Exhibit 4.29
================================================================================
AIRTOUCH COMMUNICATIONS, INC.
---------------,
as Call Option Holder
----------------
as Collateral Agent
AND
---------------,
as Unit Agent and as Attorney-In-Fact
----------------
PLEDGE AGREEMENT
----------------
Dated as of __________, 199__
================================================================================
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT, dated as of __________, 199__, is made among
AIRTOUCH COMMUNICATIONS, INC., a Delaware corporation (the "Company," as such
term is more fully defined in the Master Unit Agreement referred to below),
_______________, as Call Option Holder, _______________, as Collateral Agent,
and _______________, as Unit Agent and as attorney-in-fact of the Holders from
time to time of the Units.
RECITALS:
A. The Company and the Unit Agent are parties to the Master Unit
Agreement, dated as of the date hereof (as the same may be supplemented or
amended from time to time in accordance with the terms thereof, the "Master Unit
Agreement"). The Master Unit Agreement contemplates that the QUIPS(sm)*, Junior
Subordinated Debentures and Treasury Securities that from time to time underlie
the Units be pledged to the Collateral Agent to secure the obligations of the
Holders of Units under the Purchase Contracts and Call Options that underlie
such Units.
B. Pursuant to the terms of the Principal Agreements and the Unit
Certificates, the Holders from time to time of the Units irrevocably authorize
the Unit Agent, as attorney-in-fact of such Holders, to execute and deliver this
Agreement on behalf of such Holders and to grant the pledge provided hereby of
the Pledged Securities underlying such Units as provided herein and subject to
the terms hereof.
NOW, THEREFORE, the Company, the Call Option Holder, the Collateral
Agent and the Unit Agent, on its own behalf and as attorney-in-fact of the
Holders from time to time of the Units, agree as follows:
1. DEFINITIONS. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) capitalized terms used herein and not defined are used herein as
defined in the Master Unit Agreement; and
(b) 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.
"Aggregate Consideration Deliverable on Exercise of the Call Options"
has the meaning specified in the Call Option Agreement.
- -------------
* QUIPS is a servicemark of _______________
-1-
"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 section 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 Treasury Securities.
2. THE PLEDGE. The Holders from time to time of the Units acting
through the Unit Agent, as their attorney-in-fact, hereby pledge to the
Collateral Agent (for the benefit of the Company and the Call Option Holder as
their interests may appear), and grant to the Collateral Agent, the Company and
the Call Option Holder (as their interests may appear) a security interest in
all of the right, title and interest of such Holders in and to, the Pledged
Securities underlying such Units (and proceeds therefrom), as collateral
security to ensure the performance when due by such Holders of their respective
obligations under the Purchase Contracts and Call Options underlying such Units.
Concurrently with the execution of this Agreement, the initial Holders of the
first 1,500,000 Normal Units issued under the Master Unit Agreement, the Unit
Agent and the Collateral Agent are causing 1,500,000 QUIPS to be delivered to,
and registered in the name of, the Collateral Agent, and such QUIPS will
thereupon constitute Pledged Securities forming a part of such Normal Units. As
used in this Section 2, the term "delivery" shall have the meaning ascribed to
it in the Uniform Commercial Code of the State of New York. In the event that
any or all of the additional 225,000 Normal Units that may be issued as a result
of an exercise of the overallotment option of the underwriters under the
Underwriting Agreement are issued pursuant to the Master Unit Agreement at or
after the execution of this Agreement, the initial Holders of such Normal Units,
the Unit Agent and the Collateral Agent shall cause a number of QUIPS equal to
the number of such Normal Units to be delivered to, and registered in the name
of, the Collateral Agent, and such QUIPS will thereupon constitute Pledged
Securities forming a part of such Normal Units. In addition, the execution
hereof by the Unit Agent and the Collateral Agent shall constitute an
acknowledgment by the Collateral Agent (as securities intermediary or otherwise)
of the Pledge and of its holding of such QUIPS or other Pledged Securities
substituted therefor in accordance with the provisions hereof subject to the
Pledge and of its crediting such QUIPS or other Pledged Securities to a separate
account for purposes of perfecting the Pledge under applicable law, including,
to the extent applicable, the Uniform Commercial Code as adopted and in effect
in any applicable jurisdiction and the Applicable Treasury Regulations. Subject
to the Pledge, the Holders from time to time of the Units shall have full
beneficial ownership of the Pledged Securities underlying such Units, and shall
be entitled (directly or through the Collateral Agent) to all of the rights
provided by such Pledged Securities, and the Company and the Call Option Holder
shall have no rights with respect to such Pledged Securities other than their
respective security interests therein.
3. PAYMENTS IN RESPECT OF THE PLEDGED SECURITIES. Any payment received
by the Collateral Agent in respect of the Pledged Securities underlying any
Normal Units or Stripped Units shall be paid by the Collateral Agent, by wire
transfer in same day funds no later than 1:00 p.m., New York City time, on the
date of receipt (or, if such payment is received by the
-2-
Collateral Agent on a day that is not a Business Day or after noon, New York
City time, on a Business Day, then such payment shall be made by the Collateral
Agent no later than 10:00 a.m., New York City time, on the next succeeding
Business Day), as follows:
(a) in the case of payments not scheduled to fall on the Stock Purchase
Date, (i) first, to the Company, to the account designated by it for such
purpose, in an amount equal to the Contract Fees, if any, then payable to the
Company in respect of such Units, and (ii) second, to the extent of any amount
remaining after the payment (if any) referred to in clause (i) above, to the
Unit Agent, to the account designated by it for payments in respect of Normal
Units or the account designated by it for payments in respect of Stripped Units,
as the case may be; and
(b) in the case of payments scheduled to fall on the Stock Purchase
Date, (i) with respect to payments received in respect of Units which are Paid
Units (as specified in the notice from the Unit Agent referred to in Section 4),
(x) first, to the Company, to the account designated by it for such purpose, in
an amount equal to the unpaid Contract Fees, if any, payable to the Company in
respect of such Paid Units, and (y) second, to the extent of any amount
remaining after the payment (if any) referred to in clause (x) above, to the
Unit Agent, to the account designated by it for payments in respect of Paid
Units which are Normal Units or the account designated by it for payments in
respect of Paid Units which are Stripped Units, as the case may be; and (ii)
with respect to payments received in respect of Units which are Unpaid Units (as
specified in the notice from the Unit Agent referred to in Section 4), (x)
first, to the Company, to the account designated by it for such purpose, in an
amount equal to the unpaid Contract Fees, if any, payable to the Company in
respect of such Unpaid Units, and (y) second, to the extent of any amount
remaining after the payment (if any) referred to in (x) above, to the Unit
Agent, to the account designated by it for payments in respect of Unpaid Units
which are Normal Units; provided, however, that if the Company disputes the
notice from the Unit Agent referred to in Section 4 and notifies the Collateral
Agent, prior to noon, New York City time, on the Stock Purchase Date, that the
number of Paid Units or the number of Unpaid Units (or both) is different than
that indicated in such notice, the foregoing payments with respect to any Paid
Units or Unpaid Units subject to dispute shall not be paid until such dispute is
resolved.
All payments received by the Unit Agent as provided herein shall be
applied by the Unit Agent pursuant to the provisions of the Master Unit
Agreement.
4. NOTICE WITH RESPECT TO NUMBERS OF PAID UNITS AND UNPAID UNITS;
EXERCISE OF JUNIOR SUBORDINATED DEBENTURE PUT OPTIONS WITH RESPECT TO UNPAID
UNITS. By 11:00 a.m., New York City time, on the Stock Purchase Date, the Unit
Agent shall, as provided in the Master Unit Agreement, notify the Company and
the Collateral Agent as to the number of Normal Units and the number of Stripped
Units, respectively, which are Paid Units and the number of Normal Units and the
number of Stripped Units, respectively, which are Unpaid Units. Promptly after
receiving such notification, (a) if QUIPS underlie the Unpaid Units of any
Holder, the Collateral Agent, on behalf of such Holder, shall exercise such
Holder's right under the Declaration to require the Trust to distribute Junior
Subordinated Debentures having an aggregate principal amount equal to the
aggregate liquidation amount of such QUIPS, in exchange for such QUIPS, and,
upon receiving such Junior Subordinated Debentures, shall thereupon, as Put
Agent, exercise the Junior
-3-
Subordinated Debenture Put Option with respect thereto and (b) if Junior
Subordinated Debentures underlie such Unpaid Units, the Collateral Agent, on
behalf of such Holder, shall, as Put Agent, exercise the Junior Subordinated
Debenture Put Option with respect thereto. The payment received by the
Collateral Agent from the exercise of any Junior Subordinated Debenture Put
Option shall then be applied by the Collateral Agent in accordance with Section
3(b).
5. RELEASE AND SUBSTITUTION OF PLEDGED SECURITIES.
(a) Upon notice to the Collateral Agent by the Company or the Unit
Agent that there has occurred a Termination Event, the Collateral Agent shall
release all Pledged Securities from the Pledge and shall transfer such Pledged
Securities, free and clear of any lien, pledge or security interest created
hereby, to the Unit Agent for delivery by the Unit Agent pursuant to the
provisions of the Master Unit Agreement.
(b) Upon notice to the Collateral Agent by the Call Option Holder that
the Call Option Holder is exercising the Call Options in accordance with the
terms of the Call Option Agreement with respect to the QUIPS or Junior
Subordinated Debentures underlying the Normal Units, provided that the
Collateral Agent receives the requisite Aggregate Consideration Deliverable on
Exercise of the Call Options on the Call Settlement Date specified in such
notice, the Collateral Agent shall transfer such QUIPS or Junior Subordinated
Debentures, free and clear of any lien, pledge or security interest created
hereby, to the Call Option Holder or its designee as specified in such notice,
whereupon (i) the Treasury Securities constituting all or a part of the
Aggregate Consideration Deliverable Upon Exercise of the Call Options so
received by the Collateral Agent shall be subject to the Pledge with respect to
the Normal Units and (ii) the Pledge shall cease to constitute a security
interest for the benefit of the Call Option Holder.
(c) In connection with a Stripped Unit Creation, upon request by the
Unit Agent to the Collateral Agent to release the then Pledged Securities
underlying the number of Normal Units indicated in such request, provided that
the Collateral Agent has received (i) the Treasury Securities and cash required
by Section 309(a)(i) of the Master Unit Agreement for a Stripped Unit Creation
relating to such Normal Units and (ii) if the Call Options underlying such
Normal Units remain exercisable on the date of receipt of such instruction, an
instrument from the Call Option Holder releasing its security interest in the
Pledged Securities underlying such Normal Units and agreeing that such Call
Options no longer underlie such Normal Units (or the Stripped Units they
become), the Collateral Agent shall release such Pledged Securities, free and
clear of any lien, pledge or security interest created hereby, to the Unit Agent
for delivery by the Unit Agent pursuant to the provisions of the Master Unit
Agreement, whereupon the Treasury Securities so received by the Collateral Agent
shall be subject to the Pledge and constitute the Pledged Securities underlying
the Stripped Units so created.
(d) In connection with the delivery to the Collateral Agent of Treasury
Securities pursuant to Section 5(b) or (c), such delivery shall be by Federal
Reserve Bank-Wire to the account of the Collateral Agent designated by it for
such purpose, and the Collateral Agent and the Call Option Holder or
transferring Holder of Normal Units, as the case may be, shall take
-4-
appropriate action (i) so that the applicable Federal Reserve Bank through which
such Treasury Securities have been purchased will reflect such transfer and the
Pledge of such Treasury Securities in accordance with Applicable Treasury
Regulations and (ii) as may be required to perfect the Pledge under Applicable
Treasury Regulations.
(e) In the event the Trust is dissolved while any QUIPS are Pledged
Securities underlying Normal Units, the Junior Subordinated Debentures issued
upon dissolution thereof shall be delivered to the Collateral Agent in exchange
for such QUIPS, whereupon such QUIPS shall cease to constitute Pledged
Securities and the Junior Subordinated Debentures so received by the Collateral
Agent shall be subject to the Pledge and constitute the Pledged Securities
underlying such Normal Units.
(f) On the Stock Purchase Date, the Collateral Agent shall release the
QUIPS or Junior Subordinated Debentures underlying Units which are Paid Units
(as specified in the notice from the Unit Agent referred to in Section 4), free
and clear of any lien, pledge or security interest created hereby, to the Unit
Agent for delivery pursuant to the provisions of the Master Unit Agreement;
provided, however, that if the Company disputes the notice from the Unit Agent
referred to in Section 4 and notifies the Collateral Agent, prior to noon, New
York City time, on the Stock Purchase Date, that the number of Paid Units is
different from that indicated in such notice, the foregoing release with respect
to any Paid Units subject to dispute shall not be made until such dispute is
resolved.
6. RIGHTS AND REMEDIES.
(a) The Collateral Agent shall have all of the rights and remedies with
respect to the Pledged 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, with respect to Pledged Securities which are Treasury Securities,
the Applicable Treasury Regulations, 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 due to the Company pursuant to the Purchase Contracts
underlying any Units, the Collateral Agent shall have and may exercise, with
reference to the Pledged Securities underlying such Units and the obligations of
the Holders of such Units, any and all of the rights and remedies available to a
secured party under the Code and the Applicable Treasury Regulations 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 or distributions
or interest on the Pledged Securities, in each case subject to the provisions
hereof.
-5-
(d) The Unit Agent, the Call Option Holder and each Holder of Units
agree that, from time to time, upon the written request of the Collateral Agent,
the Unit Agent, the Call Option Holder or such Holder of Units 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.
7. THE COLLATERAL AGENT. The Collateral Agent, the Company and the Call
Option Holder hereby agree among themselves as follows (it being understood and
agreed that neither the Unit Agent nor any Holder of Units shall have any rights
under this Section 7):
(a) Appointment, Powers and Immunities. The Collateral Agent shall act
hereunder as agent for the Company and the Call Option Holder, 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: (i) 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; (ii) shall not be responsible to the
Company or the Call Option Holder 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 Units, the Master Unit Agreement, or
the Call Option Agreement or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement (other than as
against the Collateral Agent), the Units, the Master Unit Agreement or the Call
Option Agreement or any other document referred to or provided for herein or
therein or for any failure by the Company, the Call Option Holder, or any other
Person (except the Collateral Agent) to perform any of its obligations hereunder
or thereunder; (iii) shall not be required to initiate or conduct any litigation
or collection proceedings hereunder (except pursuant to directions furnished
under Section 7(b) hereof); (iv) 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 (v) 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 Units or any 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 safekeeping and preservation of the
Pledged 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 Securities.
(b) INSTRUCTIONS OF THE COMPANY. The Company (or, with respect to
matters relating to the Call Options, the Call Option Holder) 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
-6-
taking of any action authorized by this Agreement; provided, however, that (i)
no Company direction shall in any way adversely affect the rights of the Call
Option Holder hereunder or under the Call Options and no Call Option Holder
direction shall in any way adversely affect the rights of the Company hereunder
or under the Purchase Contracts, (ii) such direction shall not conflict with the
provisions of any law or of this Agreement and (iii) the Collateral Agent shall
be adequately indemnified as provided herein. Nothing in this Section 7(b) 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.
(c) 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 or the Call Option Holder, as the case may be, in
accordance with this Agreement.
(d) RIGHTS IN OTHER CAPACITIES. The Collateral Agent and its affiliates
may (without having to account therefor to the Company or the Call Option
Holder) accept deposits from, lend money to, make investments in and generally
engage in any kind of banking, trust or other business with the Unit Agent and
any Holder of Units 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 Unit Agent and any Holder of Units without having to account for the same to
the Company or the Call Option Holder, provided that the Collateral Agent
covenants and agrees with the Company and the Call Option Holder 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 Securities.
(e) NON-RELIANCE ON COLLATERAL AGENT. The Collateral Agent shall not be
required to keep itself informed as to the performance or observance by the Unit
Agent or any Holder of Units of this Agreement, the Master Unit Agreement, the
Call Option Agreement, the Units or any other document referred to or provided
for herein or therein or to inspect the properties or books of the Unit Agent or
any Holder of Units. The Collateral Agent shall not have any duty or
responsibility to provide the Company or the Call Option Holder with any credit
or other information concerning the affairs, financial condition or business of
the Unit Agent or any Holder of Units that may come into the possession of the
Collateral Agent or any of its affiliates.
(f) 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
-7-
and expenses of defending itself against any claim or liability in connection
with the exercise or performance of such powers and duties.
(g) 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 interpleaded
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.
(h) RESIGNATION OF COLLATERAL AGENT. Subject to the appointment and
acceptance of a successor Collateral Agent as provided below, (i) the Collateral
Agent may resign at any time by giving notice thereof to the Company, the Unit
Agent and, if the Call Options are exercisable or have been exercised but not
settled, the Call Option Holder, (ii) the Collateral Agent may be removed at any
time by the Company (provided, that, if the Call Options are exercisable or have
been exercised but not settled, the Call Option Holder shall have consented to
such removal), and (iii) if the Collateral Agent fails to perform any of its
material obligations hereunder in any material respect for a period of not less
than twenty (20) days after receiving notice of such failure by the Unit Agent
and such failure shall be continuing, the Collateral Agent may be removed by the
Unit Agent. The Unit Agent shall promptly notify the Company and, if the Call
Options are exercisable or have been exercised but not settled, the Call Option
Holder of any removal of the Collateral Agent pursuant to clause (iii) of the
immediately preceding sentence. Upon any such resignation or removal, the
Company and, if the Call Options are exercisable or have been exercised but not
settled, the Call Option Holder 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 thirty (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 050,000,000. 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
-8-
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 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 an}
actions taken or omitted to be taken by it while it was acting as the Collateral
Agent.
(i) 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 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 7 shall survive termination of this
Agreement and the resignation or removal of the Collateral Agent.
8. MISCELLANEOUS.
(a) AMENDMENTS. This Agreement may be amended in the manner set forth
in Section 8.1 of the Master Unit Agreement. In executing any amendment
permitted by this Section, the Collateral Agent shall be entitled to receive and
(subject to Section 8(a) hereof) 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.
(b) 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.
(c) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The
Company, the Call Option Holder, the Collateral Agent and the Holders from time
to time of the Units, acting through the Unit 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 Call Option Holder, the Collateral Agent and the Holders from time
to time of the Units, acting through the Unit 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-
(d) LEGAL HOLIDAYS. In any case where any Quarterly Payment Date or the
Stock Purchase Date shall not be a Business Day, then (notwithstanding any other
provision of this Agreement or of the Units) the actions required by this
Agreement to occur on such date shall not occur on such date, but instead shall
occur on the next succeeding Business Day with the same force and effect as if
they had occurred on such Quarterly Payment Date or Stock Purchase Date, as the
case may be; except that if such next succeeding Business Day is in the next
calendar year, such actions shall occur on the immediately preceding Business
Day with the same force and effect as if made on such Quarterly Payment Date or
Stock Purchase Date.
(e) 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) 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.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the Company,
the Call Option Holder, the Collateral Agent and the Unit Agent, and the Holders
from time to time of the Units, 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 Unit Agent.
(g) 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.
(h) SEVERABILITY. If any provision hereof is invalid or 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.
(i) EXPENSES, ETC. The Company agrees to reimburse the Collateral Agent
for: (i) 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 (ii) the negotiation, preparation,
execution and delivery or performance of this Agreement and (iii) any
modification, supplement or waiver of any of the terms of this Agreement; (iv)
all reasonable costs and expenses of the Collateral Agent (including, without
limitation, reasonable fees and expenses of counsel) in connection with (A) any
enforcement or proceedings resulting or incurred in connection with causing any
Holder of Units to satisfy its obligations under the Purchase Contracts or Call
Options forming a part of the Units and (B) the enforcement of this
-10-
Section 8(i); and (v) 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.
(j) 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 Units here under, shall be absolute and unconditional irrespective
of:
(i) any lack of validity or enforceability of any provision of
the Units or any other agreement or instrument relating thereto;
(ii) 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 Units under the related Purchase Contracts or
Call Options or any other amendment or waiver of any term of, or any
consent to any departure from any requirement of, the Master Unit
Agreement or any Units or any other agreement or instrument relating
thereto; or
(iii) any other circumstance which might otherwise constitute
a defense available to, or discharge of, borrower, a guarantor or a
pledger.
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
-------------------------------------
Name
-----------------------------------
Title
----------------------------------
Address for Notices:
201 Mission Street, 18th Floor
San Francisco, CA 94105
Attention:_____________________________
Telecopy:______________________________
-11-
[_______________], as Call Option Holder
By
-------------------------------------
Name
-----------------------------------
Title
----------------------------------
Address for Notices:
---------------------------------------
---------------------------------------
---------------------------------------
Attention:
-----------------------------
[_______________], as Collateral Agent
By
--------------------------------------
Name
------------------------------------
Title
-----------------------------------
Address for Notices:
---------------------------------------
---------------------------------------
---------------------------------------
Attention:
-----------------------------
-12-
[_______________], as Unit Agent and as
attorney-in-fact of the Holders from
time to time of the Units
By
--------------------------------------
Name
------------------------------------
Title
-----------------------------------
Address for Notices:
---------------------------------------
---------------------------------------
---------------------------------------
Attention:
-----------------------------
-13-