The Guarantor shall provide the Preferred Guarantee Trustee with a
list, in such form as the Preferred Guarantee Trustee may reasonably require, of
the names and addresses of the Holders of the Preferred Securities ("List of
Holders") as of such date, (i) within 14 days after January 1 and June 30 of
each year, and (ii) at any other time within 30 days of receipt by the Guarantor
of a written request for a List of Holders as of a date no more than 14 days
before such List of Holders is given to the Preferred Guarantee Trustee provided
that the Guarantor shall not be obligated to provide such List of Holders at any
time the List of Holders does not differ from the most recent List of Holders
given to the Preferred Guarantee Trustee by the Guarantor. The Preferred
Guarantee Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its obligations
under Section 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Preferred Guarantee Trustee.
6
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Within 60 days after May 15 of each year, the Preferred Guarantee
Trustee shall provide to the Holders of the Preferred Securities such reports as
are required by Section 313 of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The Preferred
Guarantee Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
SECTION 2.4. Periodic Reports to Preferred Guarantee Trustee.
The Guarantor shall provide to the Preferred Guarantee Trustee such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officer's Certificate.
SECTION 2.6. Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of Preferred Securities
may, by vote, on behalf of the Holders of all of the Preferred Securities, waive
any past Event of Default and its consequences. Upon such waiver, any such Event
of Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Guarantee
Agreement, but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
SECTION 2.7. Event of Default; Notice.
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Preferred Securities, notices of all Events of
Default known to the Preferred Guarantee Trustee, unless such defaults have been
cured before the giving of such notice, provided, that, the Preferred Guarantee
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers of the Preferred Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee shall
have received written notice, or a Responsible Officer charged with the
administration of the Declaration shall have obtained written notice, of such
Event of Default.
SECTION 2.8 Conflicting Interests.
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The Declaration shall be deemed to be specifically described in this
Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
SECTION 2.9 Limitation on Suits by Holders
No Holder shall have any right by virtue or by availing of any
provision of this to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Guarantee Agreement or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
such Holder previously shall have given to the Guarantee Trustee written notice
of a continuing Event of Default, as hereinbefore provided, and unless also the
Holders of not less than 25% in Liquidation Amount of the Securities shall have
made written request upon the Guarantee Trustee to institute such action, suit
or proceeding in its own name as Guarantee Trustee hereunder and shall have
offered to the Guarantee Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby
(including the reasonable fees of counsel for the Guarantee Trustee), and the
Guarantee Trustee, for 60 days after its receipt of such notice, request and
offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to this Section 2.9; it
being understood and intended, and being expressly covenanted by the taker and
every Holder with every other taker and Holder and the Guarantee Trustee, that
no one or more Holders shall have any right in any manner whatever by virtue or
by availing of any provision of this Guarantee Agreement to affect, disturb or
prejudice the rights of the any other Holders, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Guarantee Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders. For the protection and
enforcement of the provisions of this Section 2.9, each and every Holder and the
Guarantee Trustee shall be entitled to such relief as can be given either at law
or in equity.
Notwithstanding any other provisions in this Guarantee Agreement, the
right of any Holder to receive payment of distributions on a Preferred Security
on or after the respective due dates expressed in such Preferred Security (or,
in the case of redemption, on or after the date fixed for redemption), or to
institute suit for the enforcement of any such payment on or after such
respective dates shall not be impaired or affected without the consent of such
Holder.
SECTION 2.10. Covenant of Guarantor to Pay to Guarantee Trustee Whole Amount
Due on Default in Guarantee Payments.
The Guarantor covenants that in case default shall be made in the
payment of any Guarantee Payment as and when the same shall become due and
payable and which payment has not been extended in accordance with the
provisions of this Guarantee, and such default shall have continued for a period
of 90 days or upon demand of the Preferred Guarantee Trustee, the Guarantor will
pay to the Preferred Guarantee Trustee, for the benefit of the Holders, the
whole amount that then shall have become due and payable, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expense of collection, including a reasonable compensation to the Preferred
Guarantee Trustee, its agents and counsel, and any expenses or liabilities
incurred, and all advances made, by the Trustee hereunder other than through its
negligence or bad faith.
In case the Guarantor shall fail forthwith to pay such amounts upon
such demand, the Guarantee Trustee, in its own name and as Preferred Guarantee
Trustee of an express trust, shall be
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entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Guarantor or any other obligor upon such
Preferred Guarantees, and collect in the manner provided by law out of the
property of the Guarantor or any other such obligor wherever situated the moneys
adjudged or decreed to be payable.
If an Event of Default with respect to the Preferred Guarantees occurs
and is continuing, the Guarantee Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders by such appropriate
judicial proceedings as the Preferred Guarantee Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Guarantee Agreement or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 2.11 Trustee May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other similar judicial proceeding relative to the
Guarantor or any other obligor upon the Preferred Guarantees or the property of
the Guarantor or of such other obligor or their creditors, the Preferred
Guarantee Trustee (irrespective of whether the Guarantee Payments shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Preferred Guarantee Trustee shall have made any
demand on the Guarantor for the payment of overdue Guarantee Payments) shall be
entitled and empowered, to the fullest extent permitted by law, by intervention
in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of Guarantee
Payments owing and unpaid and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the
Preferred Guarantee Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Preferred
Guarantee Trustee, its agents and counsel) and of the Holders allowed
in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Preferred Guarantee Trustee and, in the
event that the Preferred Guarantee Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Preferred Guarantee Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Preferred Guarantee Trustee, its agents and counsel, and any
other amounts due the Preferred Guarantee Trustee under this Guarantee
Agreement.
Nothing herein contained shall be deemed to authorize the Preferred
Guarantee Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Subordinated Securities or the rights of any Holder thereof or to
authorize the Preferred Guarantee Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 2.12 Requirement of an Undertaking to Pay Costs in Certain Suits Under
the Guarantee Agreement. All parties to this Guarantee Agreement agree, and
each Holder by such Holder's acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Guarantee Agreement, or in any suit against
the Preferred Guarantee Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 2.12 shall not apply to any suit instituted by the Preferred Guarantee
Trustee, to any suit instituted by any Holder, or group of such Holders,
holding in the aggregate more than 10% of Liquidation Amount, or to any suit
instituted by any Holder for the enforcement of the payment of the Guarantee
Payments, on or after the due date expressed in such Security.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Preferred Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Preferred Guarantee
Trustee for the benefit of the Holders of the Preferred Securities, and the
Preferred Guarantee Trustee shall not transfer this Guarantee Agreement to a
Successor Preferred Guarantee Trustee on acceptance by such Successor Preferred
Guarantee Trustee of its appointment to act as Successor Preferred Guarantee
Trustee. The right, title and interest of the Preferred Guarantee Trustee shall
automatically vest in any Successor Preferred Guarantee Trustee, and such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the appointment of such
Successor Preferred Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Preferred Guarantee Trustee shall enforce this Guarantee Agreement for the
benefit of the Holders of the Preferred Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Guarantee Agreement, and no implied covenants shall be read into
this Guarantee Agreement against the Preferred Guarantee Trustee. In case an
Event of Default has occurred (that has not been cured or waived pursuant to
Section 2.6), the Preferred Guarantee Trustee shall exercise such of the rights
and powers vested in it by this Guarantee Agreement, and use the same degree of
care and skill in its exercise thereof, as a prudent person would exercise or
use under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Preferred Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations of the Preferred
Guarantee Trustee shall be determined solely by the
express provisions of this Guarantee Agreement, and the
Preferred Guarantee Trustee shall not be liable except
for the performance of such duties and obligations as
are specifically set forth in this Guarantee Agreement,
and no implied covenants or obligations shall be read
into this Guarantee Agreement against the Preferred
Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Preferred Guarantee Trustee, the Preferred Guarantee
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to
the Preferred Guarantee Trustee and conforming to the
requirements of this Guarantee Agreement;
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but in the case of any such certificates or opinions
that by any provision hereof are specifically required
to be furnished to the Preferred Guarantee Trustee, the
Preferred Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they
conform to the requirements of this Declaration;
(ii) the Preferred Guaranty Trustee shall not be liable for
any error of judgment made in good faith by a
Responsible Officer of the Preferred Guarantee Trustee,
unless it shall be proved that the Preferred Guarantee
Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it
in good faith in accordance with the direction of the
Holders of not less than a Majority in Liquidation
Amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any
remedy available to the Preferred Guarantee Trustee, or
exercising any trust or power conferred upon the
Preferred Guarantee Trustee under this Guarantee
Agreement; and
(iv) no provision of this Guarantee Agreement shall require
the Preferred Guarantee Trustee to expend or risk its
own funds or otherwise incur personal financial
liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if the
Preferred Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the
terms of this Guarantee Agreement or adequate indemnity
against such risk or liability is not reasonably assured
to it.
(e) The Preferred Guarantee Trustee may authorize one or more persons
(each a "Paying Agent") to pay Guarantee Payments and any such Paying Agent
shall comply with Section 317(b) of the Trust Indenture Act. Any Paying Agent
may be removed by the Preferred Guarantee Trustee at any time and a successor
Paying Agent or additional Paying Agents may be appointed at any time by the
Preferred Guarantee Trustee.
SECTION 3.2. Certain Rights of Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may rely and shall be
fully protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it
to be genuine and to have been signed, sent or presented
by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced
by a Direction or an Officer's Certificate.
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(iii) Whenever, in the administration of this Guarantee
Agreement, the Preferred Guarantee Trustee shall deem it
desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the
Preferred Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officer's
Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor.
(iv) The Preferred Guarantee Trustee shall have no duty to see
to any recording, filing or registration of any
instrument (or any rerecording, refiling or registration
thereof).
(v) The Preferred Guarantee Trustee may consult with counsel,
and the written advice or opinion of such counsel with
respect to legal matters shall be full and complete
authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith
and in accordance with such advice or opinion. Such
counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The
Preferred Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration
of this Guarantee Agreement from any court of competent
jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested
in it by this Guarantee Agreement at the request or
direction of any Holder, unless such Holder shall have
provided to the Preferred Guarantee Trustee such adequate
security and indemnity as would satisfy a reasonable
person in the position of the Preferred Guarantee
Trustee, against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might
be incurred by it in complying with such request or
direction, including such reasonable advances as may be
requested by the Preferred Guarantee Trustee; provided
that, nothing contained in this Section 3.2(a)(vi) shall
be taken to relieve the Preferred Guarantee Trustee, upon
the occurrence of an Event of Default, of its obligation
to exercise the rights and powers vested in it by this
Guarantee Agreement.
(vii) The Preferred Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, Subordinated Note, note, other evidence of
indebtedness or other paper or document, but the
Preferred Guarantee Trustee, in its discretion, may make
such further inquiry or investigation into such facts or
matters as it may see fit.
(viii) The Preferred Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or
attorneys, and the Preferred Guarantee Trustee shall not
be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by
it hereunder.
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(ix) Any action taken by the Preferred Guarantee Trustee or
its agents hereunder shall bind the Holders of the
Preferred Securities, and the signature of the Preferred
Guarantee Trustee or its agents alone shall be sufficient
and effective to perform any such action. No third party
shall be required to inquire as to the authority of the
Preferred Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this
Guarantee Agreement, both of which shall be conclusively
evidenced by the Preferred Guarantee Trustee's or its
agent's taking such action.
(x) Whenever in the administration of this Guarantee
Agreement the Preferred Guarantee Trustee shall deem it
desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action
hereunder, the Preferred Guarantee Trustee (i) may
request instructions from the Holders of the Preferred
Securities, (ii) may refrain from enforcing such remedy
or right or taking such other action until such
instructions are received, and (iii) shall be protected
in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose
any duty or obligation on the Preferred Guarantee Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed on it
in any jurisdiction in which it shall be illegal, or in which the Preferred
Guarantee Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts or to exercise any such right,
power, duty or obligation. No permissive power or authority available to the
Preferred Guarantee Trustee shall be construed to be a duty.
(c) The Guarantor assumes responsbility for being and remaining
informed of the financial condition of the Issuer Trustee and of all other
circumstances bearing upon the risk of non-payment of amounts owing under the
Preferred Securities which diligent inquiry would reveal and agrees that the
Holders of the Preferred Securities shall have no duty to advise the Guarantor
of information known to any of them regarding such condition or any such
circumstances.
SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee.
The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Preferred Guarantee Trustee does not assume
any responsibility for their correctness. The Preferred Guarantee Trustee makes
no representation as to the validity or sufficiency of this Guarantee Agreement.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. Preferred Guarantee Trustee; Eligibility.
(a) There shall at all times be a Preferred Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
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(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Securities and
Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws
to exercise corporate trust powers, having a combined
capital and surplus of at least $100,000,000, and subject
to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above,
then, for the purposes of this Section 4.1(a)(ii), the
combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2. Appointment, Removal and Resignation of Preferred Guarantee
Trustees.
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in accordance
with Section 4.2(b) until a Successor Preferred Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been appointed
or until its removal or resignation. The Preferred Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by an instrument
in writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery to the Guarantor of an instrument of resignation, the
resigning Preferred Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Preferred Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Preferred Guarantee Trustee.
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ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Trust Issuer), as and when due, regardless of any defense, right of
set-off or counterclaim that the Trust Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Trust Issuer to pay such amounts to the Holders.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Trust
Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred Securities to
be performed or observed by the Trust Issuer;
(b) the extension of time for the payment by the Trust Issuer of all or
any portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Preferred Securities (other than an extension of
time for payment of Distributions, Redemption Price, Liquidation Distribution or
other sum payable that results from the extension of any interest payment period
on the Subordinated Notes or any extension of the maturity date of the
Subordinated Notes permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Trust Issuer granting indulgence or extension of
any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust Issuer or any of the assets of
the Trust Issuer;
(e) any invalidity of, or defect or deficiency in the Preferred
Securities;
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(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 2.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4. Rights of Holders.
(a) The Holders of a Majority in Liquidation Amount of the Preferred
Securities have the right to direct the time, method and place of conducting of
any proceeding for any remedy available to the Preferred Guarantee Trustee in
respect of this Guarantee Agreement or exercising any trust or power conferred
upon the Preferred Guarantee Trustee under this Guarantee Agreement.
(b) If the Preferred Guarantee Trustee fails to enforce this Guarantee
Agreement, Holders of 25% in Liquidation Amount may, after a period of 30 days
has elapsed from such Holder's written request to the Preferred Guarantee
Trustee to enforce this Guarantee Agreement, institute a legal proceeding
directly against the Guarantor to enforce its rights under this Guarantee
Agreement, without first instituting a legal proceeding against the Trust
Issuer, the Preferred Guarantee Trustee or any other Person.
SECTION 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all rights of the Holder of any
Preferred Securities in respect of any amounts paid by the Guarantor pursuant to
the provisions hereof; provided, however, that the Guarantor shall not be
entitled to enforce, or to receive any payments arising out of or based upon
such right of subrogation until the Distributions due on all Preferred
Securities shall have been paid in full. The Guarantor shall not exercise its
right of subrogation if such exercise would adversely affect the irghts of
Holders of any outstanding Preferred Securities.
SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
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ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION; CORPORATE EXISTENCE
SECTION 6.1. Limitation of Transactions.
So long as any Preferred Securities remain outstanding, if there shall
have occurred an Event of Default or an Event of Default under the Declaration,
then (a) the Guarantor shall not declare or pay any dividend on, or make any
distribution with respect to, or redeem, purchase, acquire or make any
distribution with respect to, any of its capital stock; and (b) the Guarantor
shall not make any payment of interest, principal or premium, if any, on or
repay, repurchase or redeem any debt securities issued by the Guarantor which
rank pari passu with or junior to the Subordinated Notes, provided, that, the
foregoing restriction in this Section 6.1 (a) shall not apply to any stock
dividends paid by the Guarantor, or any of its subsidiaries, where the dividend
stock is the same stock as that on which the dividend is being paid.
SECTION 6.2. Ranking.
This Guarantee Agreement will constitute an unsecured obligation of the
Guarantor and will rank (i) subordinate and junior in right of payment to all
other liabilities of the Guarantor, (ii) pari passu with the most senior
preferred or preference stock now or hereafter issued by the Guarantor and with
any guarantee now or hereafter entered into by the Guarantor in respect of any
preferred or preference stock of any Affiliate of the Guarantor, and (iii)
senior to the Guarantor's common stock.
SECTION 6.2. Corporate Existence.
The Guarantor covenants that so long as any of the Preferred Guarantees
are Outstanding, it will maintain its existence, will not dissolve, sell or
otherwise dispose of all or substantially all of its assets and will not
consolidate with or merge into another entity or permit one or more other
entities to consolidate with or merge into it; provided that the Guarantor may,
without violating the covenants in this Section 6.2 contained, consolidate with
or merge into another entity or permit one or more other entities to consolidate
with or merge into it, or sell or otherwise transfer to another entity all or
substantially all of its assets as an entirety and thereafter dissolve, if the
surviving, resulting or transferee entity, as the case may be, (i) shall be
organized and existing under the laws of one of the States of the United States
of America, (ii) assumes, if such entity is not the Guarantor, all of the
obligations of the Guarantor hereunder and (iii) is not, after such transaction,
otherwise in default under any provisions hereof.
ARTICLE VII
TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate upon (i) full payment of all
Distribution due with respect to the Securities or the Redemption Price of all
Securities, (ii) upon the distribution of the Subordinated Notes to the Holder's
of all of the Preferred Securities or (iii) upon full payment of the amounts
payable in accordance with the Declaration upon liquidation of the Trust Issuer.
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
of Preferred Securities
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must restore payment of any sums paid under the Preferred Securities or under
this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith in accordance with this Guarantee
Agreement and in a manner that such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
Guarantee Agreement or by law, except that an Indemnified Person shall be liable
for any such loss, damage or claim incurred by reason of such Indemnified
Person's negligence or willful misconduct with respect to such acts or
omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Preferred Securities might properly be paid.
SECTION 8.2. Indemnification.
(a) To the fullest extent permitted by applicable law, the Guarantor
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage or claim incurred by such Indemnified Person by reason of any act
or omission performed or omitted by such Indemnified Person in good faith in
accordance with this Guarantee Agreement and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this in accordance with this Guarantee Agreement, except
that no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of
negligence or willful misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any claim,
demand, action, suit or proceeding shall, from time to time, be advanced by the
Guarantor prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Guarantor of an undertaking by or on behalf of
the Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in Section
8.2(a).
ARTICLE IX
MISCELLANEOUS
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SECTION 9.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding.
SECTION 9.2. Amendments.
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Guarantee Agreement may only be amended with the prior approval of the Holders
of at least a Majority in Liquidation Amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all the outstanding Preferred Securities. The provisions of Section 12.2 of the
Declaration with respect to meetings of Holders of the Securities apply to the
giving of such approval.
SECTION 9.3. Notices.
All notices provided for in this Guarantee Agreement shall be in
writing, duly signed by the party giving such notice, and shall be
electronically communicated or hand delivered or sent by overnight courier,
addressed to the relevant party as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders of the
Preferred Securities):
(a) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Preferred Securities):
AirTouch Communications, Inc.
One California Street
San Francisco, California 94111
(a) If given to any Holder of Preferred Securities, at the address set
forth on the books and records of the Trust Issuer.
For all purposes of this Guarantee Agreement, a notice or communication
will be deemed effective:
(a) if delivered by hand or sent by overnight courier, on the
day it is delivered unless (i) that day is not a Business Day in the
city specified (a "Local Business Day") in the address for notice
provided by the recipient or (ii) if delivered after the close of
business on a Local Business Day, then on the next succeeding Local
Business Day or
(b) if sent by facsimile transmission, on the date transmitted,
provided that oral or written confirmation of receipt is obtained by
the sender unless the date
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of transmission and confirmation is not a Local Business Day, in which
case, on the next succeeding Local Business Day.
Any notice, direction, requires, demand, consent or waiver by the
Sponsor, or any Holder of Securities to or upon the Trustee shall be deemed to
have been sufficiently given, made or filed, for all purposes, if given, made or
filed in writing at the principal office of the Trustee in accordance with the
provisions of this Section 14.1.
Any notice, request, consent or waiver by the Company or the Trustee
upon the Depository shall have been sufficiently given, made or filed, for all
purposes, if give or made in accordance with the provisions of this Section 14.1
at the address shown for such Depository in the Register or at such other
address as the Depository shall have provided for purposes of notice.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders of
the Preferred Securities and, subject to Section 3.1(a), is not separately
transferable from the Preferred Securities.
SECTION 9.5. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
AirTouch Communications, Inc.
By:
Name:
Title:
as Preferred Guarantee Trustee
By:
Name:
Title:
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EXHIBIT 4.14
FORM OF STOCK
PURCHASE CONTRACT AGREEMENT
AIRTOUCH COMMUNICATIONS, INC.
AND
[PURCHASE CONTRACT AGENT]
DATED AS OF ___________
1
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
PARTIES
RECITALS
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions
Section 102. Compliance Certificates and Opinions
Section 103. Form of Documents Delivered to Agent
Section 104. Acts of Holders; Record Dates
Section 105. Notices, etc , to Agent and the Company
Section 106. Notice to Holders; Waiver
Section 107. Effect of Headings and Table of Contents
Section 108. Successors and Assigns
Section 109. Separability Clause
Section 110. Benefits of Agreement
Section 111. Governing Law
Section 112. Legal Holidays
Section 113. Counterparts
Section 114. Inspection of Agreement
ARTICLE TWO
Security Certificate Forms
Section 201. Forms of Security Certificates Generally
Section 202. Form of Agent's Certificate of Authentication
ARTICLE THREE
The Securities
Section 301. Title and Terms; Denominations
Section 302. Rights and Obligations Evidenced by the Security Certificates
Section 303. Execution, Authentication, Delivery and Dating
Section 304. Temporary Security Certificates
Section 305. Registration; Registration of Transfer and Exchange
Section 306. Mutilated, Destroyed, Lost and Stolen Security Certificates
Section 307. Persons Deemed Owners
Section 308. Cancellation
Section 309. Securities Not Separable
</TABLE>
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<TABLE>
<S> <C>
ARTICLE FOUR
The Pledged Securities
Section 401. Payment of Distributions; Distributions Rights Preserved
Section 402. Transfer of Pledged Securities Upon Occurrence of Termination Event
ARTICLE FIVE
The Purchase Contracts
Section 501. Purchase of Shares of Common Stock
Section 502. Contract Fees
Section 503. Deferral of Payment Dates For Contract Fee
Section 504. Payment of Purchase Price
Section 505. Issuance of Shares of Common Stock
Section 506. Adjustment of Settlement Rate
Section 507. Notice of Adjustments and Certain Other Events
Section 508. Termination Event; Notice
Section 509. Early Settlement
Section 510. No Fractional Shares
Section 511. Charges and Taxes
ARTICLE SIX
Remedies
Section 601. Unconditional Right of Holders to Receive Contract Fee
Section 602. Restoration of Rights and Remedies
Section 603. Rights and Remedies Cumulative
Section 604. Delay or Omission Not Waiver
Section 605. Undertaking for Costs
Section 606. Waiver of Stay or Extension Laws
ARTICLE SEVEN
The Agent
Section 701. Certain Duties and Responsibilities
Section 702. Notice of Default
Section 703. Certain Rights of Agent
Section 704. Not Responsible for Recitals or Issuance of Securities
Section 705. May Hold Securities
Section 706. Money Held in Trust
Section 707. Compensation and Reimbursement
Section 708. Corporate Agent Required; Eligibility
Section 709. Resignation and Removal; Appointment of Successor
Section 710. Acceptance of Appointment by Successor
Section 711. Merger, Conversion, Consolidation or Succession to Business
</TABLE>
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<TABLE>
<S> <C>
Section 712. Preservation of Information; Communications to Holders
Section 713. No Obligations of Agent
Section 714. Tax Compliance
ARTICLE EIGHT
Supplemental Agreements
Section 801. Supplemental Agreements Without Consent of Holders
Section 802. Supplemental Agreements with Consent of Holders
Section 803. Execution of Supplemental Agreements
Section 804. Effect of Supplemental Agreements
Section 805. Reference to Supplemental Agreements
ARTICLE NINE
Consolidation, Merger, Sale or Conveyance
Section 901. Covenant Not to Merge, Consolidate, Sell or Convey Property
Except Under Certain Conditions
Section 902. Rights and Duties of Successor Corporation
Section 903. Opinion of Counsel to Agent
ARTICLE TEN
Covenants
Section 1001. Performance Under Purchase Contracts
Section 1002. Maintenance of Office or Agency
Section 1003. Company to Reserve Common Stock
Section 1004. Covenants as to Common Stock
Section 1005. Statements of Officers of the Company as to Default
TESTIMONIUM
SIGNATURES
EXHIBIT A Form of Security Certificate
</TABLE>
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PURCHASE CONTRACT AGREEMENT, dated as of ________________,
199___, between AIRTOUCH COMMUNICATIONS, INC., a Delaware corporation (the
"Company"), and [PURCHASE CONTRACT AGENT], acting as purchase contract agent
for the Holders of Securities from time to time (the "Agent").
RECITALS
A. The Company has duly authorized the execution and delivery of this
Agreement and the Security Certificates evidencing the Securities.
B. All things necessary to make the Company's obligations under the
Securities, when the Security Certificates are executed by the Company and
authenticated, executed on behalf of the Holders and delivered by the
Agent, as in this Agreement provided, the valid obligations of the Company,
and to constitute these presents a valid agreement of the Company, in
accordance with its terms, have been done.
WITNESSETH: For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular; and
(2) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" when used with respect to any Holder, has the meaning
specified in Section 104.
"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" when used with respect to any specified
Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means the Person named as the "Agent" in the first
paragraph of this instrument until a successor Agent shall have become
such pursuant to the applicable provisions of this Agreement, and
thereafter
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<PAGE> 6
"Agent" shall mean the Person who is then the Agent hereunder.
"Agreement" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
agreements supplemental hereto entered into pursuant to the applicable
provisions hereof.
"Applicable Market Value" has the meaning specified in Section
501.
"Board of Directors" means the board of directors of the
Company or a duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board
of Directors, a copy of which has been certified by the Secretary or
an Assistant Secretary of the Company to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of
such certification and delivered to the Agent.
"Business Day" means any day that is not a Saturday, Sunday or
a day on which the NYSE or banking institutions or trust companies in
the City of New York are authorized or obligated by law or executive
order to be closed.
"Closing Price" has the meaning specified in Section 501.
"Collateral Agent" means ________________, as Collateral Agent
under the Pledge Agreement until a successor Collateral Agent shall
have become such pursuant to the applicable provisions of the Pledge
Agreement, and thereafter "Collateral Agent" shall mean the Person who
is then the Collateral Agent thereunder.
"Common Stock" means the Common Stock, par value $0.01 per
share, of the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such,
and thereafter "Company" shall mean such successor.
"Contract Fee" means the fee payable by the Company in respect
of each Purchase Contract, equal to _% per annum of the Stated Amount,
accruing from ____, 199__, computed on the basis of the actual number
of days elapsed in a year of 365 or 366 days, as the case may be, plus
any additional fees accrued pursuant to Section 503.
"Corporate Trust Office" means the principal office of the
Agent in the Borough of Manhattan, The City of New York, at which at
any particular time its corporate trust business shall be
administered, which office at the date hereof is located at ______,
New York, New York .
"Current Market Price" has the meaning specified in Section
506(a)(8).
"Depositary" means a clearing agency registered under the
Exchange Act that is designated to act as Depositary for the
Securities as contemplated by Section 305.
"Early Settlement" has the meaning specified in Section
509(a).
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<PAGE> 7
"Early Settlement Amount" has the meaning specified in Section
509(a).
"Early Settlement Date" has the meaning specified in Section
509(a).
"Early Settlement Rate" has the meaning specified in Section
509(b).
"Exchange Act" means the Securities Exchange Act of 1934 and
any statute successor thereto, in each case as amended from time to
time.
"Excess Pledged Securities" has the meaning specified in
Section 402.
"Expiration Date" has the meaning specified in Section 104.
"Expiration Time" has the meaning specified in Section
506(a)(6).
"Final Settlement Date" means ____________, 199___.
"Final Settlement Fund" has the meaning specified in Section
505.
"Global Security Certificate" means a Security Certificate
that evidences all or part of the Securities and is registered in the
name of a Depositary or a nominee thereof.
"Holder," when used with respect to a Security Certificate (or
a Security), means a Person in whose name the Security evidenced by
such Security Certificate (or the Security Certificate evidencing such
Security) is registered in the Security Register.
"Issuer Order" or "Issuer Request" means a written order or
request signed in the name of the Company by its Chairman of the
Board, any Vice Chairman, its President or a Vice President and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Agent.
"NYSE" has the meaning specified in Section 501.
"Officer's Certificate" means a certificate signed by the
Chairman of the Board, any Vice Chairman, the President or any Vice
President and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary of the Company and delivered to the Agent.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel, who may be an employee of or counsel to the Company.
"Outstanding Securities" means, as of the date of
determination, all Securities evidenced by then Outstanding Security
Certificates, except:
(i) If a Termination Event has occurred, Securities for which
the underlying Pledged Securities have been theretofore
deposited with the Agent in trust for the Holders of
such Securities; and
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(ii) On and after the applicable Early Settlement Date,
Securities as to which the Holder has elected to effect
Early Termination of the related Purchase Contracts;
provided, however, that in determining whether the
Holders of the requisite number of Securities have given
any request, demand, authorization, direction, notice,
consent or waiver hereunder, Securities owned by the
Company or any Affiliate of the Company shall be
disregarded and deemed not to be outstanding, except
that, in determining whether the Agent shall be protected
in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities
which the Agent knows to be so owned shall be so
disregarded. Securities so owned which have been pledged
in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Agent the
pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company or any Affiliate
of the Company.
"Outstanding Security Certificates" means, as of the date of
determination, all Security Certificates theretofore authenticated,
executed and delivered under this Agreement, except:
(i) Security Certificates theretofore cancelled by the Agent
or delivered to the Agent for cancellation; and
(ii) Security Certificates in exchange for or in lieu of which
other Security Certificates have been authenticated,
executed on behalf of the Holder and delivered pursuant
to this Agreement, other than any such Security
Certificate in respect of which there shall have been
presented to the Agent proof satisfactory to it that such
Security Certificate is held by a bona fide purchaser in
whose hands the Securities evidenced by such Security
Certificate are valid obligations of the Company.
"Payment Date" means each ____________and____________,
commencing______, 19___.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Pledge" means the pledge under the Pledge Agreement of the
Pledged Securities constituting a part of the Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of the
date hereof, among the Company, the Collateral Agent and the Agent, on
its own behalf and as attorneyinfact for the Holders from time to time
of the Securities.
"Pledged Securities" means [______________________________].
"Predecessor Security Certificate" of any particular Security
Certificate means every previous Security Certificate evidencing all
or a portion of the rights and obligations of the Holder under the
Securities evidenced thereby; and, for the purposes of this
definition, any Security Certificate authenticated and delivered under
Section 306 in exchange for or in lieu of a mutilated, destroyed, lost
or stolen Security Certificate shall
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<PAGE> 9
be deemed to evidence the same rights and obligations of the Holder as
the mutilated, destroyed, lost or stolen Security Certificate.
"Purchase Contract," when used with respect to any Security,
means the contract obligating the Company to sell and the Holder of
such Security to purchase Common Stock on the terms and subject to the
conditions set forth in Article Five hereof.
"Purchased Shares" has the meaning specified in Section
506(a)(6).
"Record Date" for the distributions and Contract Fees payable
on any Payment Date means the __________ or ________________ (whether
or not a Business Day), as the case may be, next preceding such
Payment Date.
"Reorganization Event" has the meaning specified in Section
506(b).
"Responsible Officer," when used with respect to the Agent,
means any officer of the Agent assigned by the Agent to administer its
corporate trust matters.
"Security" means the collective rights and obligations of a
Holder of a Security Certificate in respect of Pledged Securities with
a principal amount or liquidation preference equal to the Stated
Amount, subject to the Pledge thereof, and a Purchase Contract.
"Security Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of
Securities specified on such certificate.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Settlement Rate" has the meaning specified in Section 501.
"Stated Amount" means $ ________.
"Termination Date" means the date, if any, on which a
Termination Event occurs.
"Termination Event" means the occurrence of any of the
following events: (i) at any time on or prior to the Final Settlement
Date, a decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Company a bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization of
the Company under the United States Bankruptcy Code or any other
similar applicable Federal or State law, and, unless such decree or
order shall have been entered within 60 days prior to the Final
Settlement Date, such decree or order shall have continued
undischarged and unstayed for a period of 60 days; or (ii) a decree or
order of a court having jurisdiction in the premises for the
appointment of a receiver or liquidator or trustee or assignee in
bankruptcy or insolvency of the Company or of its property, or for the
winding up or liquidation of its affairs, shall have been entered,
and, unless such decree or order shall have been entered within 60
days prior to the Final Settlement Date, such decree or order shall
have continued undischarged and unstayed for a period of 60 days, or
(iii) at any time on or prior to the Final Settlement Date the Company
shall institute proceedings to be adjudicated a bankrupt, or shall
consent to the filing of a
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bankruptcy proceeding against it, or shall file a petition or answer
or consent seeking reorganization under the United States Bankruptcy
Code or any other similar applicable Federal or State law, or shall
consent to the filing of any such petition, or shall consent to the
appointment of a receiver or liquidator or trustee or assignee in
bankruptcy or insolvency of it or of its property, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning specified in
Section 501.
"TIA" means the Trust Indenture Act of 1939, as amended, or
any successor statute.
"Trading Day" has the meaning specified in Section 501.
"Underwriting Agreement" means the Underwriting Agreement
dated ___________, 199____ between the Company and ______________,
as representatives of the several Underwriters named therein.
"Vice President" means any vice president, whether or not
designated by a number or a word or words added before or after the
title "vice president."
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the Agent to take any action under any
provision of this Agreement, the Company shall furnish to the Agent an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Agreement relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Agreement relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
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Section 103. Form of Documents Delivered to Agent.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Agreement to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agent duly appointed
in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to
the Agent and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Agreement and (subject to Section 701) conclusive
in favor of the Agent and the Company, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by
a certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of
any such instrument or writing, or the authority of the Person executing
the same, may also be proved in any other manner which the Agent deems
sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
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(d) Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security Certificate evidencing
such Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted
or suffered to be done by the Agent or the Company in reliance thereon,
whether or not notation of such action is made upon such Security
Certificate.
(e) The Company may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Agreement to be given, made or taken
by Holders of Securities. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities on such record date, and
no other Holders, shall be entitled to take the relevant action, whether or
not such Holders remain Holders after such record date; provided that no
such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite number of
Outstanding Securities on such record date. Nothing in this paragraph
shall be construed to prevent the Company from setting a new record date
for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no
effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite number of
Outstanding Securities on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Agent in
writing and to each Holder of Securities in the manner set forth in Section
106.
With respect to any record date set pursuant to this Section, the
Company may designate any date as the "Expiration Date" and from time to time
may change the Expiration Date to any earlier or later day; provided that no
such change shall be effective unless notice of the proposed new Expiration
Date is given to the Agent in writing, and to each Holder of Securities in the
manner set forth in Section 106, on or prior to the existing Expiration Date.
If an Expiration Date is not designated with respect to any record date set
pursuant to this Section, the Company shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Section 105. Notices, etc., to Agent and the Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Agreement to
be made upon, given or furnished to, or filed with,
(1) the Agent by any Holder or by the Company shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if made,
given, furnished or filed in writing and personally delivered or mailed,
first class postage prepaid, to the Agent at___________, Attention: Stock
Transfer Department, or at any other address previously furnished in
writing by the Agent to the Holders and the Company, or
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(2) the Company by the Agent or by any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if made,
given, furnished or filed in writing and personally delivered or mailed,
firstclass postage prepaid, to the Company at One California Street, San
Francisco, California 94111, Attention: Senior Vice President, Legal, or at
any other address previously furnished in writing to the Agent by the
Company.
Section 106. Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Agreement provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Agent, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Agent
shall constitute a sufficient notification for every purpose hereunder.
Section 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 108. Successors and Assigns.
All covenants and agreements in this Agreement by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 109. Separability Clause.
In case any provision in this Agreement or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
Section 110. Benefits of Agreement.
Nothing in this Agreement or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefits or any legal or equitable right, remedy
or claim under this Agreement. The Holders from time to time shall be
beneficiaries of this Agreement and shall be bound by all of the terms and
conditions hereof and of the Securities evidenced by their Security
Certificates by their acceptance of delivery thereof.
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Section 111. Governing Law.
This Agreement and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
Section 112. Legal Holidays.
In any case where any Payment Date, any Early Settlement Date or the
Final Settlement Date shall not be a Business Day, then (notwithstanding any
other provision of this Agreement or of the Securities) payment in respect of
distributions on Pledged Securities or Contract Fees shall not be made,
Purchase Contracts shall not be performed and Early Settlement shall not be
effected on such date, but such payments shall be made, or the Purchase
Contracts shall be per formed or Early Settlement effected, as applicable, on
the next succeeding Business Day with the same force and effect as if made on
such Payment Date, Early Settlement Date or Final Settlement Date, as the case
may be; provided, that no interest shall accrue or be payable by the Company or
any Holder for the period from and after any such Payment Date, Early
Settlement Date or Final Settlement Date, as the case may be.
Section 113. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which, when so executed, shall be deemed an original, but all such counterparts
shall together constitute one and the same instrument.
Section 114. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable times at
the Corporate Trust Office for inspection by any Holder.
ARTICLE TWO
SECURITY CERTIFICATE FORMS
Section 201. Forms of Security Certificates Generally.
The Security Certificates (including the form of Purchase Contracts
forming part of the Securities evidenced thereby) shall be in substantially the
form set forth in Exhibit A hereto, with such letters, numbers or other marks
of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Securities are listed or Depositary therefor,
or as may, consistently herewith, be determined by the officers of the Company
executing such Security Certificates, as evidenced by their execution of the
Security Certificates.
The definitive Security Certificates shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing the Security
Certificates, consistent with the provisions of this Agreement, as evidenced by
their execution thereof.
Every Global Security Certificate authenticated, executed on behalf of
the Holders and delivered hereunder shall bear a legend in substantially the
following form:
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THIS SECURITY CERTIFICATE IS A GLOBAL SECURITY CERTIFICATE WITHIN THE MEANING
OF THE PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY CERTIFICATE MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY CERTIFICATE REGISTERED, AND
NO TRANSFER OF THIS SECURITY CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED,
IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT.
Section 202. Form of Agent's Certificate of Authentication.
The form of the Agent's certificate of authentication of the
Securities shall be in substantially the form set forth on the form of the
Security Certificates.
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms; Denominations.
The aggregate number of Securities evidenced by Security Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to_____________ (subject to increase up to a maximum of
___________________ to the extent the overallotment option of the underwriters
under the Underwriting Agreement is exercised), except for Security
Certificates authenticated, executed and delivered upon registration of
transfer of, in exchange for, or in lieu of, other Security Certificates
pursuant to Section 304, 305, 306, 509 or 805.
The Security Certificates shall be issuable only in registered form
and only in denominations of a single Security and any integral multiple
thereof.
Section 302. Rights and Obligations Evidenced by the Security Certificates.
Each Security Certificate shall evidence the number of Securities
specified therein, with each such Security representing the ownership by the
Holder thereof of Pledged Securities with a principal amount or liquidation
preference equal to the Stated Amount, subject to the Pledge of such Pledged
Securities by such Holder pursuant to the Pledge Agreement, and the rights and
obligations of the Holder under one Purchase Contract. Prior to the purchase,
if any, of shares of Common Stock under the Purchase Contracts, the Securities
shall not entitle the Holders to any of the rights of a holder of shares of
Common Stock, including, without limitation, the right to vote or receive any
dividends or other payments or to consent or to receive notice as stockholders
in respect of the meetings of stockholders or for the election of directors of
the Company or for any other matter, or any other rights whatsoever as
stockholders of the Company, except to the extent otherwise expressly provided
in this Agreement.
Section 303. Execution, Authentication, Delivery and Dating.
Upon the execution and delivery of this Agreement, and at any time and
from time to time thereafter, the Company may deliver Security Certificates
executed by the Company to the
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Agent for authentication, execution on behalf of the Holders and delivery,
together with its Issuer Order for authentication of such Security
Certificates, and the Agent in accordance with such Issuer Order shall
authenticate, execute on behalf of the Holder and deliver such Security
Certificates.
The Security Certificates shall be executed on behalf of the Company
by its Chairman of the Board, its Vice Chairman of the Board, its President or
one of its Vice Presidents, under its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant Secretaries. The signature
of any of these officers on the Security Certificates may be manual or
facsimile.
Security Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such Security
Certificates or did not hold such offices at the date of such Security
Certificates.
No Purchase Contract underlying a Security evidenced by a Security
Certificate shall be valid until such Security Certificate has been executed on
behalf of the Holder by the manual signature of an authorized signatory of the
Agent, as such Holder's attorney-in-fact. Such signature by an authorized
signatory of the Agent shall be conclusive evidence that the Holder of such
Security Certificate has entered into the Purchase Contracts underlying the
Securities evidenced by such Security Certificate.
Each Security Certificate shall be dated the date of its
authentication.
No Security Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on
such Security Certificate a certificate of authentication substantially in the
form provided for herein executed by an authorized signatory of the Agent by
manual signature, and such certificate upon any Security Certificate shall be
conclusive evidence, and the only evidence, that such Security Certificate has
been duly authenticated and delivered hereunder.
Section 304. Temporary Security Certificates.
Pending the preparation of definitive Security Certificates, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holders, and deliver, in lieu of such
definitive Security Certificates, temporary Security Certificates which are in
substantially the form set forth in Exhibit A hereto, with such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be required by
the rules of any securities exchange on which the Securities are listed, or as
may, consist ently herewith, be determined by the officers of the Company
executing such Security Certificates, as evidenced by their execution of the
Security Certificates.
If temporary Security Certificates are issued, the Company will cause
definitive Security Certificates to be prepared without unreasonable delay.
After the preparation of definitive Security Certificates, the temporary
Security Certificates shall be exchangeable for definitive Security
Certificates upon surrender of the temporary Security Certificates at the
Corporate Trust Of fice, at the expense of the Company and without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Security Certificates, the Company shall execute and
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deliver to the Agent, and the Agent shall authenticate, execute on behalf of
the Holder, and deliver in exchange therefor, one or more definitive Security
Certificates of authorized denominations and evidencing a like number of
Securities as the temporary Security Certificate or Security Certificates so
surrendered. Until so exchanged, the temporary Security Certificates shall in
all respects evidence the same benefits and the same obligations with respect
to the Securities evidenced thereby as definitive Security Certificates.
Section 305. Registration; Registration of Transfer and Exchange.
The Agent shall keep at the Corporate Trust Office a register (the
register maintained in such office being herein referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Agent shall provide for the registration of Security
Certificates and of transfers of Security Certificates (the Agent, in such
capacity, the "Security Registrar").
Upon surrender for registration of transfer of any Security
Certificate at the Corporate Trust Office, the Company shall execute and
deliver to the Agent, and the Agent shall authenticate, execute on behalf of
the designated transferee or transferees, and deliver, in the name of the
designated transferee or transferees, one or more new Security Certificates of
any authorized denominations and evidencing a like number of Securities.
At the option of the Holder, Security Certificates may be exchanged
for other Security Certificates, of any authorized denominations and evidencing
a like number of Securities, upon surrender of the Security Certificates to be
exchanged at the Corporate Trust Office. Whenever any Security Certificates
are so surrendered for exchange, the Company shall execute and deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the Holder, and
deliver the Security Certificates which the Holder making the exchange is
entitled to receive.
All Security Certificates issued upon any registration of transfer or
exchange of a Security Certificate shall evidence the ownership of the same
number of Securities and be entitled to the same benefits and subject to the
same obligations, under this Agreement as the Securities evidenced by the
Security Certificate surrendered upon such registration of transfer or
exchange.
Every Security Certificate presented or surrendered for registration
of transfer or for exchange shall (if so required by the Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Agent duly executed, by the Holder thereof
or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of a Security Certificate, but the Company and the Agent may require
payment from the Holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Security Certificates, other than any exchanges
pursuant to Sections 306 and 805 not involving any transfer. Notwithstanding
the foregoing, the Company shall not be obligated to execute and deliver to the
Agent, and the Agent shall not be obligated to authenticate, execute on behalf
of the Holder and deliver any Security Certificate presented or surrendered for
registration of transfer or for exchange on or after the Final Settlement Date
or the Termination Date. In lieu of delivery of a new Security Certificate,
upon satisfaction of the applicable conditions specified above in this Section
and receipt of appropriate registration or transfer instructions from such
Holder, the Agent shall (i) if the Final Settlement Date has occurred, deliver
the shares of Common Stock issuable in respect of the Purchase
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Contracts forming a part of the Securities evidenced by such Security
Certificate, or (ii) if a Termination Event shall have occurred prior to the
Final Settlement Date, transfer the principal amount or liquidation amount, as
the case may be, of the Pledged Securities evidenced thereby, in each case
subject to the applicable conditions and in accordance with the applicable
provisions of Article Five hereof.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Security Certificates:
(1) Each Global Security Certificate authenticated and executed on behalf of
the Holders under this Agreement shall be registered in the name of the
Depositary designated for such Global Security Certificate or a nominee
thereof and delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Security Certificate shall constitute a
single Security Certificate for all purposes of this Agreement.
(2) Notwithstanding any other provision in this Agreement, no Global Security
Certificate may be exchanged in whole or in part for Security Certificates
registered, and no transfer of a Global Security Certificate in whole or in
part may be registered, in the name of any Person other than the Depositary
for such Global Security Certificate or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security Certificate or (ii) has
ceased to be a clearing agency registered under the Exchange Act or (b)
there shall have occurred and be continuing a default by the Company in
respect to its obligations under one or more Purchase Contracts.
(3) Subject to Clause (2) above, any exchange of a Global Security Certificate
for other Security Certificates may be made in whole or in part, and all
Security Certificates issued in exchange for a Global Security Certificate
or any portion thereof shall be registered in such names as the Depositary
for such Global Security Certificate shall direct.
(4) Every Security Certificate authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security
Certificate or any portion thereof, whether pursuant to this Section,
Section 304, 306, 509 or 805 or otherwise, shall be authenticated, executed
on behalf of the Holders and delivered in the form of, and shall be, a
Global Security Certificate, unless such Security Certificate is registered
in the name of a Person other than the Depositary for such Global Security
Certificate or a nominee thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Security Certificates.
If any mutilated Security Certificate is surrendered to the Agent, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange
therefor, a new Security Certificate, evidencing the same number of Securities
and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Agent (i) evidence
to their satisfaction of the destruction, loss or theft of any Security
Certificate, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of any of them harmless, then, in the absence
of notice to the Company or the Agent that such Security Certificate has been
acquired by a bona fide purchaser, the Company shall execute and deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the Holder, and
deliver to the Holder, in lieu of any such
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destroyed, lost or stolen Security Certificate, a new Security Certificate,
evidencing the same number of Securities and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder, and deliver to the Holder, a
Security Certificate on or after the Final Settlement Date or the Termination
Date. In lieu of delivery of a new Security Certificate, upon satisfaction of
the applicable conditions specified above in this Section and receipt of
appropriate registration or transfer instructions from such Holder, the Agent
shall (i) if the Final Settlement Date has occurred, deliver the shares of
Common Stock issuable in respect of the Purchase Contracts forming a part of
the Securities evidenced by such Security Certificate, or (ii) if a Termination
Event shall have occurred prior to the Final Settlement Date, transfer the
principal amount of the Pledged Securities evidenced thereby, in each case
subject to the applicable conditions and in accordance with the applicable
provisions of Article Five hereof.
Upon the issuance of any new Security Certificate under this Section,
the Company and the Agent may require the payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Agent) connected therewith.
Every new Security Certificate issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security Certificate shall constitute an
original additional contractual obligation of the Company and of the Holder,
whether or not the destroyed, lost or stolen Security Certificate shall be at
any time enforceable by anyone, and shall be entitled to all the benefits and
be subject to all the obligations of this Agreement equally and proportionately
with any and all other Security Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or settlement of mutilated, destroyed, lost or stolen Security
Certificates.
Section 307. Persons Deemed Owners.
Prior to due presentment of a Security Certificate for registration of
transfer, the Company and the Agent, and any agent of the Company or the Agent,
may treat the Person in whose name such Security Certificate is registered as
the owner of the Securities evidenced thereby, for the purpose of receiving
payments of distributions on the Pledged Securities, receiving payments of
Contract Fees, performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not the payment of distributions on the Pledged
Securities or any Contract Fee payable in respect of the Purchase Contracts
constituting a part of the Securities evidenced thereby shall be overdue and
notwithstanding any notice to the contrary, and neither the Company nor the
Agent, nor any agent of the Company or the Agent, shall be affected by notice
to the contrary.
Notwithstanding the foregoing, with respect to any Global Security
Certificate, nothing herein shall prevent the Company, the Agent or any agent
of the Company or the Agent, from giving effect to any written certification,
proxy or other authorization furnished by any Depositary (or its nominee), as a
Holder, with respect to such Global Security Certificate or impair, as between
such Depositary and owners of beneficial interests in such Global Security
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Certificate, the operation of customary practices governing the exercise of
rights of such Depositary (or its nominee) as Holder of such Global Security
Certificate.
Section 308. Cancellation.
All Security Certificates surrendered for delivery of shares of Common
Stock on or after the Final Settlement Date, transfer of Pledged Securities
after the occurrence of a Termination Event or pursuant to an Early Settlement
or registration of transfer or exchange shall, if surrendered to any Person
other than the Agent, be delivered to the Agent and, if not already cancelled,
shall be promptly cancelled by it. The Company may at any time deliver to the
Agent for cancellation any Security Certificates previously authenticated,
executed and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Security Certificates so delivered shall, upon
Issuer Order, be promptly cancelled by the Agent. No Security Certificates
shall be authenticated, executed on behalf of the Holder and delivered in lieu
of or in exchange for any Security Certificates cancelled as provided in this
Section, except as expressly permitted by this Agreement. All cancelled
Security Certificates held by the Agent shall be disposed of as directed by
Issuer Order.
If the Company or any Affiliate of the Company shall acquire any
Security Certificate, such acquisition shall not operate as a cancellation of
such Security Certificate unless and until such Security Certificate is
delivered to the Agent cancelled or for cancellation.
Section 309. Securities Not Separable.
Notwithstanding anything contained herein or in the Security
Certificates to the contrary, for so long as the Purchase Contract underlying a
Security remains in effect such Security shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such
Security in respect of the Pledged Securities and Purchase Contracts
constituting such Security may be acquired, and may be transferred and
exchanged, only as a Security. Other than a Security Certificate evidencing a
Security, no Holder of a Security, or any transferee thereof, shall be entitled
to receive a certificate evidencing the ownership of Pledged Securities or the
rights and obligations of the Holder and the Company under a Purchase Contract
for so long as the Purchase Contract underlying the Security remains in effect.
ARTICLE FOUR
THE PLEDGED SECURITIES
Section 401. Payment of Distributions; Rights to Distributions Preserved.
Distributions on any Pledged Security which is paid on any Payment
Date shall, subject to receipt thereof by the Agent from the Collateral Agent
as provided by the terms of the Pledge Agreement, be paid to the Person in
whose name the Security Certificate (or one or more Predecessor Security
Certificates) of which such Pledged Security is a part is registered at the
close of business on the Record Date next preceding such Payment Date.
Each Security Certificate evidencing Pledged Securities delivered
under this Agreement upon registration of transfer of or in exchange for or in
lieu of any other Security Certificate shall carry the rights to distributions
accrued and unpaid, and to accrue, which were carried by the Pledged Securities
underlying such other Security Certificate.
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In the case of any Security with respect to which Early Settlement of
the underlying Purchase Contract is effected on an Early Settlement Date after
any Record Date and on or prior to the next succeeding Payment Date,
distributions on the Pledged Securities underlying such Security otherwise
payable on such Payment Date shall be payable on such Payment Date
notwithstanding such Early Settlement, and such distributions shall, subject to
receipt thereof by the Agent, be paid to the Person in whose name the Security
Certificate (or one or more Predecessor Security Certificates) is registered at
the close of business on the Record Date. Except as otherwise expressly
provided in the immediately preceding sentence, in the case of any Security
with respect to which Early Settlement of the underlying Purchase Contract is
effected on an Early Settlement Date, distributions on the related Pledged
Securities that would otherwise be payable after the Early Settlement Date
shall not be payable hereunder to the Holder of such Security.
Section 402. Transfer of Pledged Securities Upon Occurrence of
Termination Event.
Upon the occurrence of a Termination Event and the transfer to the
Agent of the Pledged Securities underlying such Securities pursuant to the
terms of the Pledge Agreement, the Agent shall request transfer instructions
with respect to such Pledged Securities from each Holder of Securities by
written request mailed to such Holder at his address as it appears in the
Security Register, in respect of the Pledged Securities underlying the Security
Certificate held by such Holder. Upon surrender to the Agent of a Security
Certificate with such transfer instructions in proper form for transfer of the
Pledged Securities by Federal Reserve BankWire, book-entry transfer through the
facilities of the Depositary Trust Company, or other appropriate procedure, the
Agent shall transfer the Pledged Securities evidenced by such Security
Certificate to such Holder in accordance with such instructions. If a Security
Certificate is not duly surrendered to the Agent with appropriate transfer
instructions, the Agent shall hold the Pledged Securities evidenced by such
Security Certificate as custodian for the Holder of such Security Certificate.
Pledged Securities shall be transferred only in denominations of
$_____________ and integral multiples thereof. As promptly as practicable
following the occurrence of a Termination Event, the Agent shall determine the
excess of (i) the aggregate principal amount or liquidation preference, as the
case may be, of Pledged Securities underlying the Outstanding Securities over
(ii) the aggregate principal amount or liquidation preference, as the case may
be, of Pledged Securities in denominations of $____________ and integral
multiples thereof transferrable to Holders of record on the date of such
Termination Event (such excess being herein referred to as the "Excess Pledged
Securities"). As soon as practicable after transfer to the Agent of the
Pledged Securities underlying the Outstanding Securities as provided in the
Pledge Agreement, the Agent shall sell the Excess Pledged Securities to or
through one or more registered broker dealers at then prevailing prices. The
Agent shall deduct from the proceeds of such sales all commissions and other
out-of-pocket transaction costs incurred in connection with such sales of
Excess Pledged Securities and, until the net proceeds of such sale or sales
have been distributed to Holders of the Securities, the Agent shall hold such
proceeds in trust for the Holders of Securities. Each Holder shall be entitled
to receive a portion, if any, of such net proceeds in lieu of Pledged
Securities with a principal amount of less than $___________ determined by
multiplying the aggregate amount of such net proceeds by a fraction, the
numerator of which is the fraction of $_____________ in principal amount of
Pledged Securities to which such Holder would otherwise be entitled (after
taking into account all Securities then held by such Holder) and the
denominator of which is the aggregate principal amount of Excess Pledged
Securities.
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ARTICLE FIVE
THE PURCHASE CONTRACTS
Section 501. Purchase of Shares of Common Stock.
Each Purchase Contract shall obligate the Holder of the related
Security to purchase, and the Company to sell, on the Final Settlement Date at
a price equal to the Stated Amount, a number of shares of Common Stock equal to
the Settlement Rate, unless, on or prior to the Final Settlement Date, there
shall have occurred a Termination Event or an Early Settlement with respect to
the Security of which such Purchase Contract is a part. The "Settlement Rate"
is equal to (a) if the Applicable Market Value (as defined below) is greater
than $ ___(the "Threshold Appreciation Price"), ____________ of a share of
Common Stock per Purchase Contract, (b) if the Applicable Market Value is less
than or equal to the Threshold Appreciation Price but is greater than the
Stated Amount, a fractional share of Common Stock per Purchase Contract equal
to the Stated Amount divided by the Applicable Market Value (rounded upward or
downward to the nearest 1/10,000th of a share) and (c) if the Applicable Market
Value is less than or equal to the Stated Amount, one share of Common Stock per
Purchase Contract, in each case subject to adjustment as provided in Section
506. As provided in Section 510, no fractional shares of Common Stock will be
issued upon settlement of Purchase Contracts.
The "Applicable Market Value" means the average of the Closing Prices
per share of Common Stock on each of the twenty consecutive Trading Days ending
on the last Trading Day immediately preceding the Final Settlement Date. The
"Closing Price" of the Common Stock on any date of determination means the
closing sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the "NYSE") on such
date or, if the Common Stock is not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the principal United States
securities exchange on which the Common Stock is so listed, or if the Common
Stock is not so listed on a United States national or regional securities
exchange, as reported by The Nasdaq Stock Market, or, if the Common Stock is
not so reported, the last quoted bid price for the Common Stock in the
over-the-counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of the
Common Stock on such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Company. A "Trading
Day" means a day on which the Common Stock (A) is not suspended from trading on
any national or regional securities exchange or association or over-the-
counter market at the close of business and (B) has traded at least once on the
national or regional securities exchange or association or over-the-counter
market that is the primary market for the trading of the Common Stock.
Each Holder of a Security Certificate evidencing Securities, by his
acceptance thereof, irrevocably authorizes the Agent to enter into and perform
the related Purchase Contracts on his behalf as his attorney-in-fact, agrees to
be bound by the terms and provisions thereof, covenants and agrees to perform
his obligations under such Purchase Contracts, consents to the provisions
hereof, irrevocably authorizes the Agent as his attorney-in-fact to enter into
and perform the Pledge Agreement on his behalf as his attorney-in-fact, and
consents to and agrees to be bound by the Pledge of the Pledged Securities
underlying such Security Certificate pursuant to the Pledge Agreement. Each
Holder of a Security, by his acceptance thereof, further irrevocably covenants
and agrees, that, to the extent and in the manner provided in Section 504 and
the Pledge Agreement, but subject to the terms thereof, payments in respect of
principal or redemption price
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of the Pledged Securities on the Final Settlement Date shall be paid by the
Collateral Agent to the Company in satisfaction of such Holder's obligations
under such Purchase Contract and such Holder shall acquire no right, title or
interest in such payments.
Upon registration of transfer of a Security Certificate evidencing
Purchase Contracts, the transferee shall be bound (without the necessity of any
other action on the part of such transferee), under the terms of this
Agreement, the Purchase Contracts evidenced thereby and the Pledge Agreement
and the transferor shall be released from the obligations under the Purchase
Contracts evidenced by the Security Certificates so transferred. The Company
covenants and agrees, and each Holder of a Security Certificate, by his
acceptance thereof, likewise covenants and agrees, to be bound by the
provisions of this paragraph.
Section 502. Contract Fees.
Subject to Section 503, the Company shall pay, on each Payment Date,
the Contract Fees payable in respect of each Purchase Contract to the Person in
whose name the Security Certificate (or one or more Predecessor Security
Certificates) evidencing such Purchase Contract is registered at the close of
business on the Record Date next preceding such Payment Date. The Contract Fee
will be payable at the office of the Agent in the City of New York maintained
for that purpose or, at the option of the Company, by check mailed to the
address of the Person entitled thereto at such address as it appears on the
Security Register.
Each Security Certificate delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of any other Security
Certificate shall carry the rights to Contract Fees accrued and unpaid, and to
accrue, which were carried by the Purchase Contracts evidenced by such other
Security Certificate.
In the case of any Security with respect to which Early Settlement of
the underlying Purchase Contract is effected on an Early Settlement Date after
any Record Date and on or prior to the next succeeding Payment Date, Contract
Fees otherwise payable on such Payment Date shall be payable on such Payment
Date notwithstanding such Early Settlement, and such Contract Fees shall be
paid to the Person in whose name the Security Certificate evidencing such
Security (or one or more Predecessor Security Certificates) is registered at
the close of business on such Record Date. Except as otherwise expressly
provided in the immediately preceding sentence, in the case of any Security
with respect to which Early Settlement of the underlying Purchase Contract is
effected on an Early Settlement Date, Contract Fees that would otherwise be
payable after the Early Settlement Date with respect to the Purchase Contract
underlying such Security shall not be payable.
Section 503. Deferral of Payment Dates For Contract Fee.
The Company shall have the right, at any time prior to the Final
Settlement Date, to defer the payment of any or all of the Contract Fees
otherwise payable on any Payment Date, but only if the Company shall give the
Holders and the Agent written notice of its election to defer such payment
(specifying the amount to be deferred) at least ten Business Days prior to the
earlier of (i) the next succeeding Payment Date or (ii) the date the Company is
required to give notice of the Record Date or Payment Date with respect to
payment of such Contract Fee to the New York Stock Exchange or other applicable
self-regulatory organization or to Holders of the Securities, but in any event
not less than two Business Days prior to such Record Date. Any Contract Fees
so deferred shall bear additional Contract Fees thereon at the rate of per
annum set forth in
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<PAGE> 24
Appendix _____ hereto (computed on the basis set forth in Appendix ____),
compounding on each succeeding Payment Date, until paid in full. Deferred
Contract Fees (and additional Contract Fees accrued thereon) shall be due on
the next succeeding Payment Date except to the extent that payment is deferred
pursuant to this Section. No Contract Fees may be deferred to a date that is
after the Final Settlement Date or, with respect to any particular Purchase
Contract, Early Settlement thereof.
Section 504. Payment of Purchase Price.
The purchase price for the shares of Common Stock purchased pursuant
to a Purchase Contract shall be paid by application of payments received by the
Company on the Final Settlement Date from the Collateral Agent pursuant to the
Pledge Agreement in respect of the principal or redemption price, as the case
may be, of the Pledged Securities Pledged to secure the obligations of the
relevant Holder under such Purchase Contract. Such application shall satisfy in
full the obligations under such Purchase Contract of the Holder of the Security
of which such Purchase Contract is a part. The Company shall not be obligated
to issue any shares of Common Stock in respect of a Purchase Contract or
deliver any certificates therefor to the Holder unless it shall have received
payment in full of the aggregate purchase price for the shares of Common Stock
to be purchased thereunder in the manner herein set forth.
Section 505. Issuance of Shares of Common Stock.
Unless a Termination Event shall have occurred on or prior to the
Final Settlement Date, on the Final Settlement Date, upon its receipt of
payment in full of the purchase price for the shares of Common Stock purchased
by the Holders pursuant to the foregoing provisions of this Article, and
subject to Section 506(b), the Company shall deposit with the Agent, for the
benefit of the Holders of the Outstanding Securities, one or more certificates
representing the shares of Common Stock registered in the name of the Agent (or
its nominee) as custodian for the Holders (such certificates for shares of
Common Stock, together with any dividends or distributions with respect
thereto, being hereinafter referred to as the "Final Settlement Fund") to which
the Holders are entitled hereunder. Subject to the foregoing, upon surrender
of a Security Certificate to the Agent on or after the Final Settlement Date,
together with settlement instructions thereon duly completed and executed, the
Holder of such Security Certificate shall be entitled to receive in exchange
therefor a certificate representing that number of whole shares of Common Stock
which such Holder is entitled to receive pursuant to the provisions of this
Article Five (after taking into account all Securities then held by such
Holder) together with cash in lieu of fractional shares as provided in Section
510 and any dividends or distributions with respect to such shares constituting
part of the Final Settlement Fund, but without any interest thereon, and the
Security Certificate so surrendered shall forthwith be cancelled. Such shares
shall be registered in the name of the Holder or the Holder's designee as
specified in the settlement instructions on the Security Certificate.
If any shares of Common Stock issued in respect of a Purchase Contract
are to be registered to a Person other than the Person in whose name the
Security Certificate evidencing such Purchase Contract is registered, no such
registration shall be made unless the Person requesting such registration has
paid any transfer and other taxes required by reason of such registration in a
name other than that of the registered Holder of the Security Certificate
evidencing such Purchase Contractor has established to the satisfaction of the
Company that such tax either has been paid or is not payable.
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<PAGE> 25
Section 506. Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or
other distribution on any class of Common Stock of the
Company in Common Stock, the Settlement Rate in effect
at the opening of business on the day following the date
fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be
increased by dividing such Settlement Rate by a fraction
of which the numerator shall be the number of shares of
Common Stock outstanding at the close of business on the
date fixed for such determination and the denominator
shall be the sum of such number of shares and the total
number of shares constituting such dividend or other
distribu tion, such increase to become effective
immediately after the opening of business on the day
following the date fixed for such determination. For
the purposes of this paragraph (1), the number of
shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Company but
shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of
Common Stock. The Company will not pay any dividend or
make any distribution on shares of Common Stock held in
the treasury of the Company.
(2) In case the Company shall issue rights, options or
warrants to all holders of its Common Stock (not being
available on an equivalent basis to Holders of the
Securities upon settlement of the Purchase Contracts
underlying such Securities) entitling them, for a period
expiring within 45 days after the record date for the
determination of stockholders entitled to receive such
rights, options or warrants, to subscribe for or
purchase shares of Common Stock at a price per share
less than the Current Market Price per share of the
Common Stock on the date fixed for the determination of
stockholders entitled to receive such rights, options or
warrants (other than pursuant to a dividend reinvestment
plan), the Settlement Rate in effect at the opening of
business on the day following the date fixed for such
determination shall be increased by dividing such
Settlement Rate by a fraction of which the numerator
shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed
for such determination plus the number of shares of
Common Stock which the aggregate of the offering price
of the total number of shares of Common Stock so offered
for subscription or purchase would purchase at such
Current Market Price and the denominator shall be the
number of shares of Common Stock outstanding at the
close of business on the date fixed for such
determination plus the number of shares of Common Stock
so offered for subscription or purchase, such increase
to become effective immediately after the opening of
business on the day following the date fixed for such
determination. For the purposes of this paragraph (2),
the number of shares of Common Stock at any time
outstanding shall not include shares held in the
treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu
of fractions of shares of Common Stock. The Company
shall not issue any such rights, options or warrants in
respect of shares of Common Stock held in the treasury
of the Company.
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<PAGE> 26
(3) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common
Stock, the Settlement Rate in effect at the opening of
business on the day following the day upon which such
subdivision becomes effective shall be proportionately
increased, and, conversely, in case outstanding shares
of Common Stock shall each be combined into a smaller
number of shares of Common Stock, the Settlement Rate in
effect at the opening of business on the day following
the day upon which such combination becomes effective
shall be proportionately reduced, such increase or
reduction, as the case may be, to become effective
immediately after the opening of business on the day
following the day upon which such subdivision or
combination becomes effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences
of its indebtedness or assets (including securities, but
excluding any rights or warrants referred to in
paragraph (2) of this Section, any dividend or
distribution paid exclusively in cash and any dividend
or distribution referred to in paragraph (1) of this
Section), the Settlement Rate shall be adjusted so that
the same shall equal the rate determined by dividing the
Settlement Rate in effect immediately prior to the close
of business on the date fixed for the determination of
stockholders entitled to receive such distribution by a
fraction of which the numerator shall be the Current
Market Price per share of the Common Stock on the date
fixed for such determination less the then fair market
value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a
Board Resolution filed with the Agent) of the portion of
the assets or evidences of indebtedness so distributed
applicable to one share of Common Stock and the
denominator shall all be such Current Market Price per
share of the Common Stock, such adjustment to become
effective immediately prior to the opening of business
on the day following the date fixed for the
determination of stockholders entitled to receive such
distribution. In any case in which this paragraph (4)
is applicable, paragraph (2) of this Section shall not
be applicable.
(5) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash
(excluding any cash that is distributed in a
Reorganization Event to which Section 506(b) applies or
as part of a distribution referred to in paragraph (4)
of this Section) in an aggregate amount that, combined
together with (I) the aggregate amount of any other
distributions to all holders of its Common Stock made
exclusively in cash within the 12 months preceding the
date of payment of such distribution and in respect of
which no adjustment pursuant to this paragraph (5) or
paragraph (6) of this Section has been made and (II) the
aggregate of any cash plus the fair market value (as
determined by the Board of Directors, whose
determination shall be conclusive and described in a
Board Resolution) of consideration payable in respect of
any tender or exchange offer by the Company or any of
its subsidiaries for all or any portion of the Common
Stock concluded within the 12 months preceding the date
of payment of such distribution and in respect of which
no adjustment pursuant to this paragraph (5) or
paragraph (6) of this Section has been made, exceeds 10%
of the
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<PAGE> 27
product of the Current Market Price per share of the
Common Stock on the date for the determination of
holders of shares of Common Stock entitled to receive
such distribution times the number of shares of Common
Stock outstanding on such date, then, and in each such
case, immediately after the close of business on such
date for determination, the Settlement Rate shall be
increased so that the same shall equal the rate
determined by dividing the Settlement Rate in effect
immediately prior to the close of business on the date
fixed for determination of the stockholders en titled to
receive such distribution by a fraction (i) the
numerator of which shall be equal to the Current Market
Price per share of the Common Stock on the date fixed
for such determination less an amount equal to the
quotient of (x) the excess of such combined amount over
such 10% and (y) the number of shares of Common Stock
outstanding on such date for determination and (ii) the
denominator of which shall be equal to the Current
Market Price per share of the Common Stock on such date
for determination.
(6) In case a tender or exchange offer made by the Company
or any subsidiary of the Company for all or any portion
of the Common Stock shall expire and such tender or
exchange offer (as amended upon the expiration thereof)
shall require the payment to stockholders (based on the
acceptance (up to any maximum specified in the terms of
the tender or exchange offer) of Purchased Shares) of an
aggregate consideration having a fair market value (as
determined by the Board of Directors, whose
determination shall be conclusive and described in a
Board Resolution) that combined together with (I) the
aggregate of the cash plus the fair market value (as
determined by the Board of Directors, whose
determination shall be conclusive and described in a
Board Resolution), as of the expiration of such tender
or exchange offer, of consideration payable in respect
of any other tender or exchange offer, by the Company or
any subsidiary of the Company for all or any portion of
the Common Stock expiring within the 12 months preceding
the expiration of such tender or exchange offer and in
respect of which no adjustment pursuant to paragraph (5)
of this Section or this paragraph (6) has been made and
(II) the aggregate amount of any distributions to all
holders of the Company's Common Stock made exclusively
in cash within 12 months preceding the expiration of
such tender or exchange offer and in respect of which no
adjustment pursuant to paragraph (5) of this Section or
this paragraph (6) has been made, exceeds 10% of the
product of the Current Market Price per share of the
Common Stock as of the last time (the "Expiration Time")
tenders could have been made pursuant to such tender or
exchange offer (as it may be amended) times the number
of shares of Common Stock outstanding (including any
tendered shares) on the Expiration Time, then, and in
each such case, immediately prior to the opening of
business on the day after the date of the Expiration
Time, the Settlement Rate shall be adjusted so that the
same shall equal the rate determined by dividing the
Settlement Rate immediately prior to close of business
on the date of the Expiration Time by a fraction (i) the
numerator of which shall be equal to (A) the product of
(I) the Current Market Price per share of the Common
Stock on the date of the Expiration Time and (II) the
number of shares of Common Stock outstanding (including
any tendered shares) on the Expiration Time less (B) the
amount of cash plus the fair market value (determined as
aforesaid) of
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<PAGE> 28
the aggregate consideration payable to stockholders
based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of Purchased
Shares, and (ii) the denominator of which shall be equal
to the product of (A) the Current Market Price per share
of the Common Stock as of the Expiration Time and (B)
the number of shares of Common Stock out standing
(including any tendered shares) as of the Expiration
Time less the number of all shares validly tendered and
not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities
including securities other than Common Stock (other than
any reclassification upon a Reorganization Event to
which Section 506(b) applies) shall be deemed to involve
(a) a distribution of such securities other than Common
Stock to all holders of Common Stock (and the effective
date of such reclassification shall be deemed to be "the
date fixed for the determination of stockholders
entitled to receive such distribution" and the "date
fixed for such determination" within the meaning of
paragraph (4) of this Section), and (b) a subdivision or
combination, as the case may be, of the number of shares
of Common Stock outstanding immediately prior to such
reclassification into the number of shares of Common
Stock outstanding immediately thereafter (and the
effective date of such reclassification shall be deemed
to be "the day upon which such subdivision becomes
effective" or "the day upon which such combination
becomes effective", as the case may be, and "the day
upon which such subdivision or combination becomes
effective" within the meaning of paragraph (3) of this
Section).
(8) The "Current Market Price" per share of Common Stock on
any day means the average of the daily Closing Prices
for the 5 consecutive Trading Days selected by the
Company commencing not more than 20 Trading Days before,
and ending not later than, the earlier of the day in
question and the day before the "ex" date with respect
to the issuance or distribution requiring such
computation. For purposes of this paragraph, the term
"'ex' date", when used with respect to any issuance or
distribution, shall mean the first date on which the
Common Stock trades regular way on such exchange or in
such market without the right to receive such issuance
or distribution.
(9) All adjustments to the Settlement Rate shall be
calculated to the nearest 1/10,000th of a share of
Common Stock (or if there is not a nearest 1/10,000th of
a share to the next lower 1/10,000th of a share). No
adjustment in the Settlement Rate shall be required
unless such adjustment would require an increase or
decrease of at least one percent therein; provided,
however, that any adjustments which by reason of this
subparagraph are not required to be made shall be
carried forward and taken into account in any subsequent
adjustment. If an adjustment is made to the Settlement
Rate pursuant to paragraph (1), (2), (3), (4), (5), (6),
(7) or (10) of this Section 506(a), an adjustment shall
also be made to the Applicable Market Value solely to
determine which of clauses (a), (b) or (c) of the
definition of Settlement Rate in Section 501 will apply
on the Final Settlement Date. Such adjustment shall be
made by multiplying the Applicable Market Value by a
fraction of
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<PAGE> 29
which the numerator shall be the Settlement Rate in
clause (c) of the Settlement Rate definition in Section
501 immediately after such adjustment pursuant to
paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of
this Section 506(a) and the denominator shall be the
Settlement Rate in clause (c) of the Settlement Rate
definition in Section 501 immediately before such
adjustment.
(10) The Company may make such increases in the Settlement
Rate, in addition to those required by this Section, as
it considers to be advisable in order to avoid or
diminish any income tax to any holders of shares of
Common Stock resulting from any dividend or distribution
of stock or issuance of rights or warrants to purchase
or subscribe for stock or from any event treated as such
for income tax purposes or for any other reasons.
(b) Adjustment for Consolidation, Merger or Other Reorganization
Event.
In the event of (i) any consolidation or merger of the Company, with
or into another Person (other than a merger or consolidation in which
the Company is the continuing corporation and in which the Common
Stock outstanding immediately prior to the merger or consolidation is
not exchanged for cash, securities or other property of the Company or
another corporation), (ii) any sale, transfer, lease or conveyance to
another Person of the property of the Company as an entirety or
substantially as an entirety, (iii) any statutory exchange of
securities of the Company with another Person (other than in
connection with a merger or acquisition) or (iv) any liquidation,
dissolution or winding up of the Company (any such event, a
"Reorganization Event"), the Settlement Rate will be adjusted to
provide that each Holder of Securities will receive on the Final
Settlement Date with respect to each Purchase Contract forming a part
thereof, the kind and amount of securities, cash and other property
receivable upon such Reorganization Event by a Holder of the number of
shares of Common Stock issuable on account of each Purchase Contract
if the Final Settlement Date had occurred immediately prior to such
Reorganization Event, assuming such Holder of Common Stock is not a
Person with which the Company consolidated or into which the Company
merged or which merged into the Company or to which such sale or
transfer was made, as the case may be ("constituent Person"), or an
Affiliate of a constituent Person, and failed to exercise his rights
of election, if any, as to the kind or amount of securities, cash and
other property receivable upon such Reorganization Event (provided
that if the kind or amount of securities, cash and other property
receivable upon such Reorganization Event is not the same for each
share of Common Stock held immediately prior to such Reorganization
Event by other than a constituent Person or an Affiliate thereof and
in respect of which such rights of election shall not have been
exercised ("nonelecting share"), then for the purpose of this Section
the kind and amount of securities, cash and other property receivable
upon such Reorganization Event by each nonelecting share shall be
deemed to be the kind and amount so receivable per share by a
plurality of the nonelecting shares). In the event of such a
Reorganization Event, the Person formed by such consolidation, merger
or exchange or the Person which acquires the assets of the Company or,
in the event of a liquidation or dissolution of the Company, the
Company or a liquidating trust created in connection therewith, shall
execute and deliver to the Agent an agreement supplemental hereto
providing that the Holders of each Outstanding Security shall have the
rights provided by this Section 506. Such supplemental agreement
shall provide for adjustments which, for events subsequent to the
effective date of such supplemental
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<PAGE> 30
agreement, shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section. The above provisions of
this Section shall similarly apply to successive Reorganization
Events.
Section 507. Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein provided, the
Company shall:
(i) forthwith compute the adjusted Settlement Rate in
accordance with Section 506 and prepare and transmit to
the Agent an Officer's Certificate setting forth the
Settlement Rate, the method of calculation thereof in
reasonable detail, and the facts requiring such
adjustment and upon which such adjustment is based; and
(ii) within 10 Business Days following the occurrence of an
event that permits or requires an adjustment to the
Settlement Rate pursuant to Section 506 (or if the
Company is not aware of such occurrence, as soon as
practicable after becoming so aware), provide a written
notice to the Holders of the Securities of the
occurrence of such event and a statement in reasonable
detail setting forth the method by which the adjustment
to the Settlement Rate was determined and setting forth
the adjusted Settlement Rate.
(b) The Agent shall not at any time be under any duty or
responsibility to any holder of Securities to determine whether
any facts exist which may require any adjustment of the Settlement
Rate, or with respect to the nature or extent or calculation of
any such adjustment when made, or with respect to the method
employed in making the same. The Agent shall not be accountable
with respect to the validity or value (or the kind or amount) of
any shares of Common Stock, or of any securities or property,
which may at the time be issued or delivered with respect to any
Purchase Contract; and the Agent makes no representation with
respect thereto. The Agent shall not be responsible for any
failure of the Company to issue, transfer or deliver any shares of
Common Stock pursuant to a Purchase Contract or to comply with any
of the duties, responsibilities or covenants of the Company
contained in this Article.
Section 508. Termination Event; Notice.
The Purchase Contracts and the obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive and the obligation of the Company to pay any Contract Fee,
shall immediately and automatically terminate, without the necessity of any
notice or action by any Holder, the Agent or the Company, if, on or prior to
the Final Settlement Date, a Termination Event shall have occurred. Upon the
occurrence of a Termination Event, the Company shall give written notice to the
Agent, the Collateral Agent and to the Holders, at their addresses as they
appear in the Security Register. Upon and after the occurrence of a
Termination Event, the Securities shall thereafter represent the right to
receive the Pledged Securities forming a part of such Securities in accordance
with the provisions of Section 402 and the Pledge Agreement.
Section 509. Early Settlement.
(a) Subject to and upon compliance with the provisions of this Section
509 at the option of the Holder thereof, any Purchase Contracts
underlying Securities having an
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<PAGE> 31
aggregate Stated Amount equal to $_________________ or an integral
multiple thereof may be settled early ("Early Settlement") as
provided herein. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts, the Holder of
the Security Certificate evidencing such Purchase Contracts shall
deliver such Security Certificate to the Agent at the Corporate
Trust Office duly endorsed for transfer to the Company or in blank
with the form of Election to Settle Early on the reverse thereof
duly completed and accompanied by payment in the form of a
certified or cashier's check payable to the order of the Company
in immediately available funds in an amount (the "Early Settlement
Amount") equal to (i) the product of (A) the Stated Amount times
(B) the number of Purchase Contracts with respect to which the
Holder has elected to effect Early Settlement minus (ii) the
aggregate amount of Contract Fees, if any, otherwise payable on or
prior to the immediately preceding Payment Date deferred at the
option of the Company pursuant to Section 503 and remaining unpaid
as of such immediately preceding Payment Date plus (iii) if such
delivery is made with respect to any Purchase Contracts during the
period from the close of business on any Record Date next
preceding any Payment Date to the opening of business on such
Payment Date, an amount equal to the sum of (x) the Contract Fees
payable on such Payment Date with respect to such Purchase
Contracts plus (y) the distributions on the related Pledged
Securities payable on such Payment Date. Except as provided in
the immediately preceding sentence and subject to the last
paragraph of Section 502, no payment or adjustment shall be made
upon Early Settlement of any Purchase Contract on account of any
Contract Fees accrued on such Purchase Contract or on account of
any dividends on the Common Stock issued upon such Early
Settlement. If the foregoing requirements are first satisfied
with respect to Purchase Contracts underlying any Securities at or
prior to 5:00 p.m., New York City time, on a Business Day, such
day shall be the "Early Settlement Date" with respect to such
Securities and if such requirements are first satisfied after 5:00
p.m., New York City time, on a Business Day or on a day that is
not a Business Day, the "Early Settlement Date" with respect to
such Securities shall be the next succeeding Business Day.
(b) Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the Company shall issue, and the Holder shall
be entitled to receive, a number of shares of Common Stock on
account of each Purchase Contract as to which Early Settlement is
effected equal to the Early Settlement Rate. The Early Settlement
Rate shall initially be equal to _____________________ and shall
be adjusted in the same manner and at the same time as the
Settlement Rate is adjusted. As promptly as practicable after
Early Settlement of Purchase Contracts in accordance with the
provisions of this Section 509, the Company shall issue and shall
deliver to the Agent at the Corporate Trust Office a certificate
or certificates for the full number of shares of Common Stock
issuable upon such Early Settlement together with payment in lieu
of any fraction of a share, as provided in Section 510.
(c) The Company shall cause the shares of Common Stock issuable, and
Pledged Securities deliverable, upon Early Settlement of Purchase
Contracts to be issued and delivered, in the case of such shares
of Common Stock, and released from the Pledge by the Collateral
Agent and transferred, in the case of such Pledged Securities, to
the Agent, for delivery to the Holder thereof or its designee, no
later than the third Business Day after the applicable Early
Settlement Date.
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<PAGE> 32
(d) Upon Early Settlement of any Purchase Contracts, and subject to
receipt thereof from the Company or the Collateral Agent, as
applicable, the Agent shall, in accordance with the instructions
provided by the Holder thereof on the applicable form of Election
to Settle Early on the reverse of the Security Certificate
evidencing the related Securities, (i) transfer the Pledged
Securities forming a part of such Securities and (ii) deliver a
certificate or certificates for the full number of shares of
Common Stock issuable upon such Early Settlement together with
payment in lieu of any fraction of a share, as provided in Section
510.
(e) In the event that Early Settlement is effected with respect to
Purchase Contracts underlying less than all the Securities
evidenced by a Security Certificate, upon such Early Settlement
the Company shall execute and the Agent shall authenticate,
countersign and deliver to the Holder thereof, at the expense of
the Company, a Security Certificate evidencing the Securities as
to which Early Settlement was not effected.
Section 510. No Fractional Shares.
No fractional shares or scrip representing fractional shares of Common
Stock shall be issued or delivered upon settlement on the Final Settlement Date
or upon Early Settlement of any Purchase Contracts. If Security Certificates
evidencing more than one Purchase Contract shall be surrendered for settlement
at one time by the same Holder, the number of full shares of Common Stock which
shall be delivered upon settlement shall be computed on the basis of the
aggregate number of Purchase Contracts evidenced by the Security Certificates
so surrendered. Instead of any fractional share of Common Stock which would
otherwise be deliverable upon settlement of any Purchase Contracts on the Final
Settlement Date or upon Early Settlement, the Company, through the Agent, shall
make a cash payment in respect of such fractional interest in an amount equal
to the value of such fractional shares at the Closing Price per share on the
Trading Day immediately preceding the Final Settlement Date or the related
Early Settlement Date, respectively. The Company shall provide the Agent from
time to time with sufficient funds to permit the Agent to make all cash
payments required by this Section 510 in a timely manner.
Section 511. Charges and Taxes.
The Company will pay all stock transfer and similar taxes attributable
to the initial issuance and delivery of the shares of Common Stock pursuant to
the Purchase Contracts; provided, however, that the Company shall not be
required to pay any such tax or taxes which may be payable in respect of any
exchange of or substitution for a Security Certificate evidencing a Purchase
Contract or any issuance of a share of Common Stock in a name other than that
of the registered Holder of a Security Certificate surrendered in respect of
the Purchase Contracts evidenced thereby, other than in the name of the Agent,
as custodian for such Holder, and the Company shall not be required to issue or
deliver such share certificates or Security Certificates unless or until the
Person or Persons requesting the transfer or issuance thereof shall have paid
to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
ARTICLE SIX
REMEDIES
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Section 601. Unconditional Right of Holders to Receive Contract Fee.
Notwithstanding any other provision in this Agreement, the Holder of
any Security shall have the right, which is absolute and unconditional (subject
to the right of the Company to defer payment thereof pursuant to Section 503),
to receive payment of each installment of the Contract Fee with respect to the
Purchase Contract constituting a part of such Security on the respective
Payment Date for such Security and to purchase Common Stock pursuant to such
Purchase Contract and, in each such case, to institute suit for the enforcement
of any such payment and right to purchase Common Stock, and such rights shall
not be impaired without the consent of such Holder.
Section 602. Restoration of Rights and Remedies.
If any Holder of Securities has instituted any proceeding to enforce
any right or remedy under this Agreement and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company and such Holder shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of such Holder shall continue as though no such proceeding had been
instituted.
Section 603. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement of
mutilated, destroyed, lost or stolen Security Certificates in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Holders of Securities is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 604. Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or remedy
shall impair any such right or remedy or constitute a waiver of any such right.
Every right and remedy given by this Article or by law to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by such
Holders.
Section 605. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of any Security
by his acceptance of the Security Certificate evidencing such Security shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Agreement, or in any
suit against the Agent for any action taken, suffered or omitted by it as
Agent, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; provided that the provisions of
this Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Agent, to any suit instituted by any Holder of Securities,
or group of Holders, holding in the aggregate more than
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10% of the Out standing Securities, or to any suit instituted by any Holder for
the enforcement of the payment of the distributions on any Pledged Security or
the Contract Fee on any Purchase Contract on or after the respective Payment
Date therefor constituting a part of the Securities held by such Holder, or for
enforcement of the right to purchase shares of Common Stock under the Purchase
Contracts constituting a part of the Securities held by such Holder.
Section 606. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Agreement; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Agent or the Holders, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE SEVEN
THE AGENT
Section 701. Certain Duties and Responsibilities.
(a) The Agent undertakes to perform, with respect to the Securities,
such duties and only such duties as are specifically set forth in
this Agreement, and no implied covenants or obligations shall be
read into this Agreement against the Agent; and in the absence of
bad faith or negligence on its part, the Agent may, with respect
to the Securities, conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Agent and
conforming to the requirements of this Agreement, but in the case
of any certificates or opinions which by any provision hereof are
specifically required to be furnished to the Agent, the Agent
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Agreement.
(b) No provision of this Agreement shall be construed to relieve the
Agent from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except
that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Agent shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it
shall be proved that the Agent was negligent in
ascertaining the pertinent facts; and
(3) no provision of this Agreement shall require the Agent to
expend or risk its own funds or otherwise incur any
financial liability in the per formance of any of its
duties hereunder, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for
believing that repayment of such
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funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability
of or affording protection to the Agent shall be subject to the
provisions of this Section.
Section 702. Notice of Default.
Within 90 days after the occurrence of any default by the Company
hereunder, of which a Responsible Officer of the Agent has actual knowledge,
the Agent shall transmit by mail to all Holders of Securities, as their names
and addresses appear in the Security Register, notice of such default
hereunder, unless such default shall have been cured or waived.
Section 703. Certain Rights of Agent.
Subject to the provisions of Section 701:
(a) the Agent may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officer's Certificate, Issuer Order or
Issuer Request, and any resolution of the Board of Directors of the
Company may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Agent shall deem
it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Agent (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate of the Company;
(d) the Agent may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Agent shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Agent, in its discretion, may make
reasonable further inquiry or investigation into such facts or
matters related to the issuance of the Securities and the execution,
delivery and performance of the Purchase Contracts as it may see fit,
and, if the Agent shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
promises of the Company, personally or by agent or attorney; and
(f) the Agent may execute any of its powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys
and the Agent shall not be responsible
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for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 704. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Security Certificates shall
be taken as the statements of the Company and the Agent assumes no
responsibility for their correctness. The Agent makes no representations as to
the validity or sufficiency of this Agreement or of the Securities. The Agent
shall not be accountable for the use or application by the Company of the
proceeds in re spect of the Purchase Contracts.
Section 705. May Hold Securities.
Any Security Registrar or any other agent of the Company, or the
Agent, in its individual or any other capacity, may become the owner or pledgee
of Secu rities and may otherwise deal with the Company with the same rights it
would have if it were not Security Registrar or such other agent, or the Agent.
Section 706. Money Held in Trust.
Money held by the Agent in trust hereunder need not be segregated from
the other funds except to the extent required by law. The Agent shall be under
no obligation to invest or pay interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 707. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Agent from time to time reasonable compensation for
all services rendered by it hereunder;
(2) except as otherwise expressly provided herein, to reimburse the
Agent upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Agent in accordance with any
provision of this Agreement (including the reasonable compensation
and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Agent and any predecessor Agent for, and to hold
each of them harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of its
duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
Section 708. Corporate Agent Required; Eligibility.
There shall at all times be an Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined
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capital and surplus of at least $100,000,000, subject to supervision or
examination by Federal or State authority and having its Corporate Trust Office
in the Borough of Manhattan, The City of New York, if there be such a
corporation in the Borough of Manhattan, The City of New York qualified and
eligible under this Article and will ing to act on reasonable terms. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Agent shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
Section 709. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Agent and no appointment of a
successor Agent pursuant to this Article shall become effective until
the acceptance of appointment by the successor Agent in accordance
with the applicable requirements of Section 710.
(b) The Agent may resign at any time by giving written notice thereof to
the Company 60 days prior to the effective date of such resignation.
If the instrument of acceptance by a successor Agent required by
Section 710 shall not have been delivered to the Agent within 30 days
after the giving of such notice of resignation, the resigning Agent
may petition any court of competent jurisdiction for the appointment
of a successor Agent.
(c) The Agent may be removed at any time by Act of the Holders of a
majority in number of the Outstanding Securities delivered to the
Agent and the Company.
(d) If at any time
(1) the Agent fails to comply with Section 310(b) of the TIA, as if
the Agent were an indenture trustee under an indenture qualified
under the TIA, after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at
least six months, or
(2) the Agent shall cease to be eligible under Section 708 and shall
fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Agent shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Agent or of its
property shall be appointed or any public officer shall take
charge or control of the Agent or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then,
in any such case, (i) the Company by a Board Resolution may remove
the Agent, or (ii) any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the removal of the Agent and the appointment of a
successor Agent.
(e) If the Agent shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Agent for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor
Agent and shall comply with the applicable requirements of Section
710. If no successor Agent shall have been so appointed by the
Company and accepted appointment in the manner required by Section
710, any Holder who has been a
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bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Agent.
(f) The Company shall give, or shall cause such successor Agent to give,
no tice of each resignation and each removal of the Agent and each
appointment of a successor Agent by mailing written notice of such
event by first class mail, postage prepaid, to all Holders of
Securities as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Agent
and the address of its Corporate Trust Office.
Section 710. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Agent, every such
successor Agent so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Agent an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring
Agent shall become effective and such successor Agent, without any
further act, deed or convey ance, shall become vested with all the
rights, powers, agencies and duties of the retiring Agent; but, on the
request of the Company or the successor Agent, such retiring Agent
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Agent all the rights, powers and trusts
of the retiring Agent and shall duly assign, transfer and deliver to
such successor Agent all property and money held by such retiring
Agent hereunder.
(b) Upon request of any such successor Agent, the Company shall execute
any and all instruments for more fully and certainly vesting in and
confirming to such successor Agent all such rights, powers and
agencies referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at the time of
such acceptance such successor Agent shall be qualified and eligible
under this Article.
Section 711. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Agent 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 Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of the Agent, shall be the successor of the Agent hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Security Certificates shall have been
authenticated and executed on behalf of the Holders, but not delivered, by the
Agent then in office, any successor by merger, conversion or consolidation to
such Agent may adopt such authentication and execution and deliver the Security
Certificates so authenticated and executed with the same effect as if such
successor Agent had itself authenticated and executed such Securities.
Section 712. Preservation of Information; Communications to Holders.
(a) The Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders received by the
Agent in its capacity as Security Registrar.
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(b) If three or more Holders (herein referred to as "applicants") apply in
writing to the Agent, and furnish to the Agent reasonable proof that
each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the
Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the
Agent shall, within five Business Days after the receipt of such
application, afford such applicants access to the information
preserved at the time by the Agent in accordance with Section 712(a).
(c) Every Holder of Securities, by receiving and holding the Security
Certificates evidencing the same, agrees with the Company and the
Agent that none of the Company, the Agent nor any agent of any of them
shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance
with Section 712(b), regardless of the source from which such
information was derived.
Section 713. No Obligations of Agent.
Except to the extent otherwise provided in this Agreement, the Agent
assumes no obligations and shall not be subject to any liability under this
Agreement or any Purchase Contract in respect of the obligations of the Holder
of any Security thereunder. The Company agrees, and each Holder of a Security
Certificate, by his acceptance thereof, shall be deemed to have agreed, that
the Agent's execution of the Security Certificates on behalf of the Holders
shall be solely as agent and attorney-in-fact for the Holders, and that the
Agent shall have no obligation to perform such Purchase Contracts on behalf of
the Holders, except to the extent expressly provided in Article Five hereof.
Section 714. Tax Compliance.
(a) The Agent, on its own behalf and on behalf of the Company, will comply
with all applicable certification, information reporting and
withholding (including "backup" withholding) requirements imposed by
applicable tax laws, regulations or administrative practice with
respect to (i) any payments made with respect to the Securities or
(ii) the issuance, delivery, holding, transfer, redemption or exercise
of rights under the Securities. Such compliance shall include,
without limitation, the preparation and timely filing of required
returns and the timely payment of all amounts required to be withheld
to the appropriate taxing authority or its designated agent.
(b) The Agent shall comply with any direction received from the Company
with respect to the application of such requirements to particular
payments or Holders or in other particular circumstances, and may for
purposes of this Agreement rely on any such direction in accordance
with the provisions of Section 701(a)(2) hereof.
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records
available on request to the Company or to its authorized
representative.
ARTICLE EIGHT
SUPPLEMENTAL AGREEMENTS
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Section 801. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Company and the Agent, at any
time and from time to time, may enter into one or more agreements supplemental
hereto, in form satisfactory to the Company and the Agent, for any of the
following purposes:
(1) to evidence the succession of another Person to the Company, and the
assumption by any such successor of the covenants of the Company
herein and in the Security Certificates; or
(2) to add to the covenants of the Company for the benefit of the Holders,
or to surrender any right or power herein conferred upon the Company;
or
(3) to evidence and provide for the acceptance of appointment hereunder by
a successor Agent; or
(4) to make provision with respect to the rights of Holders pursuant to
the requirements of Section 506(b); or
(5) to cure any ambiguity, to correct or supplement any provisions herein
which may be inconsistent with any other provisions herein, or to make
any other provisions with respect to such matters or questions arising
under this Agreement, provided such action shall not adversely affect
the interests of the Holders.
Section 802. Supplemental Agreements with Consent of Holders. With the
consent of the Holders of not less than a majority of the Outstanding
Securities delivered to the Company and the Agent, the Company when authorized
by a Board Resolution, and the Agent may enter into an agreement or agreements
supplemental hereto for the purpose of modifying in the manner the terms of the
Securities, or the provisions of this Agrement or the rights of the Holders in
respect of the Securities, provided, however, that no such supplemental
agreement shall, without the consent of the Holder of Each Outstanding
Security affected thereby,
(1) change any Payment Date;
(2) change the amount or type of Pledged Securities underlying a Security,
impair the right of the Holder of any Security to receive distribution
payments on the underlying Pledged Securities or otherwise adversely
affect the Holder's rights in or to such Pledged Securities;
(3) reduce any Contract Fee or change any place where, or the coin or
currency in which, any Contract Fee is payable;
(4) impair the right to institute suit for the enforcement of any Purchase
Contract;
(5) reduce the number of shares of Common Stock to be purchased pursuant
to any Purchase Contract, increase the price to purchase shares of
Common Stock upon settlement of any Purchase Contract, change the
Final Settlement Date or otherwise adversely affect the Holder's
rights under any Purchase Contract; or
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(6) reduce the percentage of the Outstanding Securities the consent of
whose Holders is required for any such supplemental agreement.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 803. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications thereby
of the agencies created by this Agreement, the Agent shall be entitled to
receive and (subject to Section 701) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental agreement
is authorized or permitted by this Agreement. The Agent may, but shall not be
obligated to, enter into any such supplemental agreement which affects the
Agent's own rights, duties or immunities under this Agreement or otherwise.
Section 804. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this Article,
this Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every
Holder of Security Certificates theretofore or thereafter authenticated,
executed on behalf of the Holders and delivered hereunder shall be bound
thereby.
Section 805. Reference to Supplemental Agreements.
Security Certificates authenticated, executed on behalf of the Holders
and delivered after the execution of any supplemental agreement pursuant to
this Article may, and shall if required by the Agent, bear a notation in form
approved by the Agent as to any matter provided for in such supplemental
agreement. If the Company shall so determine, new Security Certificates so
modified as to conform, in the opinion of the Agent and the Company, to any such
supplemental agreement may be prepared and executed by the Company and
authenticated, executed on behalf of the Holders and delivered by the Agent in
exchange for Outstanding Security Certificates.
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ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 901. Covenant Not to Merge, Consolidate, Sell or Convey Property
Except Under Certain Conditions.
The Company covenants that it will not merge or consolidate with any
other Person or sell or convey all or substantially all of its assets to any
Person, except that the Company may merge or consolidate with, or sell or
convey all or substantially all of its assets to, any other Person, provided
that (i) the Company shall be the continuing corporation, or the successor (if
other than the Company) shall be a corporation organized and existing under the
laws of the United States of America or a State thereof and such corporation
shall assume the obligations of the Company under the Purchase Contracts, this
Agreement and the Pledge Agreement by one or more supplemental agreements in
form satisfactory to the Agent and the Collateral Agent, executed and delivered
to the Agent and the Collateral Agent by such corporation, and (ii) the Company
or such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale or conveyance, be in default in the
performance of any covenant or condition hereunder, under any of the Securities
or under the Pledge Agreement.
Section 902. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale or conveyance and upon
any such assumption by the successor corporation, such successor corporation
shall succeed to and be substituted for the Company with the same effect as if
it had been named herein as the Company. Such successor corporation thereupon
may cause to be signed, and may issue either in its own name or in the name of
AirTouch Communications, Inc., any or all of the Security Certificates evi-
dencing Securities issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Agent; and, upon the order of such
successor corporation, instead of the Company, and subject to all the terms,
conditions and limitations in this Agreement prescribed, the Agent shall au-
thenticate and execute on behalf of the Holders and deliver any Security
Certificates which previously shall have been signed and delivered by the offi-
cers of the Company to the Agent for authentication and execution, and any
Security Certificate evidencing Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Agent for that
purpose. All the Security Certificates so issued shall in all respects have
the same legal rank and benefit under this Agreement as the Security
Certificates theretofore or thereafter issued in accordance with the terms of
this Agreement as though all of such Security Certificates had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such
change in phraseology and form (but not in substance) may be made in the
Security Certificates evidencing Securities thereafter to be issued as may be
appropriate.
Section 903. Opinion of Counsel to Agent.
The Agent, subject to Sections 701 and 703, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this
Article.
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ARTICLE TEN
COVENANTS
Section 1001. Performance Under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders from
time to time of the Securities that it will duly and punctually perform its
obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York an office or agency where Security Certificates may be presented or
surrendered for acquisition of shares of Common Stock upon settlement or Early
Settlement and for transfer of Pledged Securities upon occurrence of a
Termination Event, where Security Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Agreement may be served. The
Company will give prompt written notice to the Agent of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Agent with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office, and
the Company hereby appoints the Agent as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where Security Certificates may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, the City of New York for such purposes.
The Company will give prompt written notice to the Agent of any such
designation or rescission and of any change in the location of any such other
office or agency. The Company hereby designates as the place of payment for
the Securities the Corporate Trust Office and appoints the Agent at its
Corporate Trust Office as paying agent in such city.
Section 1003. Company to Reserve Common Stock.
The Company shall at all times prior to the Final Settlement Date
reserve and keep available, free from preemptive rights, out of its authorized
but unissued Common Stock the full number of shares of Common Stock issuable
against tender of payment in respect of all Purchase Contracts constituting a
part of the Securities evidenced by Outstanding Security Certificates.
Section 1004. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may be
issued against tender of payment in respect of any Purchase Contract
constituting a part of the Outstanding Securities will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable.
Section 1005. Statements of Officers of the Company as to Default.
The Company will deliver to the Agent, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officer's
Certificate, stating whether or not to the
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best knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions
hereof, and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
AIRTOUCH COMMUNICATIONS, INC. [AGENT] Agent
By: By:
Attested by Attested by
44
<PAGE> 45
EXHIBIT A
AIRTOUCH COMMUNICATIONS, INC.
___% _______________SECURITIES
(STATED AMOUNT $___ PER SECURITY)
No. Securities
This Security Certificate certifies that is the registered Holder of
the number of Securities set forth above. Each Security represents ownership
by the Holder of ___% United States Pledged Securities due _________ ("Pledged
Securities") with a principal amount equal to the Stated Amount, subject to the
Pledge of such Pledged Securities by such Holder pursuant to the Pledge
Agreement, and the rights and obligations of the Holder under one Purchase
Contract with AirTouch Communications, Inc., a Delaware corporation (the
"Company").
Pursuant to the Pledge Agreement, the Pledged Securities constituting
part of each Security evidenced hereby have been pledged to the Collateral
Agent to secure the obligations of the Holder under the Purchase Contract
constituting part of such Security.
The Pledge Agreement provides that all payments of principal of, or
distributions on, any Pledged Securities constituting part of the Securities
received by the Collateral Agent shall be paid by the Collateral Agent by wire
transfer in same day funds no later than , New York City time, on the Business
Day such payment is received by the Collateral Agent (provided that in the
event such payment is received by the Collateral Agent on a day that is not a
Business Day or after , New York City time, on a Business Day, then such
payment shall be made no later than , New York City time, on the next
succeeding Business Day) (i) in the case of (A) distributions payments and (B)
any principal payments with respect to any Pledged Securities that have been
released from the Pledge pursuant to the Pledge Agreement, to the Agent to the
account designated by it for such purpose and (ii) in the case of principal
payments on any Pledged Pledged Securities (as defined in the Pledge
Agreement), to the Company, in full satisfaction of the respective obligations
of the Holders of the Securities of which such Pledged Treasury Securities are
a part under the Purchase Contracts forming a part of such Securities.
Distributions on any Pledged Security forming part of a Security evidenced
hereby which is paid on any or, commencing, 1995 (a "Payment Date"), shall,
subject to receipt thereof by the Agent from the Collateral Agent, be paid to
the Person in whose name this Security Certificate (or a Predecessor Security
Certificate) is registered at the close of business on the Record Date next
preceding such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of this
Security Certificate to purchase, and the Company to sell, on _______, (the
"Final Settlement Date"), at a price equal to $____ (the "Stated Amount"), a
number of shares of Common Stock, par value $.01 per share ("Common Stock"), of
the Company, equal to the Settlement Rate, unless on or prior to the Final
Settlement Date there shall have occurred a Termination Event or Early
Settlement with respect to the Security of which such Purchase Contract is a
part, all as provided in the Purchase Contract Agreement and more fully
described on the reverse hereof. The purchase price for the shares of Common
Stock purchased pursuant to each Purchase Contract evidenced hereby, if not paid
earlier, shall be paid on the Final Settlement Date by application of payment
received in respect
45
<PAGE> 46
of the principal of the Pledged Securities pledged to secure the obligations
under such Purchase Contract of the Holder of the Security of which such
Purchase Contract is a part.
The Company shall pay, on each Payment Date, in respect of each
Purchase Contract forming part of a Security evidenced hereby a fee (the
"Contract Fee") equal to ___% per annum of the Stated Amount, from ________,
computed on the basis of the actual number of days elapsed in a year of 365 or
366 days, as the case may be, subject to deferral at the option of the Company
as provided in the Purchase Contract Agreement and more fully described on the
reverse hereof. Such Contract Fee shall be payable to the Person in whose name
this Security Certificate (or a Predecessor Security Certificate) is registered
at the close of business on the Record Date next preceding such Payment Date.
Distributions on the Pledged Securities and the Contract Fee will be
payable at the office of the Agent in The City of New York or, at the option of
the Company, by check mailed to the address of the Person entitled thereto as
such address appears on the Security Register.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Agent by manual signature, this Security Certificate shall not be entitled
to any benefit under the Pledge Agreement or the Purchase Contract Agreement or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
AIRTOUCH COMMUNICATIONS, INC.
By:
Attest:
HOLDER SPECIFIED ABOVE (as to obligations of such
Holder under the Purchase Contracts evidenced
hereby)
By:
as Attorney-in-Fact of such Holder
By:
Dated:
This is one of the Security Certificates referred to in the within
mentioned Purchase Contract Agreement
_________________________________________,
as Agent
By:
46
<PAGE> 47
Form of Reverse of Security Certificate
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of ___________(the "Purchase Contract Agreement"),
between the Company and_________________, as Agent (herein called the "Agent"),
to which Purchase Contract Agreement and supplemental agreements thereto
reference is hereby made for a description of the respective rights,
limitations of rights, obligations, duties and immunities thereunder of the
Agent, the Company, and the Holders and of the terms upon which the Security
Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Security Certificate to purchase, and the Company to sell, on the Final
Settlement Date at a price equal to the Stated Amount, a number of shares of
Common Stock of the Company equal to the Settlement Rate, unless, on or prior
to the Final Settlement Date, there shall have occurred a Termination Event or
an Early Settlement with respect to the Security of which such Purchase
Contract is a part. The "Settlement Rate" is equal to (a) if the Applicable
Market Value (as defined below) is greater than $ ________ (the "Threshold
Appreciation Price"), of a share of Common Stock per Purchase Contract, (b) if
the Applicable Market Value is less than or equal to the Threshold Appreciation
Price but is greater than the Stated Amount, a fractional share of Common Stock
per Purchase Contract equal to the Stated Amount divided by the Applicable
Market Value and (c) if the Applicable Market Amount is less than or equal to
the Stated Amount, one share of Common Stock per Purchase Contract, in each
case subject to adjustment as provided in the Purchase Contract. No fractional
shares of Common Stock will be issued upon settlement of Purchase Contracts, as
provided in the Purchase Contract Agreement.
The "Applicable Market Value" means the average of the Closing Prices
per share of Common Stock on each of the twenty consecutive Trading Days ending
on the last Trading Day immediately preceding the Final Settlement Date. The
"Closing Price" of the Common Stock on any date of determination means the
closing sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the "NYSE") on such
date or, if the Common Stock is not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the principal United States
securities exchange on which the Common Stock is so listed, or if the Common
Stock is not so listed on a United States national or regional securities
exchange, as reported by The Nasdaq Stock Market, or, if the Common Stock is
not so reported, the last quoted bid price for the Common Stock in the
over-the-counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of the
Common Stock on such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Company. A "Trading
Day" means a day on which the Common Stock (A) is not suspended from trading on
any national or regional securities exchange or association or over-the-counter
market at the close of business and (B) has traded at least once on the
national or regional securities exchange or association or over-the-counter
market that is the primary market for the trading of the Common Stock.
The purchase price for the shares of Common Stock purchased pursuant
to each Purchase Contract shall be paid by application of payments received by
the Company on the Final Settlement Date from the Collateral Agent pursuant to
the Pledge Agreement in respect of the principal of the Pledged Securities
Pledged to secure the obligations of the relevant Holder under such Purchase
Contract. The Company shall not be obligated to issue any shares of Common
47
<PAGE> 48
Stock in respect of a Purchase Contract or deliver any certificates therefor
to the Holder unless it shall have received payment in full of the aggregate
purchase price for the shares of Common Stock to be purchased thereunder in the
manner herein set forth.
Subject to the next succeeding paragraph, the Company shall pay, on
each Payment Date, the Contract Fee payable in respect of each Purchase
Contract to the Person in whose name the Security Certificate evidencing such
Purchase Contract is registered at the close of business on the Record Date
next pre ceding such Payment Date. Contract Fees will be payable at the office
of the Agent in The City of New York or, at the option of the Company, by check
mailed to the address of the Person entitled thereto at such address as it ap
pears on the Security Register.
The Company shall have the right, at any time prior to the Final
Settlement Date, to defer the payment of any or all of the Contract Fees
otherwise pay able on any Payment Date, but only if the Company shall give the
Holders and the Agent written notice of its election to defer such payment
(specifying the amount to be deferred) as provided in the Purchase Contract
Agreement. Any Contract Fees so deferred shall bear additional Contract Fees
thereon at the rate of per annum (computed on the basis of the actual number of
days elapsed in a year of 365 or 366 days, as the case may be), compounding on
each succeeding Payment Date, until paid in full. Deferred Contract Fees (and
additional Contract Fees accrued thereon) shall be due on the next succeeding
Payment Date except to the extent that payment is deferred pursuant to the
Purchase Contract Agreement. No Contract Fees may be deferred to a date that
is after the Final Settlement Date.
The Purchase Contracts and the obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive and the obligation of the Company to pay any Contract Fee,
shall immediately and automatically terminate, without the necessity of any
notice or action by any Holder, the Agent or the Company, if, on or prior to
the Final Settlement Date, a Termination Event shall have occurred. Upon the
occurrence of a Termination Event, the Company shall give written notice to
the Agent and to the Holders, at their addresses as they appear in the Security
Register. Upon and after the occurrence of a Termination Event, the Collateral
Agent shall release the Pledged Securities from the Pledge. The Securities
shall thereafter represent the right to receive the Pledged Securities forming
a part of such Securities in accordance with the provisions of the Purchase
Contract Agreement and the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement at the option of the Holder thereof, Purchase Contracts
underlying Securities having an aggregate Stated Amount equal to $ _______ or
an integral multiple thereof may be settled early ("Early Settlement") as
provided in the Purchase Contract Agreement. In order to exercise the right to
effect Early Settlement with respect to any Purchase Contracts evidenced by
this Security Certificate, the Holder of this Security Certificate shall
deliver this Security Certificate to the Agent at the Corporate Trust Office
duly endorsed for transfer to the Company or in blank with the form of Election
to Settle Early set forth below duly completed and accompanied by payment in
the form of a certified or cashier's check payable to the order of the Company
in immediately available funds in an amount (the "Early Settlement Amount")
equal to (i) the product of (A) the Stated Amount times (B) the number of
Purchase Contracts with respect to which the Holder has elected to effect
Early Settlement minus (ii) the aggregate amount of Contract Fees, if any,
otherwise payable on or prior to the immediately preceding Payment Date
deferred at the option of the Company pursuant to the Purchase Contract
Agreement and remaining unpaid as of such immediately preceding Payment Date
plus (iii) if such delivery is made with respect to any Purchase Contracts
during the period from the close of business on any Record Date next
48
<PAGE> 49
preceding any Payment Date to the opening of business on such Payment Date, an
amount equal to the sum of (x) the Contract Fees payable on such Payment Date
with respect to such Purchase Contracts plus (y) the distributions with respect
to the related Pledged Securities payable on such Payment Date. Upon Early
Settlement of Purchase Contracts by a Holder of the related Securities, the
Pledged Securities underlying such Securities shall be released from the Pledge
as provided in the Pledge Agreement and the Holder shall be entitled to
receive, a number of shares of Common Stock on account of each Purchase
Contract forming part of a Security as to which Early Settlement is effected
equal to the Early Settlement Rate. The Early Settlement Rate shall initially
be equal to and shall be adjusted in the same manner and at the same time as
the Settlement Rate is adjusted as provided in the Purchase Contract Agreement.
The Security Certificates are issuable only in registered form and
only in denominations of a single Security and any integral multiple thereof.
The transfer of any Security Certificate will be registered and Security
Certificates may be exchanged as provided in the Purchase Contract Agreement.
The Security Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents permitted by the Purchase
Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Agent may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. For so long as the Purchase Contract
underlying a Security remains in effect, such Security shall not be separable
into its constituent parts, and the rights and obligations of the Holder of
such Security in respect of the Pledged Securities and Purchase Contract
constituting such Security may be transferred and exchanged only as a Security.
Upon registration of transfer of this Security Certificate, the
transferee shall be bound (without the necessity of any other action on the
part of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract
Agreement and the Purchase Contracts evidenced hereby and the transferor shall
be released from the obligations under the Purchase Contracts evidenced by this
Security Certificate. The Company covenants and agrees, and the Holder, by his
acceptance hereof, likewise covenants and agrees, to be bound by the
provisions of this paragraph.
The Holder of this Security Certificate, by his acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Securities evidenced hereby on his behalf as his
attorney-in-fact, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform his obligations under such Purchase Contracts,
consents to the provisions of the Purchase Contract Agreement, authorizes the
Agent to enter into and perform the Pledge Agreement on his behalf as his
attorney-in-fact, and consents to the Pledge of the Pledged Securities
underlying this Security Certificate pursuant to the Pledge Agreement. The
Holder further covenants and agrees, that, to the extent and in the manner
provided in the Purchase Contract Agreement and the Pledge Agreement, but
subject to the terms thereof, payments in respect of principal of the Pledged
Securities on the Final Settlement Date shall be paid by the Collateral Agent
to the Company in satisfaction of such Holder's obligations under such Purchase
Contract and such Holder shall acquire no right, title or interest in such
payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of at least a majority
of the Outstanding Securities.
All terms used herein which are defined in the Purchase Contract
Agreement have the meanings set forth therein.
49
<PAGE> 50
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
The Company, the Agent and any agent of the Company or the Agent may
treat the Person in whose name this Security Certificate is registered as the
owner of the Securities evidenced hereby for the purpose of receiving payments
of distributions on the Pledged Securities, receiving payments of Contract
Fees, performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not any payments in respect thereof be overdue and
notwithstanding any notice to the contrary, and neither the Company, the Agent
nor any such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Agent.
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Final Settlement Date of the
Pur chase Contracts underlying the number of Securities evidenced by this
Security Certificate be registered in the name of, and delivered, together with
a check in payment for any fractional share, to the undersigned at the address
indicated below unless a different name and address have been indicated below.
If shares are to be registered in the name of a Person other than the under
signed, the undersigned will pay any transfer tax payable incident thereto.
Dated:
Signature
If shares are to be registered in the name of and delivered to
REGISTERED HOLDER a Person other than the Holder, please print such Person's
name and address: Please print name and address of Registered Holder:
Name
Address
Social Security or other Taxpayer Identification Number, if any
ELECTION TO SETTLE EARLY
The undersigned Holder of this Security Certificate hereby irrevocably
exercises the option to effect Early Settlement in accordance with the terms
of the Purchase Contract Agreement with respect to the Purchase Contracts
underlying the number of Securities evidenced by this Security Certificate
specified below. The option to effect Early Settlement may be exercised only
with respect to Purchase Contracts underlying Securities with an aggregate
Stated Amount equal to $_____ or an integral multiple thereof. The undersigned
Holder directs that a
50
<PAGE> 51
certificate for shares of Common Stock deliverable upon such Early Settlement
be registered in the name of, and delivered, together with a check in payment
for any fractional share and any Security Certificate representing any
Securities evidenced hereby as to which Early Settlement of the related
Purchase Contracts is not effected, to the undersigned at the address
indicated below unless a different name and address have been indicated below.
Pledged Securities deliverable upon such Early Settlement will be transferred
in accordance with the transfer instructions set forth below. If shares are to
be registered in the name of a Person other than the undersigned, the
undersigned will pay any transfer tax payable incident thereto.
Dated:
Signature
Number of Securities evidenced hereby as to which Early Settlement of
the related Purchase Contracts is being elected: .
REGISTERED HOLDER
If shares or Security Certificates are to be registered in the name
of and delivered to and Pledged Securities are to be transferred to a Person
other than the Holder, please print such Person's name and address:
Please print name and address of Registered Holder:
Name
Address
Social Security or other Taxpayer Identification Number, if any
51
<PAGE> 1
Exhibit 5.1(a)
(415) 983-1000
September 20, 1995
AirTouch Communications, Inc.
One California Street
San Francisco, California 94111
Ladies and Gentlemen:
This opinion is being delivered in connection with the proposed issuance
and sale by AirTouch Communications, Inc., a Delaware corporation ("AirTouch"),
of (a) shares of its common stock, $0.01 par value per share ("Common Stock"),
(b) shares of its preferred stock, $.01 par value per share ("Preferred Stock"),
in one or more series, (c) depositary shares evidenced by depositary receipts,
each representing fractional interests in Preferred Stock ("Depositary Shares"),
(d) unsecured senior or subordinated debt securities of AirTouch ("Debt
Securities"), (e) options, warrants and other rights to purchase shares of
Common Stock ("Common Stock Warrants") or shares of Preferred Stock ("Preferred
Stock Warrants"), (f) options, warrants and other rights to purchase shares of
capital stock or debt of another corporation or entity ("Third Party Warrants"),
(g) options, warrants and other rights to purchase Debt Securities ("Debt
Warrants"), (h) stock purchase contracts ("Stock Purchase Contracts") to
purchase Preferred Stock or Common Stock, (i) stock purchase units ("Stock
Purchase Units") each representing ownership of a Stock Purchase Contract and
Debt Securities, Preferred Securities (as defined below) or debt obligations of
third parties, including the United States of America or agencies or
instrumentalities thereof, securing the holder's obligation to purchase
Preferred Stock or Common Stock under the Stock Purchase Contract, (j)
guarantees ("Guarantees") on payments of periodic cash distributions and
payments on liquidation, redemption or otherwise with respect to preferred
securities offered from time to time by ATI Financing I and ATI Financing II,
each a statutory business trust formed under the laws of the State of Delaware
(each an "ATI Trust"), the Common Securities of which will be wholly-owned by
AirTouch, representing undivided beneficial interests in the assets of the
applicable ATI Trust ("Preferred Securities"), out of moneys held by each of the
ATI Trusts, or any combination of the foregoing, either individually or as units
consisting of one or more of the foregoing, each on terms to be determined at
the time of sale (the Common Stock, Preferred Stock, Depositary Shares, Debt
Securities, Common Stock Warrants, Preferred Stock Warrants, Third Party
Warrants, Debt Warrants, Stock Purchase Units, Preferred Securities and
Guarantees are collectively referred to herein as, the "Securities"), having an
aggregate initial public offering price of up to U.S.$2,000,000,000 or the
equivalent thereof. The Securities are to be issued pursuant to a Registration
Statement on Form S-3 ("Registration Statement") filed by AirTouch, ATI
<PAGE> 2
AirTouch Communications, Inc.
September 20, 1995
Page 2
Financing Trust I and ATI Financing Trust II with the Securities and Exchange
Commission on September 20, 1995 under the Securities Act of 1933.
We are familiar with proceedings to date by AirTouch with respect to the
issuance and sale of the Securities and have examined such records, documents
and matters of law as we have deemed necessary for purposes of this opinion.
Based upon the foregoing, we are of the opinion that:
1. AirTouch is a corporation duly organized and validly existing under the
laws of the State of Delaware.
2. With respect to the Common Stock, when (a) the Board of Directors of
AirTouch or a duly authorized committee of the Board (such Board of Directors or
committee being referred to herein as the "Board"), has taken all necessary
corporate action to approve the issuance of and establish the terms of the
offering of the Common Stock and related matters and (b) issued, sold and
delivered in the manner and for the consideration (not less than the par value
of the Common Stock) stated in the applicable definitive purchase, underwriting
or similar agreement or upon conversion, exchange or exercise of any other
Security in accordance with the terms of such Security or the instrument
governing such Security providing for such conversion, exchange or exercise as
approved by the Board, for the consideratin approved by the Board (not less than
the par value of the Common Stock), the Common Stock will be duly authorized,
validly issued, fully paid and nonassessable.
3. With respect to the Preferred Stock, when (a) the Board has taken all
necessary corporate action to approve the issuance of and establish the terms
of any particular series of Preferred Stock, the offering thereof and related
matters, including the filing of a statement of designation conforming to the
Delaware General Corporation Law regarding the Preferred Stock with the
Secretary of State of the State of Delaware, and (c) the Preferred Stock has
been issued, sold and delivered in the manner and for the consideration (not
less than the par value of the Preferred Stock) stated in the applicable
definitive purchase, underwriting or similar agreement or upon conversion,
exchange or exercise of any other Security in accordance with the terms of such
Security or the instrument governing such Security providing for such
conversion, exchange or exercise as approved by the Board, for the
consideration approved by the Board (not less than the par value of the
Preferred Stock), the Preferred Stock will be duly authorized, validly issued,
fully paid and nonassessable.
4. With respect to the Depositary Shares, when (a) the Board has taken all
necessary corporate action to approve the issuance of and establish the terms of
any particular series of Preferred Stock, the offering thereof and related
matters, including the filing of a
<PAGE> 3
AirTouch Communications, Inc.
September 20, 1995
Page 3
statement of designation conforming to the Delaware General Corporation Law
regarding the Preferred Stock with the Secretary of State of the State of
Delaware, (c) the Preferred Stock has been deposited with a bank or trust
company (which meets the requirements set forth in the Registration Statement or
any amendment or prospectus supplement relating thereto) under one or more
deposit agreements (substantially in the form of the Deposit Agreement filed as
Exhibit 4.11 to the Registration Statement or with such other provisions as are
contained in a document which will be filed as an exhibit to or incorporated by
reference in the Registration Statement, which have been duly authorized and
validly executed) and (d) Depositary Shares, evidenced by depositary receipts,
are issued, sold and delivered in the manner and for the consideration stated
in the applicable definitive purchase, underwriting or similar agreement
approved by the Board, and in accordance with the appropriate depositary
agreement, upon payment of the consideration provided for therein the
Depositary Shares will be duly and validly issued, fully paid and nonassessable.
5. With respect to the Debt Securities to be issued under the Senior Debt
Indenture filed as Exhibit 4.8 to the Registration Statement, when (a) the
Senior Debt Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended, (b) the Board has taken all necessary corporate action to
approve the issuance of and establish the terms of such Debt Securities, the
terms of the offering and related matters, (c) the Debt Securities have been
executed and authenticated in accordance with the terms of the Senior Debt
Indenture and (d) the Debt Securities have been issued, sold and delivered in
the manner and for the consideration stated in the applicable definitive
purchase, underwriting or similar agreement approved by the Board, upon payment
of the consideration provided for therein, or upon exercise of any other
Security in accordance with the terms of such Security or the instrument
governing such Security providing for such conversion, exchange or exercise as
approved by the Board, and the Senior Debt Indenture, the Debt Securities to be
issued under the Senior Debt Indenture will be legal, valid and binding
obligations of AirTouch, enforceable against AirTouch in accordance with their
terms, except that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting generally the enforcement of
creditors' rights and by equitable principles of general application (whether
applied at law or in equity).
6. With respect to the Debt Securities to be issued under the Subordinated
Debt Indenture filed as Exhibit 4.12 to the Registration Statement, when (a) the
Subordinated Debt Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended, (b) the Board has taken all necessary corporate action
to approve the issuance of and establish the terms of such Debt Securities, the
terms of the offering and related matters, (c) the Debt Securities have been
executed and authenticated in accordance with the terms of the Subordinated Debt
Indenture and (d) the Debt Securities have been issued, sold and delivered in
the manner and for the consideration stated in the applicable definitive
purchase, underwriting or similar agreement approved by the Board, upon payment
of the consideration therefor
<PAGE> 4
AirTouch Communications, Inc.
September 20, 1995
Page 4
provided for therein, or upon exercise of any other Security in accordance with
the terms of such Security or the instrument governing such Security providing
for such conversion, exchange or exercise as approved by the Board, and the
Subordinated Debt Indenture, the Debt Securities to be issued under the
Subordinated Debt Indenture will be legal, valid and binding obligations of
AirTouch, enforceable against AirTouch in accordance with their terms, except
that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting generally the enforcement of
creditors' rights and by equitable principles of general application (whether
applied at law or in equity).
7. With respect to the Common Stock Warrants and the Preferred Stock
Warrants (collectively, the "Stock Warrants"), when (a) one or more agreements
(incorporating the form of Standard Stock Warrant Provisions filed as Exhibit
4.9 to the Registration Statement or such other provisions as are contained in a
document which will be filed as an exhibit to or incorporated by reference in
the Registration Statement,) have been duly executed and delivered by AirTouch
and a warrant agent, (b) the Board has taken all necessary corporate action to
approve the terms of the Stock Warrants, (c) the Stock Warrant certificates have
been executed and authenticated in accordance with the terms of the appropriate
agreement and (d) the Stock Warrants have been issued, sold and delivered in the
manner and for the consideration stated in the applicable definitive purchase,
underwriting or similar agreement approved by the Board, upon payment of the
consideration therefor provided for therein, and the appropriate Third Party
Warrant agreement, the Third Party Warrants will be legal, valid and binding
obligations of AirTouch, enforceable against AirTouch in accordance with their
terms, except as may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting generally the enforcement of creditors' rights and
by equitable principles of general application (whether applied at law or in
equity).
8. With respect to the Third Party Warrants, when (a) one or more
agreements (incorporating the form of Standard Stock Warrant Provisions filed as
Exhibit 4.9 to the Registration Statement or such other provisions as are
contained in a document which will be filed as an exhibit to or incorporated by
reference in the Registration Statement) have been duly executed and delivered
by AirTouch and a warrant agent, (b) the Board has taken all necessary corporate
action to approve the terms of the Third Party Warrants, (c) the Third Party
Warrant certificates have been executed and authenticated in accordance with the
terms of the appropriate agreement and (d) the Third Party Warrants have been
issued, sold and delivered in the manner and for the consideration stated in the
applicable definitive purchase, underwriting or similar agreement approved by
the Board, upon payment of the consideration therefor provided for therein, and
the appropriate Third Party Warrant agreement, the Third Party Warrants will be
legal, valid and binding obligations of AirTouch, enforceable against AirTouch
in accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting generally the
enforcement of creditors' rights and by equitable principles of general
application (whether applied at law or in equity).
<PAGE> 5
AirTouch Communications, Inc.
September 20, 1995
Page 5
9. With respect to the Debt Warrants, when (a) one or more agreements
(incorporating the form of Standard Debt Securities Warrant Provisions filed as
Exhibit 4.10 to the Registration Statement or such other provisions as are
contained in a document which will be filed as an exhibit to or incorporated by
reference in the Registration Statement) have been duly executed and delivered
by AirTouch and a warrant agent, (b) the Board has taken all necessary corporate
action to approve the terms of the Debt Warrants, (c) the Debt Warrant
certificates have been executed and authenticated in accordance with the terms
of the appropriate agreement and (d) the Debt Warrants have been issued, sold
and delivered in the manner and for the consideration stated in the applicable
definitive purchase, underwriting or similar agreement approved by the Board,
upon payment of the consideration therefor provided for therein, and the
appropriate Debt Warrant agreement, the Debt Warrants will be legal, valid and
binding obligations of AirTouch, enforceable against AirTouch in accordance with
their terms, except as may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting generally the enforcement of creditors' rights
and by equitable principles of general application (whether applied at law or in
equity).
10. With respect to the Stock Purchase Contracts, when (a) one or more
agreements (incorporating the form of Stock Purchase Contract Agreement filed as
Exhibit 4.14 to the Registration Statement or such other agreement which will be
filed as an exhibit to or incorporated by reference in the Registration
Statement) have duly executed and delivered by AirTouch and a stock purchase
contract agent, (b) the Board has taken all necessary corporate action to
approve the terms of the Stock Purchase Contracts, (c) the Stock Purchase
Contracts have been executed and authenticated in accordance with the terms of
the appropriate Stock Purchase Contract agreement and (d) the Stock Purchase
Contracts have been issued, sold and delivered in the manner and for the
consideration stated in the applicable definitive purchase, underwriting or
similar agreement approved by the Board, upon payment of the consideration
therefor provided for therein, and the appropriate Stock Purchase Contract
agreement, the Stock Purchase Contracts will be legal, valid and binding
obligations of AirTouch, enforceable against AirTouch in accordance with their
terms, except as may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights and by
equitable principles of general application (whether applied at law or in
equity).
11. With respect to the Stock Purchase Units, when (a) one or more
agreements (incorporating the form of Stock Purchase Contract Agreement filed as
Exhibit 4.14 to the Registration Statement or such other agreement which will be
filed as an exhibit to or incorporated by reference in the Registration
Statement) have been duly executed and delivered by AirTouch and a stock
purchase unit agent, (b) the Board has taken all necessary corporate action to
approve and establish the terms of the Stock Purchase Units, (c) the Stock
Purchase Units have been executed and authenticated in accordance with the terms
of the appropriate agreement and (d) the Stock Purchase Units have
<PAGE> 6
AirTouch Communications, Inc.
September 20, 1995
Page 6
been issued, sold and delivered in the manner and for the consideration stated
in the applicable definitive purchase, underwriting or similar agreement
approved by the Board, upon payment of the consideration therefor provided for
therein, and the appropriate Stock Purchase Unit agreement, the Stock Purchase
Units will be legal, valid and binding obligations of AirTouch, enforceable
against AirTouch in accordance with their terms, except as may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting generally
the enforcement of creditors' rights and by equitable principles of general
application (whether applied at law or in equity).
12. With respect to the Guarantees, when (a) one or more agreements
(incorporating the form of Preferred Securities Guarantee Agreement filed as
Exhibit 4.13 to the Registration Statement) have been duly executed and
delivered by AirTouch and a Preferred Securities Guarantee trustee, (b) the
Board has taken all necessary corporate action to approve and establish the
terms of the Guarantee, (c) the Preferred Securities Guarantee Agreement has
been executed and authenticated in accordance with the terms of the appropriate
agreement and (d) the Guarantee has been issued, and delivered in the manner
and for the consideration stated in the applicable agreement, the Guarantee
will be a legal, valid and binding obligation of AirTouch, enforceable against
AirTouch in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, or other similar laws affecting generally the
enforcement of creditors' rights and by equitable principles of general
application (whether applied at law or in equity).
In connection with our opinions expressed above, we have assumed that, at
or prior to the time of the delivery of any such Security, the Registration
Statement, and any amendments thereto (including post-effective amendments) will
have been declared effective, a Prospectus Supplement will have been prepared
and filed with the Commission describing the Securities offered thereby, the
authorization of the Securities applicable to such Security will not have been
modified or rescinded by the Board and there will not have occurred any change
in law affecting the validity or enforceability of such Security. We have also
assumed that none of the terms of any Security to be established subsequent to
the date hereof nor the issuance and delivery of such Security, nor the
compliance by AirTouch with the terms of such Security, will violate any
applicable federal or state law or will result in a violation of any provision
of any instrument or agreement then binding upon AirTouch or any restriction
imposed by any court or governmental body having jurisdiction over AirTouch.
We are members of the Bar of the State of California and the foregoing
opinion is limited to the laws of the State of California, the federal laws of
the United States of America and the General Corporation Law of the State of
Delaware.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the filing of the Registration Statement
referred to above. We also consent to the use or our name in the related
prospectus and prospectus supplement under the heading "Legal Matters."
Very truly yours,
Pillsbury Madison & Sutro
<PAGE> 1
EXHIBIT 5.1(b)
September 20, 1995
ATI Financing I
One California Street
San Francisco, California 94111
Re: ATI Financing I
---------------
Ladies and Gentlemen:
We have acted as special Delaware counsel to ATI Financing I,
a Delaware statutory business trust (the "Trust"), in connection with certain
matters relating to the organization of the Trust and the proposed issuance of
Preferred Securities to beneficial owners pursuant to and as described in the
Registration Statement (and the Prospectus forming a part thereof) on
Form S-3 to be filed with the Securities and Exchange Commission on or about
the date hereof (the "Registration Statement"). Capitalized terms used herein
and not otherwise herein defined are used as defined in the Amended and
Restated Declaration of Trust of the Trust in the form attached as an exhibit
to the Registration Statement (the "Governing Instrument").
In rendering this opinion, we have examined copies of the
following documents in the forms provided to us: the Certificate of Trust of
the Trust as filed in the Office of the Secretary of State of the State of
Delaware (the "State Office") on September19, 1995 (the "Certificate"); a
Declaration of Trust of the Trust dated as of September 19, 1995 (the "Original
Governing Instrument"); the Governing Instrument; the Registration Statement;
and a certificate of good standing of the Trust obtained as of a recent date
from the State Office. In such examinations, we have assumed the genuineness
of all signatures, the conformity to original documents of all documents
submitted to us as drafts or copies or forms of documents to be executed and
the legal capacity of natural persons to complete the execution of documents.
We have further assumed for purposes of this opinion: (i) the due formation or
organization, valid existence and good standing of each entity (other than the
Trust) that is a party to any of the documents reviewed by us under the laws of
the jurisdiction of its respective formation or organization; (ii) the due
authorization, execution and delivery by, or on behalf of, each of the parties
thereto of the above-referenced documents (including, without limitation, the
due execution and delivery of the Governing Instrument and the underwriting
agreement relating
<PAGE> 2
ATI Financing II
September 20, 1995
to the Preferred Securities (the "Underwriting Agreement") prior to the first
issuance of Preferred Securities); (iii) that no event has occurred subsequent
to the filing of the Certificate, or will occur prior to the issuance of the
Preferred Securities, that would cause a dissolution or liquidation of the
Trust under the Original Governing Instrument or the Governing Instrument, as
applicable; (iv) that the activities of the Trust have been and will be
conducted in accordance with the Original Governing Instrument or the Governing
Instrument, as applicable, and the Delaware Business Trust Act, 12 Del. C.
Section 3801 et seq. (the "Delaware Act"); (v) that each Holder of a Preferred
Security will make payment of the required consideration therefor and will
receive a Preferred Securities Certificate in consideration thereof, all in
accordance with the terms and conditions of the Governing Instrument,
Registration Statement and Underwriting Agreement; (vi) that the Preferred
Securities are issued and sold to the Preferred Securities Holders in
accordance with the terms, conditions, requirements and procedures set forth in
the Governing Instrument, Registration Statement and Underwriting Agreement;
and (vii) that the documents examined by us are in full force and effect,
express the entire understanding of the parties thereto with respect to the
subject matter thereof and have not been modified, supplemented or otherwise
amended, except as herein referenced. No opinion is expressed with respect to
the requirements of, or compliance with, federal or state securities or blue
sky laws. We have not participated in the preparation of the Registration
Statement or any other offering materials relating to the Preferred Securities
and we assume no responsibility for their contents. As to any fact material to
our opinion, other than those assumed, we have relied without independent
investigation on the above-referenced documents and on the accuracy, as of the
date hereof, of the matters therein contained.
Based on and subject to the foregoing, and limited in all
respects to matters of Delaware law, it is our opinion that:
1. The Trust is a duly organized and validly existing
business trust in good standing under the laws of the State of Delaware.
2. The Preferred Securities, upon issuance, will
constitute validly issued and, subject to the qualifications set forth in
paragraph 3 below, fully paid and nonassessable beneficial interests in the
Trust.
3. Under the Delaware Act and the terms of the Governing
Instrument, each Preferred Security Holder of the Trust, in such capacity, will
be entitled to the same limitation of personal liability as that extended to
stockholders of private corporations for profit organized under the General
Corporation
<PAGE> 3
ATI Financing II
September 20, 1995
Law of the State of Delaware; provided, however, we express no opinion with
respect to the liability of any Preferred Security Holder who is, was or may
become a named Trustee of the Trust. Notwithstanding the foregoing, we note
that pursuant to the Governing Instrument, the Trust may withhold amounts
otherwise distributable to a Holder and pay over such amounts to the applicable
jurisdictions in accordance with federal, state and local law and any amount
withheld will be deemed to have been distributed to such Holder and that,
pursuant to the Governing Instrument, Preferred Security Holders may be
obligated to make payments or provide indemnity or security under the
circumstances set forth therein.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of our name under the heading
"Legal Matters" in the Prospectus. In giving this consent, we do not thereby
admit that we come within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. This opinion
speaks only as of the date hereof and is based on our understandings or
assumptions as to present facts, and on our review of the above referenced
documents and the application of Delaware law as the same exist as of the date
hereof, and we undertake no obligation to update or supplement this opinion
after the date hereof for the benefit of any person or entity with respect to
any facts or circumstances that may hereafter come to our attention or any
changes in facts or law that may hereafter occur or take effect. This opinion
is intended solely for the benefit of the addressee hereof in connection with
the matters contemplated hereby and may not be relied on by any other person or
entity or for any other purpose without our prior written consent.
Very truly yours,
MORRIS, NICHOLS, ARSHT & TUNNELL
<PAGE> 1
EXHIBIT 5.1(c)
September 20, 1995
ATI Financing II
One California Street
San Francisco, California 94111
Re: ATI Financing II
----------------
Ladies and Gentlemen:
We have acted as special Delaware counsel to ATI Financing II,
a Delaware statutory business trust (the "Trust"), in connection with certain
matters relating to the organization of the Trust and the proposed issuance of
Preferred Securities to beneficial owners pursuant to and as described in the
Registration Statement (and the Prospectus forming a part thereof) on
Form S-3 to be filed with the Securities and Exchange Commission on or about
the date hereof (the "Registration Statement"). Capitalized terms used herein
and not otherwise herein defined are used as defined in the Amended and
Restated Declaration of Trust of the Trust in the form attached as an exhibit
to the Registration Statement (the "Governing Instrument").
In rendering this opinion, we have examined copies of the
following documents in the forms provided to us: the Certificate of Trust of
the Trust as filed in the Office of the Secretary of State of the State of
Delaware (the "State Office") on September19, 1995 (the "Certificate"); a
Declaration of Trust of the Trust dated as of September 19, 1995 (the "Original
Governing Instrument"); the Governing Instrument; the Registration Statement;
and a certificate of good standing of the Trust obtained as of a recent date
from the State Office. In such examinations, we have assumed the genuineness
of all signatures, the conformity to original documents of all documents
submitted to us as drafts or copies or forms of documents to be executed and
the legal capacity of natural persons to complete the execution of documents.
We have further assumed for purposes of this opinion: (i) the due formation or
organization, valid existence and good standing of each entity (other than the
Trust) that is a party to any of the documents reviewed by us under the laws of
the jurisdiction of its respective formation or organization; (ii) the due
authorization, execution and delivery by, or on behalf of, each of the parties
thereto of the above-referenced documents (including, without limitation, the
due execution and delivery of the Governing Instrument and the underwriting
agreement relating to the Preferred Securities (the "Underwriting Agreement")
prior to the first issuance of Preferred Securities); (iii) that no event has
occurred subsequent to the filing of the Certificate, or will occur prior to
the issuance of the Preferred Securities, that would cause a dissolution or
liquidation of the Trust under the
<PAGE> 2
ATI Financing II
September 20, 1995
Original Governing Instrument or the Governing Instrument, as applicable; (iv)
that the activities of the Trust have been and will be conducted in accordance
with the Original Governing Instrument or the Governing Instrument, as
applicable, and the Delaware Business Trust Act, 12 Del. C. Section 3801 et
seq. (the "Delaware Act"); (v) that each Holder of a Preferred Security will
make payment of the required consideration therefor and will receive a
Preferred Securities Certificate in consideration thereof, all in accordance
with the terms and conditions of the Governing Instrument, Registration
Statement and Underwriting Agreement; (vi) that the Preferred Securities are
issued and sold to the Preferred Securities Holders in accordance with the
terms, conditions, requirements and procedures set forth in the Governing
Instrument, Registration Statement and Underwriting Agreement; and (vii) that
the documents examined by us are in full force and effect, express the entire
understanding of the parties thereto with respect to the subject matter thereof
and have not been modified, supplemented or otherwise amended, except as herein
referenced. No opinion is expressed with respect to the requirements of, or
compliance with, federal or state securities or blue sky laws. We have not
participated in the preparation of the Registration Statement or any other
offering materials relating to the Preferred Securities and we assume no
responsibility for their contents. As to any fact material to our opinion,
other than those assumed, we have relied without independent investigation on
the above-referenced documents and on the accuracy, as of the date hereof, of
the matters therein contained.
Based on and subject to the foregoing, and limited in all
respects to matters of Delaware law, it is our opinion that:
1. The Trust is a duly organized and validly existing
business trust in good standing under the laws of the State of Delaware.
2. The Preferred Securities, upon issuance, will
constitute validly issued and, subject to the qualifications set forth in
paragraph 3 below, fully paid and nonassessable beneficial interests in the
Trust.
3. Under the Delaware Act and the terms of the Governing
Instrument, each Preferred Security Holder of the Trust, in such capacity, will
be entitled to the same limitation of personal liability as that extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware; provided, however, we express no
opinion with respect to the liability of any Preferred Security Holder who is,
was or may become a named Trustee of the Trust. Notwithstanding the foregoing,
we note that pursuant to the Governing Instrument, the Trust may withhold
amounts otherwise
<PAGE> 3
ATI Financing II
September 20, 1995
distributable to a Holder and pay over such amounts to the applicable
jurisdictions in accordance with federal, state and local law and any amount
withheld will be deemed to have been distributed to such Holder and that,
pursuant to the Governing Instrument, Preferred Security Holders may be
obligated to make payments or provide indemnity or security under the
circumstances set forth therein.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of our name under the heading
"Legal Matters" in the Prospectus. In giving this consent, we do not thereby
admit that we come within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. This opinion
speaks only as of the date hereof and is based on our understandings or
assumptions as to present facts, and on our review of the above referenced
documents and the application of Delaware law as the same exist as of the date
hereof, and we undertake no obligation to update or supplement this opinion
after the date hereof for the benefit of any person or entity with respect to
any facts or circumstances that may hereafter come to our attention or any
changes in facts or law that may hereafter occur or take effect. This opinion
is intended solely for the benefit of the addressee hereof in connection with
the matters contemplated hereby and may not be relied on by any other person or
entity or for any other purpose without our prior written consent.
Very truly yours,
MORRIS, NICHOLS, ARSHT & TUNNELL
<PAGE> 1
EXHIBIT 12
AIRTOUCH COMMUNICATIONS, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
6 MOS. YEAR YEAR YEAR YEAR YEAR
(DOLLARS IN MILLIONS) 1995 1994 1993 1992 1991 1990
-------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS
Reported pre-tax income from
continuing operations $152.4 $206.4 $107.9 $ 14.4 $ 92.9 $101.7
Add back:
Equity in net losses of less-than-
fifty-percent-owned unconsolidated
wireless systems 37.3 35.3 36.6 38.6 21.5 11.5
Distributed income of less-than-
fifty-percent-owned unconsolidated
wireless systems 1.7 1.1 8.7 7.8 0.0 0.0
Fixed charges included in reported
pre-tax income 12.0 24.5 34.5 64.3 46.8 27.8
Deduct:
Minority interests in net losses of
consolidated wireless systems (17.4) (21.7) (3.8) (2.5) 0.0 (4.9)
------ ------ ------ ------ ------ ------
Total $186.0 $245.6 $183.9 $122.6 $161.2 $136.1
------ ------ ------ ------ ------ ------
FIXED CHARGES
Total interest on debt $ 4.4 $ 10.7 $ 25.8 $ 56.5 $ 49.2 $ 29.5
1/3 operating rental expense 7.6 14.2 12.4 11.4 9.2 6.1
----- ------ ------ ------ ------ ------
Total $12.0 $ 24.9 $ 38.2 $ 67.9 $ 58.4 $ 35.6
----- ------ ------ ------ ------ ------
RATIO OF EARNINGS TO
FIXED CHARGES 15.6 9.9 4.8 1.8 2.8 3.8
==== ==== === === === ===
</TABLE>
Prior to April 1, 1994, the Company was an 86.1% owned subsidiary of Pacific
Telesis Group ("Telesis"). As a subsidiary of Telesis, the Company met its
funding requirements primarily through short-term borrowings and equity
contributions from Telesis. During 1993, Telesis provided equity contributions
of $1,179.8 million which the Company used to significantly reduce its
indebtedness to Telesis. The Company's indebtedness to Telesis totaled $958.4
million at December 31, 1992 and $0.3 million at December 31, 1993.
<PAGE> 1
EXHIBIT 15.1
September 19, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: AirTouch Communications, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
We are aware that our reports dated May 11, 1995 and August 10, 1995 on our
review of interim financial information of AirTouch Communications, Inc. for the
periods ended March 31, 1995 and June 30, 1995, respectively, and included in
the Company's quarterly reports on Form 10-Q for the quarters then ended are
incorporated by reference in this registration statement. Pursuant to Rule
436(c) under the Securities Act of 1933, these reports should not be considered
part of the registration statement prepared or certified by us within the
meaning of Sections 7 and 11 of that Act.
Very truly yours,
/s/ Coopers & Lybrand L.L.P.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-3 of our report dated March 13, 1995 on our audit of the consolidated
financial statements and related financial statement schedule of AirTouch
Communications, Inc. We also consent to the reference to our firm under the
caption "Experts."
/s/ Coopers & Lybrand L.L.P.
San Francisco, California
September 19, 1995
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of AirTouch
Communications, Inc., ATI Financing I, and ATI Financing II for the registration
of Common Stock, Preferred Stock, Depositary Shares, Debt Securities, Common
Stock Warrants, Preferred Stock Warrants, Third Party Warrants, Debt Warrants,
Stock Purchase Contracts, Stock Purchase Units and Preferred Securities and to
the incorporation by reference of our report dated February 14, 1995 with
respect to the consolidated financial statements of New Par (A Partnership)
included in AirTouch Communications, Inc.'s Annual Report (Form 10K) for the
year ended December 31, 1994, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Columbus, Ohio
September 18, 1995
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of AirTouch
Communications, Inc., ATI Financing I and ATI Financing II for the registration
of Common Stock, Preferred Stock, Depositary Shares, Debt Securities, Common
Stock Warrants, Preferred Stock Warrants, Third Party Warrants, Debt Warrants,
Stock Purchase Contracts, Stock Purchase Units and Preferred Securities and to
the incorporation by reference therein of our report dated February 16, 1995
with respect to the consolidated financial statements and schedule of Cellular
Communications, Inc. incorporated by reference in AirTouch Communications, Inc.
Current Report on Form 8-K dated September 20, 1995 filed with the Securities
and Exchange Commission.
/s/ Ernst & Young LLP
New York, New York
September 20, 1995
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference, in this registration statement on
Form S-3 pertaining to AirTouch Communications, Inc., of our report dated
January 30, 1995 on our audit of the consolidated financial statements of CMT
Partners included in the Annual Report (Form 10-K) of AirTouch Communications,
Inc. for the year ended December 31, 1994. We also consent to the reference to
our firm under the caption "Experts."
/s/ Coopers & Lybrand L.L.P.
San Francisco, California
September 18, 1995
<PAGE> 1
EXHIBIT 23.5
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Capital Subscribers
Mannesmann Mobilfunk GmbH:
We consent to incorporation by reference in the registration statement on Form
S-3 of AirTouch Communications, Inc., ATI Financing I, and ATI Financing II of
our report, dated February 27, 1995, relating to the balance sheets of Mannesman
Mobilfunk GmbH as of December 31, 1994 and 1993, and the related statements of
income, capital subscribers' equity, and cash flows for the years ended December
31, 1994, 1993, 1992, which appears in the December 31, 1994 annual report on
Form 10-K of AirTouch Communications, Inc.
Dusseldorf, Germany, September 18, 1995
KPMG Deutsche Treuhand-Gesellschaft
Aktiengesellschaft
Wirtschaftsprufungsgesellschaft
/s/ Scheffler /s/ Haas
Wirtschaftsprufer Wirtschaftsprufer
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
WHEREAS, AIRTOUCH COMMUNICATIONS, INC., a Delaware corporation
(hereinafter referred to as the "Corporation"), proposes to file shortly with
the Securities and Exchange Commission (the "SEC"), under the provisions of the
Securities Act of 1933. as amended, a Registration Statements on Form S-3 in
connection with the registration by the Corporation of up to $2 billion of
securities pursuant to a universal shelf; and
WHEREAS, each of the undersigned is an officer or director, or both, of
the Corporation, as indicated below under his name;
NOW THEREFORE, each of the undersigned hereby constitutes and appoints
Lydell L. Christensen, Margaret G. Gill, Sam Ginn, Mohan S. Gyani, and Arun
Sarin, and each of them, his/her attorneys for him/her in his stead, in each of
his/her offices and capacities as an officer, director, or both of the
Corporation, to sign and to file with the SEC such Registration Statements on
Form S-3, and any and all amendments, modifications, or supplements thereto, and
any exhibits thereto, and grants to each of said attorneys full power and
authority to sign and file any and all other documents and to perform and do all
and every act and thing whatsoever requisite and necessary to be done in and
about the premises as fully, to all intents and purposes, as he/she might or
could do if personally present at the doing thereof, and hereby ratifies and
confirms all that said attorneys may or shall lawfully do, or cause to be done,
by virtue hereof in connection with the registration of the aforesaid
securities.
IN WITNESS WHEREOF, each of the undersigned has hereunto set his/her
hand this 31st day of July, 1995.
DIRECTORS
/s/ Carol A. Bartz /s/ C. Lee Cox
---------------------------- --------------------------------
Carol A. Bartz C. Lee Cox
Director Vice Chairman of the Board,
President, Domestic Wireless Businesses
/s/ Donald G. Fisher /s/ Sam Ginn
---------------------------- --------------------------------
Donald G. Fisher Sam Ginn
Director Chairman of the Board,
Chief Executive Officer
/s/ James R. Harvey /s/ Paul Hazen
---------------------------- --------------------------------
James R. Harvey Paul Hazen
Director Director
/s/ Arthur Rock /s/ Arun Sarin
---------------------------- --------------------------------
Arthur Rock Arun Sarin
Director Vice Chairman of the Board
/s/ George P. Schulz /s/ Charles R. Schwab
---------------------------- --------------------------------
George P. Schulz Charles R. Schwab
Director Director
