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EXHIBIT 4.13
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PREFERRED SECURITIES GUARANTEE AGREEMENT
Dated as of , 199[ ]
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CROSS-REFERENCE TABLE*
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
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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
318(c)-----------------------------------2.1
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*This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of
any of its terms or provisions.
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PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of , 199[ ], 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 ________________, 199[ ], 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 a Guarantee 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;
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(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.
"Guarantee 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 that are
required to be paid on such Preferred Securitiesif and to the extent that, in
each case, the Issuer of the Subordinated Notes has made a payment to the
Property Trustee (as defined in the Declaration) of interest and/or principal on
the Subordinated Notes, (ii) the redemption price, including all accrued and
unpaid Distributions to the date of redemption (the "Redemption Price if and to
the extent that, in each case, the Issuer of the Subordinated Notes has made a
payment to the Property Trustee of interest and/or principal on the Subordinated
Notes, 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 registered owner of any Preferred Security, as shown
on the Register; provided, however, that in determining whether the Holders of
the requisite percentage of Preferred Securities have voted or given any
request, notice, consent or waiver hereunder, Preferred Securities which are
owned by the Guarantor, the Trust or any other obligor on the Preferred
Securities or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Sponsor, the Trust or any
other obligor on the Preferred Securities shall be disregarded for the purpose
of any such determination.
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"Indemnified Person" means the Preferred Guarantee or any officers,
directors, shareholders, members, partners, employees, representatives or agents
of the Preferred Guarantee Trustee.
"Indenture" means the Subordinated Indenture dated as of _______, 199[_], as
supplemented by the First Supplemental Indenture dated as of __________, 199[_],
each being between the Subordinated Note Issuer and _________________, as
trustee, as such Indenture may be further amended, supplemented or modified in
accordance with the provisions thereof.
"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" 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 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..
"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.
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"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, 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 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 as
of the date of this Guarantee Agreement. .
"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.
SECTION 1.2. Other Defined Terms.
Capitalized terms not otherwise defined in this Guarantee Agreement shall
have the meaning ascribed thereto in the Declaration.
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 provided,
however, that any provisions of the Trust Indenture Act which may in accordance
therewith be excluded, are hereby excluded from the provisions hereof; 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 will furnish or cause to be furnished to the Preferred
Guarantee Trustee, not less than 45 days nor more than 60 days after each date
(Month and day) that is a Distribution payment date under the Declaration, but
in no event less frequently than semiannually, and at such other times as the
Preferred Guarantee Trustee may request in writing, within 30 days after receipt
by the Guarantor of any such request, a list in such form as the Preferred
Guarantee Trustee may reasonably require containing all the information in the
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possession or control of the Guarantor, as to the names and addresses of the
Holders of Preferred Securities, obtained since the date as of which the next
previous list, if any, was furnished. 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 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.
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 Guarantee Event of Default and its consequences. Upon such waiver, any such
Guarantee Event of Default shall cease to exist, and any Guarantee 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 Guarantee Event of Default or impair any right consequent
thereon.
SECTION 2.7. Guarantee Event of Default; Notice.
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of a Guarantee 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.
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(b) The Preferred Guarantee Trustee shall not be deemed to have knowledge of
any Guarantee 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
Guarantee Event of Default.
SECTION 2.8 Conflicting Interests.
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 Guarantee 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 the Guaranteed Payments when due, 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
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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 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 a Guarantee 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 Preferred Guarantee Trustee May File Proofs of Claim. Upon the
occurrence of a Guarantee Event of Default, the Preferred Guarantee Trustee is
hereby authorized to (a) recover judgment, in its own name and as trustee of an
express trust, against the Guarantor for the whole amount of any Guarantee
Payments remaining unpaid and (b) file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have its claims and those
of the Holders of the Preferred Securities allowed in any judicial proceedings
relative to the Guarantor, its creditors or its property.
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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 agianst 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 the 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.
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 except
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 a Guarantee 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 Guarantee
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 a
Guarantee 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:
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(i) prior to the occurrence of any Guarantee 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; 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
Payng Agent or additional Paying Agents may be appointed at any time by the
Preferred Guarantee Trustee.
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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.
(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 a Guarantee Event of Default, of its
obligation to exercise the rights and powers vested in
it by this Guarantee Agreement.
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(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.
(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.
(d) This Guarantee Agreement and all moneys received by the Guarantee
Trustee hereunder in respect of the Guarantee Payments will not be subject to
any right, charge, security
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interest, lien or claim of any kind in favor of, or for the benefit of thae
Guarantee Trustee or its agents or creditors.
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
(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
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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.
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor 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 Unconditional Nature of Obligations. The obligations of the
Guarantor under this Guarantee Agreement shall be absolute and unconditional and
shall remain in full force and effect until the entire liquidation amount of all
Outstanding Preferred Securities shall have been paid and such obligation shall
not be affected, modified or impaired upon the happening from time to time of
any event, including without limitation any of the following, whether or not
with notice to, or the consent of, the Guarantor:
(a) the waiver, surrender, compromise, settlement, release or
termination of any or all of the obligations, covenants or agreements of the
Trust under the Preferred Securities;
(b) the failure to give notice to the Guarantor of the occurrence of a
default under the Preferred Securities;
(c) the waiver, compromise or release of the payment, performance or
observance by the Trust or by the Guarantor, respectively, of any or all of
the obligations, covenants or agreements contained in the case of the Trust,
in the
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Preferred Securities, and, in the case of the Guarantor, in this
Guarantee Agreement;
(d) the extension of the time for payment of the Liquidation amount of
any Preferred Securities or of the time for performance of any other
obligations, covenants or agreements under or arising out of the Preferred
Securities;
(e) the modification or amendment (whether material or otherwise) of
any obligation, covenant or agreement set forth in the Preferred Securities;
(f) any failure, omission, delay or lack on the part of any Holder to
enforce, assert or exercise any right, power or remedy conferred on it in or
in connection with the Preferred Securities;
(g) the voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all the assets, marshaling of
assets and liabilities, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement, composition with
creditors or readjustment of, or other similar proceedings affecting the
Guarantor or the Trust or any of the respective assets of either of them, or
any allegation or contest of the validity of this Guarantee Agreement in any
such proceeding;
(h) any defense based upon any legal disability of the Trust or, to the
extent permitted by law, any release, discharge, reduction or limitation of
or with respect of any sums owing by the Trust or any other liability of the
Trust to any Holder;
(i) to the extent permitted by law, the release or discharge by
operation of law of the Guarantor from the performance or observance of any
obligation, covenant or agreement contained in this Guarantee Agreement;
(j) the default or failure of the Guarantor fully to perform any of its
obligations set forth in this Guarantee Agreement; or
(k) the invalidity of the Preferred Securities or any defense which the
Trust may have against any Holder.
If any payment by the Trust to any Holder is rescinded or must be
returned by such Holder, the obligations of the Guarantor hereunder shall be
reinstated with respect of such payment.
No set-off, counterclaim, reduction, or diminution of any obligation,
or any defense of any kind or nature which the Guarantor has or may have against
any Holder shall be available hereunder to the Guarantor against such Holder to
reduce the payments to it under this Guarantee Agreement.
The Guarantor assumes responsibility for being and remaining informed
of the financial condition of the Trust and of all other circumstances bearing
upon the risk of nonpayment of amounts owing under the Preferred Securities
which diligent inquiry would reveal
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and agrees that no Holder shall have any duty to advise he Guarantor of
information known to it regarding such condition or any such circumstances.
SECTION 5.3. Proceedings Against The Guarantor. In the event of a default in the
payment of the Guarantee Payments when and as the same shall become due, the
Holder of such Preferred Securities shall have the right to proceed first and
directly against the Guarantor under this Guarantee Agreement without proceeding
against the Trust or exhausting any other remedies which it may have and without
resorting to any other security held by it.
SECTION 5.4. Rights of Holders.
The Guarantor and the Preferred Guarantee Trustee expressly acknowledge
and agree as follows: (i) this Guarantee Agreement will be deposited with the
Preferred Guarantee Trustee to be held for the benefit of the Holders; (ii) the
Preferred Guarantee Trustee shall have the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) Holders representing not less than a
Majority in liquidation amount of the Preferred Securities shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available in respect of this Guarantee Agreement including the giving of
directions to the Preferred Guarantee Trustee, or exercising any trust or other
power conferred upon the Preferred Guarantee Trustee under this Guarantee
Agreement and (iv) if the Preferred Guarantee Trustee fails to enforce this
Guarantee Agreement, any Holder of Preferred Securities may, after a period of
90 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
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 a Guarantee Event of Default or a Guarantee 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 except those made pari passu or subordinate
by their terms, (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).
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ARTICLE IX
MISCELLANEOUS
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
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(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 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 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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