-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, AwYs/WRUY3vylS+HBQabK0wwAS7QwDNpaV1kvBSgw//27DjP6E1fV2qlo/RUoSpu +GBtzLrXRu9KjwddzYS6dA== 0000950149-95-000824.txt : 19951124 0000950149-95-000824.hdr.sgml : 19951124 ACCESSION NUMBER: 0000950149-95-000824 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 13 FILED AS OF DATE: 19951121 SROS: NYSE SROS: PSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: AIRTOUCH COMMUNICATIONS CENTRAL INDEX KEY: 0000904255 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 942995122 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 033-62787 FILM NUMBER: 95595539 BUSINESS ADDRESS: STREET 1: 425 MARKET STREET 2: 30TH FLOOR CITY: SAN FRANCISCO STATE: CA ZIP: 94105 BUSINESS PHONE: 5102103900 MAIL ADDRESS: STREET 1: 425 MARKET STREET 2: 30TH FLOOR CITY: SAN FRANCISCO STATE: CA ZIP: 94105 FORMER COMPANY: FORMER CONFORMED NAME: PACTEL CORP DATE OF NAME CHANGE: 19930512 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ATI FINANCING I CENTRAL INDEX KEY: 0001000739 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 033-62787-01 FILM NUMBER: 95595540 BUSINESS ADDRESS: STREET 1: ONE CALIFORNIA ST CITY: SAN FRANCISCO STATE: CA ZIP: 94111 BUSINESS PHONE: 4106582000 MAIL ADDRESS: STREET 1: ONE CALIFORNIA ST CITY: SAN FRANCISCO STATE: CA ZIP: 94111 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ATI FINANCING II CENTRAL INDEX KEY: 0001000748 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 033-62787-02 FILM NUMBER: 95595541 BUSINESS ADDRESS: STREET 1: ONE CALIFORNIA ST CITY: SAN FRANCISCO STATE: CA ZIP: 94111 BUSINESS PHONE: 4156582000 MAIL ADDRESS: STREET 1: ONE CALIFORNIA ST CITY: SAN FRANCISCO STATE: CA ZIP: 94111 S-3/A 1 AMEND. # 1 TO FORM S-3 DATED NOVEMBER 21, 1995. 1 Registration No.33-62787 As filed with the Securities and Exchange Commission on November 21, 1995 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Amendment No. 1 to FORM S-3 Registration Statement under the Securities Act of 1933 AIRTOUCH COMMUNICATIONS, INC. A DELAWARE CORPORATION I.R.S. EMPLOYER NUMBER 94-3213132 ATI FINANCING I ATI FINANCING II A DELAWARE STATUTORY BUSINESS TRUST A DELAWARE STATUTORY BUSINESS TRUST I.R.S. EMPLOYER NUMBER: 94-6689720 I.R.S. EMPLOYER NUMBER: 94-6689721 ONE CALIFORNIA STREET SAN FRANCISCO, CALIFORNIA 94111 (415) 658-2000 Agent for Service of Process: Margaret G. Gill Senior Vice President Legal, External Affairs and Secretary AirTouch Communications, Inc. One California Street San Francisco, California 94111 (415) 658-2000 Copies to: Kristina Veaco Nathaniel M. Cartmell III Peter Darrow Sharon Le Duy Katharine A. Martin Cleary, Gottlieb, Steen & Hamilton AirTouch Communications, Inc. Pillsbury Madison & Sutro One Liberty Plaza One California Street 235 Montgomery Street New York, NY 10006-1470 San Francisco, California 94111 San Francisco, California 94104 (212) 225-2000 (415) 658-2000 (415) 983-1000
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: / / If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box: /x/ If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / ----------- If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / ----------------------- If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. / / ----------------------- 2 The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment that states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to Section 8(a), may determine. 2 3 Information contained herein is subject to completion or amendment. A registration statement relating to these securities has been filed with the Securities and Exchange Commission. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes effective. This prospectus shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any State in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such State. 3 4 SUBJECT TO COMPLETION - DATED NOVEMBER 21, 1995 PROSPECTUS $2,000,000,000 AIRTOUCH COMMUNICATIONS, INC. COMMON STOCK, PREFERRED STOCK, DEPOSITARY SHARES, DEBT SECURITIES, COMMON STOCK WARRANTS, PREFERRED STOCK WARRANTS, THIRD PARTY WARRANTS, DEBT WARRANTS, STOCK PURCHASE CONTRACTS, AND STOCK PURCHASE UNITS ATI FINANCING I ATI FINANCING II PREFERRED SECURITIES, GUARANTEED TO THE EXTENT SET FORTH HEREIN BY AIRTOUCH COMMUNICATIONS, INC. AirTouch Communications, Inc. (the "Company" or "AirTouch"), a Delaware corporation, directly or through agents, dealers or underwriters designated from time to time, or counterparties with whom the Company may enter into derivative transactions (the "Counterparties"), may sell from time to time up to $2,000,000,000 (or, if applicable, the equivalent thereof in other currencies) in the aggregate, subject to the limitations set forth below, of (a) shares of common stock, $0.01 par value per share, of the Company ("Common Stock"), (b) shares of preferred stock, $0.01 par value per share, of the Company ("Preferred Stock"), in one or more series, (c) depositary shares of the Company ("Depositary Shares"), (d) unsecured senior or subordinated debt securities of the Company ("Debt Securities"), (e) options, warrants and other rights to purchase shares of Common Stock ("Common Stock Warrants") or shares of Preferred Stock ("Preferred Stock Warrants"), (f) options, warrants and other rights to purchase shares of capital stock or debt of another corporation or other entity ("Third Party Warrants"), (g) options, warrants and other rights to purchase Debt Securities ("Debt Warrants"), (h) stock purchase contracts ("Stock Purchase Contracts") to purchase Common Stock or Preferred Stock or (i) stock purchase units ("Stock Purchase Units") each representing ownership of a Stock Purchase Contract and Preferred Stock, Debt Securities, debt obligations of third parties, including the United States of America or agencies or instrumentalities thereof ("U.S. Obligations") or Preferred Securities (as defined below), securing the holder's obligation to purchase Common Stock or Preferred Stock under the Stock Purchase Contract, or any combination of the foregoing, either individually or as units consisting of one or more of the foregoing, each on terms to be determined at the time of sale. ATI Financing I and ATI Financing II, each of which is a statutory business trust formed under the laws of the State of Delaware (each an "ATI Trust") and the Common Securities of which will be wholly-owned by the Company at the time of issuance of Preferred Securities, may offer preferred securities representing undivided beneficial interests in the assets of the respective ATI Trust ("Preferred Securities"). The payment of periodic cash distributions with respect to Preferred Securities of each of the ATI Trusts out of moneys held by each of the ATI Trusts, and payments on liquidation, redemption or otherwise with respect to such Preferred Securities, will be guaranteed by the Company to the extent described herein (each a "Guarantee"). See "Description of the Guarantees." The Company's obligations under the Guarantees are subordinate and junior in right of payment to all other liabilities of the Company and rank pari passu with the most senior Preferred Stock, if any, issued from time to time by the Company. In the event an ATI Trust issues Preferred Securities or Common Securities (as defined herein), the proceeds to such ATI Trust from such offering will be invested in subordinated Debt Securities, which will be issued and sold in one or more series by the Company to such ATI Trust or the trustee of such trust. The subordinated Debt Securities purchased by an ATI Trust may be subsequently distributed pro rata to holders of Preferred Securities or Common Securities in connection with the dissolution of such ATI Trust upon the occurrence of certain events as may be described in an accompanying Prospectus Supplement. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ADDITIONAL INFORMATION REGARDING THE SECURITIES IS SET FORTH ON THE INSIDE FRONT COVER. FOR A DISCUSSION OF CERTAIN RISKS ASSOCIATED WITH AN INVESTMENT IN THE SECURITIES, SEE "GENERAL DESCRIPTION OF SECURITIES AND RISK FACTORS" ON PAGE 6. THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT. The date of this Prospectus is __________, 1995 1 5 The Common Stock, Preferred Stock, Depositary Shares, Debt Securities, Common Stock Warrants, Preferred Stock Warrants, Third Party Warrants, Debt Warrants, Stock Purchase Contracts, Stock Purchase Units, Preferred Securities and Guarantees are collectively referred to herein as the "Securities." The Company, either ATI Trust or Counterparties may sell the Securities to or through underwriters, dealers or agents or directly to purchasers. See "Plan of Distribution." The Company and each ATI Trust reserve the sole right to accept and, together with their respective agents from time to time, to reject in whole or in part any proposed purchase of Securities to be made directly or through agents. The accompanying Prospectus Supplement sets forth, among other things, the names of any underwriters, dealers or agents involved in the sale of the Securities in respect of which this Prospectus is being delivered, and any applicable fee, commission or discount arrangements with them. All specific terms of the offering and sale of Securities, including the initial public offering price, aggregate amount, listing on any securities exchange or quotation system, risk factors and the agents, dealers or underwriters, if any, to be utilized in connection with the sale of the Securities, will be set forth in an accompanying Prospectus Supplement ("Prospectus Supplement"). With respect to the Preferred Stock, the related Prospectus Supplement will set forth, among other things, the specific designation, rights, preferences, privileges and restrictions thereof, including dividend rate or rates (or method of ascertaining the same), dividend payment dates, voting rights, liquidation preference, and any conversion, exchange, redemption or sinking fund provisions. With respect to the Debt Securities, the related Prospectus Supplement will set forth, among other things, the specific designation, rights and restrictions, including whether they are senior or subordinated, the currencies or currency units in which they are denominated, the aggregate principal amount, the maturity, rate (or method of ascertaining the same) and time of payment of interest, and any conversion, exchange, redemption or sinking fund provisions. With respect to the Common Stock Warrants, Preferred Stock Warrants, Third Party Warrants and Debt Warrants, the related Prospectus Supplement will contain, among other things, a description of the Common Stock, Preferred Stock, capital stock or debt of such third party and Debt Securities, respectively, for which each warrant will be exercisable and the exercise price, duration, detachability, call provisions and other principal terms of such Warrants. With respect to the Stock Purchase Contracts, the related Prospectus Supplement will set forth, among other things, the designation and number of shares of Common Stock or Preferred Stock issuable thereunder, the purchase price of the Common Stock or Preferred Stock, the date or dates on which the Common Stock or Preferred Stock is required to be purchased by the holders of the Stock Purchase Contracts, any periodic payments required to be made by the Company to the holders of the Stock Purchase Contracts or visa versa, and the terms of the offering and sale thereof. In the case of Stock Purchase Units, the related Prospectus Supplement will set forth, among other things, the specific terms of the Stock Purchase Contracts and any Preferred Stock, Debt Securities or debt obligations of third parties or Preferred Securities securing the holder's obligation to purchase the Preferred Stock or Common Stock under the Stock Purchase Contracts, and the terms of the offering and sale thereof. With respect to the Preferred Securities, the related Prospectus Supplement will set forth, among other things, the specific designation, rights, preferences, privileges and restrictions thereof, including dividend rate or rates (or method of ascertaining the same), dividend payment dates, voting rights, liquidation preference, and any conversion, exchange, redemption or sinking fund provisions, the terms upon which the proceeds of the sale of the Preferred Securities will be used to purchase a specific series of subordinated Debt Securities of the Company and the terms upon which the obligations of the ATI Trust to make periodic cash distributions on the Preferred Securities or make payments upon liquidation or dissolution of the ATI Trust or upon redemption of the Preferred Securities, to the extent funds are available therefor, shall be unconditionally guaranteed by AirTouch. IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE ON WHICH THE SECURITIES ARE LISTED, IN THE OVER-THE-COUNTER MARKET, OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. 2 6 INDEX OF TERMS
Page on Which Page on Which Term Term is Defined Term Term is Defined - ---- --------------- ---- --------------- Acquiring Party . . . . . . . . . . . . . . . . . 7 Preferred Stock Warrants . . . . . . . . . . . . 1 AirTouch . . . . . . . . . . . . . . . . . . . . 1 Prospectus Supplement . . . . . . . . . . . . . . 2 ATI Trust . . . . . . . . . . . . . . . . . . . . 1 Property Trustee . . . . . . . . . . . . . . . . 5 ATI Trustees . . . . . . . . . . . . . . . . . . 5 Redemption Price . . . . . . . . . . . . . . . . 7 Certificate of Incorporation . . . . . . . . . . 6 Registration Statement . . . . . . . . . . . . . 4 Code . . . . . . . . . . . . . . . . . . . . . . 21 Regular Trustees . . . . . . . . . . . . . . . . 5 Commission . . . . . . . . . . . . . . . . . . . 4 Rights . . . . . . . . . . . . . . . . . . . . . 7 Common Securities . . . . . . . . . . . . . . . . 5 Rights Plan . . . . . . . . . . . . . . . . . . . 7 Common Securities Guarantees . . . . . . . . . . 19 Securities . . . . . . . . . . . . . . . . . . . 2 Common Stock . . . . . . . . . . . . . . . . . . 1 Securities Act . . . . . . . . . . . . . . . . . 4 Common Stock Warrants . . . . . . . . . . . . . . 1 Senior Debt Securities . . . . . . . . . . . . . 11 Company . . . . . . . . . . . . . . . . . . . . . 1 Senior Indenture . . . . . . . . . . . . . . . . 11 Counterparties . . . . . . . . . . . . . . . . . 1 Sponsor . . . . . . . . . . . . . . . . . . . . . 5 Debt Securities . . . . . . . . . . . . . . . . . 1 Stock Purchase Contract . . . . . . . . . . . . . 1 Debt Warrants . . . . . . . . . . . . . . . . . . 1 Stock Purchase Unit . . . . . . . . . . . . . . . 1 Debt Warrant Agent . . . . . . . . . . . . . . . 17 Stock Warrants . . . . . . . . . . . . . . . . . 14 Debt Warrant Agreement . . . . . . . . . . . . . 17 Stock Warrant Agent . . . . . . . . . . . . . . . 14 Declaration . . . . . . . . . . . . . . . . . . . 5 Stock Warrant Agreement . . . . . . . . . . . . . 14 Delaware Trustee . . . . . . . . . . . . . . . . 5 Stock Warrant Provisions . . . . . . . . . . . . 14 Deposit Agreement . . . . . . . . . . . . . . . . 9 Subordinated Debt Securities . . . . . . . . . . 11 Depositary . . . . . . . . . . . . . . . . . . . 9 Subordinated Indenture . . . . . . . . . . . . . 11 Depositary Receipts . . . . . . . . . . . . . . . 8 Subscription Right . . . . . . . . . . . . . . . 7 Depositary Shares . . . . . . . . . . . . . . . . 1 Third Party Company . . . . . . . . . . . . . . . 11 ERISA . . . . . . . . . . . . . . . . . . . . . . 21 Third Party Registration Statement . . . . . . . 12 Exchange Act . . . . . . . . . . . . . . . . . . 4 Third Party Securities . . . . . . . . . . . . . 11 Global Debt Securities . . . . . . . . . . . . . 11 Third Party Warrant Agent . . . . . . . . . . . . 15 Guarantees . . . . . . . . . . . . . . . . . . . 1 Third Party Warrant Agreement . . . . . . . . . . 15 Guarantee Payments . . . . . . . . . . . . . . . 19 Third Party Warrants . . . . . . . . . . . . . . 1 Guarantee Trustee . . . . . . . . . . . . . . . . 19 Trust Indenture Act . . . . . . . . . . . . . . . 5 Indentures . . . . . . . . . . . . . . . . . . . 11 Trust Securities . . . . . . . . . . . . . . . . 5 Mandatory Debt Securities . . . . . . . . . . . . 12 U.S. Dollar, Dollar, U.S. $, $ . . . . . . . . . 3 Permitted Offer . . . . . . . . . . . . . . . . . 7 U.S. Obligations . . . . . . . . . . . . . . . . 1 Preferred Securities . . . . . . . . . . . . . . 1 Voluntary Debt Securities . . . . . . . . . . . . 12 Preferred Stock . . . . . . . . . . . . . . . . . 1
References herein to "U.S. dollar," "dollar," "U.S.$" or "$" are to the lawful currency of the United States of America. 3 7 AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports and other information with the Securities and Exchange Commission (the "Commission"). Reports, proxy statements and other information concerning AirTouch Communications, Inc. can be inspected and copied at the public reference facilities maintained by the Commission at its offices at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, as well as the Regional Offices of the Commission located at Seven World Trade Center, 13th Floor, New York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained at prescribed rates from the Public Reference Section of the Commission at its principal office at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. Such reports, proxy statements and other information can also be inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005 and at the offices of the Pacific Stock Exchange, Inc., 301 Pine Street, San Francisco, California 94104. The Company and the ATI Trusts have filed with the Commission a registration statement on Form S-3 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"). This Prospectus does not contain all of the information set forth in the Registration Statement, certain parts of which are omitted in accordance with the rules and regulations of the Commission. For further information, reference is hereby made to the Registration Statement. No separate financial statements of the ATI Trusts have been included herein. The Company does not consider that such financial statements would be material to holders of the Securities because: (i) the Company, a reporting company under the Exchange Act, owns, directly or indirectly, all of the voting securities of each ATI Trust, (ii) neither ATI Trust has any independent operations but exists for the sole purpose of issuing securities representing undivided beneficial interests in the assets of the ATI Trusts and investing the proceeds thereof in subordinated Debt Securities, and (iii) the obligations of each ATI Trust to make periodic cash payments on Preferred Securities and payments upon liquidation or dissolution of such ATI Trust or upon redemption of the Preferred Securities, to the extent funds are available therefor, are unconditionally guaranteed by the Company. See "Description of the Guarantees," "Description of the Preferred Securities" and "Description of the Debt Securities-Subordinated Debt Securities." INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed with the Commission by the Company pursuant to the Exchange Act are incorporated herein by reference: (a) the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994; (b) the Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1995, June 30, 1995, and September 30, 1995; (c) the Company's Current Report on Form 8-K, date of Report: June 30, 1995; (d) the Company's Current Report on Form 8-K, date of Report: September 20, 1995; and (e) the Company's Current Report on Form 8-K, date of Report: October 10, 1995. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the effective date of the Registration Statement shall be deemed to be incorporated by reference in this Prospectus and to be a part hereof from the date of filing of such documents. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. The Company will provide without charge to each person to whom a copy of the Prospectus has been delivered, and who makes a written or oral request, a copy of any and all of the information that has been incorporated by reference in the Prospectus or any Prospectus Supplement, excluding exhibits. Requests should be directed to: Investor Relations, AirTouch Communications, Inc., One California Street, San Francisco, California 94111, telephone number: (415) 658-2000. 4 8 AIRTOUCH COMMUNICATIONS, INC. AirTouch Communications, Inc. is one of the world's leading wireless telecommunications companies, with significant cellular interests in the United States, Western Europe and Asia. In the United States, the Company controls or shares control over cellular systems in ten of the thirty largest markets, including Los Angeles, San Francisco, San Diego, Detroit and Atlanta. Internationally, the Company holds significant ownership interests, with board representation and substantial operating influence, in national cellular systems operating in Germany, Japan, Portugal, Sweden and Belgium, and in systems under construction in Italy, South Korea, Spain and India. The Company is also one of the leading providers of paging services in the United States. The Company's executive offices are located at One California Street, San Francisco, California, 94111, telephone number (415) 658-2000. THE ATI TRUSTS Each of ATI Financing I and ATI Financing II is a statutory business trust formed under Delaware law pursuant to (i) a separate declaration of trust executed by the Company, as sponsor for such trust (the "Sponsor"), and the ATI Trustees (as defined herein) of such trust and (ii) the filing of a certificate of trust with the Secretary of State of the State of Delaware on September 19, 1995. The declarations will be amended and restated in their entirety (each as so amended and restated a "Declaration") substantially in the form filed as an exhibit to the Registration Statement of which this Prospectus is a part and will be qualified as Indentures under the Trust Indenture Act of 1939. Each ATI Trust exists for the exclusive purposes of (i) issuing the Preferred Securities and common securities representing undivided beneficial interests in the assets of the Trust (the "Common Securities" and, together with the Preferred Securities, the "Trust Securities"), (ii) investing the proceeds received by the ATI Trust from the sale of the Trust Securities in subordinated Debt Securities and (iii) engaging in only those other activities necessary or incidental thereto. All of the Common Securities will be directly or indirectly owned by the Company. The Common Securities will rank pari passu, and payments will be made thereon pro rata, with the Preferred Securities, except that, upon an event of default under a Declaration, the rights of the holders of the Common Securities to payment in respect of distributions and payments upon liquidation, redemption and otherwise will be subordinated to the rights of the holders of the Preferred Securities. The Company will directly or indirectly acquire Common Securities in an aggregate liquidation amount equal to 3% of the total capital of each ATI Trust. Each ATI Trust has a term of approximately 55 years but may terminate earlier, as provided in each Declaration. Each ATI Trust's business and affairs will be conducted by the trustees (the "ATI Trustees") appointed by the Company as the direct or indirect holder of all the Common Securities. The holder of the Common Securities of an ATI Trust will be entitled to appoint, remove or replace any of, or increase or reduce the number of, the ATI Trustees therefor. The duties and obligations of the ATI Trustees shall be governed by the Declaration of such ATI Trust. A majority of the ATI Trustees of each ATI Trust will be persons who are employees or officers of or who are affiliated with the Company (the "Regular Trustees"). In certain limited circumstances set forth in a Prospectus Supplement, the holders of a majority of the Preferred Securities will be entitled to appoint one additional Regular Trustee who need not be an employee or officer of or otherwise affiliated with ATI. One ATI Trustee of each ATI Trust will be a financial institution that is not affiliated with the Company and has combined capital and surplus of not less than $100,000,000, which shall act as property trustee and as indenture trustee for the purposes of the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), pursuant to the terms set forth in a Prospectus Supplement (the "Property Trustee"). In addition, unless the Property Trustee maintains a principal place of business in the State of Delaware and otherwise meets the requirements of applicable law, one ATI Trustee of each ATI Trust will have a principal place of business or reside in the State of Delaware (the "Delaware Trustee"). The Company will pay all fees and expenses related to the ATI Trusts and the offering of the Trust Securities. The office of the Delaware Trustee for each AirTouch Trust is The Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware. The address for each ATI Trust is c/o the Company, the Sponsor of each Trust, at One California Street, San Francisco, California 94111. USE OF PROCEEDS Unless otherwise indicated in the applicable Prospectus Supplement, the net proceeds from the sale of Securities offered hereby will be used for general corporate purposes. 5 9 RATIO OF EARNINGS TO FIXED CHARGES The following table sets forth the ratio of earnings to combined fixed charges on a historic basis from continuing operations of the Company for the periods indicated. For the purpose of calculating this ratio, earnings consist of income before income taxes and fixed charges included in pre-tax income, adjusted for equity in net losses and distributed net income of certain less-than-fifty-percent-owned unconsolidated wireless systems, and minority interests in net losses of certain consolidated wireless systems. Fixed charges include interest on indebtedness and the portion of rental expense representative of the interest factor.
Year ended December 31, Nine months ended September 30 - -------------------------------------------- ------------------------------ 1990 1991 1992 1993 1994 1995 - ---- ---- ---- ---- ---- ---- 3.8 2.8 1.8 4.8 9.9 13.3
GENERAL DESCRIPTION OF SECURITIES AND RISK FACTORS The Company may offer under this Prospectus shares of Common Stock or Preferred Stock, Debt Securities, Common Stock Warrants, Preferred Stock Warrants, Third Party Warrants, Debt Warrants, Stock Purchase Contracts or Stock Purchase Units or any combination of the foregoing, either individually or as units consisting of one or more Securities. Each ATI Trust may offer under this Prospectus Preferred Securities. The aggregate offering price of Securities offered by the Company or any ATI Trust under this Prospectus will not exceed $2,000,000,000 (or the equivalent thereof in other currencies). CERTAIN OF THE SECURITIES TO BE OFFERED HEREBY THEMSELVES INVOLVE A HIGH DEGREE OF RISK. SUCH RISKS WILL BE SET FORTH IN THE PROSPECTUS SUPPLEMENT RELATING TO SUCH SECURITY. IN ADDITION, CERTAIN RISK FACTORS RELATING TO THE COMPANY'S BUSINESS ARE SET FORTH IN THE COMPANY'S ANNUAL REPORT ON FORM 10-K FOR THE PERIOD ENDED DECEMBER 31, 1994, BEGINNING ON PAGE 2 UNDER THE HEADING "INVESTMENT CONSIDERATIONS." DESCRIPTION OF THE COMMON STOCK GENERAL Under the Company's Certificate of Incorporation (the "Certificate of Incorporation"), the Company is authorized to issue up to 1.1 billion shares of Common Stock. The Common Stock is not redeemable, does not have any conversion rights and is not subject to call. Holders of shares of Common Stock have no preemptive rights to maintain their percentage of ownership in future offerings or sales of stock of the Company. Holders of shares of Common Stock have one vote per share in all elections of directors and on all other matters submitted to a vote of stockholders of the Company. The holders of Common Stock are entitled to receive dividends, if any, as and when declared from time to time by the Board of Directors of the Company out of funds legally available therefor. Upon liquidation, dissolution or winding up of the affairs of the Company, the holders of Common Stock will be entitled to participate equally and ratably, in proportion to the number of shares held, in the net assets of the Company available for distribution to holders of Common Stock. The shares of Common Stock currently outstanding are fully paid and nonassessable. CERTAIN CERTIFICATE OF INCORPORATION PROVISIONS Certain provisions in the Company's Certificate of Incorporation and By-laws may have the effect of delaying, deferring or preventing a change in control of the Company. These provisions require that the Company's Board of Directors be divided into three classes that are elected for staggered three-year terms; provide that stockholders may act only at annual or special meetings and may not act by written consent; do not permit stockholders to cumulate votes in the election of directors; authorize the directors of the Company to determine the size of the Board of Directors; require a vote of 66 2/3% of the shares outstanding for the amendment of any of the foregoing provisions; require that stockholder nominations for directors be made to the Nominating Committee of the Company prior to a meeting of stockholders or pursuant to timely notice; provide that special meetings of stockholders may be called only by certain officers of the Company or by the Board of Directors; and authorize the Board of Directors to establish one or more series of Preferred Stock, without any further stockholder approval, having rights, preferences, privileges and limitations that could impede or discourage the acquisition of control of the Company. 6 10 RIGHTS AGREEMENT The Company's Board of Directors has adopted a shareholder rights plan (the "Rights Plan") that provides for the distribution of rights ("Rights") to holders of outstanding shares of Common Stock. Except as set forth below, each Right, when exercisable, entitles the holder thereof to purchase from the Company one one-hundredth of a share of Series A Preferred Stock at a price of $80 per share, subject to adjustment. The Rights do not have voting rights. Initially, the Rights are attached to all Common Stock certificates representing shares then outstanding, and no separate Rights certificates will be distributed. The Rights will not separate from the Common Stock and will not be exercisable until the earlier of either (i) a public announcement that a person or group of affiliated or associated persons has acquired, or obtained the right to acquire, beneficial ownership of securities representing 10% or more of the Common Stock of the Company (an "Acquiring Party") or (ii) 10 days following the commencement of (or a public announcement of an intention to make) a tender offer or exchange offer which would result in any person or group of affiliated persons becoming an Acquiring Party. The Rights will expire on the earliest of (x) September 19, 2004, (y) consummation of a merger transaction with a person or group acquiring Common Stock pursuant to a Permitted Offer (defined below), or (z) redemption by the Company, as described below. In the event that a person has become an Acquiring Party, proper provision will be made so that each holder of a Right (other than an Acquiring Party) will thereafter have the right (the "Subscription Right") for a 60-day period to receive, upon the exercise of the Right by the holder at the then current exercise price, that number of shares of Common Stock of the Company (or of Series A Preferred Stock or other common stock equivalents if all Common Stock has been issued) which would have a market value at the time of such transaction of two times the exercise price for each Right. This provision of the Rights Plan does not apply, however, to a tender offer or exchange offer for all outstanding shares of the Company's Common Stock at a price and on terms determined by at least a majority of the disinterested members of the Board of Directors to be in the best interests of the Company and its shareholders (a "Permitted Offer"). If, after a public announcement has been made that a person has become an Acquiring Party, either (i) the Company is involved in a merger or other business combination (other than with a person who acquired shares pursuant to a Permitted Offer) or (ii) 50% or more of the Company's assets are sold in one or a series of transactions, proper provision will be made so that each holder of a Right (other than an Acquiring Party) will thereafter have the right to receive, upon the exercise of the Right by the holder at the then current exercise price, that number of shares of Common Stock of the Company or of the acquiring company (whichever remains as the surviving corporation under the terms of the merger or consolidation) which would have a market value at the time of such transaction of two times the exercise price for each Right. The Board of Directors, at its option, may at any time after a person becomes an Acquiring Party (but not after the acquisition by such person of 50% or more of the outstanding Common Stock) exchange on behalf of the Company all or part of the then outstanding and exercisable Rights for shares of Common Stock (or Common Stock equivalents), at an exchange ratio of one share of Common Stock or equivalent for each Right. At any time prior to the earlier to occur of either (i) a person becoming an Acquiring Party or (ii) the expiration of the Rights, the Company may redeem the Rights in whole, but not in part, at a price of $0.01 per Right (the "Redemption Price"). After a person becomes an Acquiring Party, the Company may also redeem the Rights in whole, but not in part, at the Redemption Price (x) if such redemption is incidental to a merger or other business combination transaction or series of transactions involving the Company but not involving an Acquiring Party or certain other related parties or (y) following an event giving rise to, and the expiration of the 60-day exercise period for, the Subscription Right if and for as long as any Acquiring Party owns less than 10% of the Company's voting securities. The Rights Plan may have the effect of delaying, deferring or preventing a change in control of the Company without further action of the stockholders and therefore could have a depressive effect on the price of the Common Stock. LISTING The Common Stock is listed on the New York Stock Exchange and the Pacific Stock Exchange under the symbol "ATI." 7 11 DESCRIPTION OF THE PREFERRED STOCK Under the Certificate of Incorporation, the Board of Directors of the Company may direct the issuance of up to 50 million shares of Preferred Stock in one or more series and with rights, preferences, privileges and restrictions, including dividend rights, voting rights, conversion rights, terms of redemption and liquidation preferences, that may be fixed or designated by the Board of Directors pursuant to a certificate of designation without any further vote or action by the Company's stockholders. The issuance of Preferred Stock may have the effect of delaying, deferring or preventing a change in control of the Company. Preferred Stock, upon issuance against full payment of the purchase price therefor, will be fully paid and nonassessable. The specific terms of a particular series of Preferred Stock will be described in the Prospectus Supplement relating to that series. The description of Preferred Stock set forth below and the description of the terms of a particular series of Preferred Stock set forth in the related Prospectus Supplement do not purport to be complete and are qualified in their entirety by reference to the certificate of designation relating to that series. The related Prospectus Supplement will contain a description of certain United States Federal income tax consequences relating to the purchase and ownership of the series of Preferred Stock described in such Prospectus Supplement. The rights, preferences, privileges and restrictions of the Preferred Stock of each series will be fixed by the certificate of designation relating to such series. A Prospectus Supplement relating to each series will specify the terms of the Preferred Stock as follows: (a) The maximum number of shares to constitute the series and the distinctive designation thereof; (b) The annual dividend rate, if any, on shares of the series, whether such rate is fixed or variable or both, the date or dates from which dividends will begin to accrue or accumulate and whether dividends will be cumulative; (c) The price at and the terms and conditions on which the shares of the series may be redeemed, including the time during which shares of the series may be redeemed and any accumulated dividends thereon that the holders of shares of the series shall be entitled to receive upon the redemption thereof; (d) The liquidation preference, if any, and any accumulated dividends thereon, that the holders of shares of the series shall be entitled to receive upon the liquidation, dissolution or winding up of the affairs of the Company; (e) Whether or not the shares of the series will be subject to operation of a retirement or sinking fund, and, if so, the extent and manner in which any such fund shall be applied to the purchase or redemption of the shares of the series for retirement or for other corporate purposes, and the terms and provisions relating to the operation of such fund; (f) The terms and conditions, if any, on which the shares of the series shall be convertible into, or exchangeable for, shares of any other class or classes of capital stock of the Company or a third party or any series of any other class or classes, or of any other series of the same class, including the price or prices or the rate or rates of conversion or exchange and the method, if any, of adjusting the same; (g) The voting rights, if any, on the shares of the series; and (h) Any or all other preferences and relative, participating, operational or other special rights or qualifications, limitations or restrictions thereof. As described under "Depositary Shares," the Company may, at its option, elect to offer Depositary Shares evidenced by depositary receipts ("Depositary Receipts"), each representing a fractional interest (to be specified in the Prospectus Supplement relating to the particular series of the Preferred Stock) in a share of the particular series of the Preferred Stock issued and deposited with a Depositary (as defined below). 8 12 DESCRIPTION OF THE DEPOSITARY SHARES The description set forth below and in the related Prospectus Supplement of certain provisions of the Deposit Agreement (as defined below) and of the Depositary Shares and Depositary Receipts does not purport to be complete and is subject to and qualified in its entirety by reference to the forms of Deposit Agreement and Depositary Receipts relating to each series of the Preferred Stock which have been or will be filed with the Commission in connection with the offering of fractional interests in such series of the Preferred Stock. GENERAL The Company may, at its option, elect to offer fractional interests in shares of Preferred Stock, rather than shares of Preferred Stock. In the event such option is exercised, the Company will provide for the issuance by a Depositary to the public of receipts for Depositary Shares, each of which will represent a fractional interest as set forth in the Prospectus Supplement relating to a particular series of the Preferred Stock. The shares of any series of the Preferred Stock underlying the Depositary Shares will be deposited under a separate Deposit Agreement (the "Deposit Agreement") between the Company and a bank or trust company selected by the Company having its principal office in the United States and having a combined capital and surplus of at least $100,000,000 (the "Depositary"). The Prospectus Supplement relating to a series of Depositary Shares will set forth the name and address of the Depositary. Subject to the terms of the Deposit Agreement, each owner of a Depositary Share will be entitled, in proportion to the applicable fractional interest in a share of Preferred Stock underlying such Depositary Shares, to all the rights and preferences of the Preferred Stock underlying such Depositary Shares (including dividend, voting, redemption, conversion and liquidation rights). The Depositary Shares will be evidenced by Depositary Receipts issued pursuant to the Deposit Agreement. Pending the preparation of definitive engraved Depositary Receipts, the Depositary may, upon the written order of the Company, issue temporary Depositary Receipts substantially identical to (and entitling the holders thereof to all the rights pertaining to) the definitive Depositary Receipts but not in definitive form. Definitive Depositary Receipts will be prepared thereafter without unreasonable delay, and temporary Depositary Receipts will be exchangeable for definitive Depositary Receipts at the Company's expense. Upon surrender of Depositary Receipts at the office of the Depositary and upon payment of the charges provided in the Deposit Agreement and subject to the terms thereof, a holder of Depositary Shares is entitled to have the Depositary deliver to such holder the whole shares of Preferred Stock underlying the Depositary Shares evidenced by the surrendered Depositary Receipts. DIVIDENDS AND OTHER DISTRIBUTIONS The Depositary will distribute all cash dividends or other cash distributions received in respect of the Preferred Stock to the record holders of Depositary Shares relating to such Preferred Stock in proportion to the numbers of such Depositary Shares owned by such holders on the relevant record date. The Depositary shall distribute only such amount, however, as can be distributed without attributing to any holder of Depositary Shares a fraction of one cent, and any balance not so distributed shall be added to and treated as part of the next sum received by the Depositary for distribution to record holders of Depositary Shares. In the event of a distribution other than in cash, the Depositary will distribute property received by it to the record holders of Depositary Shares entitled thereto, unless the Depositary determines that it is not feasible to make such distribution, in which case the Depositary may, with the approval of the Company, sell such property and distribute the net proceeds from such sale to such holders. REDEMPTION OF DEPOSITARY SHARES If a series of the Preferred Stock underlying the Depositary Shares is subject to redemption, the Depositary Shares will be redeemed from the proceeds received by the Depositary resulting from the redemption, in whole or in part, of such series of the Preferred Stock held by the Depositary. The Depositary shall mail notice of redemption not less than 30 and not more than 60 days prior to the date fixed for redemption to the record holders of the Depositary Shares to be so redeemed at their respective addresses appearing in the Depositary's books. The redemption price per Depositary Share will be equal to the applicable fraction of the redemption price per share payable with respect to such series of the Preferred Stock. Whenever the Company redeems shares of Preferred Stock held by the Depositary, the Depositary will redeem as of the same redemption date the number of Depositary Shares relating to shares of Preferred Stock so redeemed. If less than all of the Depositary Shares are to be redeemed, the Depositary Shares to be redeemed will be selected by lot or pro rata as may be determined by the 9 13 Depositary. After the date fixed for redemption, the Depositary Shares so called for redemption will no longer be deemed to be outstanding and all rights of the holders of the Depositary Shares will cease, except the right to receive the moneys payable upon such redemption and any money or other property to which the holders of such Depositary Shares were entitled upon such redemption upon surrender to the Depositary of the Depositary Receipts evidencing such Depositary Shares. VOTING THE PREFERRED STOCK Upon receipt of notice of any meeting at which the holders of the Preferred Stock are entitled to vote, the Depositary will mail the information contained in such notice of meeting to the record holders of the Depositary Shares relating to such Preferred Stock. Each record holder of such Depositary Shares on the record date (which will be the same date as the record date for the Preferred Stock) will be entitled to instruct the Depositary as to the exercise of the voting rights pertaining to the number of shares of Preferred Stock underlying such holder's Depositary Shares. The Depositary will endeavor, insofar as practicable, to vote the number of shares of Preferred Stock underlying such Depositary Shares in accordance with such instructions, and the Company will agree to take all action which may be deemed necessary by the Depositary in order to enable the Depositary to do so. The Depositary will abstain from voting shares of Preferred Stock to the extent it does not receive specific instructions from the holders of Depositary Shares relating to such Preferred Stock. AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT The form of Depositary Receipt evidencing the Depositary Shares and any provision of the Deposit Agreement may at any time be amended by agreement between the Company and the Depositary. However, any amendment which materially and adversely alters the rights of the existing holders of Depositary Shares will not be effective unless such amendment has been approved by the record holders of at least a majority of the Depositary Shares then outstanding. A Deposit Agreement may be terminated by the Company or the Depositary only if (i) all outstanding Depositary Shares relating thereto have been redeemed or (ii) there has been a final distribution in respect of the Preferred Stock of the relevant series in connection with any liquidation, dissolution or winding up of the Company and such distribution has been distributed to the holders of the related Depositary Shares. CHARGES OF DEPOSITARY The Company will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. The Company will pay charges of the Depositary in connection with the initial deposit of the Preferred Stock and any redemption of the Preferred Stock. Holders of Depositary Shares will pay transfer and other taxes and governmental charges and such other charges as are expressly provided in the Deposit Agreement to be for their accounts. MISCELLANEOUS The Depositary will forward to the holders of Depositary Shares all reports and communications from the Company which are delivered to the Depositary and which the Company is required to furnish to the holders of the Preferred Stock. Neither the Depositary nor the Company will be liable if it is prevented or delayed by law or any circumstance beyond its control from performing its obligations under the Deposit Agreement. The obligations of the Company and the Depositary under the Deposit Agreement will be limited to performance in good faith of their duties thereunder and they will not be obligated to prosecute or defend any legal proceeding in respect of any Depositary Shares or Preferred Stock unless satisfactory indemnity is furnished. They may rely upon written advice of counsel or accountants, or information provided by persons presenting Preferred Stock for deposit, holders of Depositary Shares or other persons believed to be competent and on documents believed to be genuine. RESIGNATION AND REMOVAL OF DEPOSITARY The Depositary may resign at any time by delivering to the Company notice of its election to do so, and the Company may at any time with notice remove the Depositary, any such resignation or removal to take effect upon the appointment of a successor Depositary and its acceptance of such appointment. Such successor Depositary must be appointed within 90 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $100,000,000. 10 14 DESCRIPTION OF THE DEBT SECURITIES GENERAL The Company may offer under this Prospectus Senior Debt Securities (as defined below) or Subordinated Debt Securities (as defined below) or any combination of the foregoing. The Debt Securities will represent unsecured general obligations of the Company, and will either (i) rank prior to all subordinated indebtedness of the Company and pari passu with all other unsecured indebtedness of the Company (the "Senior Debt Securities") or (ii) be subordinate in right of payment to certain other debt obligations of the Company (the "Subordinated Debt Securities"). The Senior Debt Securities and the Subordinated Debt Securities may be issued under indentures substantially in the forms filed as exhibits to the Registration Statement. In this Prospectus, the indenture relating to Senior Debt Securities is referred to as the "Senior Indenture," the indenture relating to Subordinated Debt Securities is referred to as the "Subordinated Indenture," and the Senior Indenture and the Subordinated Indenture are collectively referred to as "Indentures." None of the Indentures will limit the amount of Debt Securities that may be issued thereunder, and each Indenture will provide that Debt Securities may be issued thereunder up to an aggregate principal amount authorized from time to time by the Company and may be payable in any currency or currency unit designated by the Company or in amounts determined by reference to an index. The following summary of certain provisions in the Indentures pursuant to which Debt Securities are issued or in the Debt Security, as the case may be, does not purport to be complete. Such summaries make use of certain terms defined in the Indentures and are qualified in their entirety by reference to the applicable form of Indenture or Debt Security, respectively, filed as an exhibit to the Registration Statement. Reference is made to the applicable Prospectus Supplement for any series of Debt Securities for the following terms: (1) the designation of such series of Debt Securities, (2) the aggregate principal amount of such series of Debt Securities, (3) the stated maturity or maturities for payment of principal of such series of Debt Securities and any sinking fund or analogous provisions, (4) the rate or rates at which such series of Debt Securities shall bear interest or the method of calculating such rate or rates of interest and the interest payment dates for such series of Debt Securities, (5) the currencies, currency unit or index in or according to which principal of and interest and any premium on such series of Debt Securities shall be payable (if other than United States Dollars), (6) the redemption date or dates, if any, and the redemption price or prices and other applicable redemption provisions for such series of Debt Securities, (7) whether such series of Debt Securities shall be issued as one or more global debt securities ("Global Debt Securities"), and, if so, the identity of the Depositary (the "Debt Depositary") for such Global Debt Security or Debt Securities, (8) if not issued as one or more Global Debt Securities, the denominations in which such series of Debt Securities shall be issuable (if other than denominations of $1,000 and any integral multiple thereof), (9) the date from which interest on such series of Debt Securities shall accrue, (10) the basis upon which interest on such series of Debt Securities shall be computed (if other than on the basis of a 360-day year of twelve 30-day months), (11) if other than the principal amount thereof, the portion of the principal amount of such series of Debt Securities which shall be payable upon declaration of acceleration of the maturity thereof pursuant to the Indenture, (12) if other than the Trustee, the person or persons who shall be registrar for such series of Debt Securities, (13) the Record Date, (14) the identity of the Trustee, (15) any covenants of the Corporation with respect to a series of Debt Securities, (16) whether the Debt Securities are convertible into or exchangeable for Securities, or securities of the Company or Third Party Securities (as herein defined), and the terms of such conversion or exchange, (17) whether the Debt Securities will be issued at an Original Issue Discount and a description of such discount, and (18) any other term or provision relating to such series of Debt Securities which is not inconsistent with the provisions of the Indenture. Except as described in this Prospectus or the accompanying Prospectus Supplement, the Indentures do not contain any covenants specifically designed to protect holders of the Debt Securities against a reduction in the creditworthiness of the Company in the event of a highly leveraged transaction or to prohibit other transactions which may adversely affect holders of the Debt Securities. In the event Debt Securities of any series are to be offered that are convertible into or exchangeable for securities of third parties ("Third Party Securities"), the Prospectus Supplement will identify the Third Party Securities, the Company of such Third Party Securities (the "Third Party Company"), all documents filed by the Third Party Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act since the end of such Third Party Company's last completed fiscal year for which a Form 10-K annual report has been filed and the document or documents filed under the Exchange Act which contain a description of the Third Party Securities being sold or, if no such document or documents exist, the Prospectus Supplement will include a description of the Third Party Securities being sold. Third Party Securities will only be securities of third parties that are eligible to use Form S- 3 (or any successor form) for primary offerings under the rules and regulations of the Commission or securities that are registered under Section 12 of the Exchange Act. To the extent the Securities Act requires registration of the 11 15 Third Party Securities by the Third Party Company, such as where the Third Party Company is an affiliate of the Company, in connection with the issuance, conversion and/or exchange of such Debt Securities, the Company will cause the Third Party Company to file a third party registration statement ("Third Party Registration Statement") under the Securities Act. Where the conversion and/or exchange of the Debt Securities would require an effective Third Party Registration Statement at the time of such exchange or conversion, the exchange or conversion will be subject to the effectiveness of such registration statement. For example, Debt Securities that are convertible into or exchangeable for Third Party Securities may be convertible or exchangeable by their terms at the election of the Company or mandatorily at the expiration of a specified period or at other times under specified circumstances ("Mandatory Debt Securities") or may be convertible or exchangeable by their terms at the election of the Debt Holder at any time during a specified period or periods or on a specified date or dates ("Voluntary Debt Securities"). In the case of both Mandatory Debt Securities and Voluntary Debt Securities, if the Company is an affiliate of the Third Party Company, the Third Party Securities into which they may be converted or for which they may be exchanged will be the subject of a registration statement filed under the Securities Act by the Third Party Company prior to any offer of such Mandatory or Voluntary Debt Securities, and a Third Party Registration Statement with respect to such Third Party Securities will have been declared effective prior to any sale of such Mandatory or Voluntary Debt securities, except in the case of Voluntary Debt Securities that are not immediately exercisable or convertible, in which case, such a Third Party Registration Statement would have to be effective, absent an exemption, when the Debt Holder elects to convert such Voluntary Debt Securities into or exchange them for Third Party Securities. EVENTS OF DEFAULT The Indentures define an "Event of Default" with respect to any particular series of the Debt Securities as being any one of the following events: (1) default in the payment of interest on any Debt Security of such series and the continuance of such default for a period of 30 days, or, in the case of the Subordinated Debt Indenture, for a period of 90 days, (2) default in the payment of all or any part of the principal of or any premium on any Debt Security of such series when due whether at maturity, by proceedings for redemption, by declaration or otherwise, or (3) default in the satisfaction of any sinking fund payment obligation relating to such series of Debt Securities, when due and payable, or (4) failure on the part of the Company to observe or perform in any material respect any other agreements or covenants contained in the Debt Securities of such series, the Indenture or any supplemental indenture relating thereto, specifically contained for the benefit of the Holders of the Debt Securities of such series, and continuance of the default for a period of 90 days after notice has been given to the Company by the Trustee, or to the Company and the Trustee by the Holders of not less than 25% in principal amount of the Debt Securities of such series and all other series so benefited (all series voting as one class) at the time outstanding under the Indenture, or (5) certain events of bankruptcy, insolvency or reorganization involving the Company. An Event of Default with respect to a series of Debt Securities will not necessarily constitute an Event of Default with respect to any other series of Debt Securities. Except as may be described in the accompanying Prospectus Supplement, the Indentures do not contain any Events of Default other than those referred to herein. If an Event of Default occurs with respect to the Debt Securities of any one or more particular series and is continuing, the Trustee, by notice to the Company, or the Holders of not less than 25% in principal amount of the outstanding Debt Securities of each such series, by notice in writing to the Company and to the Trustee, may declare the principal amount (or, if the Debt Securities of any such series are original issue discount Debt Securities, such portion of the principal amount as may be specified in the terms of such series) of all the Debt Securities of such series, together with any accrued interest, to be immediately due and payable. The foregoing provisions, however, are subject to the condition that if, at any time after the principal amount of the Debt Securities of any one or more series (or of all the Debt Securities, as the case may be) shall have been so declared due and payable, and before any judgment or decree for the payment of moneys due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay any matured installments of interest upon all the Debt Securities of such series (or upon all the Debt Securities, as the case may be) and the principal of any and all Debt Securities of such series (or of any and all the Debt Securities, as the case may be) which shall have become due otherwise than by declaration (with interest on overdue installments of interest to the extent permitted by law and on such principal at the rate or rates of interest borne by, or prescribed therefor in, the Debt Securities of such series to the date of such payment or deposit) and the amounts payable to the Trustee under the Indenture and any and all defaults under the Indenture with respect to Debt Securities of such series (or all Debt Securities, as the case may be), other than the non-payment of principal of and any accrued interest on Debt Securities of such series (or any Debt Securities, as the case may be) which shall have become due by declaration shall have been cured, remedied or waived as provided in the Indenture, then and in every such case the Holders of a majority in principal amount of the Debt Securities of such series (or of all the Debt Securities, as the case may be) then outstanding (such series or all series voting as one class if more than one series are so entitled) by written notice to the Company and to the Trustee, may rescind and annul such declaration and its consequences; but no such rescission and annulment shall extend to or 12 16 shall affect any subsequent default, or shall impair any right consequent thereon. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal or any premium or interest on the Debt Securities of the series to which the default relates or to enforce the performance of any provision of such series of Debt Securities or the Indenture. The Holders of a majority in principal amount of the outstanding Debt Securities of any series may waive any past Event of Default with respect of such series and its consequences, except a continuing default in the payment of the principal of or any redemption premium or interest on such Debt Securities or in the satisfaction of any sinking fund obligation relating to such series of Debt Securities or in respect of a covenant or provision of the Indenture which cannot be modified or amended without the consent of the Holder of each Debt Security so affected. MODIFICATIONS OF THE INDENTURE Each of the Indentures provides that the Company and the Trustee may enter into a supplemental indenture to amend the Indenture or the Debt Securities without the consent of any Debt Security holder: (1) to cure any ambiguity, defect or inconsistency; (2) to permit a successor to assume the Company's obligations under the Indenture as permitted by the Indenture; (3) to eliminate or change any provision of the Indenture if such does not adversely affect the rights of any outstanding Debt Securityholder; (4) to provide for the issuance and establish the terms and conditions of Debt Securities of any series; (5) to add to the covenants of the Company further covenants, restrictions or conditions for the protection of the Holders of all or any particular series of Debt Securities and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions or conditions an Event of Default permitting the enforcement of all or any of the several remedies provided in the Indenture; or (6) to appoint, at the request of the Trustee, a successor Trustee for a particular series of Debt Securities to act as such pursuant to the provisions of the Indenture. Each of the Indentures and the rights and obligations of the Company and of the Holders of the Debt Securities may be modified or amended at any time with the consent of the Holders of not less than a majority in aggregate principal amount of all series of the Debt Securities at the time outstanding under such Indenture and affected by such modification or amendment (voting as one class); provided, however, that without the consent of the holder of the Debt Securities affected, no such modification or amendment shall, among other things, change the fixed maturity or redemption date thereof, reduce the rate of interest thereon or alter the method of determining such rate of interest, extend the time of payment of interest, reduce the principal amount thereof, reduce any premium payable upon the redemption thereof, or change the coin or currency in which any Debt Securities or the interest thereon are payable or impair the right to institute suit for the enforcement of any such payment, or reduce the percentage of the Holders of such Debt Securities whose consent is required for any such modification or amendment or change the time of payment or reduce the amount of any minimum sinking account or fund payment or modify any provisions of the Indenture relating to the amendment thereof or the creation of a supplemental indenture (unless the change increases the rights of the Holders). DEFEASANCE AND DISCHARGE All liability of the Company in respect to any outstanding Debt Securities shall cease, terminate and be completely discharged if the Company shall (a) deposit with the Trustee, in trust, at or before maturity, lawful money or direct obligations of the United States of America (or in the case of Debt Securities denominated in a currency other than U.S. Dollars, of the government that issued such currency), or obligations the principal of and interest on which are guaranteed by the United States of America (or in the case of Debt Securities denominated in a currency other than U.S. Dollars, guaranteed by the government that issued such currency), in such amounts and maturing at such times that the proceeds of such obligations to be received upon the respective maturities and interest payment dates will provide funds sufficient to pay the principal of and interest and any premium to maturity or to the redemption date, as the case may be, with respect to such Debt Securities, and (b) deliver to the Trustee an opinion of counsel to the effect that the Holders of such Debt Securities will not recognize income, gain or loss for federal income tax purposes as a result of such discharge. All obligations of the Company to comply with certain covenants applicable to any outstanding Debt Securities shall cease if the Company shall deposit with the Trustee, in trust, at or before maturity, lawful money or direct obligations of the United States of America (or in the case of Debt Securities denominated in a currency other than U.S. Dollars, of the government that issued such currency), or obligations the principal of and interest on which are guaranteed by the United States of America (or in the case of Debt Securities denominated in a currency other than U.S. Dollars, by the government that issued such currency), in such amounts and maturing at such times that the proceeds of such obligations to be received upon the respective maturities and interest payment dates will provide funds sufficient to pay the principal of and interest and any premium to maturity or to the redemption date, as the case may be, 13 17 with respect to such Debt Securities. CONCERNING THE TRUSTEE The Trustee for the Senior Debt Securities and the Trustee for the Subordinated Debt Securities will be identified in the relevant Prospectus Supplement. In certain instances, the Company or the Holders of a majority of the then outstanding principal amount of the Debt Securities issued under an Indenture may remove the Trustee and appoint a successor Trustee. The Trustee may become the owner or pledgee of any of the Debt Securities with the same rights it would have if it were not the Trustee. The Trustee and any successor trustee must be a corporation organized and doing business as a commercial bank under the laws of the United States or of any state thereof or of the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $100,000,000 and subject to examination by federal or state or District of Columbia authority. From time to time and subject to applicable law relating to conflicts of interest, the Trustee may also serve as Trustee under other indentures relating to Debt Securities issued by the Company or affiliated companies and may engage in commercial transactions with the Company and affiliated companies. SENIOR DEBT SECURITIES The Senior Debt Securities will be unsecured and will rank equally with all other unsecured and unsubordinated indebtedness for borrowed money of the Company. SUBORDINATED DEBT SECURITIES Subordinated Debt Securities may be issued from time to time in one or more series under the Subordinated Debt Indenture. The Subordinated Debt Securities will be subordinated and junior in right of payment to certain other indebtedness of the Company to the extent set forth in the applicable Prospectus Supplement. In the event the Subordinated Debt Securities are issued to an ATI Trust or a trustee of such trust in connection with the issuance of Trust Securities by such ATI Trust, such Subordinated Debt Securities subsequently may be distributed pro rata to the Holders of such Trust Securities in connection with the dissolution of such ATI Trust upon the occurrence of certain events described in the Prospectus Supplement relating to such Trust Securities. Only one series of Subordinated Debt Securities will be issued to an ATI Trust or a trustee of such trust in connection with the issuance of Trust Securities by such ATI Trust. Unless otherwise provided in the applicable Prospectus Supplement, if Subordinated Debt Securities are issued to an ATI Trust or a trustee of such trust in connection with the issuance of Trust Securities by such ATI Trust and (i) there shall have occurred an event that would constitute an Event of Default, (ii) the Company shall be in default with respect to its payment of any obligations under the related Preferred Securities Guarantee or Common Securities Guarantee or (iii) the Company shall have given notice of its election to defer payments of interest on such Subordinated Debt Securities by extending the interest payment period as provided in the Indenture and such period, or any extension thereof, shall be continuing, then (a) the Company shall not declare or pay any dividend on, make any distributions with respect to, or redeem, purchase or make a liquidation payment with respect to, any of its capital stock, and (b) the Company shall not make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any Debt Securities which rank junior to such Subordinated Debt Securities; provided that the foregoing restriction does not apply to any stock dividends paid by the Company where the dividend stock is of the same class as that of the stock held by the Holders receiving the dividend. DESCRIPTION OF THE WARRANTS TO PURCHASE COMMON OR PREFERRED STOCK The following statements with respect to the Common Stock Warrants and Preferred Stock Warrants (collectively, the "Stock Warrants") are summaries of, and subject to, the detailed provisions of a warrant agreement ("Stock Warrant Agreement") to be entered into by the Company and a warrant agent to be selected at the time of issue (the "Stock Warrant Agent"), which Stock Warrant Agreement may include or incorporate by reference standard warrant provisions substantially in the form of the Standard Stock Warrant Provisions (the "Stock Warrant Provisions") filed as an exhibit to the Registration Statement or other provisions set forth in the Stock Warrant Agreement which will be filed as an exhibit to or incorporated by reference in the Registration Statement. GENERAL The Stock Warrants may be issued under the Stock Warrant Agreement independently or together with any 14 18 Securities offered by any Prospectus Supplement and may be attached to or separate from such Securities. If Stock Warrants are offered, the related Prospectus Supplement will describe the terms of the Stock Warrants, including without limitation the following: (i) the offering price, if any; (ii) the designation and terms of the Common or Preferred Stock purchasable upon exercise of the Stock Warrants; (iii) the number of shares of Common or Preferred Stock purchasable upon exercise of one Stock Warrant and the initial price at which such shares may be purchased upon exercise; (iv) the date on which the right to exercise the Stock Warrants shall commence, the date on which such right shall expire and whether the Company has the ability to extend the exercise period; (v) Federal income tax consequences; (vi) call provisions, if any; (vii) the currency, currencies or currency units in which the offering price, if any, and exercise price are payable; (viii) the antidilution provisions of the Stock Warrants; and (ix) any other terms of the Stock Warrants. The shares of Common or Preferred Stock issuable upon exercise of the Stock Warrants will, when issued in accordance with the Stock Warrant Agreement, be fully paid and nonassessable. If the Company maintains the ability to reduce the exercise price of any Stock Warrant and such right is triggered, the Company will comply with the federal securities laws, including Rule 13e-4 under the Exchange Act, to the extent applicable. EXERCISE OF STOCK WARRANTS Stock Warrants may be exercised in the manner set forth in the Prospectus. Duly exercised Stock Warrants will be delivered by the Stock Warrant Agent to the transfer agent for the Common Stock or the Preferred Stock, as the case may be. Upon receipt thereof, the transfer agent shall deliver or cause to be delivered, to or upon the written order of the exercising warrantholder, the number of shares of Common Stock or Preferred Stock purchased. If fewer than all of the Stock Warrants held by a warrantholder are exercised, the Stock Warrant Agent shall deliver to the exercising warrantholder a new Stock Warrant representing the unexercised Stock Warrants. ANTIDILUTION PROVISIONS The exercise price payable and the number of shares of Common or Preferred Stock purchasable upon the exercise of each Stock Warrant will be subject to adjustment in certain events, including the issuance of a stock dividend to holders of Common or Preferred Stock, respectively, or a combination, subdivision or reclassification of Common or Preferred Stock, respectively. In lieu of adjusting the number of shares of Common or Preferred Stock purchasable upon exercise of each Stock Warrant, the Company may elect to adjust the number of Stock Warrants. No adjustment in the number of shares purchasable upon exercise of the Stock Warrants will be required until cumulative adjustments require an adjustment of at least 1% thereof. The Company may, at its option, reduce the exercise price at any time. No fractional shares will be issued upon exercise of Stock Warrants, but the Company will pay the cash value of any fractional shares otherwise issuable. Notwithstanding the foregoing, in case of any consolidation, merger, or sale or conveyance of the property of the Company as an entirety or substantially as an entirety, the holder of each outstanding Stock Warrant shall have the right upon the exercise thereof to the kind and amount of shares of stock and other securities and property (including cash) receivable by a holder of the number of shares of Common or Preferred Stock into which such Stock Warrants were exercisable immediately prior thereto. NO RIGHTS AS STOCKHOLDERS Holders of Stock Warrants will not be entitled, by virtue of being such holders, to vote, to consent, to receive dividends, to receive notice as stockholders with respect to any meeting of stockholders for the election of directors of the Company or any other matter, or to exercise any rights whatsoever as stockholders of the Company. DESCRIPTION OF THE THIRD PARTY WARRANTS The following statements with respect to the Third Party Warrants are summaries of, and subject to, the detailed provisions of a warrant agreement (the "Third Party Warrant Agreement") to be entered into by the Company and a warrant agent to be selected at the time of issue (the "Third Party Warrant Agent"), which Third Party Warrant Agreement may include or incorporate by reference standard warrant provisions substantially in the form of the Standard Stock Warrant Provisions or the provisions set forth in the form of Debt Securities Warrant Agreement filed as an exhibit to the Registration Statement or other provisions set forth in the Third Party Warrant Agreement which will be filed as an exhibit to or incorporated by reference in the Registration Statement. GENERAL The Third Party Warrants may be issued under the Third Party Warrant Agreement independently or together with any Securities offered by any Prospectus Supplement and may be attached to or separate from such Securities. If Third Party Warrants are offered, the related Prospectus Supplement will describe the terms of the warrants, including without limitation the following: (i) the offering price, if any; (ii) the designation, aggregate 15 19 principal amount and terms of the Third Party Securities purchasable upon exercise of the warrants; (iii) if applicable, the designation and terms of the Third Party Securities with which the Third Party Warrants are issued and the number of Third Party Warrants issued with each such Third Party Security; (iv) if applicable, the date on and after which the Third Party Warrants and the related Third Party Securities will be separately transferable; (v) the number or principal amount of Third Party Securities purchasable upon exercise of one Third Party Warrant and the price at which such number or principal amount of Third Party Securities may be purchased upon exercise; (vi) the date on which the right to exercise the Third Party Warrants shall commence, the date on which such right shall expire and whether the Company has the ability to extend the exercise period; (vii) Federal income tax consequences; (viii) whether the Third Party Warrants will be issued in registered or bearer form; (ix) the currency, currencies or currency units in which the offering price, if any, and exercise price are payable; (x) the antidilution provisions of the Third Party Warrants; and (xi) any other terms of the Third Party Warrants. If the Company maintains the ability to reduce the exercise price of any Third Party Warrant and such right is triggered, the Company will comply with the federal securities laws, including Rule 13e-4 under the Exchange Act, to the extent applicable. The Prospectus Supplement will identify the Third Party Securities, the Third Party Company, all documents filed by the Third Party Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act since the end of such Third Party Company's last completed fiscal year for which a Form 10-K annual report has been filed and the document or documents filed under the Exchange Act which contain a description of the Third Party Securities being sold or, if no such document or documents exist, the Prospectus Supplement will include a description of the Third Party Securities being sold. Third Party Warrants may be offered only with respect to Third Party Securities of Third Party Companyies that are eligible to use Form S-3 (or any successor form) for primary offerings under the rules and regulations of the Commission and Third Party Securities that are registered under Section 12 of the Exchange Act. To the extent the Securities Act requires registration of the Third Party Securities by the Third Party Company, such as where the Third Party is an affiliate of the Company, in connection with the issuance and/or exercise of Third Party Warrants, the Company will cause the Third Party Company to file a Third Party Registration Statement under the Securities Act. Where the exercise of Third Party Warrants would require the Third Party to have an effective Third Party Registration Statement at the time of exercise, the exercise will be subject to the effectiveness of such registration statement. . For example, if the Company is an affiliate of the Third Party Company, the Third Party Securities that can be acquired upon exercise of the Third Party Warrants will be the subject of a registration statement filed under the Securities Act by the Third Party Company prior to any offer of such Third Party Warrants, and a Third Party Registration Statement will have been declared effective prior to any sale of Third Party Warrants, except in the case of Third Party Warrants which are not immediately exercisable, in which case, such a registration statement would have to be effective, absent an exemption, when the holder of any Third Party Warrants elects to exercise them to acquire Third Party Securities. Third Party Warrants may be exchanged for new Third Party Warrants of different denominations and may (if in registered form) be presented for registration of transfer at the corporate trust office of the Third Party Warrant Agent, which will be listed in the related Prospectus Supplement, or at such other office as may be set forth therein. Warrantholders do not have any of the rights of holders of Third Party Securities (except as may be otherwise set forth in the Prospectus Supplement). EXERCISE OF THIRD PARTY WARRANTS Third Party Warrants may be exercised in the manner set forth in the Prospectus Supplement. Upon the exercise of Third Party Warrants, the Third Party Warrant Agent will, as soon as practicable, deliver the Third Party Securities in authorized denominations in accordance with the instructions of the exercising warrantholder and at the sole cost and risk of such holder. If less than all of the Third Party Warrants held by a warrantholder are exercised, a new Third Party Warrant will be issued for the remaining amount of Third Party Warrants. 16 20 DESCRIPTION OF THE WARRANTS TO PURCHASE DEBT SECURITIES The following statements with respect to the Debt Warrants are summaries of, and subject to, the detailed provisions of a warrant agreement (the "Debt Warrant Agreement") to be entered into by the Company and a warrant agent to be selected at the time of issue (the "Debt Warrant Agent"), which Debt Warrant Agreement may include or incorporate by reference standard warrant provisions substantially in the form of the Standard Debt Securities Warrant Provisions (the "Debt Warrant Provisions") filed as an exhibit to the Registration Statement or other provisions set forth in the Debt Warrant Agreement which will be filed as an exhibit to or incorporated by reference in the Registration Statement. GENERAL The Debt Warrants may be issued under the Debt Warrant Agreement independently or together with any Debt Securities offered by any Prospectus Supplement and may be attached to or separate from such Debt Securities. If Debt Warrants are offered, the related Prospectus Supplement will describe the terms of the Debt Warrants, including without limitation the following: (i) offering price, if any; (ii) designation, aggregate principal amount and terms of the Debt Securities purchasable upon exercise of the Debt Warrants; (iii) the principal amount of Debt Securities purchasable upon exercise of the Debt Warrants and the price at which such principal amount of Debt Securities may be purchased upon exercise; (iv) the date or dates on which the right to exercise the Debt Warrants shall commence, the date on which such right shall expire and whether the Company has the ability to extend the exercise period; (v) Federal income tax consequences, if any; (vi) the currency, currencies or currency units in which the offering price, if any, and exercise price are payable; and (vii) any other terms of the Debt Warrants. Debt Warrants may be exchanged for new Debt Warrants of different denominations and may be presented for registration of transfer at the corporate trust office of the Debt Warrant Agent, which will be listed in the related Prospectus Supplement, or at such other office as may be set forth therein. Warrantholders do not have any of the rights of holders of Debt Securities and are not entitled to payments of principal of and interest, if any, on the Debt Securities. EXERCISE OF DEBT WARRANTS Debt Warrants may be exercised in the manner set forth in the Prospectus Supplement. Upon the exercise of Debt Warrants, the Debt Warrant Agent will, as soon as practicable, deliver the Debt Securities in authorized denominations in accordance with the instructions of the exercising warrantholder and at the sole cost and risk of such holder. DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS The Company may issue Stock Purchase Contracts, which are contracts obligating holders to purchase from the Company, and the Company to sell to the holders, a specified number of shares of Common Stock or Preferred Stock at a future date or dates. The price per share of Common Stock or Preferred Stock may be fixed at the time the Stock Purchase Contracts are issued or may be determined by reference to a specific formula set forth in the Stock Purchase Contracts. Any such formula may include anti-dilution provisions to adjust the number of shares issuable pursuant to Stock Purchase Contracts upon certain events. The Stock Purchase Contracts may be issued separately or as a part of Stock Purchase Units each representing ownership of a Stock Purchase Contract and Debt Securities, Preferred Securities or debt obligations of third parties, including U.S. Obligations, securing the holders' obligations to purchase the Common Stock or the Preferred Stock under the Purchase Contracts. In the case of Stock Purchase Units that include debt obligations of third parties, unless a holder of Stock Purchase Units settles its obligations under the Stock Purchase Contracts early through the delivery of consideration to the Company or its agent in the manner discussed below, the principal of such debt obligations, when paid at maturity, will automatically be applied to satisfy the holder's obligation to purchase Common Stock or Preferred Stock under the Stock Purchase Contracts. In the case of Stock Purchase Units that include Debt Securities or Preferred Securities, in the absence of any such early settlement or the election by a holder to pay the consideration specified in the Stock Purchase Contracts prior to the stated settlement date, the ownership of any Debt Securities or Preferred Securities will automatically be presented to the applicable ATI Trust for redemption at 100% of face or liquidation value and the ATI Trust will present Subordinated Debt Securities in an equal principal amount to the Company for redemption at 100% of principal amount. Amounts received in respect of such redemption will automatically be transferred to AirTouch 17 21 and applied to satisfy in full the holder's obligation to purchase Common Stock or Preferred Stock under the Stock Purchase Contracts. The Stock Purchase Contracts may require the Company to make periodic payments to the holders of the Stock Purchase Units or visa versa, and such payments may be unsecured or prefunded on some basis. The Stock Purchase Contracts may require holders to secure their obligations thereunder in a specified manner. Holders of Stock Purchase Units may be entitled to settle the underlying Stock Purchase Contracts prior to the stated settlement date by surrendering the certificate evidencing the Stock Purchase Units, accompanied by the payment due, in such form and calculated pursuant to such formula as may be prescribed in the Stock Purchase Contracts and described in the applicable Prospectus Supplement. Upon early settlement, the holder would receive the number of shares of Common Stock or Preferred Stock deliverable under such Stock Purchase Contracts, subject to adjustment in certain cases. Holders of Stock Purchase Units may be entitled to exchange their Stock Purchase Units together with appropriate collateral, for separate Stock Purchase Contracts and Preferred Securities, Debt Securities or debt obligations. In the event of either such early settlement or exchange, the Preferred Securities, Debt Securities or debt obligations that were pledged as security for the obligation of the holder to perform under the Stock Purchase Contracts would be transferred to the holder free and clear of the Company's security interest therein. The applicable Prospectus Supplement will describe the terms of any Stock Purchase Contracts or Stock Purchase Units. DESCRIPTION OF THE PREFERRED SECURITIES Each ATI Trust may issue only one series of Preferred Securities having terms described in the Prospectus Supplement relating thereto. The Declaration of each ATI Trust authorizes the Regular Trustees of each ATI Trust to issue on behalf of such ATI Trust one series of Preferred Securities. The Declaration will be qualified as an indenture under the Trust Indenture Act. The Preferred Securities will have such terms, including distributions, redemption, voting, liquidation rights and such other preferred, deferred or other special rights or such restrictions, as shall be set forth in the Declaration or made part of the Declaration by the Trust Indenture Act. Reference is made to any Prospectus Supplement relating to the Preferred Securities for specific terms including (i) the distinctive designation of such Preferred Securities, (ii) the number of Preferred Securities issued, (iii) the annual distribution rate (or method of determining such rate) for Preferred Securities and the date or dates upon which such distributions shall be payable (provided, however, that distributions on such Preferred Securities shall be payable on a quarterly basis to holders of such Preferred Securities as of a record date in each quarter during which such Preferred Securities are outstanding), (iv) whether distributions on Preferred Securities shall be cumulative, and, in the case of Preferred Securities having such cumulative distribution rights, the date or dates or method of determining the date or dates from which distributions on Preferred Securities shall be cumulative, (v) the amount or amounts which shall be paid out of the assets of such trust to the holders of Preferred Securities upon voluntary or involuntary dissolution, winding-up or termination of such ATI Trust, (vi) the obligation, if any, of such ATI Trust to purchase or redeem Preferred Securities and the price or prices at which, the period or periods within which and the terms and conditions upon which Preferred Securities issued by such ATI Trust shall be purchased or redeemed, in whole or in part, pursuant to such obligation, (vii) the voting rights, if any, of Preferred Securities issued by such ATI Trust in addition to those required by law, including the number of votes per Preferred Security and any requirement for the approval by the holders of Preferred Securities, or of Preferred Securities issued by both ATI Trusts as a condition to specified action or amendments to the Declaration of such ATI Trust, (viii) whether the Preferred Securities will be issued in the form of one or more global securities, and (ix) any other relevant rights, preferences, privileges, limitations or restrictions of Preferred Securities issued by such ATI Trust consistent with the Declaration of such trust or with applicable law. All Preferred Securities offered hereby will be guaranteed by the Company to the extent set forth below under "Description of the Guarantees." Certain United States federal income tax considerations applicable to any offering of Preferred Securities will be described in the Prospectus Supplement relating thereto. In connection with the issuance of Preferred Securities, each ATI Trust will issue one series of Common Securities. The Declaration of each ATI Trust authorizes the Regular Trustees to issue on behalf of such ATI Trust one series of Common Securities having such terms including distributions, redemption, voting, liquidation rights or such restrictions as shall be set forth therein. The terms of the Common Securities issued by an ATI Trust will be substantially identical to the terms of the Preferred Securities issued by such trust and the Common Securities will rank pari passu, and payments will be made theron pro rata, with the Preferred Securities except that, upon the occurrence and during the continuation of an event of default undder the Declaration, the rights of the holders of the ATC Common Securities to payment in respect of distributions and payments upon liquidation, redemption and otherwise will be subordinated to the rights of the holders of the Preferred Securities. Except in certain limited circumstances the Common Securities will also carry the right to vote and to appoint, remove or replace any of the ATI Trustees. All of the Common Securities will be directly or indirectly owned by the Company. 18 22 DESCRIPTION OF THE GUARANTEES Set forth below is a summary of information concerning the Guarantees that will be executed and delivered by the Company for the benefit of the Holders, from time to time, of Preferred Securities. Each Preferred Securities Guarantee Agreement under which Guarantees are issued will be qualified as an indenture under the Trust Indenture Act. The trustee under each Guarantee (the "Guarantee Trustee") will be identified in the relevant Prospectus Supplement, and will be a financial institution not affiliated with the Company that has a combined capital and surplus of not less than $100,000,000. The terms of each Guarantee will be those set forth in such Guarantee and those made part of such Guarantee by the Trust Indenture Act. The summary does not purport to be complete. Such summary makes use of certain terms defined in the Preferred Securities Guarantee Agreement and is subject in all respects to the provisions of, and is qualified in its entirety by reference to, the form of Guarantee, which is filed as an exhibit to the Registration Statement of which this Prospectus forms a part, and the Trust Indenture Act. Each Guarantee will be held by the Guarantee Trustee for the benefit of the holders of the Preferred Securities of the applicable ATI Trust. GENERAL Pursuant to each Guarantee, the Company will unconditionally agree, to the extent set forth herein, to pay in full to the holders of the the Company Preferred Securities issued by each ATI Trust, the Guarantee Payments (as defined herein) (except to the extent paid by such ATI Trust), as and when due, regardless of any defense, right of set-off or counterclaim which such ATI Trust may have or assert. The following payments with respect to Preferred Securities issued by each ATI Trust (the "Guarantee Payments"), to the extent not paid by such ATI Trust, will be subject to the Guarantee (without duplication): (i) any accrued and unpaid distributions that are required to be paid on such Preferred Securities, but if and only to the extent that in each case the Company has made a payment to the related Property Trustee of interest or principal on the Subordinated Debt Securities held in such ATI Trust as trust assets, (ii) the redemption price, including all accrued and unpaid distributions (the "Redemption Price"), but if and only to the extent that in each case the Company has made a payment to the related Property Trustee of interest or principal on the Subordinated Debt Securities held in such ATI Trust as trust assets with respect to any Preferred Securities called for redemption by such ATI Trust and (iii) upon a voluntary or involuntary dissolution, winding-up or termination of such ATI Trust (other than in connection with the distribution of Subordinated Debt Securities to the holders of Preferred Securities or the redemption of all of the Preferred Securities), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid distributions on such Preferred Securities to the date of payment to the extent such ATI Trust has funds available therefor or (b), the amount of assets of such ATI Trust remaining available for distribution to holders of such Preferred Securities in liquidation of such ATI Trust. The Company s obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Company to the holders of Preferred Securities or by causing the applicable ATI Trust to pay such amounts to such holders. Each Guarantee will be an unconditional guarantee with respect to the Preferred Securities issued by the applicable ATI Trust from the time of issuance of such Preferred Securities but will not apply to any payment of distributions except to the extent the Company has made a payment to the related Property Trustee of interest or principal on the Subordinated Debt Securities held in such ATI Trust as trust assets. If the Company does not make interest payments on the sSubordinated Debt Securities purchased by an ATI Trust, such ATI Trust will not pay distributions on the Preferred Securities issued by such ATI Trust and will not have funds available therefor and such payment obligation will therefore not be guaranteed by the Company under the Guarantees. See "Description of the Preferred Securities; "Description of Debt Securities -- Subordinated Debt Securities." The Company's obligations under the Declaration for each ATI Trust, the Preferred Securities Guarantee issued with respect to Preferred Securities issued by that ATI Trust, the Subordinated Debt Securities purchased by that Trust and the related Subordinated Indenture in the aggregate will provide a full and unconditional guarantee on a subordinated basis by the Company of payments due on the Preferred Securities issued by that ATI Trust. The Company has also agreed to unconditionally guarantee the obligations of the ATI Trusts with respect to the Common Securities (the "Common Securities Guarantees") to the same extent as the Guarantees, except that, upon an event of default under the Subordinated Indenture, holders of Preferred Securities under the Guarantees shall have priority over holders of Common Securities under the Common Securities Guarantee with respect to distributions and payments on liquidation, redemption or otherwise. 19 23 CERTAIN COVENANTS OF THE COMPANY In each Guarantee, the Company will covenant that, so long as any Preferred Securities issued by the applicable ATI Trust remain outstanding, if there shall have occurred any event that would constitute an event of default under such Guarantee or the Declaration of such ATI Trust, then (a) the Company shall not declare or pay any dividend on, or make any distribution with respect to, or redeem, purchase, acquire or make a liquidation payment with respect to, any of its capital stock and (b) the Company shall not make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities issued by the Company which rank junior to such Subordinated Debt Securities. However, each Guarantee will except from the foregoing any stock dividends paid by the Company, or any of its subsidiaries, where the dividend stock is of the same class as that on which the dividend is being paid. MODIFICATION OF THE GUARANTEES; ASSIGNMENT Except with respect to any changes that do not adversely affect the rights of holders of Preferred Securities (in which case no vote will be required), each Guarantee may be amended only with the prior approval of the holders of not less than a majority in liquidation amount of the outstanding Preferred Securities issued by the applicable ATI Trust. The manner of obtaining any such approval of holders of such Preferred Securities will be set forth in an accompanying Prospectus Supplement. All guarantees and agreements contained in a Guarantee shall bind the successors, assignees, receivers, trustees and representatives of AirTouch and shall inure to the benefit of the holders of the Preferred Securities of the applicable ATI Trust then outstanding. EVENTS OF DEFAULT An Event of Default under the Guarantee will occur upon the failure of the Company to perform any of its payments or other obligations thereunder. The holders of a majority in liquidation amount of the Preferred Securities to which a Guarantee relates have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee in respect of the Guarantee or to direct the exercise of any trust or power conferred upon the Guarantee Trustee under the Guarantee. If the Guarantee Trustee fails to enforce such Guarantee, any holder of Preferred Securities relating to such Guarantee may, after a period of 30 days has elapsed from such holder's written request to the Guarantee Trustee to enforce the Guarantee, institute a legal proceeding directly against the Company to enforce the Guarantee Trustee's rights under such Guarantee without first instituting a legal proceeding against the relevant ATI Trust, the Guarantee Trustee or any other person or entity. The Company will be required to provide annually to the Guarantee Trustee a statement as to the performance by the Company of certain of its obligations under each of the Guarantees and as to any default in such performance and an officer's certificate as to the Company's compliance with all conditions under each of the Guarantees. TERMINATION OF THE GUARANTEES Each Guarantee will terminate as to the Preferred Securities issued by the applicable ATI Trust upon full payment of all distributions relating to the Preferred Securities or the Redemption Price of all Preferred Securities of such Trust, upon distribution of the subordinated Debt Securities held by such ATI Trust to the holders of the Preferred Securities of such ATI Trust or upon full payment of the amounts payable in accordance with the Declaration of such ATI Trust upon liquidation of such ATI Trust. Each Guarantee will continue to be effective or will be reinstated, as the case may be, if at any time any holder of Preferred Securities issued by the applicable ATI Trust must restore payment of any sums paid under such Preferred Securities or such Guarantee. STATUS OF THE GUARANTEES Each Guarantee will constitute an unsecured obligation of the Company and will rank (i) subordinate and junior in right of payment to all other liabilities of the Company (ii) pari passu with the most senior preferred or preference stock now or hereafter issued by the Company and with any guarantee now or hereafter entered into by the Company in respect of any preferred or preference stock of any affiliate of the Company and (iii) senior to the Company s common sCommon Stock. The terms of the Preferred Securities provide that each holder of Preferred Securities issued by such ATI Trust by acceptance thereof agrees to the subordination provisions and other terms of the applicable Guarantee. The Guarantee Trustee shall enforce the Preferred Securities Guarantee on behalf of the Holders of the Preferred Securities issued by the applicable ATI Trust. The holders of not less than a majority in aggregate 20 24 liquidation amount of the Preferred Securities issued by the applicable ATI Trust have the right to direct the time, method and place of conducting any proceeding for any remedy available in respect of the related Preferred Securities Guarantee, including the giving of directions of the Guarantee Trustee. If the Guarantee Trustee fails to enforce such Preferred Securities Guarantee, any Holder of Preferred Securities issued by the applicable ATI Trust may institute a legal proceeding directly against the Company, as Guarantor, to enforce its rights under such Preferred Securities Guarantee, without first instituting a legal proceeding against the applicable ATI Trust or any other person or entity. Each Guarantee will constitute a guarantee of payment and not of collection (that is, the guaranteed party may institute a legal proceeding directly against the guarantor to enforce its rights under a Guarantee without instituting a legal proceeding against any other person or entity). PLAN OF DISTRIBUTION The Company or any ATI Trust may, from time to time, sell Securities (1) through underwriters or dealers, (2) directly to one or more purchasers, or (3) through agents. A Prospectus Supplement will set forth the terms of the offering of the Securities offered thereby, including the name or names of any underwriters, the purchase price of the Securities, and the proceeds to the Company or any ATI Trust from the sale, any underwriting discounts and other items constituting underwriters' compensation, any initial public offering price, any discounts or concessions allowed or reallowed or paid to dealers, and any securities exchange or market on which the Securities may be listed. Only underwriters so named in such Prospectus Supplement are deemed to be underwriters in connection with the Securities offered thereby. If underwriters are used in the sale, the Securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the Securities will be subject to certain conditions precedent, and the underwriters will be obligated to purchase all the Securities of the series offered by the Prospectus Supplement if any of the Securities are purchased. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time. Securities may also be sold directly by the Company or an ATI Trust or through agents designated by the Company or any ATI Trust from time to time. Any agent involved in the offering and sale of Securities in respect of which this Prospectus is delivered will be named, and any commissions payable by the Company or an ATI Trust to such agent will be set forth in the Prospectus Supplement. Unless otherwise indicated in the related Prospectus Supplement, any such agent will be acting on a best-efforts basis for the period of its appointment. Securities offered other than Common Stock may be a new issue of securities with no established trading market. Any underwriters to whom such Securities are sold by the Company or an ATI Trust for public offering and sale may make a market in such Securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. No assurance can be given as to the liquidity of or the trading markets for any such Securities. Agents and underwriters may be entitled under agreements entered into with the Company or an ATI Trust to indemnification by the Company or such trust against certain civil liabilities, including liabilities under the Securities Act of 1933, as amended, or to contribution with respect to payments which the agents or underwriters may be required to make in respect thereof. Agents and underwriters may engage in transactions with, or perform services for, the Company or any ATI Trust in the ordinary course of business. Securities may be sold from time to time by Counterparties with whom the Company may enter into derivatives transactions. Such Counterparties may offer Securities (1) through underwriters or dealers, (2) directly to one or more purchasers, or (3) through agents. The Company will not receive any of the proceeds from the sale of Securities by Counterparties. A Counterparty may be deemed to be an "underwriter" within the meaning of the Securities Act, and any commission received by it and any profit on the resale of the Securities purchased by it may be deemed to be underwriting commissions or discounts under the Securities Act. The Company may agree to bear all expenses of registration of any Securities offered by Counterparties and may indemnify such Counterparties against certain civil liabilities, including certain liabilities under the Securities Act. 21 25 ERISA AND TAX CONSIDERATIONS The Employee Retirement Income Security Act of 1974, as amended ("ERISA"), imposes certain restrictions on investments by employee benefit plans that are subject to ERISA. The Internal Revenue Code of 1986, as amended (the "Code"), imposes additional restrictions on investments by tax-exempt retirement plans, individual retirement accounts, and similar entities. The Code also provides that certain types of income received by organizations that generally are exempt from federal income tax will nevertheless be subject to taxation. Retirement plans, tax-exempt organizations and similar entities should consult their tax and legal advisors and the applicable Prospectus Supplement before acquiring Securities. LEGAL MATTERS The legality of the Securities (other than the Preferred Securities) offered hereby will be passed upon by Pillsbury Madison & Sutro, San Francisco, California, counsel for the Company. The legality of the Preferred Securities will be passed upon by Morris, Nichols, Arsht & Tunnell, Wilmington, Delaware. Certain legal matters will be passed upon for the underwriters by Cleary, Gottlieb, Stein & Hamilton, New York, New York, except as otherwise set forth in the Prospectus Supplement. EXPERTS The consolidated financial statements of the Company contained in the Company's Annual Report on Form 10-K, as of December 31, 1994 and 1993, and for each of the years in the three-year period ended December 31, 1994, have been audited by Coopers & Lybrand L.L.P., independent accountants, as set forth in their report thereon incorporated therein and herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given upon the authority of such firm as experts in accounting and auditing. The financial statements of CMT Partners as of December 31, 1994 and 1993, and for each of the years in the three-year period ended December 31, 1994, have been incorporated by reference herein in reliance upon the report of Coopers & Lybrand L.L.P., independent accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. The financial statements of Mannesmann Mobilfunk GmbH as of December 31, 1994 and 1993, and for each of the years in the three-year period ended December 31, 1994, have been incorporated by reference herein in reliance upon the report of KPMG Deutsche Treuhand-Gesellschaft, independent auditors, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. The consolidated financial statements of Cellular Communications, Inc. as of December 31, 1994 and 1993 and for each of the three years in the period ended December 31, 1994 included in Cellular Communications, Inc.'s Annual Report (Form 10-K) for the year ended December 31, 1994 have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon included therein and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given upon the authority of such firm as experts in accounting and auditing. The consolidated financial statements of New Par (a partnership) as of December 31, 1994 and 1993 and for each of the three years in the period ended December 31, 1994 included in AirTouch Communications, Inc.'s Annual Report (Form 10-K) for the year ended December 31, 1994 have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon included therein and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given upon the authority of such firm as experts in accounting and auditing. 22 26 - ------------------------------------------------------------------------------- NO DEALER, SALES REPRESENTATIVE, OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY AIRTOUCH COMMUNICATIONS, INC. OR BY ANY AGENT. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO PURCHASE, ANY SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES OR AN OFFER TO OR A SOLICITATION OF ANY PERSON IN ANY JURISDICTION WHERE SUCH AN OFFER OR SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS, ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF AIRTOUCH COMMUNICATIONS, INC. OR THAT THE INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF OR THEREOF. ---------- TABLE OF CONTENTS
PAGE ---- INDEX OF TERMS............................................. 3 AVAILABLE INFORMATION...................................... 4 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............................................. 4 AIRTOUCH COMMUNICATIONS, INC............................... 5 THE ATI FINANCING TRUSTS................................... 5 USE OF PROCEEDS............................................ 5 RATIO OF EARNINGS TO FIXED CHARGES......................... 6 GENERAL DESCRIPTION OF SECURITIES AND RISK FACTORS......................................... 6 DESCRIPTION OF THE COMMON STOCK............................ 6 DESCRIPTION OF THE PREFERRED STOCK......................... 8 DESCRIPTION OF THE DEPOSITARY SHARES....................... 9 DESCRIPTION OF THE DEBT SECURITIES........................ 11 DESCRIPTION OF THE WARRANTS TO PURCHASE COMMON OR PREFERRED STOCK...................... 14 DESCRIPTION OF THE THIRD PARTY WARRANTS................... 15 DESCRIPTION OF THE WARRANTS TO PURCHASE DEBT SECURITIES........................................ 17 DESCRIPTION OF THE STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS................................ 17 DESCRIPTION OF THE PREFERRED SECURITIES................... 18 DESCRIPTION OF THE GUARANTEES............................. 19 PLAN OF DISTRIBUTION...................................... 21 ERISA AND TAX CONSIDERATIONS.............................. 22 LEGAL MATTERS............................................. 22 EXPERTS................................................... 22
- ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- $2,000,000,000 AIRTOUCH COMMUNICATIONS, INC. COMMON STOCK PREFERRED STOCK DEPOSITARY SHARES DEBT SECURITIES COMMON STOCK WARRANTS PREFERRED STOCK WARRANTS THIRD PARTY WARRANTS DEBT WARRANTS STOCK PURCHASE CONTRACTS STOCK PURCHASE UNITS ATI FINANCING I ATI FINANCING II PREFERRED SECURITIES, GUARANTEED TO THE EXTENT SET FORTH HEREIN BY AIRTOUCH COMMUNICATIONS, INC. _________________, 1995 - ------------------------------------------------------------------------------- 23 27 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.* Securities and Exchange Commission Registration Fee...... $689,655.17 Printing and Engraving Expenses.......................... 100,000.00 Accounting Fees and Expenses............................. 150,000.00 Legal Fees and Expenses.................................. 150,000.00 Trustee Fees............................................. 40,000.00 Fees of Rating Agencies.................................. 200,000.00 Blue Sky Fees and Expenses............................... 25,000.00 Miscellaneous............................................ 45,344.83 ------------- TOTAL.................................................... $1,400,000.00 =============
*Estimated, except for the SEC Registration Fee. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law (the "Delaware GCL") permits the Company s board of directors to indemnify any person against expenses (including attorney s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with any threatened, pending or completed action, suit or proceeding in which such person is made a party by reason of his being or having been a director, officer, employee or agent of the Company, in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the "Act"). Section 145 provides that indemnification pursuant to its provisions is not exclusive of other rights of indemnification to which a person may be entitled under any By-law, agreement, vote of stockholders or disinterested directors, or otherwise. Article EIGHTH of the Company's Certificate of Incorporation provides for indemnification of its directors, officers, employees and other agents to the maximum extent permitted by law. As permitted by sSections 102 and 145 of the Delaware GCL, Article NINTH of the Company's Certificate of Incorporation eliminates a director s personal liability for monetary damage to the Company and its stockholders arising from a breach or alleged breach of director s fiduciary duty except to the extent not permitted under the Delaware GCL. In addition the Company has entered into separate indemnification agreements with its directors and officers that require the Company, among other things, to indemnify them against certain liabilities that may arise by reason of their status or service as directors or officers to the fullest extent not prohibited by law. The Declaration of each ATI Trust provides that no ATI Trustee, affiliate of any ATI Trustee, or any officers, directors, shareholders, members, partners, employees, representatives or agents, director, shareholder, member, partner, employee, representative or agent of any ATI Trustee, or any employee or agent of such ATI Trust or its affiliates (each an "Indemnified Person"), shall be liable, responsible or accountable in damages or otherwise to such ATI Trust or any employee or agent of the trust or its affiliates for any loss, damage or claim incurred by reason of any act or omission performed or admitted by such Indemnified Person in good faith on behalf of such ATI Trust and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by such Declaration or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's gross negligence (or, in the case of the Property Trustee, negligence) or willful misconduct with respect to such acts or omissions. The Declaration of each ATI Trust also provides that to the fullest extent permitted by applicable law, the Company shall indemnify and hold harmless each Indemnified Person from and against any loss, damage or claim incurred by such Indemnified Person by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of such ATI Trust and in a manner such Indemnified Person reasonably believed to be within the scope of authority conferred on such Indemnified Person by such Declaration, except that no Indemnified Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Indemnified Person by reason of gross negligence (or, in the case of the Property Trustee, negligence) or willful misconduct with respect to such acts or omissions. The Declaration of each ATI Trust, further provides that, to the fullest extent permitted by applicable law, expenses (including legal fees) incurred by an II-1 28 Indemnified Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by or an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined that the Indemnified Person is not entitled to be indemnified for the underlying cause of action as authorized by such Declaration. The directors and officers of the Company and the Regular Trustees are covered by insurance policies indemnifying against certain liabilities, including certain liabilities arising under the Securities Act of 1933, as amended (the "Securities Act"), which might be incurred by them in such capacities and against which they cannot be indemnified by the Company or ATI Trusts. Any agents, dealers or underwriters who execute any of the agreements filed as Exhibit 1 to this registration statement will agree to indemnify the Company's directors and their officers and the ATI Trustees who signed the registration statement against certain liabilities that may arise under the Securities Act with respect to information furnished to the Company or any of the ATI Trusts by or on behalf of any such indemnifying party. Item 16. Exhibits. Exhibits identified in parentheses below, on file with the Commission, are incorporated by reference as exhibits hereto. 1.1 Form of Underwriting Agreement (Debt Securities). 1.2 Form of Underwriting Agreement (Equity Securities). 4.1 Certificate of Incorporation of the Company (filed as Exhibit 3.1 to Form 8-K, Date of Report: December 15, 1994, filed on December 19, 1994, File No. 1-12342, and incorporated herein). 4.2 Rights Agreement between the Company and the Bank of New York, Rights Agent, dated as of September 19, 1994 (filed as Exhibit 4 to the Company's Form 8-K, Date of Report: December 15, 1994, filed on December 19, 1994, File No. 1-12342, and incorporated herein). 4.3 Amended and Restated Bylaws of the Company, as of November 18, 1994, (filed as Exhibit 3.3 to the Company's Annual Report on Form 10-K for the year ended December 31, 1994 filed April 5, 1995, File No. 1-12342, and incorporated herein). 4.4 Certificate of Trust of ATI Financing I.(*) 4.5 Certificate of Trust of ATI Financing II.(*) 4.6 Form of Amended and Restated Declaration of Trust of ATI Financing I and ATI Financing II. 4.7 Form of Pledge Agreement.(*) 4.8 Form of Senior Indenture.(*) 4.9 Form of Standard Stock Warrant Provisions.(*) 4.10 Form of Debt Securities Warrant Agreement. 4.11 Form of Deposit Agreement.(*) 4.12 Form of Subordinated Indenture.(*) 4.13 Form of Preferred Securities Guarantee Agreement. 4.14 Form of Stock Purchase Contract Agreement.(*) 5.1(a) Opinion of Pillsbury Madison & Sutro.(*)
II-2 29 5.1(b) Opinion of Morris, Nichols, Arsht & Tunnell (ATI Financing I).* 5.1(c) Opinion of Morris, Nichols, Arsht & Tunnell (ATI Financing II).* 12.1 Statement re Computation of Ratios. 15.1 Letter re unaudited interim financial information (Coopers & Lybrand L.L.P.). 15.2 Letter re unaudited interim financial information (Price Waterhouse LLP) (filed as Exhibit 15 to the Company's Form 10-Q for the period ended September 30, 1995, filed on November 13, 1995, File No. 1-12342, and incorporated herein). 23.1 Consent of Coopers & Lybrand L.L.P., independent accountants. 23.2 Consent of Ernst & Young LLP (NewPar). 23.3 Consent of Ernst & Young LLP (CCI). 23.4 Consent of Coopers & Lybrand L.L.P. (CMT Partners). 23.5 Consent of KPMG Deutsche Treuhand-Gesellschaft (Mannesmann Mobilfunk). 23.6 Consent of Pillsbury Madison & Sutro (included in Exhibits 5.1(a)).* 23.7 Consent of Morris, Nichols, Arsht & Tunnell (included in Exhibits 5.1(b) and 5.1(c)).* 24.1 Power of Attorney (AirTouch Communications, Inc.).* 24.2 Power of Attorney (ATI Financing I).* 24.3 Power of Attorney (ATI Financing II).* - ------------------- * Previously filed.
ITEM 17. UNDERTAKINGS. AirTouch Communications, Inc., ATI Financing I and ATI Financing II (the "Registrants") hereby undertake: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement. II-3 30 (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (i) and (ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by AirTouch Communications, Inc. pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The Registrants hereby undertake that, for purposes of determining any liability under the Securities Act of 1933, each filing of AirTouch Communications, Inc.'s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. ATI Trust I and ATI Trust II each hereby undertakes to provide to the underwriter at the closing specified in the underwriting agreements, certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrants pursuant to the provisions described in Item 15 or otherwise, the Registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. If a claim for indemnification against such liabilities (other than the payment by the Registrants of expenses incurred or paid by a director, officer or controlling person of the Registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrants, will, unless in the opinion of counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. The Registrants hereby undertake to file an application for the purpose of determining the eligibility of the trustee to act under Subsection (a) of Section 310 of the Trust Indenture Act of 1939 in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act of 1939. The Registrants hereby undertake that: (1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of Prospectus filed by the Registrants pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this registration statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of Prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-4 31 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Francisco, State of California, on November 21, 1995. AIRTOUCH COMMUNICATIONS, INC. By /s/ MOHAN S. GYANI ---------------------------------------------------- Mohan S. Gyani Executive Vice President and Chief Financial Officer Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 1 to Registration Statement has been signed below by the following persons and in the capacities indicated on the 21st day of November, 1995.
Name Title ---- ----- /s/ SAM GINN Chairman of the Board and ------------------------------ Chief Executive Officer (principal executive (Sam Ginn) officer) /s/ MOHAN S. GYANI Executive Vice President and Chief Financial ------------------------------ Officer (principal finance and accounting officer) (Mohan S. Gyani) /s/ CAROL A. BARTZ* Director ------------------------------ (Carol A. Bartz) /s/ C. LEE COX* Vice Chairman of the Board ------------------------------ (C. Lee Cox) /s/ DONALD G. FISHER* Director ------------------------------ (Donald G. Fisher) /s/ JAMES R. HARVEY* Director ------------------------------ (James R. Harvey) /s/ PAUL HAZEN* Director ------------------------------ (Paul Hazen) /s/ ARTHUR ROCK* Director ------------------------------ (Arthur Rock) /s/ ARUN SARIN* Vice Chairman of the Board ------------------------------ (Arun Sarin) /s/ CHARLES R. SCHWAB* Director ------------------------------ (Charles R. Schwab) /s/ GEORGE P. SHULTZ* Director ------------------------------ (George P. Shultz) *By /s/ MOHAN S. GYANI ------------------------------ (Mohan S. Gyani) Attorney-in-Fact
II-5 32 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, each of ATI Financing I and ATI Financing II certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Francisco, State of California, on November 21, 1995. ATI FINANCING I By: /s/ SAM GINN* ------------------------------------- Sam Ginn, Trustee By: /s/ MOHAN S. GYANI ------------------------------------- Mohan S. Gyani, Trustee By: /s/ MARGARET G. GILL* ------------------------------------- Margaret G. Gill, Trustee ATI FINANCING II By: /s/ SAM GINN* ------------------------------------- Sam Ginn, Trustee By: /s/ MOHAN S. GYANI ------------------------------------- Mohan S. Gyani, Trustee By: /s/ MARGARET G.GILL* ------------------------------------- Margaret G. Gill, Trustee *By: /s/ MOHAN S. GYANI ------------------------------------- Attorney-in-fact II-6 33 EXHIBIT INDEX 1.1 Form of Underwriting Agreement (Debt Securities). 1.2 Form of Underwriting Agreement (Equity Securities). 4.1 Certificate of Incorporation of the Company (filed as Exhibit 3.1 to Form 8-K, Date of Report: December 15, 1994, filed on December 19, 1994, File No. 1-12342, and incorporated herein). 4.2 Rights Agreement between the Company and the Bank of New York, Rights Agent, dated as of September 19, 1994 (filed as Exhibit 4 to the Company's Form 8-K, Date of Report: December 15, 1994, filed on December 19, 1994, File No. 1-12342, and incorporated herein). 4.3 Amended and Restated Bylaws of the Company, as of November 18, 1994, (filed as Exhibit 3.3 to the Company's Annual Report on Form 10-K for the year ended December 31, 1994 filed April 5, 1995, File No. 1-12342, and incorporated herein). 4.4 Certificate of Trust of ATI Financing I.(*) 4.5 Certificate of Trust of ATI Financing II.(*) 4.6 Form of Amended and Restated Declaration of Trust of ATI Financing I and ATI Financing II. 4.7 Form of Pledge Agreement.(*) 4.8 Form of Senior Indenture.(*) 4.9 Form of Standard Stock Warrant Provisions.(*) 4.10 Form of Debt Securities Warrant Agreement. 4.11 Form of Deposit Agreement.(*) 4.12 Form of Subordinated Indenture.(*) 4.13 Form of Preferred Securities Guarantee Agreement. 4.14 Form of Stock Purchase Contract Agreement.(*) 5.1(a) Opinion of Pillsbury Madison & Sutro.(*) 5.1(b) Opinion of Morris, Nichols, Arsht & Tunnell (ATI Financing I).(*) 5.1(c) Opinion of Morris, Nichols, Arsht & Tunnell (ATI Financing II).(*) 12.1 Statement re Computation of Ratios. 15.1 Letter re unaudited interim financial information (Coopers & Lybrand L.L.P.). 15.2 Letter re unaudited interim financial information (Price Waterhouse LLP) (filed as Exhibit 15 to the Company's Form 10-Q for the period ended September 30, 1995, filed on November 13, 1995, File No. 1-12342, and incorporated herein). 23.1 Consent of Coopers & Lybrand L.L.P., independent accountants. 23.2 Consent of Ernst & Young LLP (NewPar). 23.3 Consent of Ernst & Young LLP (CCI). 23.4 Consent of Coopers & Lybrand L.L.P. (CMT Partners).
34 23.5 Consent of KPMG Deutsche Treuhand-Gesellschaft (Mannesmann Mobilfunk). 23.6 Consent of Pillsbury Madison & Sutro (included in Exhibits 5.1(a)). 23.7 Consent of Morris, Nichols, Arsht & Tunnell (included in Exhibits 5.1(b) and 5.1(c)). 24.1 Power of Attorney (AirTouch Communications, Inc.).(*) 24.2 Power of Attorney (ATI Financing I).(*) 24.3 Power of Attorney (ATI Financing II).(*)
(*) Previously filed. EX-1.1 2 UNDERWRITING AGREEMENT-DEBT SECURITIES 1 EXHIBIT 1.1 ================================================================================ AIRTOUCH COMMUNICATIONS, INC. DEBT SECURITIES _________ UNDERWRITING AGREEMENT STANDARD PROVISIONS ================================================================================ 2 AIRTOUCH COMMUNICATIONS, INC. DEBT SECURITIES _________ UNDERWRITING AGREEMENT STANDARD PROVISIONS From time to time, AirTouch Communications, Inc., a Delaware corporation ("AirTouch"), may enter into one or more underwriting agreements that provide for the sale of certain debt securities (the "Securities"), to the purchaser or purchasers named therein (the "Underwriters"). The standard provisions set forth herein may be incorporated by reference in any such underwriting agreement (the "Underwriting Agreement"). The Underwriting Agreement, including the provisions incorporated therein by reference, is herein referred to as "this Agreement." Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. Capitalized terms not otherwise defined in this Agreement shall have the meaning ascribed thereto in the Indenture (as hereinafter defined). The terms governing of the issuance and sale of any particular series of Securities shall be as provided in the applicable Underwriting Agreement (with respect to each Underwriting Agreement, such series of Securities are herein referred to as the "Designated Securities"). 1. Issuance of Designated Securities. Sales of the Designated Securities may be made from time to time to the Underwriters of the Designated Securities. Any firm or firms designated as the representative or representatives, as the case may be, of the Underwriters of the Designated Securities in the Underwriting Agreement relating thereto will act as the representative or representatives (the "Representative"). The obligation of AirTouch to issue and sell any of the Designated Securities and the obligation of any Underwriters to purchase any of the Designated Securities shall be evidenced by the Underwriting Agreement with respect to the Designated Securities specified therein. Each Underwriting Agreement shall specify the aggregate principal amount of the Designated Securities, the public offering price of the Designated Securities, the purchase price to the Underwriters of the Designated Securities, the names of the Underwriters of the Designated Securities, the name of the Representative, if any, of such Underwriters, the principal amount of the Designated Securities to be purchased by each Underwriter and the terms of any Delayed Delivery Contract (as hereinafter defined), and shall set forth the date, time and manner of delivery of the Designated Securities and payment therefor. The Underwriting Agreement shall also specify, to the extent not set forth in the Registration Statement and Prospectus (as hereinafter defined) with respect thereto, the general terms of the Designated Securities. An Underwriting Agreement shall be in writing (which may be in counterparts), and may be evidenced by an exchange of facsimile transmissions. The obligations of the Underwriters under each Underwriting Agreement shall be several and not joint. -1- 3 2. Representations and Covenants. AirTouch represents to, and covenants with, each Underwriter that: (a) AirTouch meets the requirements for the use of Form S-3 and a registration statement on Form S-3 (Registration No. 33-__), including a prospectus, relating to the Securities of AirTouch has been filed with the Securities and Exchange Commission (the "Commission") in accordance with applicable regulations of the Commission under the Securities Act of 1933, as amended (the "Act"), and has been declared effective under the Act. Such registration statement, as amended to the date of this Agreement, is hereinafter referred to as the "Registration Statement," and such prospectus as proposed to be supplemented by a prospectus supplement (the "Prospectus Supplement") relating to the Designated Securities to be filed pursuant to Rule 424 under the Act is hereinafter referred to as the "Prospectus." Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement, and incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3, excluding any documents or portions of such documents which are deemed under the rules and regulations of the Commission under the Act not to be incorporated by reference; and any reference herein to the terms "amend," "amendment" or "supplement" with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act deemed to be incorporated therein by reference after the date of this Agreement. For purposes of this Agreement, "Effective Time" with respect to the Registration Statement means (A) if AirTouch has not advised the Representative that is proposes to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by the Commission or has become effective upon filing pursuant to Rule 462(c) under the Act, or (B) if AirTouch has advised the Representative that it proposes to file an amendment or post-effective amendment to such registration statement, the date and time as of which such registration statement, as amended by such amendment or post-effective amendment, as the case may be, is declared effective by the Commission. "Effective Date" with respect to the Registration Statement means the date of the Effective Time thereof. (b) At the Effective Time, the Registration Statement and the Prospectus conformed, and any amendments thereof and supplements thereto relating to the Designated Securities will conform, in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder; each document filed pursuant to the Exchange Act and incorporated by reference in the Prospectus complied when so filed as to form with the Exchange Act and the rules and regulations of the Commission thereunder; the Indenture conforms in all material respects to the requirements of the -2- 4 Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the rules and regulations of the Commission thereunder; and neither the Registration Statement on the Effective Date nor the Prospectus as of the date thereof and on the Closing Date included or will include any untrue statement of a material fact or omitted or will omit to state any material fact required to be stated therein or necessary to make the statements therein, in the case of the Registration Statement, not misleading, or in the case of the Prospectus, in light of the circumstances in which they were made, not misleading; provided, however, that AirTouch makes no representations as to (i) that part of the Registration Statement which shall constitute a Trustee's Statement of Eligibility and Qualifications (Form T-1) under the Trust Indenture Act and (ii) any statements or omissions made in reliance upon and in conformity with information furnished to AirTouch by or on behalf of any Underwriter for use in connection with the preparation of such documents. (c) Neither AirTouch nor any of its affiliates does business with the government of Cuba or with any person or affiliate located in Cuba within the meaning of Section 517.075, Florida Statutes. 3. Delivery and Payment. Delivery of and payment for the Designated Securities shall be made at the office of counsel for the Underwriters, on the date and at the time specified in the Underwriting Agreement (the "Closing Date"), which Closing Date may be postponed by agreement between the Underwriters, or the Representative, as the case may be, and AirTouch. Delivery of the Designated Securities shall be made to the Underwriters or, if appropriate, the Representative for the respective accounts of the Underwriters, in either case, against payment by the Underwriters directly or through the Representative of the purchase price thereof to or upon the order of AirTouch by certified or official bank check or checks payable in New York Clearing House funds, unless otherwise agreed in the Underwriting Agreement. Certificates for the Designated Securities shall be registered in such names and in such denominations as the Representative may request in writing not less than one full business day in advance of the Closing Date. If so requested by the Underwriters or the Representative, as the case may be, AirTouch agrees to have the Designated Securities available for inspection, checking and packaging in New York, New York, at least one business day prior to the Closing Date. 4. Offering by Underwriters. It is understood that the Underwriters propose to offer the Designated Securities for sale to the public upon the terms and conditions set forth in the Prospectus. 5. Agreements. AirTouch agrees with the Underwriters that: (a) AirTouch will cause the Prospectus Supplement to be filed pursuant to Rule 424 under the Act and will promptly advise the Underwriters or the Representative, as the case may be, when the Prospectus Supplement has been so filed, and prior to the termination of the offering of the Designated Securities will promptly advise such Underwriters or Representative (i) when any amendment to the Registration Statement has been declared effective or has become effective upon filing pursuant to Rule 462(c) under the Act or any further supplement to the Prospectus has been filed, (ii) of any request by the Commission for any amendment of the Registration Statement or the Prospectus or for any additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (iv) of the receipt by AirTouch of any notification with respect to the -3- 5 suspension of the qualification of the Designated Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. AirTouch will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. AirTouch will not file any amendment to the Registration Statement or supplement to the Prospectus relating to the Designated Securities unless it has furnished the Underwriters or the Representative, as the case may be, a copy prior to filing and will not file any such proposed amendment or supplement to which such Underwriters or Representative reasonably objects. (b) If, at any time when a prospectus relating to the Designated Securities is required to be delivered under the Act or any other applicable securities law, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, AirTouch will promptly notify the Underwriters or the Representative, as the case may be, and will promptly prepare and file with the Commission, subject to paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. (c) AirTouch will make generally available to its security holders and to the Underwriters or the Representative, as the case may be, as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of AirTouch during which the filing of the Prospectus Supplement pursuant to Rule 424 under the Act first occurs (except not later than 90 days if such filing date is in the last fiscal quarter), an earnings statement (which need not be audited) of AirTouch and its consolidated subsidiaries, covering such 12-month period, which will satisfy the provisions of Section 11 (a) of the Act. (d) AirTouch will furnish to the Underwriters or the Representative, as the case may be, and counsel for such Underwriters or for such Representative copies of the Registration Statement (including, if requested, the exhibits thereto and the documents incorporated by reference in the Prospectus) and each amendment or supplement thereto relating to the Designated Securities which is thereafter filed pursuant to paragraph (a) or (b) of this Section 5 and to each Underwriter, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act or other applicable securities laws, as many copies of the Prospectus and any amendments thereof and supplements thereto, relating to the Designated Securities, as such Underwriters or such Representative may reasonably request. (e) AirTouch will pay (i) all expenses incurred by it in the performance of its obligations under this Agreement, (ii) reasonable fees charged for rating the Designated Securities and for preparing a Blue Sky and Legal Investment Memorandum with respect to the sale of the Designated Securities and (iii) the expenses of printing or otherwise producing and delivering the Designated Securities, the documents specified in paragraph (d) of this Section 5 and any Blue Sky and Legal Investment Memorandum. (f) AirTouch will use its best efforts to arrange and pay for the qualification of the Designated Securities for sale under the laws of such jurisdictions -4- 6 as the Underwriters or the Representative, as the case may be, may designate and to maintain such qualifications in effect so long as required for the distribution of the Designated Securities; provided, however, that AirTouch shall not be required to qualify to do business in any jurisdiction where it is not now qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. (g) If the sale of the Designated Securities provided for in an Underwriting Agreement is not consummated by reason of any failure, refusal or inability on the part of AirTouch to perform any agreement on its part to be performed (except for any failure so to perform on the part of AirTouch engendered by a failure, refusal or inability on the part of the Underwriters or any Representative to perform any agreement on their part to be performed) or the failure of any condition set forth in Section 6, AirTouch will reimburse the several Underwriters who are named in such Underwriting Agreement for all reasonable out-of-pocket disbursements incurred by the Underwriters in connection with their investigation, marketing and preparing to market the Designated Securities, and upon such reimbursement AirTouch shall have no further liability to the Underwriters except as provided in Section 7. (h) During the period beginning on the date of this Agreement and terminating on the later of (i) the Closing Date or (ii) the date of notice to AirTouch by the Representative or the Underwriters (which shall not exceed forty-five days from the date of this Agreement), AirTouch will not offer, sell, contract to sell or otherwise dispose of any debt securities of AirTouch substantially similar to the Designated Securities covered by this Agreement, without the prior written consent of such Representative or such Underwriters. 6. Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Designated Securities shall be subject to the accuracy of the representations on the part of AirTouch contained herein as of the date hereof and the Closing Date, to the performance by AirTouch of its obligations hereunder and to the following additional conditions: (a) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted and be pending or threatened as of the Closing Date; (b) Pillsbury Madison & Sutro, counsel for AirTouch, shall have furnished to the Representative their opinion, dated the Closing Date, substantially in the form attached hereto as Exhibit A; (c) The Underwriters or the Representative, as the case may be, shall have received from counsel for the Underwriters such opinion or opinions, dated the Closing Date, with respect to such matters as such Underwriters or Representative may reasonably require; (d) AirTouch shall have furnished to the Underwriters or the Representative, as the case may be, a certificate, dated the Closing Date, of AirTouch, signed by any executive officer of AirTouch, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus and this Agreement and that: -5- 7 (1) The representations of AirTouch in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and AirTouch has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (2) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted and are pending or, to his or her knowledge, threatened as of such date; and (3) Since the date of the most recent financial statements included in the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of AirTouch and its consolidated subsidiaries, taken as a whole, nor any material increase in the debt of AirTouch and its consolidated subsidiaries, except as set forth in or contemplated by the Prospectus. (e) The Underwriters or the Representative, as the case may be, shall have received from [Coopers & Lybrand LLP][Price Waterhouse] a letter, dated the Closing Date, which letter shall be in form as may be agreed upon among such Underwriters or Representative, AirTouch and [Coopers & Lybrand LLP][Price Waterhouse], and shall cover such matters as may be reasonably requested by such Underwriters or Representative. (f) Prior to the Closing Date, AirTouch shall have furnished to the Underwriters or the Representative, as the case may be, such further information, certificates and documents as they may reasonably request. (g) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of AirTouch and its subsidiaries considered as a whole which the Underwriters or the Representative, as the case may be, concludes, in its judgment, after consultation with AirTouch, materially impairs the investment quality of the Designated Securities so as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Designated Securities as contemplated by the Prospectus and there shall not have been any decrease in the ratings of any of AirTouch's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act). 7. Indemnification and Contribution. (a) AirTouch agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter, and each person, if any, who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus, or in any amendment thereof or supplement thereto relating to the Designated Securities, or arise -6- 8 out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party for any legal or other expenses reasonably incurred by them, as so incurred, in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that AirTouch will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with information furnished in writing to AirTouch by or on behalf of any Underwriter through the Representative or the Underwriters, as the case may be, for use in connection with the preparation thereof. This indemnity agreement will be in addition to any liability which AirTouch may otherwise have. (b) Each Underwriter severally agrees to indemnify and hold harmless AirTouch, each of its directors, officers, employees and agents, and each person who controls AirTouch within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from AirTouch to each Underwriter, but only with reference to information furnished in writing to AirTouch by or on behalf of such Underwriter directly or through any Representative for use in the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. (c) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under this Section 7. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with counsel satisfactory to such indemnified party; provided that, if the defendants in any such action include both the indemnified party and the indemnifying party, and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel, to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 7 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel, approved by the representatives representing the indemnified parties who are parties to such action), (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in -7- 9 such clause (i) or (iii). An indemnifying party will not, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding. (d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in this Section 7 is due in accordance with its terms but is for any reason held by a court to be unavailable from AirTouch or the Underwriters on grounds of policy or otherwise, AirTouch and the Underwriters shall contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) to which AirTouch or one or more of the Underwriters may be subject in such proportion so that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount appearing on the cover page of the Prospectus bears to the public offering price appearing thereon and AirTouch is responsible for the balance; provided that (y) in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Designated Securities) be responsible for any amount in excess of the underwriting discount applicable to the Designated Securities purchased by such Underwriter hereunder and (z) no person guilty of fraudulent misrepresentation (within the meaning of Section 11 (f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act shall have the same rights to contribution as such Underwriter, and each person who controls AirTouch within the meaning of either the Act or the Exchange Act, each officer of AirTouch who shall have signed the Registration Statement and each director of AirTouch shall have the same rights to contribution as AirTouch, subject in each case to clause (y) of this paragraph (d). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this paragraph (d), notify such party or parties from whom contribution may be sought, but the omission to so notify in writing such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph (d). 8. Termination. This Agreement shall be subject to termination in the absolute discretion of the Underwriters or the Representative, as the case may be, by written notice given to AirTouch prior to delivery of and payment for the Designated Securities, if prior to such time (i) trading in AirTouch's Common Stock or securities generally on the New York Stock Exchange shall have been suspended or materially limited, (ii) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or New York State authorities or (iii) there shall have occurred any material outbreak or escalation of hostilities or other calamity or crisis the effect of which on the financial markets of the United States is such as to make it, in the reasonable judgment of such Underwriters or such Representative, impracticable or inadvisable to proceed with the offering or delivery of the Designated Securities as contemplated by the Prospectus and Prospectus Supplement. 9. Representations and Indemnities to Survive. The respective agreements, representations, indemnities and other statements of AirTouch, or its officers and of the Underwriters and/or any Representative set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter, AirTouch or any of the -8- 10 officers, directors or controlling persons referred to in Section 7 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 5(e) and 7 hereof shall survive the termination or cancellation of this Agreement. 10. Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any Designated Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount of Designated Securities set forth opposite their names in the appropriate schedule of the Underwriting Agreement bears to the aggregate amount of Designated Securities set forth opposite the names of all the remaining Underwriters) the Designated Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate amount of Designated Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the amount of Designated Securities set forth in the appropriate schedule of the Underwriting Agreement, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Designated Securities, and if such nondefaulting Underwriters do not purchase all the Designated Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or AirTouch. In the event of a default by any Underwriter as set forth in this Section 10, the Closing Date shall be postponed for such period, not exceeding seven days, as the Representative or Underwriters, as the case may be, shall determine in order that the required changes in the Registration Statement and the Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to AirTouch and any nondefaulting Underwriter for damages occasioned by its default hereunder. 11. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 7 hereof, and no other person will have any right or obligation hereunder. 12. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York. -9- 11 EXHIBIT A [FORM OF PILLSBURY MADISON & SUTRO OPINION] [Date] Underwriter(s) Gentlemen and Mesdames: We have acted as counsel to AirTouch Communications, Inc. ("AirTouch") in connection with your purchase from AirTouch of $000,000,000 of its Securities (the "Securities"). Such purchase is made pursuant to the Underwriting Agreement dated _________, 19_ (the "Underwriting Agreement") between AirTouch and you, the Underwriter[s]. This opinion is furnished pursuant to Section 6(b) of the Underwriting Agreement. Terms defined in the Indenture have the same meanings when used in this opinion. We have examined executed copies of the Securities, the Underwriting Agreement, the Registration Statement (as hereinafter defined) and the Prospectus (as hereinafter defined). We have also examined such other documents and certificates of public officials and representatives of AirTouch as we have deemed necessary as a basis for the opinions expressed herein. As to questions of fact material to such opinions, we have, when relevant facts were not independently established, relied upon certificates of officers or authorized representatives of AirTouch. We have assumed the genuineness of all signatures and documents submitted to us as originals, that all copies submitted to us conform to the originals, the legal capacity of all natural persons, and as to documents executed by entities other than AirTouch, that each of such entities has the power to enter into and perform its respective obligations thereunder, and that such documents have been duly authorized, executed and delivered by, and are binding upon and enforceable against, each of such entities. We express no opinion as to the laws of any jurisdiction other than California, New York and the general corporate law of Delaware and the Federal laws of the United States of America, and, with respect to questions of New York law, we have relied, with your permission, solely upon the opinion of [_________]. Based upon the foregoing and subject to the qualifications set forth below, it is our opinion that: 1. AirTouch is validly existing and in good standing under the laws of the State of Delaware and is duly qualified and in good standing to do business in each other state identified in Attachment 1 hereto and possesses the requisite corporate power and authority to own its properties and conduct its business consistent with any description thereof in the prospectus dated _________ and the prospectus supplement dated _________, filed with the Securities and Exchange Commission (the "Commission") pursuant to Rule 424(b)(2) of Regulation C under the Securities Act of 1933, as amended (the "Act") (the prospectus and the prospectus supplement, including the documents incorporated by reference therein, are herein collectively referred to as the "Prospectus"). 2. The Underwriting Agreement has been duly authorized, executed and delivered by AirTouch. 12 3. The Securities have been duly authorized, executed and delivered by AirTouch and when delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement will constitute valid and binding obligations of AirTouch, enforceable in accordance with their respective terms. 4. The Indenture has been duly authorized, executed and delivered, has been qualified under the Trust Indenture Act of 1939, as amended, and constitutes a valid and binding obligation of AirTouch, enforceable in accordance with its terms and when the Designated Securities have been executed and authenticated in accordance with the provisions of the Indenture they will be entitled to the benefits of the Indenture. 5. The Registration Statement on Form S-3 (File No. _________) filed by AirTouch with the Commission under Rule 415 of the Act on _________, 1995 (such Registration Statement including the documents incorporated by reference therein being herein collectively referred to as the "Registration Statement") has become effective under the Act, and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and, except as may be otherwise indicated in the Prospectus or required by the blue sky or securities laws of jurisdictions in which the Securities are offered or Securities or the offer and sale of the Securities as described in the Prospectus, and the execution, delivery and performance of the terms of the Underwriting Agreement, the Indenture and the Securities by AirTouch will not contravene any provision of the Restated Certificate of Incorporation, as amended, or By-Laws of AirTouch, any Federal law or regulation or, to the best of our knowledge, any applicable state law or any material agreement or instrument binding upon AirTouch. 6. No consent, approval, authorization or order of, or filing with, any governmental agency or body or any federal or state court is required to be obtained or made by AirTouch for the consummation of the transactions contemplated by this Agreement in connection with the sale of the Designated Securities, except (A) such as have been obtained and made under the Act or the Exchange Act, or the rules and regulations thereunder, the bylaws and rules of the National Association of Securities Dealers, Inc. and (B) such as may be required under state or foreign securities laws. 7. To the best of our knowledge, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving AirTouch or any of its subsidiaries of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus or supplement relating thereto. 8. The Registration Statement and the Prospectus comply as to form in all material respects with the requirements of the Act and the rules and regulations of the Commission thereunder; each document filed by AirTouch under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference in the Prospectus complied as to form in all material respects when so filed with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; the statements in the Prospectus with respect to the terms of the Securities fairly summarize the terms of such instruments and to the best of our knowledge there are no other agreements or instruments required to be described or referred to in the Registration Statement which have not been described or referred to therein; and while we have not ourselves checked the accuracy or completeness of, or otherwise verified the information furnished in the Registration Statement, we have considered the information required to be furnished therein and have generally reviewed and had discussions with certain officers and employees of AirTouch concerning the information so furnished, whether or not subject to our checking and verification, and on the basis of such consideration, review and discussions, but without independent checking or verification, we have no reason to believe that the 13 Registration Statement or any amendment thereto at the time the Registration Statement or amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or the Prospectus or any supplement thereto at the time it was filed pursuant to Rule 424(b) of the Act, or on such Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading; it being understood that with respect to the matters covered by this paragraph 8, we express no opinion as to the financial statements and related schedules and other financial, statistical or numerical data contained in the Registration Statement or the Prospectus. The opinions set forth in the foregoing are subject to the following qualifications: (a) Our opinions in paragraph 3 and 4 are subject to and limited by: (i) the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium or other laws affecting or relating to the rights of creditors generally; (ii) the rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law; (iii) to the extent applicable, the effect of court decisions invoking statutes or principles of equity, which have held that certain covenants and provisions of agreements are unenforceable where the breach of such covenants or provisions imposes restrictions or burdens is necessary for the protection of the creditor, or which have held that the creditor's enforcement of such covenants or provisions under the circumstances would have violated the creditor's covenants of good faith and fair dealing implied under California law, and (iv) to the extent applicable, the effect of California statutes and rules of law which cannot be waived prospectively by a borrower. (b) Whenever a statement herein is qualified by "known to us", "to our knowledge" or similar phrase, it indicates that in the course of our representation of AirTouch no information that would give us current actual knowledge of the inaccuracy of such statement has come to the attention of the attorneys in this firm who have rendered legal services in connection with this transaction, including the principal partners of this firm who are familiar with matters relating to AirTouch. We have not made any independent investigation to determine the accuracy of such statement, except as expressly described herein. No inference as to our knowledge of any matters bearing on the accuracy of such statement should be drawn from the fact of our representation of AirTouch in other matters in which such attorneys are not involved. This opinion is rendered by us as counsel for AirTouch solely for your benefit in connection with the transaction referred to herein and may not be relied upon by you in connection with any other transaction and may not be relied upon by any other person without our prior written consent. Very truly yours, EX-1.2 3 UNDERWRITING AGREEMENT-EQUITY SECURITIES 1 EXHIBIT 1.2 ================================================================================ AIRTOUCH COMMUNICATIONS, INC. EQUITY SECURITIES _________ UNDERWRITING AGREEMENT STANDARD PROVISIONS ================================================================================ 2 AIRTOUCH COMMUNICATIONS, INC. EQUITY SECURITIES _________ UNDERWRITING AGREEMENT STANDARD PROVISIONS From time to time, AirTouch Communications, Inc., a Delaware corporation ("AirTouch"), may enter into one or more underwriting agreements that provide for the sale of certain equity securities (the "Securities"), to the purchaser or purchasers named therein (the "Underwriters"). The standard provisions set forth herein may be incorporated by reference in any such underwriting agreement (the "Underwriting Agreement"). The Underwriting Agreement, including the provisions incorporated therein by reference, is herein referred to as "this Agreement." Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. Capitalized terms not otherwise defined in this Agreement shall have the meaning ascribed thereto in the Indenture (as hereinafter defined). The terms governing of the issuance and sale of any particular series of Securities shall be as provided in the applicable Underwriting Agreement (with respect to each Underwriting Agreement, such series of Securities are herein referred to as the "Designated Securities"). 1. Issuance of Designated Securities. Sales of the Designated Securities may be made from time to time to the Underwriters of the Designated Securities. Any firm or firms designated as the representative or representatives, as the case may be, of the Underwriters of the Designated Securities in the Underwriting Agreement relating thereto will act as the representative or representatives (the "Representative"). The obligation of AirTouch to issue and sell any of the Designated Securities and the obligation of any Underwriters to purchase any of the Designated Securities shall be evidenced by the Underwriting Agreement with respect to the Designated Securities specified therein. Each Underwriting Agreement shall specify the aggregate principal amount of the Designated Securities, the public offering price of the Designated Securities, the purchase price to the Underwriters of the Designated Securities, the names of the Underwriters of the Designated Securities, the name of the Representative, if any, of such Underwriters, and the principal amount of the Designated Securities to be purchased by each Underwriter and shall set forth the date, time and manner of delivery of the Designated Securities and payment therefor. The Underwriting Agreement shall also specify, to the extent not set forth in the Registration Statement and Prospectus (as hereinafter defined) with respect thereto, the general terms of the Designated Securities. An Underwriting Agreement shall be in writing (which may be in counterparts), and may be evidenced by an exchange of facsimile transmissions. The obligations of the Underwriters under each Underwriting Agreement shall be several and not joint. -1- 3 2. Representations and Covenants. AirTouch represents to, and covenants with, each Underwriter that: (a) AirTouch meets the requirements for the use of Form S-3 and a registration statement on Form S-3 (Registration No. 33-__), including a prospectus, relating to the Securities of AirTouch has been filed with the Securities and Exchange Commission (the "Commission") in accordance with applicable regulations of the Commission under the Securities Act of 1933, as amended (the "Act"), and has been declared effective under the Act. Such registration statement, as amended to the date of this Agreement, is hereinafter referred to as the "Registration Statement," and such prospectus as proposed to be supplemented by a prospectus supplement (the "Prospectus Supplement") relating to the Designated Securities to be filed pursuant to Rule 424 under the Act is hereinafter referred to as the "Prospectus." Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement, and incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3, excluding any documents or portions of such documents which are deemed under the rules and regulations of the Commission under the Act not to be incorporated by reference; and any reference herein to the terms "amend," "amendment" or "supplement" with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act deemed to be incorporated therein by reference after the date of this Agreement. For purposes of this Agreement, "Effective Time" with respect to the Registration Statement means (A) if AirTouch has not advised the Representative that is proposes to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by the Commission or has become effective upon filing pursuant to Rule 462(c) under the Act, or (B) if AirTouch has advised the Representative that it proposes to file an amendment or post-effective amendment to such registration statement, the date and time as of which such registration statement, as amended by such amendment or post-effective amendment, as the case may be, is declared effective by the Commission. "Effective Date" with respect to the Registration Statement means the date of the Effective Time thereof. (b) At the Effective Time, the Registration Statement and the Prospectus conformed, and any proposed amendments thereof and supplements thereto relating to the -2- 4 Designated Securities will conform, in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder; each document filed pursuant to the Exchange Act and incorporated by reference in the Prospectus complied when so filed as to form with the Exchange Act and the rules and regulations of the Commission thereunder; on the Effective Date neither the Registration Statement nor the Prospectus as of the date thereof and on the Closing Date included or will include any untrue statement of a material fact or omitted or will omit to state any material fact required to be stated therein or necessary to make the statements therein, in the case of the Registration Statement, not misleading, or in the case of the Prospectus, in light of the circumstances in which they were made, not misleading; provided, however, that AirTouch makes no representations as to any statements or omissions made in reliance upon and in conformity with information furnished to AirTouch by or on behalf of any Underwriter for use in connection with the preparation of such documents. (c) Neither AirTouch nor any of its affiliates does business with the government of Cuba or with any person or affiliate located in Cuba within the meaning of Section 517.075, Florida Statutes. 3. Delivery and Payment. Delivery of and payment for the Designated Securities shall be made at the office of counsel to the Underwriters, on the date and at the time specified in the Underwriting Agreement (the "Closing Date"), which Closing Date may be postponed by agreement between the Underwriters, or the Representative, as the case may be, and AirTouch. Delivery of the Designated Securities shall be made to the Underwriters or, if appropriate, the Representative for the respective accounts of the Underwriters, in either case, against payment by the Underwriters directly or through the Representative of the purchase price thereof to or upon the order of AirTouch by certified or official bank check or checks payable in New York Clearing House funds, unless otherwise agreed in the Underwriting Agreement. Certificates for the Designated Securities shall be registered in such names and in such denominations as the Representative may request in writing not less than one full business day in advance of the Closing Date. If so requested by the Underwriters or the Representative, as the case may be, AirTouch agrees to have the Designated Securities available for inspection, checking and packaging in New York, New York, at least one business day prior to the Closing Date. 4. Offering by Underwriters. It is understood that the Underwriters propose to offer the Designated Securities for sale to the public upon the terms and conditions set forth in the Prospectus. 5. Agreements. AirTouch agrees with the Underwriters that: (a) AirTouch will cause the Prospectus Supplement to be filed pursuant to Rule 424 under the Act and will promptly advise the Underwriters or the Representative, as the case may be, when the Prospectus Supplement has been so filed, and prior to the termination of the offering of the Designated Securities will promptly advise such Underwriters or Representative (i) when any amendment to the Registration Statement has been declared effective or has become effective upon filing pursuant to Rule 462(c) under the Act or any further supplement to the Prospectus has been filed, (ii) of any request by the Commission for any amendment of the Registration Statement or the Prospectus or for any additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that -3- 5 purpose and (iv) of the receipt by AirTouch of any notification with respect to the suspension of the qualification of the Designated Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. AirTouch will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. AirTouch will not file any amendment to the Registration Statement or supplement to the Prospectus relating to the Designated Securities unless it has furnished the Underwriters or the Representative, as the case may be, a copy prior to filing and will not file any such proposed amendment or supplement to which such Underwriters or Representative reasonably objects. (b) If, at any time when a prospectus relating to the Designated Securities is required to be delivered under the Act or any other applicable securities law, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, AirTouch will promptly notify the Underwriters or the Representative, as the case may be, and will promptly prepare and file with the Commission, subject to paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. (c) AirTouch will make generally available to its security holders and to the Underwriters or the Representative, as the case may be, as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of AirTouch during which the filing of the Prospectus Supplement pursuant to Rule 424 under the Act first occurs (except not later than 90 days if such filing date is in the last fiscal quarter), an earnings statement (which need not be audited) of AirTouch and its consolidated subsidiaries, covering such 12-month period, which will satisfy the provisions of Section 11 (a) of the Act. (d) AirTouch will furnish to the Underwriters or the Representative, as the case may be, and counsel for such Underwriters or for such Representative copies of the Registration Statement (including, if requested, the exhibits thereto and the documents incorporated by reference in the Prospectus) and each amendment or supplement thereto relating to the Designated Securities which is thereafter filed pursuant to paragraph (a) or (b) of this Section 5 and to each Underwriter, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act or other applicable securities laws, as many copies of the Prospectus and any amendments thereof and supplements thereto, relating to the Designated Securities, as such Underwriters or such Representative may reasonably request. (e) AirTouch will pay (i) all expenses incurred by it in the performance of its obligations under this Agreement, (ii) reasonable fees charged for rating the Designated Securities and for preparing a Blue Sky and Legal Investment Memorandum with respect to the sale of the Designated Securities and (iii) the expenses of printing or otherwise producing and delivering the Designated Securities, the documents specified in paragraph (d) of this Section 5 and any Blue Sky and Legal Investment Memorandum. -4- 6 (f) AirTouch will use its best efforts to arrange and pay for the qualification of the Designated Securities for sale under the laws of such jurisdictions as the Underwriters or the Representative, as the case may be, may designate and to maintain such qualifications in effect so long as required for the distribution of the Designated Securities; provided, however, that AirTouch shall not be required to qualify to do business in any jurisdiction where it is not now qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. (g) If the sale of the Designated Securities provided for in an Underwriting Agreement is not consummated by reason of any failure, refusal or inability on the part of AirTouch to perform any agreement on its part to be performed (except for any failure so to perform on the part of AirTouch engendered by a failure, refusal or inability on the part of the Underwriters or any Representative to perform any agreement on their part to be performed) or the failure of any condition set forth in Section 6, AirTouch will reimburse the several Underwriters who are named in such Underwriting Agreement for all reasonable out-of-pocket disbursements incurred by the Underwriters in connection with their investigation, marketing and preparing to market the Designated Securities, and upon such reimbursement AirTouch shall have no further liability to the Underwriters except as provided in Section 7. (h) During the period beginning on the date of this Agreement and terminating on the later of (i) the Closing Date or (ii) the date of notice to AirTouch by the Representative or the Underwriters, (which shall not exceed forty-five days from the date of this Agreement), AirTouch will not offer, sell, contract to sell or otherwise dispose of any Designated Securities of AirTouch, or securities convertible into or exchangeable for Designated Securities, without the prior written consent of such Representative or such Underwriters. 6. Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Designated Securities shall be subject to the accuracy of the representations on the part of AirTouch contained herein as of the date hereof and the Closing Date, to the performance by AirTouch of its obligations hereunder and to the following additional conditions: (a) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted and be pending or threatened as of the Closing Date; (b) Pillsbury Madison & Sutro, counsel for AirTouch, shall have furnished to the Representative their opinion, dated the Closing Date, substantially in the form attached hereto as Exhibit A; (c) The Underwriters or the Representative, as the case may be, shall have received from counsel for the Underwriters such opinion or opinions, dated the Closing Date, with respect to such matters as such Underwriters or Representative may reasonably require; (d) AirTouch shall have furnished to the Underwriters or the Representative, as the case may be, a certificate, dated the Closing Date, of AirTouch, -5- 7 signed by any executive officer of AirTouch, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus and this Agreement and that: (1) The representations of AirTouch in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and AirTouch has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (2) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted and are pending or, to his or her knowledge, threatened as of such date; and (3) Since the date of the most recent financial statements included in or incorporated by reference into the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of AirTouch and its consolidated subsidiaries, taken as a whole. (e) The Underwriters or the Representative, as the case may be, shall have received from [Coopers & Lybrand LLP][Price Waterhouse] a letter, dated the Closing Date, which letter shall be in form as may be agreed upon among such Underwriters or Representative, AirTouch and [Coopers & Lybrand LLP][Price Waterhouse], and shall cover such matters as may be reasonably requested by such Underwriters or Representative. (f) Prior to the Closing Date, AirTouch shall have furnished to the Underwriters or the Representative, as the case may be, such further information, certificates and documents as they may reasonably request. (g) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of AirTouch and its subsidiaries considered as a whole which the Underwriters or the Representative, as the case may be, concludes, in its judgment, after consultation with AirTouch, materially impairs the investment quality of the Designated Securities so as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Designated Securities as contemplated by the Prospectus and there shall not have been any decrease in the ratings of any of AirTouch's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act). 7. Indemnification and Contribution. (a) AirTouch agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter, and each person, if any, who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under -6- 8 the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus, or in any amendment thereof or supplement thereto relating to the Designated Securities, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party for any legal or other expenses reasonably incurred by them, as so incurred, in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that AirTouch will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with information furnished in writing to AirTouch by or on behalf of any Underwriter through the Representative or the Underwriters, as the case may be, for use in connection with the preparation thereof. This indemnity agreement will be in addition to any liability which AirTouch may otherwise have. (b) Each Underwriter severally agrees to indemnify and hold harmless AirTouch, each of its directors, officers, employees and agents, and each person who controls AirTouch within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from AirTouch to each Underwriter, but only with reference to information furnished in writing to AirTouch by or on behalf of such Underwriter directly or through any Representative for use in the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. (c) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under this Section 7. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with counsel satisfactory to such indemnified party; provided that, if the defendants in any such action include both the indemnified party and the indemnifying party, and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel, to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 7 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel, approved by the representatives representing the indemnified parties who are parties to such action), (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or -7- 9 (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii). An indemnifying party will not, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding. (d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in this Section 7 is due in accordance with its terms but is for any reason held by a court to be unavailable from AirTouch or the Underwriters on grounds of policy or otherwise, AirTouch and the Underwriters shall contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) to which AirTouch or one or more of the Underwriters may be subject in such proportion so that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount appearing on the cover page of the Prospectus bears to the public offering price appearing thereon and AirTouch is responsible for the balance; provided that (y) in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Designated Securities) be responsible for any amount in excess of the underwriting discount applicable to the Designated Securities purchased by such Underwriter hereunder and (z) no person guilty of fraudulent misrepresentation (within the meaning of Section 11 (f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act shall have the same rights to contribution as such Underwriter, and each person who controls AirTouch within the meaning of either the Act or the Exchange Act, each officer of AirTouch who shall have signed the Registration Statement and each director of AirTouch shall have the same rights to contribution as AirTouch, subject in each case to clause (y) of this paragraph (d). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this paragraph (d), notify such party or parties from whom contribution may be sought, but the omission to so notify in writing such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph (d). 8. Termination. This Agreement shall be subject to termination in the absolute discretion of the Underwriters or the Representative, as the case may be, by written notice given to AirTouch prior to delivery of and payment for the Designated Securities, if prior to such time (i) trading in AirTouch's Common Stock or securities generally on the New York Stock Exchange shall have been suspended or materially limited, (ii) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or New York State authorities or (iii) there shall have occurred any material outbreak or escalation of hostilities or other calamity or crisis the effect of which on the financial markets of the United States is such as to make it, in the reasonable judgment of such Underwriters or such Representative, impracticable or inadvisable to proceed with the offering or delivery of the Designated Securities as contemplated by the Prospectus and Prospectus Supplement. 9. Representations and Indemnities to Survive. The respective agreements, representations, indemnities and other statements of AirTouch, or its officers and of the Underwriters and/or any -8- 10 Representative set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter, AirTouch or any of the officers, directors or controlling persons referred to in Section 7 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 5(e) and 7 hereof shall survive the termination or cancellation of this Agreement. 10. Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any Designated Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount of Designated Securities set forth opposite their names in the appropriate schedule of the Underwriting Agreement bears to the aggregate amount of Designated Securities set forth opposite the names of all the remaining Underwriters) the Designated Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate amount of Designated Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the amount of Designated Securities set forth in the appropriate schedule of the Underwriting Agreement, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Designated Securities, and if such nondefaulting Underwriters do not purchase all the Designated Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or AirTouch. In the event of a default by any Underwriter as set forth in this Section 10, the Closing Date shall be postponed for such period, not exceeding seven days, as the Representative or Underwriters, as the case may be, shall determine in order that the required changes in the Registration Statement and the Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to AirTouch and any nondefaulting Underwriter for damages occasioned by its default hereunder. 11. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 7 hereof, and no other person will have any right or obligation hereunder. 12. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York. -9- 11 EXHIBIT A [FORM OF PILLSBURY MADISON & SUTRO OPINION] [Date] Underwriter(s) Gentlemen and Mesdames: We have acted as counsel to AirTouch Communications, Inc. ("AirTouch") in connection with your purchase from AirTouch of $000,000,000 of its Securities (the "Securities"). Such purchase is made pursuant to the Underwriting Agreement dated _________, 19_ (the "Underwriting Agreement") between AirTouch and you, the Underwriter[s]. This opinion is furnished pursuant to Section 6(b) of the Underwriting Agreement. Terms defined in the Indenture have the same meanings when used in this opinion. We have examined executed copies of the Securities, the Underwriting Agreement, the Registration Statement (as hereinafter defined) and the Prospectus (as hereinafter defined). We have also examined such other documents and certificates of public officials and representatives of AirTouch as we have deemed necessary as a basis for the opinions expressed herein. As to questions of fact material to such opinions, we have, when relevant facts were not independently established, relied upon certificates of officers or authorized representatives of AirTouch. We have assumed the genuineness of all signatures and documents submitted to us as originals, that all copies submitted to us conform to the originals, the legal capacity of all natural persons, and as to documents executed by entities other than AirTouch, that each of such entities has the power to enter into and perform its respective obligations thereunder, and that such documents have been duly authorized, executed and delivered by, and are binding upon and enforceable against, each of such entities. We express no opinion as to the laws of any jurisdiction other than California, New York and the general corporate law of Delaware and the Federal laws of the United States of America, and, with respect to questions of New York law, we have relied, with your permission, solely upon the opinion of [_________]. Based upon the foregoing and subject to the qualifications set forth below, it is our opinion that: 1. AirTouch is validly existing and in good standing under the laws of the State of Delaware and is duly qualified and in good standing to do business in each other state identified in Attachment 1 hereto and possesses the requisite corporate power and authority to own its properties and conduct its business consistent with any description thereof in the prospectus dated _________ and the prospectus supplement dated _________, filed with the Securities and Exchange Commission (the "Commission") pursuant to Rule 424(b)(2) of Regulation C under the Securities Act of 1933, as amended (the "Act") (the prospectus and the prospectus supplement, including the documents incorporated by reference therein, are herein collectively referred to as the "Prospectus"). 2. The Underwriting Agreement has been duly authorized, executed and delivered by AirTouch. 12 3. The [Common/Preferred] Stock has been duly authorized and validly issued, and when paid for in accordance with the terms of the Underwriting Agreement, will be fully paid and nonassessable and/or the [Securities] have been duly authorized, executed and delivered by AirTouch and constitute valid and binding obligations of AirTouch, enforceable in accordance with their terms. 4. The Registration Statement on Form S-3 (File No. _________) filed by AirTouch with the Commission under Rule 415 of the Act on _________, 1995 (such Registration Statement including the documents incorporated by reference therein being herein collectively referred to as the "Registration Statement") has become effective under the Act, and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and, except as may be otherwise indicated in the Prospectus or required by the blue sky or securities laws of jurisdictions in which the Securities are offered or Securities or the offer and sale of the Securities as described in the Prospectus, and the execution, delivery and performance of the terms of the Underwriting Agreement, the Indenture and the Securities by AirTouch will not contravene any provision of the Restated Certificate of Incorporation, as amended, or By-Laws of AirTouch, any Federal law or regulation or, to the best of our knowledge, any applicable state law or any material agreement or instrument binding upon AirTouch. 5. No consent, approval, authorization or order of, or filing with, any governmental agency or body or any federal or state court is required to be obtained or made by AirTouch for the consummation of the transactions contemplated by this Agreement in connection with the sale of the Designated Securities, except (A) such as have been obtained and made under the Act or the Exchange Act, or the rules and regulations thereunder, the bylaws and rules of the National Association of Securities Dealers, Inc. and (B) such as may be required under state or foreign securities laws. 6. To the best of our knowledge, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving AirTouch or any of its subsidiaries of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus or supplement relating thereto. 7. The Registration Statement and the Prospectus comply as to form in all material respects with the requirements of the Act and the rules and regulations of the Commission thereunder; each document filed by AirTouch under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference in the Prospectus complied as to form in all material respects when so filed with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; the statements in the Prospectus with respect to the terms of the Securities fairly summarize the terms of such instruments and to the best of our knowledge there are no other agreements or instruments required to be described or referred to in the Registration Statement which have not been described or referred to therein; and while we have not ourselves checked the accuracy or completeness of, or otherwise verified the information furnished in the Registration Statement, we have considered the information required to be furnished therein and have generally reviewed and had discussions with certain officers and employees of AirTouch concerning the information so furnished, whether or not subject to our checking and verification, and on the basis of such consideration, review and discussions, but without independent checking or verification, we have no reason to believe that the Registration Statement or any amendment thereto at the time the Registration Statement or amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or the Prospectus or any supplement thereto at the time it was filed pursuant to Rule 424(b) of the Act, or on such Closing Date, contained any untrue statement of a material fact or omitted to state any material 13 fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading; it being understood that with respect to the matters covered by this paragraph 7, we express no opinion as to the financial statements and related schedules and other financial, statistical or numerical data contained in the Registration Statement or the Prospectus. The opinions set forth in the foregoing are subject to the following qualifications: (a) Our opinions in paragraph 3 are subject to and limited by: (i) the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium or other laws affecting or relating to the rights of creditors generally; (ii) the rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law; (iii) to the extent applicable, the effect of court decisions invoking statutes or principles of equity, which have held that certain covenants and provisions of agreements are unenforceable where the breach of such covenants or provisions imposes restrictions or burdens is necessary for the protection of the creditor, or which have held that the creditor's enforcement of such covenants or provisions under the circumstances would have violated the creditor's covenants of good faith and fair dealing implied under California law, and (iv) to the extent applicable, the effect of California statutes and rules of law which cannot be waived prospectively by a borrower. (b) Whenever a statement herein is qualified by "known to us", "to our knowledge" or similar phrase, it indicates that in the course of our representation of AirTouch no information that would give us current actual knowledge of the inaccuracy of such statement has come to the attention of the attorneys in this firm who have rendered legal services in connection with this transaction, including the principal partners of this firm who are familiar with matters relating to AirTouch. We have not made any independent investigation to determine the accuracy of such statement, except as expressly described herein. No inference as to our knowledge of any matters bearing on the accuracy of such statement should be drawn from the fact of our representation of AirTouch in other matters in which such attorneys are not involved. This opinion is rendered by us as counsel for AirTouch solely for your benefit in connection with the transaction referred to herein and may not be relied upon by you in connection with any other transaction and may not be relied upon by any other person without our prior written consent. Very truly yours, EX-4.6 4 FORM OF AMENDED AND RESTATED DECLARATION OF TRUST 1 EXHIBIT 4.6 =============================================================================== FORM OF AMENDED AND RESTATED DECLARATION OF TRUST ATI FINANCING() Dated as of __________, 199( ) =============================================================================== 2 CROSS-REFERENCE TABLE(*)
Section of Trust Indenture Act Section of of 1939, as amended Declaration - -------------------- 310(a)............................................. 5.3(a) 310(b)............................................. 5.3(d) 310(c)............................................. Inapplicable 311(a)............................................. 2.2(b) 311(b)............................................. 2.2(b) 311(c)............................................. Inapplicable 312(a)............................................. 2.2(a) 312(b)............................................. 2.2(c) 312(c) ............................................ 2.2(d) 313................................................ 2.3 314(a)............................................. 2.4 314(b)............................................. Inapplicable 314(c)............................................. 2.5 314(d)............................................. Inapplicable 314(e) ............................................ 2.4 314(f)............................................. Inapplicable 315(a)............................................. 3.9(b) 315(c)............................................. 3.9(a) 315(d)............................................. 3.9(b) 315(e)............................................. 2.6(d) 316(a)............................................. Exhibit A, 2.6 315(b)............................................. 2.8 316(b)............................................. 2.6(e) 316(c)............................................. 3.6(e) 317(a)............................................. 3.8(g) 317(b)............................................. 3.8(h) 318(a)............................................. 2.1(c) 318(b)............................................. Inapplicable 318(c)............................................. 2.1(c)
- ----------------- (*) This Cross-Reference Table does not constitute part of the Declaration and shall not affect the interpretation of any of its terms or provisions. -2- 3 AMENDED AND RESTATED DECLARATION OF TRUST OF ATI FINANCING ( ) _____ __, 199( ) AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and effective as of , 199( ) by the undersigned trustees (together with all other Persons from time to time duly appointed and serving as trustees in accordance with the provisions of this Declaration, collectively the "Trustees"), AirTouch Communications, Inc., a Delaware corporation, as trust sponsor, and by the holders, from time to time, of undivided beneficial interests in the Trust to be issued pursuant to this Declaration; WHEREAS, the Trustees and the sponsor established a trust (the "Trust") under the Delaware Business Trust Act pursuant to a Declaration of Trust, dated as of , 199( ) (the "Original Declaration") and a Certificate of Trust filed with the Secretary of State of Delaware on , 199( ), for the sole purpose of issuing and selling certain securities representing undivided beneficial interests in the assets of the Trust and investing the proceeds thereof in certain Subordinated Notes of the Subordinated Note Issuer; WHEREAS, as of the date hereof, no interests in the Trust have been issued; WHEREAS, all of the Trustees and the sponsor, by this Declaration, amend and restate each and every term and provision of the Original Declaration; and NOW, THEREFORE, it being the intention of the parties hereto to continue the Trust as a business trust under the Business Trust Act and that this Declaration constitute the governing instrument of such business trust, the Trustees declare that all assets contributed to the Trust will be held in trust for the benefit of the holders, from time to time, of the securities representing undivided beneficial interests in the assets of the Trust issued hereunder, subject to the provisions of this Declaration. ARTICLE I INTERPRETATION AND DEFINITIONS 1.1 DEFINITIONS (a) Capitalized terms used in this Declaration but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1; (b) A term defined anywhere in this Declaration has the same meaning throughout; (c) All references to "the Declaration" or "this Declaration" are to this Declaration of Trust as modified, supplemented or amended from time to time; (d) All references in this Declaration to Articles and Sections and Exhibits are to Articles and Sections of and Exhibits to this Declaration unless otherwise specified; -1- 4 (e) A term defined in the Trust Indenture Act has the same meaning when used in this Declaration unless otherwise defined in this Declaration or unless the context otherwise requires; and (f) A reference to the singular includes the plural and vice versa. "Affiliate" has the same meaning as given to that term in Rule 405 of the Securities Act or any successor rule thereunder. "Appointment Event" means an event defined in the terms of the Preferred Securities as set forth in Exhibit A, as such Exhibit A may be amended in accordance with the terms of this Declaration, which entitles the Holders of a Majority in Liquidation Amount of the Preferred Securities to appoint a Special Regular Trustee. "Authorized Officer" of a Person means any Person that is authorized to bind such Person. "Bankruptcy" means, with respect to an entity, (a) the entry by a court having jurisdiction in the premises of a decree or order for relief in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidation, assignee, custodian, trustee, sequestration (or similar official) of such entity or for any substantial party of its property, or ordering the winding up or liquidation of its affairs, if such decree or order shall remain unstayed and in effect for a period of 60 consecutive days or (b) the commencement by such entity of a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or such entity's consent to the entry of an order for relief in any involuntary case under any such law, or its consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestration (or similar official) of such entity or for any substantial part of its property, or the making by such entity of any general assignment for the benefit of creditors, or its failure generally to pay its debts as they become due or the taking by such entity of any corporate action in furtherance of any of the foregoing "Business Day" means any day other than a day on which banking institutions in New York, New York are authorized or required by law to close. "Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 DEL. C. Sections 3801 et seq., as it may be amended from time to time. "Closing Date" means ____, 199( ). "Code" means the Internal Revenue Code of 1986, as amended, and as may be amended from time to time after the date hereof. "Commission" means the Securities and Exchange Commission. "Common Securities Guarantee" means the guarantee agreement dated as of , 199( ) of the Sponsor in respect of the Common Securities. "Common Security" has the meaning specified in Section 7.1. "Covered Person" means: (a) any officer, director, shareholder, partner, member, representative, employee or agent of: -2- 5 (i) the Trust; or (ii) the Trust's Affiliates; and (b) any Holder of Securities. "Delaware Trustee" has the meaning set forth in Section 5.2. "Depositary" means DTC or its successor. "Direction" by a Person means a written direction signed: (a) if the Person is a natural person, by that Person; or (b) in any other case, in the name of such Person by one or more Authorized Officers of that Person. "Distribution" means a distribution payable to Holders of Securities in accordance with Section 6.1. "DTC" means the Depositary Trust Company, the initial Depositary. "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time or any successor legislation. "Event of Default" in respect of the Securities means an Event of Default (as defined in the Indenture) has occurred and is continuing in respect of the Subordinated Notes. "Global Preferred Security" means a certificate representing all or a portion of the Preferred Securities issued hereunder, as the case may be, and delivered to the Depositary in accordance with Section 9.4 and bearing the legend set forth in Section 9.4. "Holder" means a Person in whose name a Security is registered, such Person being a beneficial owner within the meaning of the Business Trust Act. "Indemnified Person" means: (a) any Trustee; (b) any Affiliate of any Trustee; (c) any officers, directors, shareholders, members, partners, employees, representatives or agents of any Trustee; or (d) any employee or agent of the Trust or its Affiliates. "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. -3- 6 "Investment Company" means an investment company as defined in the Investment Company Act. "Investment Company Act" means the Investment Company Act of 1940, as amended from time to time or any successor legislation. "Legal Action" has the meaning set forth in Section 3.6(g). "Liquidation Amount" means, with respect to a Preferred Security, $_______. "Ministerial Action" has the meaning set forth in the terms of the Securities as set forth in Exhibit A, as such exhibit may be amended or modified in accordance with this Declaration. "Majority in Liquidation Amount of the Securities" means, except as provided in the terms of the Preferred Securities and by the Trust Indenture Act, Holder(s) of Securities voting together as a single class or, as the context may require, Holder(s) of Preferred Securities or Common Securities voting separately as a class, who vote Securities of a relevant class and the aggregate Liquidation Amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of the Securities voted by such Holders represents more than 50% of the above stated Liquidation Amount of all Securities of such class. In determining whether the Holders of the requisite amount of Preferred Securities have voted, Preferred Securities which are owned by the Sponsor, 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. "Officer's Certificate" means, with respect to any Person, a certificate signed by an Authorized Officer of such Person. To the extent required by the Trust Indenture Act, any Officer's Certificate delivered with respect to compliance with a condition or covenant provided for in this Declaration shall include: (a) a statement that the officer signing the Certificate has read the covenant or condition and the definition relating thereto; (b) a brief statement of the nature and scope of the examination or investigation on which the statements or opinions contained in such Certificate are based; (c) a statement that, in the opinion of such officer, he or she has made such examination or investigation as is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of such officer, such condition or covenant has been complied with. "Paying Agent" has the meaning specified in Section 3.8(h). "Person" means 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 Securities Guarantee" means the guarantee agreement to be dated as of , 199( ) of the Sponsor in respect of the Preferred Securities. -4- 7 "Preferred Security" has the meaning specified in Section 7.1. "Pricing Agreement" means the pricing agreement between the Trust, the Subordinated Note Issuer, and the underwriter(s) designated by the Regular Trustees with respect to the offer and sale of the Preferred Securities. "Property Trustee" means the Trustee meeting the eligibility requirements set forth in Section 5.3. "Property Trustee Account" has the meaning set forth in Section 3.8(c). "Pro Rata" shall have the meaning accorded such term in paragraph 8 of Exhibit A, as such Exhibit A may be amended from time to time in accordance with this Declaration. "Quorum" means a majority of the Regular Trustees or if there are only two Regular Trustees, both of them. "Register" means the books for the registration and transfer of Securities which books are kept by the Trustee in accordance with Section 9.2. "Regular Trustee" means any Trustee other than the Property Trustee and the Delaware Trustee. "Related Party" means, with respect to the Sponsor, any direct or indirect wholly owned subsidiary of the Sponsor or any other Person which owns, directly or indirectly, 100% of the outstanding voting securities of the Sponsor. "Responsible Officer" means, with respect to the Property Trustee, the chairman of the board of directors, the president, any vice-president, any assistant vice-president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, any trust officer or assistant trust officer or any other officer of the Property Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of that officer's knowledge of and familiarity with the particular subject. "Rule 3a-7" means Rule 3a-7 under the Investment Company Act. "Securities" means the Common Securities and the Preferred Securities. "Securities Act" means the Securities Act of 1933, as amended, and as it may be amended from time to time hereafter. "66-2/3% in Liquidation Amount of the Securities" means Holder(s) of Securities voting together as a single class or, as the context may require, Holder(s) of Preferred Securities or Common Securities, voting separately as a class, who vote Securities of a relevant class and the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions, to the date upon which the voting percentages are determined) of the Securities voted by such Holders represents 66-2/3% of the above-stated liquidation amount of all Securities of such class. In determining whether the Holders of the requisite amount of Preferred Securities have voted, Preferred Securities which are owned by the Sponsor, 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 -5- 8 control with the Sponsor, the Trust or any other obligor on the Preferred Securities shall be disregarded for the purpose of any such determination. "Special Event" has the meaning set forth in the terms of the Securities set forth in Exhibit A, as such Exhibit A may be amended or modified in accordance with this Declaration. "Special Regular Trustee" means a Regular Trustee appointed by the Holders of a Majority in Liquidation Amount of the Preferred Securities in accordance with Section 5.6(a)(ii)(B). "Sponsor" means AirTouch Communication, Inc., a Delaware corporation, in its capacity as sponsor of the Trust, or any permitted successor entity. "Subordinated Note Issuer" means AirTouch Communication, Inc., a Delaware corporation, in its capacity as issuer of the Subordinated Notes, or any permitted successors or assigns under the Subordinated Indenture. "Subordinated Note Trustee" means________________, as trustee under the Indenture until a successor is appointed thereunder and thereafter means such successor trustee. "Subordinated Notes" means the series of Subordinated Notes to be issued by the Subordinated Note Issuer under the Indenture to be purchased for the account of and held by the Property Trustee pursuant to Section 3.6(c). "Successor Property Trustee" means a successor Trustee possessing the qualifications to act as Property Trustee under Section 5.3. "10% in Liquidation Amount of the Securities" means Holder(s) of Securities voting together as a single class or, as the context may require, Holder(s) of Preferred Securities or Common Securities, voting separately as a class, who vote Securities of a relevant class and the Liquidation Amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of the Securities voted by such Holders represents 10% of the above stated Liquidation Amount of all Securities of such class. In determining whether the Holders of the requisite amount of Preferred Securities have voted, Preferred Securities which are owned by the Sponsor, 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. "Treasury Regulations" means the income tax regulations, including temporary and proposed regulations, promulgated under the Code by the United States Treasury, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations). "Trustee" or "Trustees" means each Person who has signed this Declaration as a trustee, so long as such Person shall continue in office in accordance with the terms hereof, and all other Persons who may from time to time be duly appointed, qualified and serving as Trustees in accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such Person or Persons solely in their capacity as trustees hereunder. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended as of the date of this Agreement. -6- 9 "25% in Liquidation Amount of the Securities" means Holder(s) of Securities voting together as a single class or, as the context may require, Holder(s) of Preferred Securities or Common Securities, voting separately as a class, who vote Securities of a relevant class and the Liquidation Amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of the Securities voted by such Holders represents 25% of the above stated Liquidation Amount of all Securities of such class. In determining whether the Holders of the requisite amount of Preferred Securities have voted, Preferred Securities which are owned by the Sponsor, 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. "Underwriting Agreement" means the Underwriting Agreement for the offering and sale of Preferred Securities. ARTICLE II TRUST INDENTURE ACT 2.1 TRUST INDENTURE ACT; APPLICATION. (a) So long as the Preferred Securities are outstanding, this Declaration shall be subject to the provisions of the Trust Indenture Act that are required to be part of this Declaration and shall, to the extent applicable be governed by such provisions, provided, however, that any provisions of the Trust Indenture Act which may in accordance therewith be excluded, are hereby excluded. At such time as the Preferred Securities are no longer outstanding, the Trust Indenture Act shall no govern this Declaration and all provisions requiring compliance with specified provisions of the Trust Indenture Act shall be of no further force and effect. (b) The Property Trustee shall be the only Trustee which is a trustee for the purposes of the Trust Indenture Act; (c) If and to the extent that any provision of this Declaration limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control; and (d) The application of the Trust Indenture Act to this Declaration shall not affect the nature of the Securities as equity securities representing undivided beneficial interests in the assets of the Trust. 2.2 LISTS OF HOLDERS OF SECURITIES. (a) Each of the Sponsor and the Regular Trustees on behalf of the Trust shall provide the Property Trustee not less than 45 days nor more than 60 days after each date (month and day) that is a Distribution payment date, but in no event less frequently than semiannually, and at such other times as the Property Trustee may request in writing, within 30 days after receipt by the Sponsor and Regular Trustees of any such request, a list in such form as the Property Trustee may reasonably require containing all the information in the possession or control of the Sponsor and the Regular Trustees, or any of its Paying Agents other than the Property Trustee, as to the names and addresses of the Holders of Securities, obtained since the date as of which the next previous list, if any, was furnished, excluding from any such list the -7- 10 names and addresses received by the Property Trustee in its capacity as registrar (if so acting). Any such list may be dated as of a date not more than 15 days prior to the time such information is furnished and need not include information received after such date. (b) The Property Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of the Holders of Securities (1) contained in the most recent list furnished to it as provided in this Section 2.2, (2) received by the Property Trustee in the capacity of Paying Agent or registrar (if so acting) and (3) filed with the Property Trustee within the two preceding years as provided for in Section 2.2(a). The Property Trustee may destroy any list furnished to it as provided in this Section 2.2 upon receipt of a new list so furnished. (c) If three or more Holders of Securities (hereinafter referred to as "applicants") apply in writing to the Property Trustee, and furnish to the Property Trustee reasonable proof that each such applicant has owned a Security for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of Securities with respect to their rights under this Declaration or under such Securities, and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Property Trustee shall, within five Business Days after the receipt of such application, at its election, either: (1) afford such applicants access to the information preserved at the time by the Property Trustee in accordance with the provisions of this Section 2.2 or (2) inform such applicants as to the approximate number of Holders of Securities whose names and addresses appear in the information preserved at the time by the Property Trustee in accordance with the provisions of subsection (b) of this Section 2.2, and as to the approximate cost of mailing to such Holders the form of proxy or other communications, if any, specified in such application. If the Property Trustee shall elect not to afford such applicants access to such information, the Property Trustee shall, upon the written request of such applicants, mail to each of the Holders of Securities whose name and address appear in the information preserved at the time by the Property Trustee in accordance with the provisions of subsection (b) of this Section 2.2, a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Property Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender, the Property Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Property Trustee, such mailing would be contrary to the best interests of the Holders of Securities or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Property Trustee shall mail copies of such material to all such Holders of Securities with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application. (d) Each and every Holder of the Securities, by receiving and holding the same, agrees with the Sponsor, the Regular Trustees, and the Property Trustees that none of them nor any Paying Agent nor any registrar shall be held account- able by reason of the disclosure of any such information as to the names and -8- 11 addresses of the Holders of Securities in accordance with the provisions of subsection (c) of this Section 2.2, regardless of the source from which such information was derived, and that the Property Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under said subsection (c). (e) The Property Trustee shall comply with its obligations under Section 311(a), 311(b) and Section 312(b) of the Trust Indenture Act. 2.3 REPORTS BY THE PROPERTY TRUSTEE. Within 60 days after May 15 of each year, the Property Trustee shall provide to the Holders of the Securities such reports as are required by Section 313(a), (b) and (c) of the Trust Indenture Act, if any, in the form and in the manner provided by Section 313 of the Trust Indenture Act. The Property Trustee shall also comply with the requirements of Section 313(d) of the Trust Indenture Act. 2.4 PERIODIC REPORTS TO PROPERTY TRUSTEE. Each of the Sponsor, the Subordinated Note Issuer, the Regular Trustees and any other obligor on behalf of the Trust shall provide to the Property Trustee such documents, reports and information as required by Section 314 (if any) and the compliance certificate required by Section 314 of the Trust Indenture Act in the form, in the manner and at the times required by Section 314 of the Trust Indenture Act. 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. Each of the Sponsor, the Subordinated Note Issuer and the Regular Trustees on behalf of the Trust shall provide to the Property Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Declaration which relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) may be given in the form of an Officer's Certificate. 2.6 EVENTS OF DEFAULT; WAIVER. The occurrence and continuance of an Event of Default under the Indenture with respect to the Subordinated Notes shall constitute an Event of Default hereunder. (a) The Holders of a Majority in Liquidation Amount of Preferred Securities may, by vote, on behalf of the Holders of all of the Preferred Securities, waive any past Event of Default in respect of the Preferred Securities and its consequences provided that if the underlying Event of Default under the Indenture : (i) is not waivable under the Indenture, the Event of Default under the Declaration shall also not be waivable; or (ii) requires the consent or vote of (1) Holders (as such term is defined in the Subordinated Indenture) of Subordinated Notes representing a specified percentage greater than a majority in principal amount of the Subordinated Notes or (2) each Holder of Subordinated Notes, the Event of Default under this Declaration may only be waived by, in the case of clause (1) hereof, the vote of Holders of Preferred Securities representing such specified percentage of the aggregate liquidation amount of the Preferred Securities or, in the case of clause (2) hereof, each Holder of Preferred Securities. -9- 12 (b) Upon such waiver by the Holders of a Majority in Liquidation Amount meeting the requirements of the foregoing subsections (a)(ii) or (a)(ii) of this Section 2.6, any such default or resulting Event of Default shall cease to exist and shall be deemed to have been cured, for every purpose of this Declaration, but no such waiver shall extend to any subsequent or other default or Event of Default with respect to the Preferred Securities or impair any right consequent thereon. Any waiver by the Holders of the Preferred Securities of an Event of Default with respect to the Preferred Securities shall also be deemed to constitute a waiver by the Holders of the Common Securities of any such Event of Default with respect to the Common Securities for all purposes of this Declaration without any further act, vote or consent of the Holders of the Common Securities. Each Holder of Common Securities will be deemed to have waived any Event of Default with respect to the Common Securities and its consequences until all Events of Default with respect to the Preferred Securities have been cured, waived or otherwise eliminated and until such Events of Default have been so cured, waived or otherwise eliminated, the Property Trustee will be deemed to be acting solely on behalf of the Holders of the Preferred Securities and only the Holders of the Preferred Securities will have the right to direct the Property Trustee in accordance with the terms of the Securities. Subject to the foregoing provisions of this Section 2.6(b) upon such waiver, any such default shall cease to exist and any Event of Default with respect to the Common Securities arising therefrom shall be deemed to have been cured, for every purpose of this Declaration, but no such waiver shall extend to any subsequent or other default or Event of Default with respect to the Common Securities or impair any right consequent thereon. (c) A waiver of any Event of Default under the Indenture by the Property Trustee at the direction of the Holders of the applicable Liquidation Amount of Preferred Securities, constitutes a waiver of the corresponding Event of Default under this Declaration. (d) Limitation on Suits by Holders. All parties to this Declaration agree, and each Holder of any Security by such Holder's acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Declaration, or in any suit against the Property Trustee for any action taken or omitted by it as Property Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 2.6(d) shall not apply to any suit instituted by the Property Trustee, to any suit instituted by any Holder of Securities, or group of such Holders, holding in the aggregate more than 10% percent in Liquidation Amount of the Securities, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or any interest or premium on any Security, on or after the due date expressed in such Security or for such interest (or in the case of any redemption, on or after the Redemption Date). (e) No Holder of any Preferred Security or of any Common Security shall have any right by virtue or by availing of any provision of this Declaration to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Declaration or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such Holder previously shall have given to the Property Trustee written notice of a continuing Event of Default, as hereinbefore provided, and unless also the Holders of not less than 25% in Liquidation Amount of the Preferred Securities or of the Common Securities, as the case may be, then outstanding shall have made written request upon the Property Trustee to institute such action, suit or proceeding in its own name as Property Trustee hereunder and shall have offered to the Property Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby (including the reasonable fees of counsel for the Property Trustee), and the Property Trustee, for 60 days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding and no direction inconsistent with such written request shall have been given to the Property Trustee pursuant to -10- 13 this 2.2(e); it being understood and intended, and being expressly covenanted by the taker and Holder of every Security with every other taker and Holder and the Property Trustee, that no one or more Holders of Securities shall have any right in any manner whatever by virtue or by availing of any provision of this Declaration to affect, disturb or prejudice the rights of the Holders of any other of such Securities, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Declaration, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities. For the protection and enforcement of the provisions of this Section 2.2(d), each and every Holder and the Property Trustee shall be entitled to such relief as can be given either at law or in equity. (f) The provisions of Section 315(e) of the Trust Indenture Act shall be excluded from this Declaration. Notwithstanding any other provisions in this Declaration, the right of any Holder of any Security to receive payment of the Distributions on such Security on or after the respective due dates expressed in such Security (or, in the case of redemption, on or after the date fixed for redemption), or to institute suit for the enforcement of any such payment on or after such respective dates shall not be impaired or affected without the consent of such Holder. 2.7 EVENT OF DEFAULT; NOTICE (a) The Property Trustee shall, within 90 days after the occurrence of an Event of Default hereunder, give to the Holders of the Securities notice of such Event of Default known to the Trustee unless such Event of Default shall have been cured, remedied or waived before the giving of such notice (the term "Event of Default" for the purposes of this Section 2.7(a) being hereby defined to be an Event of Default irrespective of the giving of written notice specified therein); provided, that except in the case of an Event of Default resulting from the failure of payment of the principal of or interest on any of the Subordinated Notes, the Property Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors and/or Responsible Officers of the Property Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of the Securities. (b) The Property Trustee shall not be deemed to have knowledge of any default except: (i) A default under Sections 6.01(a) and (b) of the Indenture; or (ii) Any default as to which the Property Trustee shall have received written notice or a Responsible Officer charged with the administration of the Declaration shall have obtained written notice of. (c) The Sponsor and the Regular Trustees covenant that, as soon as is practicable, they will furnish the Property Trustee notice of any event which is an Event of Default or which with the giving of notice or the passage of time or both would constitute an Event of Default which has occurred and is continuing on the date of such notice, which notice shall set forth the nature of such event and the action which the Sponsor proposes to take with respect thereto. ARTICLE III ORGANIZATION 3.1 NAME. -11- 14 The Trust is named "ATI Financing ( )", as such name may be modified from time to time by the Regular Trustees following written notice to the Holders of Securities. The Trust's activities may be conducted under the name of the Trust or any other name deemed advisable by the Regular Trustees. 3.2 OFFICE. The address of the principal office of the Trust is One California Street, San Francisco, California 94111. On ten Business Days written notice to the Holders of Securities, the Regular Trustees may designate another principal office. 3.3 PURPOSE. The exclusive purposes and functions of the Trust are (a) to issue and sell Securities and use the proceeds from such sale to acquire the Subordinated Notes, and (b) except as otherwise limited herein, to engage in only those other activities necessary, or incidental thereto. The Trust shall not borrow money, issue debt or reinvest proceeds derived from investments, pledge any of its assets, or otherwise undertake (or permit to be undertaken) any activity that would (i) cause the Trust to be classified for United States federal income tax purposes as an association taxable as a corporation or a partnership or (ii) cause each Holder of Securities not to be treated as owning an undivided beneficial interest in the Subordinated Notes at any time the Securities are outstanding. 3.4 AUTHORITY. Subject to the limitations provided in this Declaration and to the specific duties of the Property Trustee, the Regular Trustees shall have exclusive and complete authority to carry out the purposes of the Trust. An action taken by the Regular Trustees in accordance with their powers shall constitute the act of and serve to bind the Trust and an action taken by the Property Trustee in accordance with its powers shall constitute the act of and serve to bind the Trust. In dealing with the Trustees acting on behalf of the Trust, no person shall be required to inquire into the authority of the Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely conclusively on the power and authority of the Trustees as set forth in this Declaration. 3.5 TITLE TO PROPERTY OF THE TRUST. Except as provided in Section 3.8 with respect to the Subordinated Notes and the Property Trustee Account or as otherwise provided in this Declaration, legal title to all assets of the Trust shall be vested in the Trust. The Holders shall not have legal title to any part of the assets of the Trust, but shall have an undivided beneficial interest in the assets of the Trust. 3.6 POWERS AND DUTIES OF THE REGULAR TRUSTEES. The Regular Trustees shall have the exclusive power and authority and duty to cause the Trust to engage in the following activities: (a) To issue and sell the Preferred Securities and the Common Securities in accordance with this Declaration; provided, however, that the Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities, and, provided further, there shall be no interests in the Trust other than the Securities and the issuance of Securities shall be limited to a one-time, simultaneous issuance of both Preferred Securities and Common Securities on the Closing Date; -12- 15 (b) In connection with the issue and sale of the Preferred Securities, at the direction of the Sponsor, to: (i) execute and file with the Securities and Exchange Commission (the "Commission") the registration statement on Form S-3 prepared by the Sponsor in relation to the Preferred Securities, including any amendments thereto prepared by the Sponsor; (ii) execute and file any documents prepared by the Sponsor, or take any acts as determined by the Sponsor as necessary in order to qualify or register all or part of the Preferred Securities in any State in which the Sponsor has determined to qualify or register such Preferred Securities for sale; (iii) execute and file an application prepared by the Sponsor to the New York Stock Exchange or any other national stock exchange or the NASDAQ National Market for listing upon notice of issuance of any Preferred Securities; (iv) execute and file with the Commission a registration statement on Form 8-A prepared by the Sponsor relating to the registration of the Preferred Securities under Section 12(b) of the Exchange Act, including any amendments thereto prepared by the Sponsor; and (v) execute and enter into the Underwriting Agreement and Pricing Agreement providing for the sale of the Preferred Securities; (c) To acquire the Subordinated Notes with the proceeds of the sale of the Preferred Securities and the Common Securities; provided, however, that the Regular Trustees shall cause legal title to the Subordinated Notes to be held of record in the name of the Property Trustee for the benefit of the Holders of the Preferred Securities and the Common Securities; (d) To give the Subordinated Note Issuer, the Sponsor and the Property Trustee prompt written notice of the occurrence of a Special Event provided, that the Regular Trustees shall consult with the Subordinated Note Issuer, the Sponsor and the Property Trustee before taking or refraining from taking any Ministerial Action in relation to a Special Event; (e) To establish a record date with respect to all actions to be taken hereunder that require a record date be established, Section including for the purposes of Section 316(c) of the Trust Indenture Act and with respect to Distributions, voting rights, redemptions and exchanges, and to issue relevant notices to the Holders of Preferred Securities and Common Securities as to such actions and applicable record dates; (f) To take all actions and perform such duties as may be required of the Regular Trustees pursuant to the terms of the Securities; (g) To bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has the exclusive power to bring such Legal Action; (h) To employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors, and consultants and pay reasonable compensation for such services; (i) To cause the Trust to comply with the Trust's obligations under the Trust Indenture Act; -13- 16 (j) To give the certificate to the Property Trustee required by Section 314(a)(4) of the Trust Indenture Act which certificate may be executed by any Regular Trustee; (k) To incur expenses which are necessary or incidental to carry out any of the purposes of the Trust; (l) To act as, or appoint another Person to act as, registrar and transfer agent for the Securities; (m) To give prompt written notice to the Holders of the Securities of any notice received from the Subordinated Note Issuer of its election (i) to defer payments of interest on the Subordinated Notes by extending the interest payment period under the Indenture or, (ii) to extend the scheduled maturity date on the Subordinated Notes; (n) To execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing; (o) To take all action which may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Securities or to enable the Trust to effect the purposes for which the Trust was created; (p) To take any action, not inconsistent with this Declaration or with applicable law, which the Regular Trustees determine in their discretion to be necessary or desirable in carrying out the activities of the Trust as set out in this Section 3.6 including, but not limited to: (i) causing the Trust not to be deemed to be an Investment Company required to be registered under the Investment Company Act; (ii) causing the Trust not to be characterized for United States federal income tax purposes as an association taxable as a corporation or a partnership but for each Holder of Securities to be treated as owning an undivided beneficial interest in the Subordinated Notes; and (iii) cooperating with the Subordinated Note Issuer to ensure that the Subordinated Notes will be treated as indebtedness of the Subordinated Note Issuer for United States federal income tax purposes, provided that such action does not adversely affect the interests of Holders; and (q) To take all action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to the Trust to be duly prepared and filed by the Regular Trustees, on behalf of the Trust. The Regular Trustees must exercise the powers set forth in this Section 3.6 in a manner which is consistent with the purposes and functions of the Trust set out in Section 3.3 and the Regular Trustees shall not take any action which is inconsistent with the purposes and functions of the Trust set forth in Section 3.3. Subject to this Section 3.6, the Regular Trustees shall have none of the powers or the authority of the Property Trustee set forth in Section 3.8. 3.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES. -14- 17 The Trust shall not, and the Trustees (including the Property Trustee) shall cause the Trust not to, engage in any activity other than as required or authorized by this Declaration. In particular, the Trust shall not and the Trustees (including the Property Trustee) shall cause the Trust not to: (a) Invest any proceeds received by the Trust from holding the Subordinated Notes, but shall distribute all such proceeds to Holders of Securities pursuant to the terms of this Declaration and of the Securities; (b) Acquire any assets other than as expressly provided herein; (c) Possess Trust property for other than a Trust purpose; (d) Make any loans or incur any indebtedness other than loans represented by the Subordinated Notes; (e) Possess any power or otherwise act in such a way as to vary the Trust assets or the terms of the Securities in any way whatsoever; (f) Issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Securities; or (g) direct the time, method and place of exercising any trust or power conferred upon the Subordinated Note Trustee with respect to the Subordinated Notes, (B) waive any past default that is waivable under Section 6.06 of the Indenture, (C) exercise any right to rescind or annul any declaration that the principal of all the Subordinated Notes shall be due and payable or (D) consent to any amendment, modification or termination of the Indenture or the Subordinated Notes, where such consent shall be required, unless the Trust shall have received an opinion of counsel to the effect that such modification will not cause more than an insubstantial risk that for United States federal income tax purposes the Trust will be characterized as an association taxable as a corporation or a partnership and that each Holder of Securities will not be treated as owning an undivided beneficial interest in the Subordinated Notes. 3.8 POWERS AND DUTIES OF THE PROPERTY TRUSTEE. (a) The legal title to the Subordinated Notes shall be owned by and held of record in the name of the Property Trustee in trust for the benefit of the Holders of the Securities. The right, title and interest of the Property Trustee to the Subordinated Notes shall vest automatically in each Person who may hereafter be appointed as Property Trustee as set forth in Section 5.6. Such vesting and cessation of title shall be effective whether or not conveyancing documents have been executed and delivered; (b) The Property Trustee shall not transfer its right, title and interest in the Subordinated Notes to the Regular Trustees or to the Delaware Trustee (if the Property Trustee does not also act as Delaware Trustee); (c) The Property Trustee shall: (i) establish and maintain a segregated bank account (the "Property Trustee Account") in the name of and under the exclusive control of the Property Trustee on behalf of the Holders of the Securities and, upon the receipt of payments of funds made in respect of the Subordinated Notes held by the Property Trustee, deposit such funds into the Property Trustee Account and make payments to the Holders of the Preferred Securities and the Common Securities from the Property Trustee Account in accordance with Section 6.1. Funds in the Property Trustee Account shall be held uninvested until disbursed in accordance -15- 18 with this Declaration. If the Preferred Securities are not represented by a Global Preferred Security, the Property Trustee shall hold such funds in an interest-bearing bank account, and any interest earned on such funds shall be paid by the Property Trustee to the Sponsor. The Property Trustee Account shall be an account which is maintained with a banking institution either (a) the rating on whose long term unsecured indebtedness is rated "A" or above by a "nationally recognized statistical rating organization," as that term is defined for purposes of Rule 436(g)(2) under the Securities Act, or (b) which has capital and surplus of at least $100,000,000; (ii) engage in such ministerial activities as shall be necessary or appropriate to effect the redemption of the Preferred Securities and the Common Securities to the extent the Subordinated Notes are redeemed or mature; and (iii) upon notice of distribution issued by the Regular Trustees in accordance with the terms of the Preferred Securities and the Common Securities, engage in such ministerial activities as shall be necessary or appropriate to effect the distribution of the Subordinated Notes to Holders of Securities upon the occurrence of certain special events (as may be defined in the terms of the Securities) arising from a change in law or a change in legal interpretation or other specified circumstances pursuant to the terms of the Securities; (d) The Property Trustee shall take all actions and perform such duties as may be specifically required of the Property Trustee pursuant to the terms of the Securities; (e) The Property Trustee shall take any Legal Action which arises out of or in connection with an Event of Default or the Property Trustee's duties and obligations under this Declaration or the Trust Indenture Act; (f) The Property Trustee shall not resign as a Trustee unless either: (i) the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders of Securities pursuant to the terms of the Securities; or (ii) a Successor Property Trustee has been appointed and accepted that appointment in accordance with Section 5.6; (g) The Property Trustee shall have the legal power to exercise all of the rights, powers and privileges of a holder of Subordinated Notes under the Indenture and, if an Event of Default occurs and is continuing, the Property Trustee shall, for the benefit of Holders of the Securities, enforce its rights as holder of the Subordinated Note, subject to the rights of the Holders pursuant to the terms of such Securities; (h) The Property Trustee may authorize one or more Persons (each, a "Paying Agent") to pay Distributions, redemption payments or liquidation payments on behalf of the Trust with respect to the Preferred Securities and any such Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any Paying Agent may be removed by the Property Trustee at any time and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Property Trustee; and (i) Subject to this Section 3.8, the Property Trustee shall have none of the powers or the authority of the Regular Trustees set forth in Section 3.6; The Property Trustee must exercise the powers set forth in this Section 3.8 in a manner which is consistent with the purposes and functions of the Trust set forth in Section 3.3 and the Property Trustee shall not take any action which is inconsistent with the purposes and functions of the Trust set out in Section 3.3. -16- 19 3.9 CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY TRUSTEE (a) The Property Trustee, before the occurrence of any Event of Default and after the curing or waiver of all Events of Default that may have occurred, shall undertake to perform only such duties as are specifically set forth in this Declaration in Sections 2.2, 2.3, 2.7, 3.8, 3.9, 3.10 and 6.1 and in the terms of the Securities, and no implied covenants shall be read into this Declaration against the Property Trustee. In case an Event of Default has occurred (that has not been cured or waived pursuant to Section 2.6), the Property Trustee shall exercise such of the rights and powers vested in it by this Declaration, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs; (b) No provision of this Declaration shall be construed to relieve the Property Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) Prior to the occurrence of any Event of Default and after the curing or waiving of all such Events of Default that may have occurred: (A) the duties and obligations of the Property Trustee shall be determined solely by the express provisions of this Declaration in Sections 2.2, 2.3, 2.7, 3.8, 3.9, 3.10 and 6.1 and in the terms of the Securities, and the Property Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Declaration, and no implied covenants or obligations shall be read into this Declaration against the Property Trustee; and (B) in the absence of bad faith on the part of the Property Trustee, the Property Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Property Trustee and conforming to the requirements of this Declaration; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Property Trustee, the Property Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Declaration; (ii) The Property Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Property Trustee, unless it shall be proved that the Property Trustee was negligent in ascertaining the pertinent facts; (iii) The Property Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a Majority in Liquidation Amount of the Securities at the time outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or exercising any trust or power conferred upon the Property Trustee under this Declaration; and (iv) No provision of this Declaration shall require the Property Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if it shall have reasonable ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Declaration or adequate indemnity against such risk or liability is not reasonably assured to it. 3.10 CERTAIN RIGHTS OF PROPERTY TRUSTEE. Subject to the provisions of Section 3.9: -17- 20 (a) The Property Trustee may rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (b) Any direction or act of the Sponsor or the Regular Trustees contemplated by this Declaration shall be sufficiently evidenced by a Direction or an Officer's Certificate; (c) Whenever in the administration of this Declaration, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part and, if the Trust is excluded from the definition of an Investment Company solely by means of Rule 3a-7, subject to the requirements of Rule 3a-7, request and rely upon an Officer's Certificate which, upon receipt of such request, shall be promptly delivered by the Sponsor or the Regular Trustees; (d) The Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (or any rerecording, refiling or registration thereof); (e) The Property Trustee may consult with counsel and the written advice or opinion of such counsel with respect to legal matters shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion. Such counsel may be counsel to the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Declaration from any court of competent jurisdiction; (f) The Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Declaration at the request or direction of any Holder, unless such Holder shall have provided to the Property Trustee adequate security and indemnity which would satisfy a reasonable person in the position of the Property Trustee, against the costs, expenses (including attorneys' fees and expenses) and liabilities that might be incurred by it in complying with such request or direction, including such reasonable advances as may be requested by the Property Trustee provided that, nothing contained in this Section 3.10(f) shall be taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Declaration; (g) The Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Property Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit; (h) The Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (i) Any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders of the Securities and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action; and no third party shall be required to inquire as to the authority of the -18- 21 Property Trustee to so act, or as to its compliance with any of the terms and provisions of this Declaration, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (j) Whenever in the administration of this Declaration the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders of the Securities which instructions may only be given by the Holders of the same portion in Liquidation Amount of the Securities as would be entitled to direct the Property Trustee under the terms of the Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (iii) shall be protected in acting in accordance with such instructions; and (k) Except as otherwise expressly provided by this Declaration, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Declaration. No provision of this Declaration shall be deemed to impose any duty or obligation on the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty. 3.11 DELAWARE TRUSTEE Notwithstanding any other provision of this Declaration other than Section 5.2, the Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities of the Regular Trustees and the Property Trustee described in this Declaration. Except as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for purposes of the Trust Indenture Act. Any Paying the sole and limited purpose of fulfilling the requirements of Section 3807 of the Business Trust Act. 3.12 EXECUTION OF DOCUMENTS Unless otherwise determined by the Regular Trustees and except as otherwise required by the Business Trust Act, a majority of, or if there are only two, both of the Regular Trustees are authorized to execute on behalf of the Trust any documents which the Regular Trustees have the power and authority to execute pursuant to Section 3.6, provided that any listing application prepared by the Sponsor referred to in Section 3.6(b)(iii) may be executed by any Regular Trustee. 3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. The recitals contained in this Declaration and the Securities shall be taken as the statements of the Sponsor and the Trustees do not assume any responsibility for their correctness. The Trustees make no representations as to the value or condition of the property of the Trust or any part thereof. The Trustees make no representations as to the validity or sufficiency of this Declaration or the Securities. 3.14 DURATION OF TRUST. The Trust, unless terminated pursuant to the provisions of Article VIII hereof, shall have existence for 55 years from the Closing Date. 3.15 MERGERS -19- 22 (a) The Trust may not consolidate, amalgamate, merge with or into, or be replaced by, or convey, transfer or lease its properties and assets substantially as an entirety to any corporation or other body, except as described in Section 3.15(b) and (c); (b) The Trust may, with the consent of a majority of the Regular Trustees or, if there are only two Regular Trustees, with the consent of both Regular Trustees, and without the consent of the Holders of the Securities, the Delaware Trustee or the Property Trustee, consolidate, amalgamate, merge with or into, or be replaced by a trust organized as such under the laws of any State; provided, that: (i) Such successor entity (the "Successor Entity") either: (A) expressly assumes all of the obligations of the Trust under the Securities; or (B) substitutes for the Securities other securities having substantially the same terms as the Preferred Securities (the "Successor Securities") so long as the Successor Securities rank the same as the Preferred Securities rank with respect to Distributions and payments upon liquidation, redemption and maturity; (ii)The Subordinated Note Issuer expressly acknowledges a trustee of the Successor Entity which possesses the same powers and duties as the Property Trustee as the Holder of the Subordinated Note; (iii) The Preferred Securities or any Successor Securities are listed, or any Successor Securities will be listed upon notification of issuance, on any national securities exchange or other organization on which the Preferred Securities are then listed; (iv) Such merger, consolidation, amalgamation or replacement does not cause the Preferred Securities (including any Successor Securities) to be downgraded by any nationally recognized statistical rating organization; (v) Such merger, consolidation, amalgamation or replacement does not adversely affect the rights, preferences and privileges of the Holders of the Securities (including any Successor Securities) in any material respect (other than with respect to any dilution of the Holders' interest in the new entity); (vi) Such successor entity has a purpose identical to that of the Trust; (vii) Prior to such merger, consolidation, amalgamation or replacement, the Sponsor has received an opinion of a nationally recognized independent counsel to the Trust experienced in such matters to the effect that: (A) such merger, consolidation, amalgamation or replacement does not adversely affect the rights, preferences and privileges of the Holders of the Preferred Securities (including any Successor Securities) in any material respect (other than with respect to any dilution of the Holders' interest in the new entity); and (B) following such merger, consolidation, amalgamation or replacement, neither the Trust nor the Successor Entity will be required to register as an Investment Company; and (viii) The Sponsor guarantees the obligations of such Successor Entity under the Successor Securities at least to the extent provided by the Preferred Securities Guarantee; and -20- 23 (c) Notwithstanding Section 3.15(b), the Trust shall not consolidate, amalgamate, merge with or into, or be replaced by any other entity or permit any other entity to consolidate, amalgamate, merge with or into, or replace it if such consolidation, amalgamation, merger or replacement would cause the Trust or Successor Entity for United States federal income tax purposes to be classified as an association taxable as a corporation or a partnership and each Holder of the Securities not to be treated as owning an undivided beneficial interest in the Subordinated Notes, except with the consent of Holders of 100% in Liquidation Amount of the Securities. ARTICLE IV SPONSOR 4.1 SPONSOR'S PURCHASE OF COMMON SECURITIES. On the Closing Date the Sponsor will purchase all the Common Securities issued by the Trust, at the same time as the Preferred Securities are sold, in an amount equal to 3% of the capital of the Trust. 4.2 RESPONSIBILITIES OF THE SPONSOR. In connection with the issue and sale of the Preferred Securities, the Sponsor shall have the exclusive right and responsibility to engage in the following activities: (a) To prepare for filing by the Trust with the Commission a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto; (b) To determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and to take any and all such acts, other than actions which must be taken by the Trust, and advise the Trust of actions it must take, and prepare for execution and filing any documents to be executed and filed by the Trust, as the Sponsor deems necessary or advisable in order to comply with the applicable laws of any such States; (c) To prepare for filing by the Trust an application to the New York Stock Exchange or any other national stock exchange or the NASDAQ National Market for listing upon notice of issuance of any Preferred Securities; (d) To prepare for filing by the Trust with the Commission a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) of the Exchange Act, including any amendments thereto; and (e) To negotiate the terms of the Underwriting Agreement and Pricing Agreement providing for the sale of the Preferred Securities. 4.3 EXPENSES. (a) The Sponsor shall be responsible for and shall pay for all debts and obligations (other than with respect to the Securities) and all costs and expenses of the Trust (including, but not limited to, costs and expenses relating to the organization of the Trust, the issuance and sale of the Preferred Securities, the fees and expenses (including reasonable counsel fees and expenses) of the Trustees, the costs and expenses relating to the operation of the Trust, including without limitation, costs and expenses of accountants, attorneys, statistical or bookkeeping services, expenses for printing and engraving and -21- 24 computing or accounting equipment, paying agent(s), registrar(s), transfer agent(s), duplication, travel and telephone and other telecommunications expenses and costs and expenses incurred in connection with the disposition of Trust assets). (b) The Sponsor will pay any and all taxes (other than United States withholding taxes attributable to the Trust or its assets) and all liabilities, costs and expenses with respect to such taxes of the Trust. (c) The Sponsor's obligations under this Section 4.3 shall be for the benefit of, and shall be enforceable by, any Person to whom any such debts, obligations, costs, expenses and taxes are owed (a "Creditor") whether or not such Creditor has received notice hereof. Any such Creditor may enforce the sponsor's obligations under this Section 4.3 directly against the Sponsor and the Sponsor irrevocably waives any right or remedy to require that any such Creditor take any action against the Trust or any other Person before proceeding against the Sponsor. The Sponsor agrees to execute such additional agreements as may be necessary or desirable in order to give full effect to the provisions of this Section 4.3. ARTICLE V TRUSTEES 5.1 NUMBER OF TRUSTEES. The number of Trustees shall initially be five (5), and: (a) At any time before the issuance of any Securities, the Sponsor may, by written instrument, increase or decrease the number of Trustees; and (b) After the issuance of any Securities, the number of Trustees may be increased or decreased by vote of the Holders of a Majority in Liquidation Amount of the Common Securities voting as a class at a meeting of the Holders of the Common Securities, provided that in any case, the number of Trustees shall be at least five (5) unless the Trustee that acts as the Property Trustee also acts as the Delaware Trustee pursuant to Section 5.2 in which case the number of Trustees shall be at least three(3). 5.2 DELAWARE TRUSTEE. If required by the Business Trust Act, one Trustee (the "Delaware Trustee") shall be: (a) A natural person who is a resident of the State of Delaware; or (b) If not a natural person, an entity which has its principal place of business in the State of Delaware and otherwise meets the requirements of applicable law, provided that if the Property Trustee has its principal place of business in the State of Delaware and otherwise meets the requirements of applicable law, then the Property Trustee shall also be the Delaware Trustee and Section 3.11 shall have no application. 5.3 PROPERTY TRUSTEE; ELIGIBILITY. (a) There shall at all times be one Trustee which shall act as Property Trustee which shall: (i) Not be an Affiliate of the Sponsor; -22- 25 (ii) Be a corporation organized and doing business under the laws of the United States of America or any State or Territory thereof or of the District of Columbia, or a corporation or Person permitted by the Commission to act as an institutional trustee under the Trust Indenture Act, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $100,000,000, and subject to supervision or examination by Federal, State, Territorial or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the supervising or examining authority referred to above, then for the purposes of this Section 5.3(a)(ii), the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published; and (b) If the Trust is excluded from the definition of an Investment Company solely by means of Rule 3a-7 and to the extent Rule 3a-7 requires a trustee having certain qualifications to hold title to the "eligible assets" of the Trust, the Property Trustee shall possess those qualifications; and (c) If at any time the Property Trustee shall cease to be eligible to so act under Section 5.3(a), the Property Trustee shall immediately resign in the manner and with the effect set forth in Section 5.6(c); (d) If the Property Trustee has or shall acquire any conflicting interest within the meaning of Section 310(b) of the Trust Indenture Act, the Property Trustee and the Holder of the Common Securities (as if it were the obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act; and (e) The Preferred Securities Guarantee shall be deemed to be specifically described in this Declaration for purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act. 5.4 QUALIFICATIONS OF REGULAR TRUSTEES AND DELAWARE TRUSTEE GENERALLY. Each Regular Trustee and the Delaware Trustee (unless the Property Trustee also acts as Delaware Trustee) shall be either a natural person who is at least 21 years of age or a legal entity which shall act through one or more Authorized Officers. 5.5 INITIAL TRUSTEES The initial Regular Trustees shall be: Sam L. Ginn AirTouch Communications, Inc. One California Street San Francisco, California 94111 Margaret G. Gill AirTouch Communications, Inc. One California Street San Francisco, California 94111 Mohan Gyani AirTouch Communications, Inc. One California Street San Francisco, California 94111 -23- 26 The initial Delaware Trustee shall be: The Bank of New York (Delaware) White Clay Center, Route 273 Newark, Delaware The initial Property Trustee shall be: 5.6 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES. (a) Subject to Section 5.6(b), Trustees may be appointed or removed without cause at any time: (i) until the issuance of any Securities, by written instrument executed by the Sponsor; and (ii) after the issuance of any Securities, by vote of the Holders of a Majority in Liquidation Amount of the Common Securities voting as a class at a meeting of the Holders of the Common Securities. (b) The Trustee that acts as Property Trustee shall not be removed in accordance with Section 5.6(a) until a Successor Property Trustee has been appointed and has accepted such appointment by written instrument executed by such Successor Property Trustee and delivered to the Regular Trustees and the Sponsor. (c) The Trustee that acts as Delaware Trustee shall not be removed in accordance with this Section 5.6(a) until a successor Trustee possessing the qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a "Successor Delaware Trustee") has been appointed and has accepted such appointment by written instrument executed by such Successor Delaware Trustee and delivered to the Regular Trustees and the Sponsor. (d) A Trustee appointed to office shall hold office until his or her successor shall have been appointed or until his or her death, removal or resignation. Any Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in writing signed by the Trustee and delivered to the Sponsor and the Trust, which resignation shall take effect upon such delivery or upon such later date as is specified therein; PROVIDED, HOWEVER, that: (i) no such resignation of the Trustee that acts as the Property Trustee shall be effective until: (A) a Successor Property Trustee has been appointed and has accepted such appointment by instrument executed by such Successor Property Trustee and delivered to the Trust, the Sponsor and the resigning Property Trustee; or -24- 27 (B) if the Trust is excluded from the definition of an Investment Company solely by reason of Rule 3a-7, until the assets of the Trust have been completely liquidated and the proceeds thereof distributed to the holders of the Securities; and (ii) no such resignation of the Trustee that acts as the Delaware Trustee shall be effective until a Successor Delaware Trustee has been appointed and has accepted such appointment by instrument executed by such Successor Delaware Trustee and delivered to the Trust, the Sponsor and the resigning Delaware Trustee. (e) the Holders of the Common Securities shall use their best efforts to promptly appoint a Successor Delaware Trustee or Successor Property Trustee, as the case may be, if the Property Trustee or the Delaware Trustee delivers an instrument of registration in accordance with this Section 5.6 (f) if no Successor Property Trustee or Successor Delaware Trustee shall have been appointed and accepted appointment as provided in this Section 5.6 within 60 days after delivery to the Sponsor and the Trust of an instrument of resignation, the resigning Property Trustee or Delaware Trustee may petition any court of competent jurisdiction for appointment of a Successor Property Trustee or Successor Delaware Trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a Successor Property Trustee or Successor Delaware Trustee, as the case may be. 5.7 VACANCIES AMONG TRUSTEES. If a Trustee ceases to hold office for any reason and the number of Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A resolution certifying the existence of such vacancy by a majority of the Regular Trustees shall be conclusive evidence of the existence of such vacancy. The vacancy shall be filled with a Trustee appointed in accordance with Section 5.6. 5.8 EFFECT OF VACANCIES. The death, resignation, retirement, removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to perform the duties of a Trustee, or any one of them, shall not operate to annul the Trust. Whenever a vacancy in the number of Regular Trustees shall occur, until such vacancy is filled by the appointment of a Regular Trustee in accordance with Section 5.6, the Regular Trustees in office, regardless of their number, shall have all the powers granted to the Regular Trustees and shall discharge all the duties imposed upon the Regular Trustees by this Declaration. 5.9 MEETINGS. Meetings of the Regular Trustees shall be held from time to time upon the call of any Regular Trustee. Regular meetings of the Regular Trustees may be held at a time and place fixed by resolution of the Regular Trustees. Notice of any in-person meetings of the Regular Trustees shall be hand delivered or otherwise delivered in writing (including by facsimile, with a hard copy by overnight courier) not less than 48 hours before such meeting. Notice of any telephonic meetings of the Regular Trustees or any committee thereof shall be hand delivered or otherwise delivered in writing (including by facsimile, with a hard copy by overnight courier) not less than 24 hours before a meeting. Notices shall contain a brief statement of the time, place and anticipated purposes of the meeting. The presence (whether in person or by telephone) of a Regular Trustee at a meeting shall constitute a waiver of notice of such meeting except where a Regular Trustee attends a meeting for the express purpose of objecting to the transaction of any activity on the ground that the meeting has not been lawfully called or convened. Unless provided otherwise in this -25- 28 Declaration, any action of the Regular Trustees may be taken at a meeting by vote of a majority of the Regular Trustees present (whether in person or by telephone) and eligible to vote with respect to such matter, provided that a Quorum is present, or without a meeting by the unanimous written consent of the Regular Trustees. 5.10 DELEGATION OF POWER. (a) Any Regular Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purpose of executing any documents contemplated in Section 3.6 including any registration statement or amendment thereto filed with the Commission or making any other governmental filing; and (b) The Regular Trustees shall have power to delegate from time to time to such of their number or to officers of the Trust the doing of such things and the execution of such instruments either in the name of the Trust or the names of the Regular Trustees or otherwise as the Regular Trustees may deem expedient, to the extent such delegation is not prohibited by applicable law or contrary to the provisions of the Trust, as set forth herein. ARTICLE VI DISTRIBUTIONS 6.1 DISTRIBUTIONS. If and to the extent that the Subordinated Note Issuer makes a payment of interest (including any interest payments on interest deferred in accordance with the terms of the Indenture) and/or principal on the Subordinated Notes held by the Property Trustee (the amount of any such payment being a "Payment Amount"), the Property Trustee shall and is directed, to the extent funds are available for that purpose, to make a distribution (a "Distribution") of the Payment Amount to Holders in accordance with the applicable terms of the Securities. Distributions shall be made on the Preferred Securities and the Common Securities in accordance with the preferences set forth in their respective terms. ARTICLE VII ISSUANCE OF SECURITIES 7.1 GENERAL PROVISIONS REGARDING SECURITIES. (a) The Regular Trustees shall issue on behalf of the Trust securities in fully registered form representing undivided beneficial interests in the assets of the Trust in accordance with this Section 7.1(a) and for the consideration specified in the Pricing Agreement. The Regular Trustees shall, on behalf of the Trust, issue one class of preferred securities representing undivided beneficial interests in the assets of the Trust (the "Preferred Securities") having such terms as are set forth in Exhibit A, as such Exhibit A may be amended from time to time in accordance with this Declaration and incorporated herein by reference, and one class of common securities representing undivided beneficial interests in the assets of the Trust having such terms as are set forth in Exhibit A, as such Exhibit A may be amended from time to time in accordance with this Declaration, and incorporated herein by reference. The Trust shall have no securities or other interests in the assets of the Trust other than the Preferred Securities and the Common Securities; (b) The Securities shall be signed on behalf of the Trust by the Regular Trustees (or if there are more than two Regular Trustees by any two of the Regular Trustees). Such signatures may be the manual or facsimile signatures of the present or any future Regular Trustee. Typographical and other minor errors or -26- 29 defects in any such reproduction of any such signature shall not affect the validity of any Security. In case any Regular Trustee of the Trust who shall have signed any of the Securities shall cease to be such Regular Trustee before the Securities so signed shall be delivered by the Trust, such Security nevertheless may be delivered as though the person who signed such Security had not ceased to be such Regular Trustee; and any Certificate may be signed on behalf of the Trust by such persons who shall, at the actual date of the execution of such Security, be the Regular Trustees of the Trust, although at the date of the execution and delivery of the Declaration any such person was not such a Regular Trustee; Securities shall be printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Regular Trustees, as evidenced by their execution thereof, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements as the Regular Trustees may deem appropriate, or as may be required to comply with any law or with any rule or regulation of any stock exchange on which Securities may be listed, or to conform to usage; (c) The consideration received by the Trust for the issuance of the Securities shall constitute a contribution to the capital of the Trust and shall not constitute a loan to the Trust; (d) Upon issuance of the Securities as provided in this Declaration, the Securities so issued shall be deemed to be validly issued, fully paid and non-assessable; and (e) Every Person, by virtue of having become a Holder in accordance with the terms of this Declaration, shall be deemed to have expressly assented and agreed to the terms of, and shall be bound by this Declaration. ARTICLE VIII TERMINATION OF TRUST 8.1 TERMINATION OF TRUST. This Declaration and the Trust shall terminate and be of no further force or effect when: (a) All of the Securities shall have been called for redemption and the amounts necessary for redemption thereof shall have been paid to the Holders of Securities in accordance with the terms hereof and of the Securities; or (b) All of the Subordinated Notes shall have been distributed to the Holders of Securities in exchange for all of the Securities in accordance with the terms hereof and of the Securities; or (c) Upon the expiration of the term of the Trust as set forth in Section 3.14 hereof; or (d) Before the issuance of any Securities, with the consent of all of the Regular Trustees and the Sponsor, and a certificate of cancellation is filed by the Trustees with the Secretary of State of the State of Delaware. The Trustees shall so file such a certificate as soon as practicable after the occurrence of an event referred to in this Section 8.1 The provisions of Sections 3.10, Section 4.2 and Article X shall survive the termination of the Trust. ARTICLE IX TRANSFER OF INTERESTS; FORMS OF SECURITIES -27- 30 9.1 TRANSFER OF SECURITIES. (a) Securities may only be transferred, in whole or in part, in accordance with the terms and conditions set forth in this Declaration and in the terms of the Securities. Any transfer or purported transfer of any Security not made in accordance with this Declaration shall be null and void; (b) Subject to this Article IX, the Preferred Securities shall be freely transferable, provided, however, that the Global Preferred Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any nominee to a successor Depositary or a nominee of any successor Depositary; and (c) Subject to this Article IX, the Sponsor and any Related Party may only transfer Common Securities to the Sponsor or a Related Party of the Sponsor, PROVIDED THAT, any such transfer is subject to the condition precedent that the transferor obtain the written opinion of nationally recognized independent counsel experienced in such matters that such transfer would not cause more than an insubstantial risk that: (i) The Trust would be classified for United States federal income tax purposes as an association taxable as a corporation or a partnership and each Holder of Securities would not be treated as owning an undivided beneficial interest in the Subordinated Notes; and (ii) The Trust or the transferee would be an Investment Company. 9.2 REGISTRATION, TRANSFER AND EXCHANGE OF SECURITIES Except as specifically otherwise provided herein with respect to Global Preferred Securities, Securities may be exchanged for Securities representing a like aggregate liquidation amount. Securities to be exchanged shall be surrendered at the offices or agencies of the Property Trustee and the Regular Trustees shall execute the Securities, and the Property Trustee shall authenticate and deliver in exchange therefor the Securities or Securities which the Holder making the exchange shall be entitled to receive. The Property Trustee shall keep or cause to be kept, at its principal corporate trust office, the Register in which, subject to such reasonable regulations as it may prescribe, the Property Trustee shall provided for the registration of the Securities and the transfer of Securities as in this Article provided. The Register shall be in written form or in any other form capable of being converted into written form within a reasonable time. At all reasonable times the Register shall be open for inspection by the Regular Trustees and the Sponsor. Upon due presentment for transfer of any Security at the principal corporate trust office of the Property Trustee, the Regular Trustees shall execute a new Security and the Property Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security for a like aggregate liquidation amount. Notwithstanding any other provisions of this Section 9.2, unless and until it is exchanged in whole or in part for Securities in definitive form, a Global Preferred Security representing all or a portion of the Securities may not be transferred except as a whole by the Depository to a nominee of such Depository or by a nominee of such Depository to such Depository or another nominee of such Depository or by such Depository or any such nominee to a successor Depository or a nominee of such successor Depository. All Securities presented or surrendered for exchange, transfer, redemption, conversion or payment shall, if so required by the Property Trustee, be accompanied by a written instrument or instruments of -28- 31 transfer, in form satisfactory to the Regular Trustees and the Property Trustee, duly executed by the registered Holder or by such Person's attorney duly authorized in writing. No service charge shall be made for any exchange or registration of transfer of Securities, but the Property Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto. The Property Trustee shall not be required to exchange or transfer (a) any Securities during a period beginning at the opening of business 15 days before the day of the first publication or the mailing (if there is no publication) of a notice of redemption of Securities and ending at the close of business on the day of such publication or mailing or (b) any Securities called or selected for redemption in whole or in part, except, in the case of Securities called for redemption in part, the portion thereof not so called for redemption in whole or in part or during a period beginning at the opening of business on any record date and ending at the close of business on the relevant Distribution payment date therefor. 9.3 DEEMED SECURITY HOLDERS The Trustees may treat the Person in whose name any Security shall be registered on the books and records of the Trust as the sole holder of such Security for purposes of receiving Distributions and for all other purposes whatsoever and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such Securities on the part of any Person, whether or not the Trustees shall have actual or other notice thereof. 9.4 GLOBAL SECURITIES (a) Unless otherwise specified in the terms of the Preferred Securities, on original issuance, will be issued in the form of one or more fully registered Global Preferred Securities, to be delivered to the Depositary, by, or on behalf of, the Trust. Each Global Preferred Security shall: (i) represent the aggregate liquidation amount of Preferred Securities issued hereunder, (ii) be registered in the name of either the Depositary for such Global Preferred Security or the nominee of such Depositary, (iii) be delivered by the Trustee to such Depositary or pursuant to such Depositary's written instruction and (iv) bear a legend substantially to the following effect: "Unless and until it is exchanged in whole or in part for Preferred Securities in definitive form, this Global Preferred Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any nominee to a successor Depositary or a nominee of any successor Depositary." The notation of the record owner's interest in such Global Preferred Security upon the original issuance thereof shall be deemed to be delivery in connection with the original issuance of each beneficial owner's interest in such Global Preferred Security. Without limiting the foregoing, the Regular Trustees, the Property Trustee, the Sponsor and the Issuer of the Subordinated Notes shall have no responsibility, obligation or liability with respect to: (x) the maintenance, review or accuracy of the records of the Depositary or of any of its participating organizations with respect to any ownership interest in or payments with respect to such Global Preferred Security, (y) any communication with or delivery of any notice (including notices of redemption) with respect to the Preferred Securities represented by the Global Preferred Security to any Person having any ownership interest in such Global Preferred Security or to any of the Depositary's participating organizations or (z) any payment made on account of any beneficial ownership interest in such Global Preferred Security. (b) If Preferred Securities are issued in the form of a Global Preferred Security or Securities, each such Global Preferred Security may provide that it shall represent the aggregate amount of outstanding Preferred Securities from time to time endorsed thereon and may also provide that the aggregate amount of -29- 32 outstanding Preferred Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Global Preferred Security to reflect the amount of outstanding Preferred Securities represented thereby shall be made by the Trustee and in such manner as shall be specified on such Global Preferred Security. Any instructions by the Regular Trustees with respect to a Global Preferred Security, after its initial issuance, shall be in writing. (c) The Depositary hereunder shall be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and any other applicable statute or regulation If at any time the Depositary for the Preferred Securities notifies the Regular Trustees that it is unwilling or unable to continue as Depositary or if at any time the Depositary shall no longer be eligible to serve as Depositary, the Regular Trustees shall appoint a successor Depositary. If a successor Depositary is not appointed by the Regular Trustees within 90 days after they receive such notice or learn of such ineligibility, the Regular Trustees shall execute and deliver definitive Preferred Securities in authorized liquidation amounts in exchange for the Global Preferred Security or Securities (the "Definitive Preferred Security Certificates") in the same aggregate liquidation amount as the Global Preferred Security or Securities representing the Preferred Securities in exchange for such Global Preferred Security or Securities, in accordance with the provisions of subsection (e) of this Section 9.4, without any further corporate action by the Trustees. (d) The Regular Trustees may at any time after consultation with the Sponsor, determine that the Preferred Securities issued in the form of one or more Global Preferred Securities shall no longer be represented by such Global Preferred Security or Securities. In such event, the Regular Trustees will execute and deliver Preferred Securities in definitive form and in authorized denominations in an aggregate principal amount equal to the principal amount of the Global Preferred Security or Securities representing the Preferred Securities in exchange for such Global Preferred Security or Securities, in accordance with the provisions of subsection (e) of this Section 9.4 without any further corporate action by the Regular Trustees. (e) Upon any exchange hereunder of the Global Preferred Security or Securities for Preferred Securities in definitive form, such Global Preferred Security or Securities shall be canceled by the Trust. Preferred Securities issued hereunder in exchange for the Global Preferred Security or Securities shall be registered in such names and in such authorized denominations as the Depositary for such Global Preferred Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Regular Trustees. The Regular Trustees shall deliver such Definitive Preferred Securities in definitive certificated form in exchange for the Global Preferred Security or Securities to the persons in whose name such definitive Preferred Securities have been registered in accordance with the directions of the Depositary. (f) Unless otherwise specified in the terms of the Common securities, on original issuance, the Common Securities will be issued in the form of a single fully registered Common Security Certificate which shall (a) represent the aggregate liquidation amount of common Securities issued hereunder and (b) be registered in the name of the Sponsor and delivered by the Trust to the Sponsor. 9.5 NOTICES TO DEPOSITARY Whenever a notice or other communication to the Preferred Security Holders is required under this Declaration, unless and until Definitive Preferred Security Certificates shall have been issued pursuant to Section 9.4, the Regular Trustees shall give all such notices and communications, specified herein to be given to the Preferred Security Holders, to the Depositary, and shall have no other notice obligations. 9.6 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If: -30- 33 (a) Any mutilated Securities should be surrendered to the Regular Trustees, or if the Regular Trustees shall receive evidence to their satisfaction of the destruction, loss or theft of any Securities; and (b) There shall be delivered to the Regular Trustees, the Sponsor and the Property Trustee such security or indemnity as may be required by them to keep each of them harmless, then in the absence of notice that such Security shall have been acquired by a bona fide purchaser, the Regular Trustees on behalf of the Trust shall execute and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Security, a new Security in the same aggregate Liquidation Amount as the mutilated, destroyed, lost or stolen Security. In connection with the issuance of any new Certificate under this Section 9.6, the Regular Trustees may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith. Every new Security issued pursuant to this Section 9.6 in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Trust, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the security and benefits of this Declaration equally and ratably with all other Outstanding Securities. ARTICLE X LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS 10.1 LIABILITY (a) Except as expressly set forth in this Declaration, the Securities Guarantees and the terms of the Securities the Sponsor shall not be: (i) personally liable for the return of any portion of the capital contributions (or any return thereon) of the Holders of the Securities which shall be made solely from assets of the Trust; and (ii) be required to pay to the Trust or to any Holder of Securities any deficit upon dissolution of the Trust or otherwise; and (b) Pursuant to Section 3803(a) of the Business Trust Act, the Holders of the Securities shall be entitled to the same limitation of personal liability extended to stockholders of private corporations. 10.2 EXCULPATION. (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Trust or any Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Declaration or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's gross negligence (or, in the case of the Property Trustee except as otherwise set forth in Section 3.9) or willful misconduct with respect to such acts or omissions; and (b) An Indemnified Person shall be fully protected in relying in good faith upon the records of the Trust and upon such information, opinions, reports or statements presented to the Trust by any Person as to matters the Indemnified Person reasonably believes are within such other Person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Trust, including -31- 34 information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which Distributions to Holders of Securities might properly be paid. 10.3 FIDUCIARY DUTY (a) To the extent that, at law or in equity, an Indemnified Person has duties (including fiduciary duties) and liabilities relating thereto to the Trust or to any other Covered Person, an Indemnified Person acting under this Declaration, subject to any duties or obligations imposed on the Property Trustee under Rule 3a-7, shall not be liable to the Trust or to any other Covered Person for its good faith reliance on the provisions of this Declaration. The provisions of this Declaration, to the extent that they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity (other than duties imposed on the Property Trustee under the Trust Indenture Act), are agreed by the parties hereto to replace such other duties and liabilities of such Indemnified Person; (b) Unless otherwise expressly provided herein: (i) Whenever a conflict of interest exists or arises between an Indemnified Person and any Covered Persons; or (ii) Whenever this Declaration or any other agreement contemplated herein or therein provide that an Indemnified Person shall act in a manner that is, or provides terms that are, fair and reasonable to the Trust or any Holder of Securities, (c) The Indemnified Person shall resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices, and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Indemnified Person, the resolution, action or term so made, taken or provided by the Indemnified Person shall not constitute a breach of this Declaration or any other agreement contemplated herein or of any duty or obligation of the Indemnified Person at law or in equity or otherwise; and whenever in this Declaration an Indemnified Person is permitted or required to make a decision (i) In its "discretion" or under a grant of similar authority, the Indemnified Person shall be entitled to consider such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Trust or any other Person; or (ii) In its "good faith" or under another express standard, the Indemnified Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Declaration or by applicable law. 10.4 INDEMNIFICATION. (a) To the fullest extent permitted by applicable law, the Sponsor shall indemnify and hold harmless each Indemnified Person from and against any loss, damage or claim incurred by such Indemnified Person by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of authority conferred on such Indemnified Person by this Declaration, except that no Indemnified Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Indemnified Person -32- 35 by reason of gross negligence (or, in the case of the Property Trustee, except as otherwise set forth in Section 3.9) or willful misconduct with respect to such acts or omissions; and (b) To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by an Indemnified Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Sponsor prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Sponsor of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined that the Indemnified Person is not entitled to be indemnified as authorized in Section 10.4(a). 10.5 OUTSIDE BUSINESSES. Any Covered Person, the Sponsor, the Subordinated Note Issuer, the Delaware Trustee and the Property Trustee may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Trust, and the Trust and the Holders of Securities shall have no rights by virtue of this Declaration in and to such independent ventures or the income or profits derived therefrom and the pursuit of any such venture, even if competitive with the business of the Trust, shall not be deemed wrongful or improper. No Covered Person, the Sponsor, the Subordinated Note Issuer, the Delaware Trustee, or the Property Trustee shall be obligated to present any particular investment or other opportunity to the Trust even if such opportunity is of a character that, if presented to the Trust, could be taken by the Trust, and any Covered Person, the Sponsor, the Subordinated Note Issuer, the Delaware Trustee and the Property Trustee shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee may engage or be interested in any financial or other transaction with the Sponsor or any Affiliate of the Sponsor, or may act as Depositary for, trustee or agent for, or act on any committee or body of holders of, securities or other obligations of the Sponsor or its Affiliates. ARTICLE XI ACCOUNTING 11.1 FISCAL YEAR The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or such other year as is required by the Code. 11.2 CERTAIN ACCOUNTING MATTERS. (a) At all times during the existence of the Trust, the Regular Trustees shall keep, or cause to be kept, full books of account, records and supporting documents, which shall reflect in reasonable detail, each transaction of the Trust. The books of account shall be maintained on the accrual method of accounting, in accordance with generally accepted accounting principles, consistently applied. The Trust shall use the accrual method of accounting for United States federal income tax purposes. The books of account and the records of the Trust shall be examined by and reported upon, as of the end of each Fiscal Year, by a firm of independent certified public accountants selected by the Regular Trustees (b) The Regular Trustees shall cause to be prepared and delivered to each of the Holders of Securities, within 90 days after the end of each Fiscal Year of the Trust, annual financial statements of the Trust, including a balance sheet of the Trust as of the end of such Fiscal Year, and the related statements of income or loss; -33- 36 (c) The Regular Trustees shall cause to be duly prepared and delivered to each of the Holders of Securities, any annual United States federal income tax information statement, required by the Code, containing such information with regard to the Securities held by each Holder as is required by the Code and the Treasury Regulations. Notwithstanding any right under the Code to deliver any such statement at a later date, the Regular Trustees shall endeavor to deliver all such statements within 30 days after the end of each Fiscal Year of the Trust; and (d) The Regular Trustees shall cause to be duly prepared and filed with the appropriate taxing authority, an annual United States federal income tax return, on a Form 1041 or such other form required by United States federal income tax law, and any other annual income tax returns required to be filed by the Regular Trustees on behalf of the Trust with any state or local taxing authority. 11.3 BANKING. The Trust shall maintain one or more bank accounts in the name and for the sole benefit of the Trust; PROVIDED, HOWEVER, that all payments of funds in respect of the Subordinated Notes held by the Property Trustee shall be made directly to the Property Trustee Account and no other funds of the Trust shall be deposited in the Property Trustee Account. The sole signatories for such accounts shall be designated by the Regular Trustees; PROVIDED, HOWEVER, that the Property Trustee shall designate the sole signatories for the Property Trustee Account. 11.4 WITHHOLDING The Trust and the Trustees shall comply with all withholding requirements under United States federal, state and local law. The Trust shall request, and the Holders shall provide to the Trust, such forms or certificates as are necessary to establish an exemption from withholding with respect to each Holder, and any representations and forms as shall reasonably be requested by the Trust to assist it in determining the extent of, and in fulfilling, its withholding obligations. The Regular Trustees shall file required forms with applicable jurisdictions and, unless an exemption from withholding is properly established by a Holder, shall remit amounts withheld with respect to the Holder to applicable jurisdictions. To the extent that the Trust is required to withhold and pay over any amounts to any authority with respect to distributions or allocations to any Holder, the amount withheld shall be deemed to be a distribution in the amount of the withholding to the Holder. In the event of any claimed over-withholding, Holders shall be limited to an action against the applicable jurisdiction. If the amount required to be withheld was not withheld from actual Distributions made, the Trust may reduce subsequent Distributions by the amount of such withholding. ARTICLE XII AMENDMENTS AND MEETINGS 12.1 AMENDMENTS. (a) Except as otherwise provided in this Declaration or by any applicable terms of the Securities, this Declaration may be amended by, and only by, a written instrument approved and executed by the Regular Trustees (or, if there are more than two Regular Trustees a majority of the Regular Trustees); PROVIDED, HOWEVER, that: (i) No amendment shall be made, and any such purported amendment shall be void and ineffective, to the extent the result thereof would be to: -34- 37 (A) cause the Trust to be characterized for purposes of United States federal income taxation as an association taxable as a corporation or a partnership and each Holder of Securities not to be treated as owning an undivided beneficial interest in the Subordinated Notes; (B) reduce or otherwise adversely affect the powers of the Property Trustee; or (C) cause the Trust to be deemed to be an Investment Company which is required to be registered under the Investment Company Act; (ii) At such time after the Trust has issued any Securities which remain outstanding, any amendment which would adversely affect the rights, privileges or preferences of any Holder of Securities may be effected only with such additional requirements as may be set forth in the terms of such Securities; (iii) Section 9.1(c) and this Section 12.1 shall not be amended without the consent of all of the Holders of the Securities; (iv) Article IV shall not be amended without the consent of the Holders of a Majority in Liquidation Amount of the Common Securities; and (v) the rights of the holders of the Common Securities under Article V to increase or decrease the number of, and appoint and remove Trustees shall not be amended without the consent of the Holders of a Majority in Liquidation Amount of the Common Securities (except to the extent that such amendment relates to the Special Regular Trustee, in which case such amendment may only be made in accordance with the terms of the Preferred Securities). (b) Notwithstanding Section 12.1(a)(ii), this Declaration may be amended without the consent of the Holders of the Securities to: (i) cure any ambiguity; (ii) correct or supplement any provision in this Declaration that may be defective or inconsistent with any other provision of this Declaration; (iii) add to the covenants, restrictions or obligations of the Sponsor; and (iv) to add or change any of the provisions of this Declaration to such extent as shall be necessary to facilitate the issuance of Securities in definitive certificated form; (v) conform to any change in Rule 3a-7 or written change in interpretation or application of Rule 3a-7 by any legislative body, court, government agency or regulatory authority which amendment does not have a material adverse effect on the right, preferences or privileges of the Holders. (c) Prior to the issuance of the Securities, any terms of the Securities may be amended by a written instrument approved and executed by the Regular Trustees (or, if there are more than two Regular Trustees a majority of the Regular Trustees) and the Sponsor. 12.2 MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY WRITTEN CONSENT -35- 38 (a) Meetings of the Holders of any class of Securities may be called at any time by the Regular Trustees (or as provided in the terms of the Securities) to consider and act on any matter on which Holders of such class of Securities are entitled to act under the terms of this Declaration, the terms of the Securities or the rules of any stock exchange on which the Preferred Securities are listed or admitted for trading. The Regular Trustees shall call a meeting of such class of Holders, if directed to do so by the Holders of at least 10% in Liquidation Amount of such class of Securities. Such direction shall be given by delivering to the Regular Trustees one or more calls in a writing stating that the signing Holders of Securities wish to call a meeting and indicating the general or specific purpose for which the meeting is to be called. Any Holders of Securities calling a meeting shall specify in writing the Security Certificates held by the Holders of Securities exercising the right to call a meeting and only those specified shall be counted for purposes of determining whether the required percentage set forth in the second sentence of this paragraph has been met; and (b) Except to the extent otherwise provided in the terms of the Securities, the following provisions shall apply to meetings: (i) Notice of any such meeting shall be given to all the Holders of Securities having a right to vote thereat at least 7 days and not more than 60 days before the date of such meeting. Whenever a vote, consent or approval of the Holders of Securities is permitted or required under this Declaration or the rules of any stock exchange on which the Preferred Securities are listed or admitted for trading, such vote, consent or approval may be given at a meeting of the Holders of Securities. Any action that may be taken at a meeting of the Holders of Securities may be taken without a meeting if a consent in writing setting forth the action so taken is signed by the Holders of Securities owning not less than the minimum amount of Securities in Liquidation Amount that would be necessary to authorize or take such action at a meeting at which all Holders of Securities having a right to vote thereon were present and voting. Prompt notice of the taking of action without a meeting shall be given to the Holders of Securities entitled to vote who have not consented in writing. The Regular Trustees may specify that any written ballot submitted to the Security Holder for the purpose of taking any action without a meeting shall be returned to the Trust within the time specified by the Regular Trustees; (ii) Each Holder of a Security may authorize any Person to act for it by proxy on all matters in which a Holder of Securities is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting. No proxy shall be valid after the expiration of 11 months from the date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the Holder of Securities executing it. Except as otherwise provided herein, all matters relating to the giving, voting or validity of proxies shall be governed by the General Corporation Law of the State of Delaware relating to proxies, and judicial interpretations thereunder, as if the Trust were a Delaware corporation and the Holders of the Securities were stockholders of a Delaware corporation; (iii) Each meeting of the Holders of the Securities shall be conducted by the Regular Trustees or by such other Person that the Regular Trustees may designate; and (iv) Unless the Business Trust Act, this Declaration, the terms of the Securities or the listing rules of any stock exchange on which the Preferred Securities are then listed or trading, otherwise provides, the Regular Trustees, in their sole discretion, shall establish all other provisions relating to meetings of Holders of Securities, including notice of the time, place or purpose of any meeting at which any matter is to be voted on by any Holders of Securities, waiver of any such notice, action by consent without a meeting, the establishment of a record date, quorum requirements, voting in person or by proxy or any other matter with respect to the exercise of any such right to vote. -36- 39 ARTICLE XIII REPRESENTATIONS OF PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE 13.1 REPRESENTATIONS AND WARRANTIES OF PROPERTY TRUSTEE. The Trustee which acts as initial Property Trustee represents and warrants to the Trust and to the Sponsor at the date of this Declaration, and each Successor Property Trustee represents and warrants to the Trust and the Sponsor at the time of the Successor Property Trustee's acceptance of its appointment as Property Trustee that: (a) The Property Trustee is a banking association with trust powers, duly organized, validly existing and in good standing under the laws of the [United States][States of ________], with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, the Declaration. (b) The execution, delivery and performance by the Property Trustee of the Declaration has been duly authorized by all necessary corporate action on the part of the Property Trustee. The Declaration has been duly executed and delivered by the Property Trustee, and it constitutes a legal, valid and binding obligation of the Property Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (c) The execution, delivery and performance of the Declaration by the Property Trustee does not conflict with or constitute a breach of the Articles of Organization or By-laws of the Property Trustee. (d) No consent, approval or authorization of, or registration with or notice to, any State or Federal banking authority is required for the execution, delivery or performance by the Property Trustee, of the Declaration. (e) to add or change any of the provisions of this Declaration to such extent as shall be necessary to facilitate the issuance of Securities in definitive certificated form; [(f) Pursuant to a Co-Trustee Agreement between the Property Trustee and the Delaware Trustee dated as of _________, the Delaware Trustee has been authorized to perform its obligations under the Certificate of Trust and the Declaration.] 13.2 REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE The Trustee which acts as initial Delaware Trustee represents and warrants to the Trust and the Sponsor at the date of this Declaration, and each Successor Delaware Trustee represents and warrants to the Trust and the Sponsor at the time of the Successor Delaware Trustee's acceptance of its appointment as Delaware Trustee, that (a) it satisfies the qualifications set forth in Section 5.1(a)(3) and (b) the Declaration has been duly executed and delivered by the Delaware Trustee, and it constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). -37- 40 ARTICLE XIV MISCELLANEOUS 14.1 NOTICES. All notices provided for in this Declaration shall be in writing, duly signed by the party giving such notice, and shall be electronically communicated or hand delivered or sent by overnight courier, addressed to the relevant Person as provided in this Section 14.1: If given to the Trust, in care of the Regular Trustees at the Trust's mailing address set forth below (or such other address as the Trust may give notice of to the Holders of the Securities): AIRTOUCH FINANCING ( ) One California Street San Francisco, California 94111 Attention: ( ) If given to the Property Trustee, at the mailing address set forth below (or such other address as the Property Trustee may give notice of to the Holders of the Securities): Attention: ( ) If given to the Holder of the Common Securities, at the mailing address of the Sponsor set forth below (or such other address as the Holder of the Common Securities may give notice to the Trust): AirTouch Communications, Inc. One California Street San Francisco, California 94111 Attention: ( ) If given to any other Holder, at the address set forth on the books and records of the Trust. For all purposes of this Declaration, a notice or communication will be deemed effective: (a) if delivered by hand or sent by overnight courier, on the day it is delivered unless (i) that day is not a Business Day in the city specified (a "Local Business Day") in the address for notice provided by the recipient or (ii) if delivered after the close of business on a Local Business Day, then on the next succeeding Local Business Day or (b) if sent by facsimile transmission, on the date transmitted, provided that oral or written confirmation of receipt is obtained by the sender unless the date of transmission and confirmation is not a Local Business Day, in which case, on the next succeeding Local Business Day. Any notice, direction, request, demand, consent or waiver by the Sponsor, or any Holder of Securities to or upon the Property Trustee shall be deemed to have been sufficiently given, made or filed, for all purposes, if given, made or filed in writing at the principal office of the Property Trustee in accordance with the provisions of this Section 14.1. -38- 41 Any notice, request, consent or waiver by the Sponsor, the Regular Trustees or the Property Trustee upon the Depositary shall have been sufficiently given, made or filed, for all purposes, if give or made in accordance with the provisions of this Section 14.1 at the address shown for such Depository in the Register or at such other address as the Depository shall have provided for purposes of notice. 14.2 GOVERNING LAW This Declaration and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws. 14.3 INTENTION OF THE PARTIES. It is the intention of the parties hereto that the Trust not be characterized for United States federal income tax purposes as an association taxable as a corporation or a partnership but rather, the Trust be characterized as a grantor trust or otherwise in a manner that each Holder of Securities be treated as owning an undivided beneficial interest in the Subordinated Notes. The provisions of this Declaration shall be interpreted to further this intention of the parties. 14.4 HEADINGS. Headings contained in this Declaration are inserted for convenience of reference only and do not affect the interpretation of this Declaration or any provision hereof. 14.5 SUCCESSORS AND ASSIGNS Whenever in this Declaration any of the parties hereto is named or referred to, the successors and assigns of such party shall be deemed to be included, and all covenants and agreements in this Declaration by the Sponsor and the Trustees shall bind and inure to the benefit of their respective successors and assigns, whether so expressed. 14.6 PARTIAL ENFORCEABILITY. If any provision of this Declaration, or the application of such provision to any Person or circumstance, shall be held invalid, the remainder of this Declaration, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby. 14.7 COUNTERPARTS. This Declaration may contain more than one counterpart of the signature page and this Declaration may be executed by the affixing of the signature of each of the Trustees to one of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page. 14.8 LISTING. The Regular Trustees shall use their best efforts to cause the Preferred Securities to be listed for quotation on the New York Stock Exchange Limited. -39- 42 -40- 43 IN WITNESS WHEREOF, the undersigned has caused these presents to be executed as of the day and year first above written. as Regular Trustee - ------------------------------------- as Regular Trustee - ------------------------------------- as Regular Trustee - ------------------------------------- as Delaware Trustee By: Name: Title: as Property Trustee By: Name: Title: AirTouch Communications, Inc. as Sponsor By: Name: Title: -41- 44 EXHIBIT A TERMS OF _% TRUST ORIGINATED PREFERRED SECURITIES __% TRUST ORIGINATED COMMON SECURITIES Pursuant to Section 7.1 and subject to Section 12.1(c) of the Amended and Restated Declaration of Trust, dated as of _________, 199( ) (as amended from time to time in accordance with the provisions thereof, the "Declaration"), the designation, rights, privileges, restrictions, preferences and other terms and provisions of the Preferred Securities and the Common Securities are set out below (each capitalized term used but not defined herein has the meaning set forth in the Declaration): 1. DESIGNATION AND NUMBER. (a) PREFERRED SECURITIES. Preferred Securities of the Trust with an aggregate Liquidation Amount with respect to the assets of the Trust of $(_____ million ($_________)) and a Liquidation Amount with respect to the assets of the Trust of $_____ per Preferred Security, are hereby designated for the purposes of identification only as "____% Trust Originated Preferred Securities" (the "Preferred Securities"). (b) COMMON SECURITIES. Common Securities of the Trust with an aggregate Liquidation Amount with respect to the assets of the Trust of $(_______ million ($______)) and a Liquidation Amount with respect to the assets of the Trust of $_____ per Common Security, are hereby designated for the purposes of identification only as "__% Trust Originated Common Securities" (the "Common Securities"). 2. DISTRIBUTIONS. (a) Periodic Distributions payable on each Security will be at a rate per annum of [*.*]% (the "Coupon Rate") of the stated Liquidation Amount of $__ per Security, such rate being the rate of interest payable on the Subordinated Notes to be held by the Property Trustee. Distributions in arrears for more than one quarter will bear interest thereon at the Coupon Rate (to the extent permitted by applicable law). The term Distributions as used in these terms includes such periodic cash distributions and any such interest payable unless otherwise stated. A Distribution is payable only to the extent that payments are made in respect of the Subordinated Notes held by the Property Trustee. The amount of Distributions payable for any period will be computed for any full quarterly Distribution period on the basis of a 360-day year of twelve 30-day months. (b) Distributions on the Securities will be cumulative, will accrue from _________, 199( ) and will be payable quarterly in arrears, on March 31, June 30, September 30, and December 31 of each year, commencing on __________, 199( ), except as otherwise described below. The Subordinated Note Issuer has the right under the Indenture to defer payments of interest by extending the interest payment period from time to time on the Subordinated Notes for a period not exceeding [20] consecutive quarters (each, an Extension Period) and, as a consequence of such extension, Distributions will also be deferred. Despite such deferral, quarterly Distributions will continue to accrue with interest thereon (to the extent permitted by applicable law) at the Coupon Rate during any such Extension Period. Prior to the termination of any such Extension Period, the Subordinated Note Issuer may further extend such Extension Period; provided that such Extension Period together with all such previous and further extensions thereof may not exceed A-1 45 [20] consecutive quarters. Payments of accrued Distributions will be payable to Holders as they appear on the books and records of the Trust on the first record date after the end of the Extension Period. Upon the termination of any Extension Period and the payment of all amounts then due, the Subordinated Note Issuer may commence a new Extension Period, subject to the above requirements. (c) Distributions on the Securities will be payable promptly by the Property Trustee upon receipt of payment with respect to the Subordinated Notes to the Holders thereof as they appear on Register on the relevant record dates. While the Preferred Securities remain in book-entry only form, the relevant record dates shall correspond with the record dates for the relevant interest payment dates on the Subordinated Notes. If the Preferred Securities are not in book-entry form, the relevant record date shall be the date that is [15 Business Days] prior to the relevant interest payment date on the Subordinated Notes. The relevant record dates for the Common Securities shall be the same record date as the Preferred Securities. If the Preferred Securities shall not continue to remain in book-entry-only form, the relevant record dates for the Preferred Securities, shall conform to the rules of any securities exchange on which the securities are listed and, if none, shall be selected by the Regular Trustees, which dates shall be at least one Business Day but less than 60 Business Days before the relevant payment dates, which payment dates correspond to the interest payment dates on the Subordinated Notes. Distributions payable on any Securities that are not punctually paid on any Distribution payment date, as a result of the Subordinated Note Issuer or the Sponsor having failed to make a payment under the Subordinated Notes will cease to be payable to the Person in whose name such Securities are registered on the relevant record date, and such defaulted Distribution will instead be payable to the Person in whose name such Securities are registered on the special record date or other specified date determined in accordance with the Indenture. If any date on which Distributions are payable on the Securities is not a Business Day, then payment of the Distribution payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date. (d) In the event that there is any money or other property held by or for the Trust that is not accounted for hereunder, such property shall be distributed Pro Rata (as defined in Section 8) among the Holders of the Securities. 3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION. (a) In the event of any voluntary or involuntary dissolution, winding-up or termination of the Trust, the Holders of the Securities on the date of the dissolution, winding-up or termination as the case may be, will be entitled to receive out of the assets of the Trust available for distribution to Holders of Securities after satisfaction of liabilities to creditors, an amount equal to the aggregate of the Liquidation Amount of $__ per Security plus accrued and unpaid Distributions thereon to the date of payment (such amount being the Liquidation Distribution), unless, in connection with such dissolution, winding-up or termination, Subordinated Notes in an aggregate principal amount equal to the aggregate Liquidation Amount of such Securities shall be distributed on a Pro Rata basis to the Holders of the Securities in exchange for such Securities. (b) If, upon any such dissolution, the Liquidation Distribution can be paid only in part because the Trust has insufficient assets available to pay in full the aggregate Liquidation Distribution, then the amounts payable directly by the Trust on the Securities shall be paid on a Pro Rata basis. 4. REDEMPTION AND DISTRIBUTION. A-2 46 (a) Upon the repayment of the Subordinated Notes in whole or in part, whether at maturity or upon redemption, the proceeds from such repayment or payment shall be simultaneously applied to redeem Securities having an aggregate Liquidation Amount equal to the aggregate principal amount of the Subordinated Notes so repaid or redeemed, at a redemption price of $__ per Security plus an amount equal to accrued and unpaid Distributions thereon at the date of the redemption, payable in cash (the Redemption Price). Holders will be given not less than 30 nor more than 60 days notice of such redemption. (b) If fewer than all the outstanding Securities are to be so redeemed, the Common Securities and the Preferred Securities will be redeemed Pro Rata and the Preferred Securities to be redeemed will be as described in Paragraph 4(f)(ii) below. (c) If, at any time, a Tax Event or an Investment Company Event (each as defined below, and each a "Special Event") shall occur and be continuing the Regular Trustees shall dissolve the Trust and, after satisfaction of creditors, cause Subordinated Notes held by the Property Trustee, having an aggregate principal amount equal to the aggregate stated Liquidation Amount of, with an interest rate identical to the Coupon Rate of, and accrued and unpaid interest equal to accrued and unpaid Distributions on and having the same record date for payment as the Securities, to be distributed to the Holders of the Securities, in satisfaction of such Holders' interests in the Trust on a Pro Rata basis, within 90 days following the occurrence of such Special Event (the "90 Day Period"), PROVIDED, HOWEVER, that in the case of the occurrence of a Tax Event, as a condition of such dissolution and distribution, the Regular Trustees shall have received an opinion of a nationally recognized independent tax counsel experienced in such matters (a "No Recognition Opinion"), which opinion may rely on published revenue rulings of the Internal Revenue Service, to the effect that the Holders of the Securities will not recognize any gain or loss for United States federal income tax purposes as a result of the dissolution of the Trust and the distribution of Subordinated Notes and PROVIDED, FURTHER, that, if at the time there is available to the Trust the opportunity to eliminate, within the 90 Day Period, the Special Event by taking some ministerial action, such as filing a form or making an election, or pursuing some other similar reasonable measure that has no adverse effect on the Trust, the Subordinated Note Issuer, the Sponsor or the Holders of the Securities ("Ministerial Action"), the Trust will pursue such Ministerial Action in lieu of dissolution; provided further, that the Trust will not have any obligation to pursue such measure unless it is reasonably satisfied, in reliance on an opinion of counsel or otherwise, that such Ministerial Action can be completed within and the Special Event eliminated within the first [45] days of such 90 Day Period. If, in the case of the occurrence of a Tax Event (i) the Subordinated Note Issuer has received an opinion (a "Redemption Tax Opinion") of a nationally recognized independent tax counsel experienced in such matters that, as a result of a Tax Event, there is more than an insubstantial risk that the Subordinated Note Issuer would be precluded from deducting the interest on the Subordinated Notes for United States federal income tax purposes even after the Subordinated Notes were distributed to the Holders of Securities in liquidation of such Holders' interests in the Trust as described in this paragraph 4(c), or (ii) the Regular Trustees shall have been informed by such tax counsel that a No Recognition Opinion cannot be delivered to the Trust, the Subordinated Note Issuer shall have the right at any time, upon not less than 30 nor more than 60 days notice, to redeem the Subordinated Notes in whole or in part for cash within 90 days following the occurrence of such Tax Event, and following such redemption, Securities with an aggregate Liquidation Amount equal to the aggregate principal amount of the Subordinated Notes so redeemed shall be redeemed by the Trust at the Redemption Price on a Pro Rata basis; PROVIDED, HOWEVER, that, if at the time there is available to the Trust the opportunity to eliminate, within such 90 day period, the Tax Event by taking some Ministerial Action, the Trust or the Subordinated Note Issuer will pursue such Ministerial Action in lieu of redemption; provided further, that neither the Trust nor the Subordinated Note Issuer will have any obligation to pursue such measure unless it is reasonably satisfied, in reliance on an opinion of A-3 47 counsel or otherwise, that such Ministerial Action can be completed within and the Tax Event eliminated within the first [45] days of such 90 Day Period. "Tax Event" means that the Regular Trustees shall have received an opinion of a nationally recognized independent tax counsel experienced in such matters (a "Dissolution Tax Opinion") to the effect that on or after the date of the Prospectus Supplement, as a result of (a) any amendment to, or change (including any announced prospective change) in, the laws (or any regulations thereunder) of the United States or any political subdivision or taxing authority therefore or therein, or (b) any amendment to, or change in, an interpretation or application of any such laws or regulations by any legislative body, court, governmental agency or regulatory authority, which amendment or change is enacted, promulgated, issued or announced or which interpretation or pronouncement is issued or announced or which action is taken, in each case on or after the date of the Prospectus Supplement, there is more than an insubstantial risk that (i) the Trust is or will be within 90 days of the date thereof, subject to United States federal income tax with respect to interest accrued or received on the Subordinated Notes, (ii) the Trust is, or will be within 90 days of the date thereof, subject to more than a de minimis amount of taxes, duties or other governmental charges, or (iii) interest payable by the Subordinated Note Issuer to the Trust on the Subordinated Notes is not, or within 90 days of the date thereof will not be, deductible, in whole or in part, by the Subordinated Note Issuer for United States federal income tax purposes. "Investment Company Event" means that the Regular Trustees shall have received an opinion of a nationally recognized independent counsel experienced in practice under the Investment Company Act that, as a result of the occurrence of a change in law or regulation or a written change in interpretation or application of law or regulation by any legislative body, court, governmental agency or regulatory authority (a "Change in 1940 Act Law"), there is more than an insubstantial risk that the Trust is or will be considered an Investment Company which is required to be registered under the Investment Company Act, which Change in 1940 Act Law becomes effective on or after the date of the issuance of the Preferred Securities. (d) On and from the date fixed by the Regular Trustees for any distribution of Subordinated Notes and dissolution of the Trust: (i) the Securities will no longer be deemed to be outstanding, (ii) The Depository Trust Company (the "Depositary") or its nominee (or any successor Depositary or its nominee), as the record Holder of the Preferred Securities, will receive a registered global certificate or certificates representing the Subordinated Notes to be delivered upon such distribution and any certificates representing Common Securities, except for certificates representing Preferred Securities held by the Depositary or its nominee (or any successor Depositary or its nominee), will be deemed to represent beneficial interests in the Subordinated Notes having an aggregate principal amount equal to the aggregate stated Liquidation Amount until such certificates are presented to the Subordinated Note Issuer or its agent for transfer or reissue. The Trust may not redeem fewer than all the outstanding Securities unless all accrued and unpaid Distributions have been paid on all Securities for all quarterly Distribution periods terminating on or before the date of redemption. (e) If the Subordinated Notes are distributed to holders of the Securities, pursuant to the terms of the Indenture, the Subordinated Note Issuer will use its best efforts to have the Subordinated Notes listed on the New York Stock Exchange or on such other exchange as the Preferred Securities were listed immediately prior to the distribution of the Subordinated Notes. (f) REDEMPTION OR DISTRIBUTION PROCEDURES. (i) Notice of any redemption of, or notice of distribution of Subordinated Notes in exchange for the Securities (a "Redemption/Distribution Notice") will be given by the Trust by mail to each Holder of A-4 48 Securities to be redeemed or exchanged not fewer than 30 nor more than 60 days before the date fixed for redemption or exchange thereof which, in the case of a redemption, will be the date fixed for redemption of the Subordinated Notes. For purposes of the calculation of the date of redemption or exchange and the dates on which notices are given pursuant to this paragraph 4(f)(i), a Redemption/Distribution Notice shall be deemed to be given on the day such notice is first mailed, by first-class mail, postage prepaid, to Holders of Securities. Each Redemption/Distribution Notice shall be addressed to the Holders of Securities at the address of each such Holder appearing in the Register. No defect in the Redemption/Distribution Notice or in the mailing of either thereof with respect to any Holder shall affect the validity of the redemption or exchange proceedings with respect to any other Holder. (ii) If Securities are to be redeemed and the Trust gives a Redemption/Distribution Notice which notice may only be issued if the Subordinated Notes are redeemed as set out in this paragraph 4 (which notice will be irrevocable) then (a) while the Preferred Securities are in book-entry only form, with respect to the Preferred Securities, by 12:00 noon, New York City time, on the redemption date, provided that the Subordinated Note Issuer has paid the Property Trustee a sufficient amount of cash in connection with the related redemption or maturity of the Subordinated Notes, the Property Trustee will transfer by wire to the Depositary (or successor Depositary) funds sufficient to pay the applicable Redemption Price with respect to the Preferred Securities, and (b) if the Preferred Securities are issued in definitive form, with respect to the Preferred Securities, and with respect to the Common Securities, provided that the Subordinated Note Issuer has paid the Property Trustee a sufficient amount of cash in connection with the related redemption or maturity of the Subordinated Notes, the Property Trustee will pay the relevant Redemption Price to the Holders of such Securities by check mailed to the address of the relevant Holder appearing on the Register on the record date of the redemption date. If a Redemption/Distribution Notice shall have been given and funds deposited as required, if applicable, then immediately prior to the close of business on the date of such deposit, or on the redemption date, as applicable, Distributions will cease to accrue on the Securities so called for redemption and all rights of Holders of such Securities so called for redemption will cease, except the right of the Holders of such Securities to receive the Redemption Price, but without interest on such Redemption Price. Neither the Regular Trustees nor the Trust shall be required to register or cause to be registered the transfer of any Securities which have been so called for redemption. If any date fixed for redemption of Securities is not a Business Day, then payment of the Redemption Price payable on such date will be made on the next succeeding day that is a Business Day (and no interest shall accrue as a result of such delay) except that, if such Business Day falls in the next calendar year, such payment will be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date fixed for redemption. If payment of the Redemption Price in respect of Securities is improperly withheld or refused and not paid either by the Property Trustee or by the Sponsor as guarantor pursuant to Preferred Securities Guarantee or Common Securities Guarantee, as relevant, Distributions on such Securities will continue to accrue, from the original redemption date to the actual date of payment, in which case the actual payment date will be considered the date fixed for redemption for purposes of calculating the Redemption Price. (iv) Redemption/Distribution Notices shall be sent by the Regular Trustees on behalf of the Trust to the Holders of the Securities as set forth on the Register. (v) Subject to the foregoing and applicable law (including, without limitation, United States federal securities laws), provided the acquiror is not the Holder of the Common Securities or an obligor under the Subordinated Indenture, the Sponsor or any of its subsidiaries may at any time and from time to time purchase outstanding Preferred Securities by tender, in the open market or by private agreement. 5. VOTING RIGHTS - PREFERRED SECURITIES. A-5 49 (a) Except as provided under paragraphs 5(b) and 7 and as otherwise required by law and the Declaration, the Holders of the Preferred Securities will have no voting rights. (b) If (i) the Trust fails to make Distributions in full on the Preferred Securities for 6 consecutive quarterly Distribution periods, or (ii) an Event of Default occurs and is continuing (each of (i) and (ii) being an Appointment Event), then the Holders of the Preferred Securities, acting as a single class, will be entitled by the vote of a Majority in Liquidation Amount of the Preferred Securities to appoint a Special Regular Trustee in accordance with Section 5.6(a)(ii)(B) of the Declaration. Any Holder of Preferred Securities (other than the Sponsor, or any entity directly or indirectly controlling or controlled by or under direct or indirect common control with the Sponsor) will be entitled to nominate any person to be appointed as Special Regular Trustee. For purposes of determining whether the Trust has failed to make Distributions in full for 6 consecutive quarterly Distribution periods, Distributions shall be deemed to remain in arrears, notwithstanding any payments in respect thereof, until full cumulative Distributions have been or contemporaneously are paid with respect to all quarterly Distribution periods terminating on or prior to the date of payment of such cumulative Distributions. (c) Not later than 30 days after such right to appoint a Special Regular Trustee arises, the Regular Trustees will convene a meeting for the purpose of appointing a Special Regular Trustee. If the Regular Trustees fail to convene such meeting within such 30-day period, the Holders of 10% in Liquidation Amount of the Preferred Securities will be entitled to convene such meeting in accordance with Section 12.2 of the Declaration. The record date for such meeting will be the close of business on the Business Day which is one Business Day before the day on which notice of the meeting is sent to Holders. The provisions of the Declaration relating to the convening and conduct of the meetings of the Holders will apply with respect to any such meeting. (d) A Special Regular Trustee may be removed without cause at any time by vote of the Holders of a Majority in Liquidation Amount of the Preferred Securities at a meeting of the Holders of the Preferred Securities in accordance with Section 5.6(a)(ii)(B) of the Declaration. The Holders of 10% in Liquidation Amount of the Preferred Securities will be entitled to convene such a meeting in accordance with Section 12.2 of the Declaration. The record date for such meeting will be the close of business on the Business Day which is one Business Day before the day on which the notice of meeting is sent to Holders. Notwithstanding the appointment of a Special Regular Trustee, the Subordinated Note Issuer shall retain all rights under the Indenture, including the right to extend the interest payment period on the Subordinated Notes. (e) Subject to the requirements of the second to last sentence of this paragraph, the Holders of a Majority in Liquidation Amount of the Preferred Securities voting separately as a class may direct the time, method, and place of conducting any proceeding for any remedy available to the Property Trustee, or exercising any trust or power conferred upon the Property Trustee under the Declaration, including (i) directing the time, method, place of conducting any proceeding for any remedy available to the Subordinated Note Trustee, or exercising any trust or power conferred on the Subordinated Note Trustee with respect to the Subordinated Notes, (ii) waive any past default and its consequences that is waivable under Section 6.09 of the Subordinated Indenture, or (iii) exercise any right to rescind or annul a declaration that the principal of all the Subordinated Notes shall be due and payable. The Property Trustee shall not revoke any action previously authorized or approved by a vote of the Holders of the Preferred Securities. Other than with respect to directing the time, method and place of conducting any remedy available to the Property Trustee or the Subordinated Note Trustee as set forth above, the Property Trustee shall not take any action in accordance with the directions of the Holders of the Preferred Securities under this paragraph unless the Property Trustee has obtained an opinion of tax counsel to the effect that for the purposes of United States federal income tax the Trust will not be classified as an association taxable as a corporation or A-6 50 a partnership and that each Holder of the Securities will be treated as owning an undivided beneficial interest in the Subordinated Notes on account of such action. If the Property Trustee fails to enforce its rights under the Declaration, any Holder of Preferred Securities may, after a period of 30 days has elapsed from such holder's written request to the Property Trustee to enforce such rights, institute a legal proceeding directly against any Person to enforce the Property Trustee's rights under the Declaration, without first instituting a legal proceeding against the Property Trustee or any other Person. (f) Any approval or direction of Holders of Preferred Securities may be given at a separate meeting of Holders of Preferred Securities convened for such purpose, at a meeting of all of the Holders of Securities in the Trust or pursuant to written consent. The Regular Trustees will cause a notice of any meeting at which Holders of Preferred Securities are entitled to vote, or of any matter upon which action by written consent of such Holders is to be taken, to be mailed to each Holder of record of Preferred Securities. Each such notice will include a statement setting forth (i) the date of such meeting or the date by which such action is to be taken, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of such matter upon which written consent is sought and (iii) instructions for the delivery of proxies or consents. (g) No vote or consent of the Holders of the Preferred Securities will be required for the Trust to redeem and cancel Preferred Securities or to distribute the Subordinated Notes in accordance with the Declaration and the terms of the Securities. (h) In determining whether the Holders of the requisite amount of Preferred Securities have voted, Preferred Securities which are owned by the Sponsor, 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. 6. VOTING RIGHTS - COMMON SECURITIES. (a) Except as provided under paragraphs 6(b), 6(c) and 7 and as otherwise required by law and the Declaration, the Holders of the Common Securities will have no voting rights. (b) The Holders of the Common Securities are entitled, in accordance with Article V of the Declaration, to vote to appoint, remove or replace any Trustee or to increase or decrease the number of Trustees subject to the exclusive right of the Holders of the Preferred Securities to appoint, remove or replace a Special Regular Trustee. (c) Subject to Section 2.6 of the Declaration and only after all Events of Default with respect to the Preferred Securities have been cured, waived or otherwise eliminated and subject to the requirements of the second to last sentence of this paragraph, the Holders of a Majority in Liquidation Amount of the Common Securities voting separately as a class may direct the time, method, and place of conducting any proceeding for any remedy available to the Property Trustee, or exercising any trust or power conferred upon the Property Trustee under the Declaration, including (i) directing the time, method, place of conducting any proceeding for any remedy available to the Subordinated Note Trustee, or exercising any trust or power conferred on the Subordinated Note Trustee with respect to the Subordinated Notes, (ii) waive any past default and its consequences that is waivable under Section 6.09 of the Subordinated Indenture, or (iii) exercise any right to rescind or annul a declaration that the principal of all the Subordinated Notes shall be due and payable, provided, however, that where a consent or action under the Indenture would require the consent or act of the Holders of greater than a majority in principal amount of Subordinated Notes affected thereby (a "Super Majority"), the Property Trustee may only give such consent or take such action A-7 51 at the direction of the Holders of at least the proportion in Liquidation Amount of the Common Securities which the relevant Super Majority represents of the aggregate principal amount of the Subordinated Notes outstanding. Pursuant to this paragraph 6(c), the Property Trustee shall not revoke any action previously authorized or approved by a vote of the Holders of the Preferred Securities. Other than with respect to directing the time, method and place of conducting any remedy available to the Property Trustee or the Subordinated Note Trustee as set forth above, the Property Trustee shall not take any action in accordance with the directions of the Holders of the Common Securities under this paragraph unless the Property Trustee has obtained an opinion of tax counsel to the effect that for the purposes of United States federal income tax the Trust will not be classified as an association taxable as a corporation or a partnership and that each Holder of the Securities will be treated as owning an undivided beneficial interest in the Subordinated Notes on account of such action. If the Property Trustee fails to enforce its rights under the Declaration, any Holder of Common Securities may, after a period of 30 days has elapsed from such holder's written request to the Property Trustee to enforce such rights, institute a legal proceeding directly against any Person to enforce the Property Trustee's rights under the Declaration, without first instituting a legal proceeding against the Property Trustee or any other Person. (d) Any approval or direction of Holders of Common Securities may be given at a separate meeting of Holders of Common Securities convened for such purpose, at a meeting of all of the Holders of Securities in the Trust or pursuant to written consent. The Regular Trustees will cause a notice of any meeting at which Holders of Common Securities are entitled to vote, or of any matter upon which action by written consent of such Holders is to be taken, to be mailed to each Holder of record of Common Securities. Each such notice will include a statement setting forth (i) the date of such meeting or the date by which such action is to be taken, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of such matter upon which written consent is sought and (iii) instructions for the delivery of proxies or consents. (e) No vote or consent of the Holders of the Common Securities will be required for the Trust to redeem and cancel Common Securities or to distribute the Subordinated Notes in accordance with the Declaration and the terms of the Securities. A-8 52 7. AMENDMENTS TO DECLARATION AND INDENTURE (a) In addition to any requirements under Section 12.1 of the Declaration, if any proposed amendment to the Declaration provides for, or the Regular Trustees otherwise propose to effect, (i) any action that would adversely affect the powers, preferences or special rights of the Preferred Securities, whether by way of amendment to the Declaration or otherwise, or (ii) the dissolution, winding-up or termination of the Trust, other than as described in Section 8.1 of the Declaration, then the Holders of outstanding Preferred Securities as a class, will be entitled to vote on such amendment or proposal (but not on any other amendment or proposal) and such amendment or proposal shall not be effective except with the approval of the Holders of at least a Majority in Liquidation Amount of the Securities, voting together as a single class, provided, however, that the rights of Holders of Preferred Securities under Article V of the Declaration to appoint, remove or replace a Special Regular Trustee shall not be amended without the consent of each Holder of Preferred Securities, provided, further, if any amendment or proposal referred to in clause (i) above would adversely affect only the Preferred Securities or the Common Securities, then only the affected class will be entitled to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of a Majority in Liquidation Amount of such class of Securities. In determining whether the Holders of the requisite amount of Preferred Securities have voted, Preferred Securities which are owned by the Sponsor, 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. (b) In the event the consent of the Property Trustee as the holder of the Subordinated Notes is required under the Indenture with respect to any amendment, modification or termination of the Indenture, the Subordinated Notes, the Property Trustee shall request the direction of the Holders of the Securities with respect to such amendment, modification or termination and shall vote with respect to such amendment, modification or termination as directed by a Majority in Liquidation Amount of the Securities voting together as a single class; provided, however, that where a consent under the Indenture would require the consent of the holders of greater than a majority in aggregate principal amount of the Subordinated Notes (a "Super Majority"), the Property Trustee may only give such consent at the direction of the Holders of at least the proportion in Liquidation Amount of the Securities which the relevant Super Majority represents of the aggregate principal amount of the Subordinated Notes outstanding; provided, further, that the Property Trustee shall not take any action in accordance with the directions of the Holders of the Securities under this paragraph 7(b) unless the Property Trustee has obtained an opinion of tax counsel to the effect that for the purposes of United Stated federal income tax the Trust will not be classified as an association taxable as a corporation or a partnership and that each Holder of the Securities will be treated as owning an undivided beneficial interest in the Subordinated Notes on account of such action. 8. PRO RATA A reference in these terms of the Securities to any payment, distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder of Securities according to the aggregate Liquidation Amount of the Securities held by the relevant Holder in relation to the aggregate Liquidation Amount of all Securities outstanding unless, in relation to a payment, an Event of Default under the Indenture has occurred and is continuing, in which case any funds available to make such payment shall be paid first to each Holder of the Preferred Securities pro rata according to the aggregate Liquidation Amount of Preferred Securities held by the relevant Holder relative to the aggregate Liquidation Amount of all Preferred Securities outstanding, and only after satisfaction of all amounts owed to the Holders of the Preferred Securities, to each Holder of Common Securities pro rata according to the aggregate Liquidation Amount of Common Securities held by the relevant Holder relative to the aggregate Liquidation Amount of all Common Securities outstanding. A-9 53 9. RANKING. The Preferred Securities rank pari passu and payment thereon shall be made Pro Rata with the Common Securities except that where an Event of Default occurs and is continuing under the Subordinated Indenture in respect of the Subordinated Notes held by the Property Trustee, the rights of Holders of the Common Securities to payment in respect of Distributions and payments upon liquidation, redemption and otherwise are subordinated to the rights to payment of the Holders of the Preferred Securities. 10. ACCEPTANCE OF SECURITIES GUARANTEE AND INDENTURE Each Holder of Preferred Securities and Common Securities, by the acceptance thereof, agrees to the provisions of the Preferred Securities Guarantee and the Common Securities Guarantee, respectively, including the subordination provisions therein and to the provisions of the Indenture. 11. NO PREEMPTIVE RIGHTS. The Holders of the Securities shall have no preemptive rights to subscribe for any additional Securities. 12. MISCELLANEOUS. These terms constitute a part of the Declaration and may be amended only in accordance with the terms of the Declaration. The Securities shall be governed in accordance with the laws of the State of ___________. The Trust will provide a copy of the Declaration, the Preferred Securities Guarantee and the Indenture to a Holder without charge on written request to the Trust at its principal place of business. A-10 EX-4.10 5 WARRANT AGREEMENT 1 Exhibit 4.10 AIRTOUCH COMMUNICATIONS, INC. AND ______________, Warrant Agent ------------------------ WARRANT AGREEMENT ------------------------ Providing for the Issuance of % [Notes/Debentures] Due Purchase Warrants Dated as of __________ , 19__ 2 WARRANT AGREEMENT THIS WARRANT AGREEMENT is entered into as of _______________, 19__ between AirTouch Communications Inc., a corporation incorporated under the laws of Delaware (the "Company") and ________________________, a _________________ incorporated under the laws of ______________________ (the "Agent"), W I T N E S S E T H: WHEREAS, the Company proposes to issue ________ Warrants (as hereinafter defined), each Warrant entitling the registered owner thereof to purchase ____% [Notes/Debentures] Due ____ (as hereinafter defined) of the Company at the price and upon the terms and conditions herein set forth; and WHEREAS, the Company is duly authorized to issue the Warrants as herein provided; and WHEREAS, all things necessary have been done and performed to make the Warrants when duly authenticated by the Agent and issued as in this Agreement provided legal and valid and binding upon the Company with the benefits and subject to the terms of this Agreement. NOW THEREFORE THIS AGREEMENT WITNESSETH that for good and valuable consideration mutually given and received, the receipt and sufficiency whereof is hereby acknowledged, it is hereby agreed and declared as follows: ARTICLE I DEFINITIONS SECTION 1.1. DEFINITIONS. Except as otherwise expressly provided or unless the context otherwise requires, the terms defined in this Section 1.1 shall, for all purposes of this Agreement, have the meanings herein specified, the following definitions to be equally applicable to both the singular and plural forms of any of the terms herein defined: 3 AGENT The term "Agent" shall mean _____________________________, a ____________ incorporated under the laws of __________________ or its lawful successors from time to time appointed in accordance with this Agreement. AGREEMENT The term "Agreement" shall mean this Warrant Agreement between the Company and the Agent, as such agreement is originally executed or as it may from time to time be supplemented, modified or amended as provided herein. BUSINESS DAY The term "Business Day" shall mean any day which is not a Saturday or Sunday or which in the City and County of San Francisco or in The City of New York or ______________ is neither a legal holiday nor a day on which banking institutions are authorized by law or regulation to close. COMPANY The term "Company" shall mean AirTouch Communications, Inc., a Delaware corporation, until a successor entity shall have become such pursuant to the applicable provisions of this Agreement and thereafter the term "Company" shall mean such successor entity. EVENT OF DEFAULT The term "Event of Default" shall mean any event specified as such in Section 6.1 hereof. An Event of Default shall "exist" if an Event of Default shall have occurred and be continuing. EXERCISE DATE The term "Exercise Date" shall mean each date during the Exercise Period on which [Notes/Debentures] are purchased by a Registered Owner through the exercise of all or a portion of its Warrants. EXERCISE FORM The term "Exercise Form" shall mean the form designated Exercise Form attached as Annex II to each Warrant. EXERCISE PERIOD 4 The term "Exercise Period" shall mean the period commencing at 9:00 A.M. ( time) on__________________ , 19__ and ending at 4:00 P.M.(_______ time) on _____________ ,__. EXERCISE PRICE The term "Exercise Price" shall have the meaning accorded such term in Section 2.1 of this Agreement. INDENTURE The term "Indenture" shall mean that certain Indenture dated as of ____________, 19__ between the Company and __________, as trustee, as such Indenture was originally executed or as it may from time to time be supplemented, modified or amended in accordance with the terms thereof. [NOTES/DEBENTURES] The term "[Notes/Debentures]" means any or all, as the case may be, of the Company's ____% [Notes/Debentures] Due ____, authenticated and delivered as provided in the Indenture. NOTICE OF INTENT TO EXERCISE The term "Notice of Intent to Exercise" shall have the meaning accorded thereto in Section 4.1 of this Agreement. The form of Notice of Intent to Exercise is attached as Annex I to each Warrant. OUTSTANDING The term "Outstanding" when used with reference to the Warrants shall mean, as of the date of determination, all Warrants theretofore authenticated and delivered under this Agreement, except: (a) Warrants theretofore canceled by the Agent or delivered to the Agent for cancellation and (b) Warrants in exchange for or in lieu of which other Warrants shall have been authenticated and delivered under this Agreement. PERSON The term "Person" shall mean an individual, a corporation, a partnership, a joint venture, an association, a joint stock company, a trust, an unincorporated organization, or a government or any agency, authority or political subdivision thereof. 5 REGISTER The term "Register" shall mean the books for the registration and transfer of Warrants which books are kept by the Agent pursuant to Section 3.1 hereof. TIME OF EXPIRY The term "Time of Expiry" means 4:00 p.m., time, on ______________, 19__. WARRANTHOLDERS; REGISTERED OWNERS The term "Warrantholders" or "Registered Owners" means the persons from time to time who are Registered Owners of the Warrants. WARRANTHOLDERS' REQUEST The term "Warrantholders' Request" means an instrument signed in one or more counterparts by the Warrantholders entitled to purchase in the aggregate not less than a majority of the aggregate principal amount of [Notes/Debentures] which could be purchased pursuant to all Warrants then Outstanding requesting the Agent to take some action or proceeding specified therein. WARRANTS The term "Warrants" means the ___% [Notes/Debentures] Due 200__ Purchase Warrants issued hereunder pursuant to which Warrantholders have the right to purchase [Notes/Debentures] on the terms and conditions herein set forth. WRITTEN ORDER OF THE COMPANY The term "Written Order of the Company" and "Written Consent of the Company" mean, respectively, a written order or consent signed in the name of the Company by any one of its officers and may consist of one or more instruments so executed. ARTICLE II ISSUANCE OF WARRANTS SECTION 2.1. ISSUANCE AND TERMS OF WARRANTS. The issuance of Warrants entitling the Registered Owners thereof to purchase up to an aggregate of not more than U.S. $/Specified Currency]__________ in principal amount of the [Notes/Debentures] is hereby authorized. The Warrants are hereby designated as the " % [Notes/Debentures] Due Purchase Warrants". The Warrants shall be delivered by the Company to the Agent to be authenticated by the Agent and delivered in 6 accordance with the Written Order of the Company. The Warrants shall be dated , 19__ and shall be issuable in fully registered form and in denominations that permit the purchase upon exercise of [U.S.$/Specified Currency] __________ principal amount of [Notes/Debentures] and any integral multiples thereof. The Warrants shall be exercisable on any Business Day during the Exercise Period. Each Warrant in the denomination of [U.S.$/Specified Currency] shall entitle the Registered Owner thereof to exercise such Warrant in accordance with and pursuant to the terms thereof for the purchase of a [Note/Debenture] in the principal amount of [U.S.$/Specified Currency] at par plus interest accrued thereon from_____________,___,_____ to but not including, the Exercise Date (the "Exercise Price"). SECTION 2.2. FORM OF WARRANTS. The Warrants shall be in substantially the form set out in this Section 2.2, with such additional provisions, omissions, variations or substitutions as are not inconsistent with the provisions of this Agreement. The Warrants may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistent herewith, be determined by the officer executing such Warrants as evidenced by such officer's execution thereof. FORM OF WARRANT Number R-W-____ _____ Warrant(s) Representing Right to Purchase Up to [U.S.$/Specified Currency] ________ in Aggregate Principal Amount of ___ % [Notes/Debentures] Due This Warrant expires at 4:00 P.M. (_________time) on [_____ ,____ ] and thereafter will be void and of no value. Notice of the holder's intent to exercise this Warrant must be given to __________________________, as Agent not later than 4:00 P.M. (_________ time) [______________________, ____ ]. AIRTOUCH COMMUNICATIONS, INC. [NOTE/DEBENTURE] PURCHASE WARRANT THIS CERTIFIES THAT, for value received,____________________ , the Registered Owner hereof (herein sometimes called the "Warrantholder") is entitled, upon and subject to the terms and conditions set forth herein and in the Warrant Agreement (the "Warrant Agreement") dated as of________________ ,___ ,___ between AirTouch Communications, Inc. (the "Company") and _____________ as Agent, (the "Agent"), to purchase at par plus interest accrued thereon, if any, at any time from 9:00 A.M. (____________ time) [ _______________,____ ] to 4:00 P.M. (__________ time) [ _______________, ____ ], inclusive (each such date being referred to as a "Exercise Date") up to [U.S.$/Specified Currency] ____________ in aggregate 7 principal amount of ___% [Notes/Debentures] Due 0000 (the "[Notes/Debentures]") of AirTouch Communications, Inc. (the "Company"), by providing written notice to the Agent of the Warrantholder's intention to exercise its right to purchase provided for herein specifying the number of Warrants which the Warrantholder wishes to exercise, such notice to be provided in the notice form annexed hereto as Annex II not earlier than 9:00 A.M. (__________ time) on [_______________, ____ ] and not later than 4:00 P.M. (__________ Time) [ ______________, ____ ], and by surrendering to the Agent at its principal office in __________, __________ on any Exercise Date, this Warrant, with the Exercise Form annexed hereto as Annex I duly completed and executed. On the Exercise Date on which this Warrant is exercised, the [Notes/Debentures] will be delivered as described below against payment therefor in [U.S. Federal Reserve or other United States/Specified Currency] funds current and immediately available to the Agent at the account designated in the Warrant Agreement, in each case in an amount equal to the purchase price of the [Notes/Debentures] so purchased pursuant to the exercise of this Warrant. This Warrant is one of a duly authorized issue of warrants issued under the provisions of the Warrant Agreement. Reference is hereby made for particulars of the rights of the Warrantholders and of the Company in respect thereof and the terms and conditions upon which the Warrants are issued and held, all to the sole effect as if the provisions of the Warrant Agreement were herein set forth, to all of which the Warrantholder by acceptance hereof assents. The Company will furnish to the Warrantholder, upon written request and without charge, a copy of the Warrant Agreement. All capitalized terms not otherwise defined herein, shall have the meanings ascribed thereto in the Warrant Agreement. The [Notes/Debentures] purchased pursuant to the exercise of this Warrant will be mailed by certified mail return receipt requested to the person specified in the Exercise Form annexed hereto at its address specified therein or, if so specified in the Exercise Form, delivered to such person or its agent at the principal office of the Agent in ______________ on the Exercise Date. If [Notes/Debentures] are purchased in an aggregate principal amount which is less than the total principal amount of the [Notes/Debentures] that can be purchased pursuant to this Warrant, the Warrantholder hereof will be entitled to receive without charge a new Warrant in respect of the balance of the principal amounts of [Notes/Debentures] which the Registered Owner hereof was entitled to purchase under the surrendered Warrant and which were not then purchased. On presentation at the principal office of the Agent in ______________ subject to the provisions of the Warrant Agreement, one or more Warrants may be exchanged for one or more Warrants entitling the Warrantholder to purchase an equal aggregate principal amount of [Notes/Debentures] as may be purchased under the Warrant or Warrants so exchanged. Nothing contained in this Warrant, the Warrant Agreement or elsewhere shall be construed as conferring upon the Warrantholder hereof any right or interest whatsoever as a owner of [Notes/Debentures] or any other right or interest in respect thereof except as herein and in the Warrant Agreement expressly provided. 8 This Warrant is registered on the books of the Company and is transferable only in accordance with the provisions of the Warrant Agreement by surrender thereof at the principal office of the Agent duly endorsed or accompanied by a written instrument of transfer duly executed by the Registered Owner of this Warrant or its attorney duly authorized in writing all in accordance with the terms and provisions of the Warrant Agreement. This Warrant and the Warrant Agreement are governed by and construed in accordance with the laws of [California]. IN WITNESS WHEREOF the Company has caused this Warrant to be duly executed as of__________________ , ____. AIRTOUCH COMMUNICATIONS, INC. By Certificate of Authentication This is one of the Warrants described in the within-mentioned Warrant Agreement _______________________ , as Agent By Authorized Officer ANNEX I - NOTICE OF INTENT TO EXERCISE TO: The undersigned Warrantholder of ______ Warrants evidenced by Warrant Number (The "Warrant") hereby notifies you pursuant to Section 4.1 of the Warrant Agreement dated as of ________________, ____ (the "Warrant Agreement") between AirTouch Communications, Inc. (the "Company") and [________________ / the undersigned], of the undersigned's intention to exercise _____________ of such Warrants on _______________________, ____ (the "Exercise Date") to purchase [U.S.$/Specified Currency] ____________________ in aggregate principal amount of the Company's ____% [Notes/Debentures] Due __________________________(the "[Notes/Debentures]") at par plus interest accrued, if any, from and after [ _______________, ____ ]. The 9 purchase price shall be a total of [U.S.$/Specified Currency] ________ representing [U.S.$/Specified Currency] ________________ in principal and [U.S.$/Specified Currency] _______________ in accrued interest. The Warrant with the Exercise Form duly completed shall be delivered to the Agent at its principal office in __________, __________. Payment of the purchase price of the [Notes/Debentures] shall be made in [U.S. Federal Reserve or other United States/Specified Currency funds] immediately available at the principal office of the Agent on the Exercise Date. The undersigned shall direct such [Notes/Debentures] be registered and delivered in the name(s) and the amount(s) set forth opposite the undersigned's name on Annex II to the Warrant. DATED this ________day of______________ ,____. [NAME OF WARRANTHOLDER] By ANNEX II - EXERCISE FORM TO: The undersigned Warrantholder of ___________ Warrants evidenced by the Warrant attached hereto hereby exercises on _________________, ____ (the "Exercise Date") Warrants to purchase [U.S.$/Specified Currency] ________________ in aggregate principal amount of AirTouch Communications, Inc.'s ____% [Notes/Debentures] Due ________________________ (the "[Notes/Debentures]") at par plus $_______ in accrued interest on the [Notes/Debentures] from [_______________, ____], and agrees to transfer on the Exercise Date in [U.S. $/Specified Currency] funds immediately available to the Agent (at [account]) such purchase price of the [Notes/Debentures] all in accordance with the terms and conditions of the Warrant Agreement dated as of_________________ , ____ (the "Warrant Agreement") between AirTouch Communications, Inc. and [______________________________], as Agent. The undersigned hereby irrevocably directs that such [Notes/Debentures] be registered and delivered in accordance with the directions set forth herein. 10 The undersigned acknowledges that all taxes or other governmental charges payable upon the registration and delivery of such [Notes/Debentures] (other than in connection with each original issue and sale of the [Notes/Debentures]), including any transfer taxes payable if the [Notes/Debentures] are to be registered in the name of a person or persons other than the undersigned Warrantholder, must be paid by the undersigned. DATED this_________ day of_______________ , ____ [NAME OF WARRANTHOLDER] By Please check box if [Notes/Debentures] are to be delivered at the offices of on the Exercise Date, failing which the [Notes/Debentures] will be mailed by certified mail return receipt requested. Unless the foregoing box is checked, the [Notes/Debentures] shall be delivered to the Warrantholder at its address set forth in the Register. SECTION 2.3. WARRANTS MUTILATED, LOST, DESTROYED OR STOLEN WARRANTS. If (i) any mutilated Warrant is surrendered to the Agent, or the Company and the Agent receive evidence to their satisfaction of the destruction, loss or theft of any Warrant and (ii) there is delivered to the Company and the Agent such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Company or the Agent that such Warrant has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Agent shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Warrant, a new Warrant of the same principal amount, bearing a number not contemporaneously Outstanding. Upon the issuance of any new Warrant under this Section 2.3, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith. Every new Warrant issued pursuant to this Section 2.3 in lieu of any destroyed, lost or stolen Warrant shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Warrant shall be at any time enforceable by anyone, and shall be entitled to all the security and benefits of this Agreement equally and ratably with all other Outstanding Warrants. The provisions of this Section 2.3 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Warrants. 11 SECTION 2.4. WARRANTHOLDER NOT A REGISTERED OWNER OF THE [NOTES/DEBENTURES]. The ownership of a Warrant shall not constitute the Registered Owner thereof an owner of any of the [Notes/Debentures] nor entitle the Registered Owner to any right or interest in respect thereof except upon the exercise and surrender of its Warrants and the payment of the purchase price of the [Notes/Debentures] in accordance with and pursuant to the terms herein provided. SECTION 2.5. WARRANTS TO RANK PARI PASSU. All Warrants shall rank pari passu with each other. SECTION 2.6. EXECUTION OF WARRANTS. The Warrants shall be signed in the name and on behalf of the Company by one of its officers. The signature of the officer executing the Warrants may be manual or facsimile. In case any officer of the Company who shall have signed any of the Warrants (manually or in facsimile) shall cease to be such officer before the Warrants so signed shall have been authenticated and delivered by the Agent, such Warrants nevertheless may be authenticated and delivered as though the Person who signed such Warrants had not ceased to be such officer of the Company. Also, any Warrant may be signed on behalf of the Company by such Persons as on the actual date of execution of such Warrant shall be the proper officers of the Company, although at the date of the execution of this Agreement any such Person was not such officer. Only such of the Warrants as shall bear thereon a certificate of authentication in substantially the form set forth in Section 2.2 hereof, executed by the Agent, shall be entitled to the benefits of this Agreement or be valid or obligatory for any purpose. SECTION 2.7. PURCHASE OF WARRANTS BY THE COMPANY. The Company may purchase in the market, by private contracts or otherwise all or any portion of the Warrants on such terms as the Company may determine. ARTICLE III EXCHANGE OF WARRANTS; REGISTRATION OF TRANSFER OF WARRANTS; NOTICE TO WARRANTHOLDERS SECTION 3.1. REGISTER. The Agent, as agent of the Company, shall maintain, at its principal office in____________ ,________ , the Register in which, subject to such reasonable regulations as it and the Company may prescribe, it shall provide for the registration of the Warrants and the transfer of Warrants as in this Agreement provided. The Register shall be in written form or in any other form capable of being converted into written form within a reasonable time. The Registered Owners of the Warrants shall present directly to the Agent all requests for (a) registration of transfer of Warrants, (b) exchange of Warrants for new Warrants in authorized denominations and (c) replacement of Warrants in the case of mutilation, destruction, loss or theft. 12 Upon the Company's request, the Agent shall furnish the Company with a list of names and addresses of the Registered Owners showing the number of such Warrants held by each Registered Owner. SECTION 3.2. EXCHANGE OF WARRANTS. Warrants entitling the Registered Owner to purchase any specified principal amount of [Notes/Debentures] may, upon compliance with the reasonable requirements of the Agent, be exchanged for Warrants entitling the Registered Owner thereof to purchase an equal aggregate principal amount of [Notes/Debentures]. Warrants may be exchanged only at the principal office of the Agent in __________, __________or at any other place that is designated by the Company. Any Warrants tendered for exchange shall be surrendered to the Agent and canceled. The Company shall execute all Warrants necessary to carry out exchanges as aforesaid and such Warrants shall be authenticated by the Agent. SECTION 3.3. CHARGES FOR EXCHANGE. For each Warrant exchanged or transferred, the Agent, except as otherwise herein provided, shall, if required by the Company, charge a reasonable sum for each new Warrant issued; and payment of such charges and reimbursement of the Agent or the Company for any taxes or governmental or other charges required to be paid shall be made by the party requesting such exchange, as a condition precedent thereto. SECTION 3.4. REGISTRATION OF TRANSFER; RESTRICTIONS ON TRANSFERS. No transfer of a Warrant shall be valid unless made at the principal offices of the Agent in the __________, __________ or at any other place that is designated by the Company as an office for registration of transfer by the Registered Owner or such Registered Owner's executors, administrators or other legal representatives or attorney duly appointed by an instrument in writing in form and execution satisfactory to the Agent and upon compliance with such reasonable requirements as the Agent and the Company may prescribe. Any Warrants tendered for registration of transfer shall be surrendered to the Agent. SECTION 3.5. NOTICE TO WARRANTHOLDERS. Unless herein otherwise expressly provided, any notice to be given hereunder to Warrantholders shall be deemed to be validly given if such notice is mailed to the last addresses of the Warrantholders appearing on the Register. Any notice so given shall be deemed to have been given on the day on which it has been mailed. In determine under any provision hereof the date when notice of any meeting or other event must be given, the date of giving notice shall be included and the date of the meeting or other event shall be excluded. ARTICLE IV 13 EXERCISE OF WARRANTS SECTION 4.1. METHOD OF EXERCISE OF WARRANTS. The Registered Owner of any Warrant may exercise the right thereby conferred to purchase [Notes/Debentures] by surrendering to the Agent on any Business Day during the Exercise Period at the principal office of the Agent________________, _____________ , or at any other place or places that may be designated by the Company: (a) at least 3 Business Days prior to the exercise of its Warrants, a completed and executed Notice of Intent to Exercise in the form thereof set forth in Annex I to each Warrant (a "Notice of Intent to Exercise"); (b) on the Exercise Date, a duly completed and executed Exercise Form in the form thereof set forth in Annex II to each Warrant; (c) on the Exercise Date, its Warrant or Warrants which it is exercising; and (d) on the Exercise Date, the Exercise Price in funds immediately available to the Company. The items described in the foregoing clauses (a) and (b) shall be deemed received when an actual copy or a facsimile thereof is received by the Agent. Each Warrant shall be deemed to be surrendered only upon personal delivery thereof to or, if sent by mail or other means of transmission, upon receipt thereof by, the Agent at the office specified in this Section 4.1. Each Warrant shall be deemed exercised as of the first Business Day on which all of the foregoing conditions are satisfied with respect to such Warrant. The first day on which the Warrants may be exercised is_______________, _____________, ____ . The Company acknowledges that the Registered Owners of the Warrants are not required under any circumstances to take any other actions in order to exercise their Warrants. SECTION 4.2. EFFECT OF EXERCISE OF WARRANTS. Upon surrender and payment of the Exercise Price by the Registered Owner of any Warrant in accordance with Section 4.1, the [Notes/Debentures] so purchased shall be deemed to have been issued and the person or persons to whom such [Notes/Debentures] are to be issued shall be deemed to have become the Registered Owner or owners of such [Notes/Debentures] on the [Exercise Date]. After the due exercise of a Warrant as aforesaid, the Company shall forthwith cause to be delivered to the person to whom the [Notes/Debentures] so purchased are to be issued at the address specified in such form or, if so specified in such purchase form, cause to be delivered to such person at the office where such Warrant was surrendered, a [Note/Debenture] or [Notes/Debentures] in the form or forms and in the denominations requested and for the appropriate principal amount of 14 [Notes/Debentures] not exceeding the principal amount which the Warrantholder is entitled to purchase pursuant to the Warrant surrendered. SECTION 4.3. PARTIAL EXERCISE OF WARRANTS. Subject to the issuance of [Notes/Debentures] in authorized denominations only, the Registered Owner of any Warrant may purchase [Notes/Debentures] in a principal amount less than that which such Registered Owner is entitled to purchase pursuant to the surrendered Warrant. In the event of any purchase of a principal amount of [Notes/Debentures] less than the principal amount which can be purchased pursuant to a Warrant, the Registered Owner thereof upon exercise thereof prior to the Time of Expiry shall, in addition, be entitled to receive forthwith a new Warrant in respect of the balance of the principal amount of [Notes/Debentures] which such Registered Owner was entitled to purchase pursuant to the surrendered Warrant and which were not then exercised. The Company shall not be responsible for any taxes which may be payable in connection with the issuance of such new Warrant. SECTION 4.4. EXPIRATION OF WARRANTS. After the Time of Expiry, all rights under any Warrant in respect of which the right of purchase herein and therein provided for shall not theretofore have been exercised pursuant to Section 4.1 shall cease and terminate and such Warrant shall become void and of no effect and all rights of the Registered Owner thereof under this Warrant Agreement shall cease and terminate as of such termination; provided that such Registered Owner's rights under this Warrant Agreement with respect to actions occurring prior to such termination shall remain in full force. After the Time of Expiry, each Registered Owner of any Warrants shall return any unexercised Warrants to the Agent for cancellation in accordance with Section 4.5 of this Agreement. SECTION 4.5. CANCELLATION OF SURRENDERED WARRANTS. All Warrants surrendered to the Agent pursuant to Sections 2.3, 3.2, 3.4 or 4.1 shall forthwith be canceled by the Agent. All Warrants canceled or required to be canceled under this or any other provision of this Agreement may be destroyed by or under the direction of the Agent and the Agent shall furnish the Company with a destruction certificate identifying the Warrants so destroyed and the principal amount of [Notes/Debentures] which could have been purchased pursuant to each. SECTION 4.6. ACCOUNTING AND RECORDING. The Agent shall forthwith account and remit to the Company with respect to Warrants exercised and immediately forward to the Company (or into an account or accounts of the Company with the bank or trust company designated by the Company for that purpose) all monies received by the Agent on the purchase of [Notes/Debentures] through the exercise of Warrants. All such monies, and any [Notes/Debentures] or other instruments, from time to time received by the Agent shall be received in trust for, and shall be segregated and kept apart by the Agent in trust for, the Company. The Agent shall record the particulars of the Warrants exercised which shall include the names and addresses of the persons who become Registered Owners of 15 [Notes/Debentures] on exercise, the Exercise Date, the Exercise Price and the number of [Notes/Debentures] delivered from the [Notes/Debentures] reserved for that purpose by the Company. The Agent shall provide such particulars in writing to the Company. ARTICLE V COVENANTS SECTION 5.1. ISSUANCE OF [NOTES/DEBENTURES]. The Company covenants that so long as any Warrants remain Outstanding it will cause the [Notes/Debentures] from time to time paid for pursuant to the Warrants in the manner herein provided to be duly issued and delivered in accordance with the Warrants and the terms hereof. SECTION 5.2. CORPORATE EXISTENCE OF THE COMPANY; CONSOLIDATION, MERGER, SALE OR TRANSFER. The Company covenants that so long as any of the Warrants are Outstanding, it will maintain its existence, will not dissolve, sell or otherwise dispose of all or substantially all of its assets and will not consolidate with or merge into another entity or permit one or more other entities to consolidate with or merge into it; provided that the Company may, without violating the covenants in this Section 5.2 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 formed and existing under the laws of one of the States of the United States of America, (ii) assumes, if such entity is not the Company, all of the obligations of the Company hereunder and (iii) is not, after such transaction, otherwise in default under any provisions hereof. SECTION 5.3. MAINTENANCE OF OFFICES OR AGENCIES FOR TRANSFER, REGISTRATION, EXCHANGE OF WARRANTS. So long as any of the Warrants shall remain Outstanding, the Company covenants that it will maintain an office or agency in _______________, __________________, where the Warrants may be presented for registration, exchange and transfer as in this Agreement provided, and where notices and demands to or upon the Company in respect of the Warrants or of this Agreement may be served, and where the Warrants may be presented for exchange for [Notes/Debentures] as provided herein. SECTION 5.4. APPOINTMENT TO FILL A VACANCY IN THE OFFICE OF AGENT. The Company, whenever necessary to avoid or fill a vacancy in the office of Agent, covenants that it will appoint, in the manner provided in Section 9.4 hereof, an Agent, so that there shall at all times be a Agent with respect to the Outstanding Warrants. ARTICLE VI EVENTS OF DEFAULT; REMEDIES 16 SECTION 6.1. EVENTS OF DEFAULT. The term "Event of Default" whenever used herein with respect to any Warrant shall mean any one of the following events: (a) Failure by the Company to deliver the [Notes/Debentures] in exchange for the Warrants in accordance with the provisions of this Agreement or (b) failure on the part of the Company to observe or perform in any material respect any of the covenants or agreements on its part in the Warrants or in this Agreement specifically contained for the benefit of the Warrantholders, for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Agent, or to the Company and the Agent by the Registered Owners of not less than 25% in principal amount of the Warrants at the time Outstanding under this Agreement a written notice specifying such failure and stating that such is a "Notice of Default" hereunder. SECTION 6.2. SUITS BY WARRANTHOLDERS. All or any of the rights conferred upon the Registered Owner of any Warrant by the terms of such Warrant and/or this Agreement may be enforced by the Registered Owner of such Warrants by appropriate legal proceedings but without prejudice to the right which is hereby conferred upon the Agent to proceed in its own name to enforce each and all of the provisions herein contained for the benefit of the Registered Owners of the Warrants from time to time Outstanding. SECTION 6.3. REMEDIES NOT WAIVED; ENFORCEMENT EXPENSE. No delay or failure on the part of the Registered Owners of Warrants or the Agent to exercise any right shall operate as a waiver of such right or otherwise prejudice such Registered Owner's or Agent's, as the case may be, rights, powers and remedies. The Company agrees to pay all costs, expenses and fees, including all reasonable attorneys' fees, which may be incurred by a Registered Owner in enforcing or attempting to enforce its rights thereunder and hereunder following the occurrence and during the continuance of any Event of Default hereunder, whether the same shall be enforced by suit or otherwise. SECTION 6.3. INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF COMPANY AND EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any obligation, covenant or agreement of this Agreement, or of any Warrant, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company, either directly or through the Company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Agreement and the Warrants issued hereunder are solely corporate obligations, and that no personal liability whatever shall attach to, or is or shall be 17 incurred by, the incorporators, stockholders, officers or directors, as such, of the Company because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Agreement or in any of the Warrants or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer or director, as such, because of the creation of the obligations hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Agreement or in any of the Warrants or implied therefrom are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Agreement and the issuance of such Warrants. ARTICLE VII AMENDMENTS; MEETING OF WARRANTHOLDERS SECTION 7.1. AMENDMENTS WITHOUT CONSENT OF REGISTERED OWNERS OF WARRANTS. This Agreement and the terms and conditions of the Warrants may be amended by the Company and the Agent, without the consent of any Registered Owner of Warrants for any of the following purposes: (a) to add to the covenants of the Company for the benefit of the Registered Owners of Warrants, (b) to surrender any right or power conferred upon the Company, (c) to cure any ambiguity or correcting or supplementing any provision contained herein or in the Warrants which may be defective or inconsistent with any other provisions contained herein or in the Warrants, (d) if deemed appropriate by the Company or required by law, to evidence the permitted succession of another corporation to the Company and the assumption by such successor of the covenants and obligations of the Company herein and in the Warrants or (e) to make such other provisions in regard to matters or questions arising under this Agreement or the Warrants which shall not adversely affect the interests of the Registered Owners of the Warrants in any material respect. SECTION 7.2. AMENDMENTS WITH CONSENT OF REGISTERED OWNERS OF WARRANTS. This Agreement, the terms and conditions of the Warrants and the covenants contained in either may also be modified or amended by the Company and the Agent and past 18 defaults thereunder or future compliance therewith by the Company may be waived either with the written consent of the Registered Owners of not less than a majority in aggregate principal amount of the [Notes/Debentures] at the time outstanding, or by the adoption, at a meeting duly convened and held in accordance with the provisions of Section 8.04 at which the Registered Owners of at least 25% of the aggregate principal amount of the [Notes/Debentures] at the time outstanding are present or represented, of a resolution by the Registered Owners of not less than 75% in aggregate principal amount of the Outstanding Warrants present or represented at the meeting; provided that no such modification, amendment or waiver may, without the consent or affirmative vote of the Registered Owner of each Warrant affected thereby: (a) Waive a default in the failure to deliver [Notes/Debentures] in exchange for Warrants pursuant to Section 4.1 hereof or change the Exercise Dates or the Expiry Date with respect to any Warrant, or change the coin or currency in which any Warrant is exercisable for [Notes/Debentures] or impair the right to institute suit for the enforcement of any rights of any Registered Owner of a Warrant or (b) Reduce the percentage in principal amount of the Outstanding Warrants, the consent of which Registered Owners is required for any modification or amendment to this Agreement or to the terms and conditions of or covenants contained in this Agreement or in the Warrants or for any waiver of compliance therewith or (c) modify any of the provisions of this Section 7.2 except to provide that certain other provisions of this Agreement or the terms and conditions of the Warrants cannot be modified, amended or waived without the consent of the Registered Owner of each Outstanding Warrant affected thereby. It shall not be necessary for the Registered Owners of Warrants to approve the particular form of any proposed amendment, but it shall be sufficient if they approve the substance thereof. SECTION 7.3. BINDING NATURE OF AMENDMENTS; NOTICE. Any modifications, amendments or waivers to this Agreement or to the terms and conditions of the Warrants in accordance with the provisions hereof will be conclusive and binding on all Registered Owners of Warrants, whether or not they have given such consent, whether or not notation of such modifications, amendments or waivers is made upon the Warrants, and on all future Registered Owners of Warrants. Promptly after the execution of any amendment to this Agreement or the implementation of any modification or amendment of the terms and conditions of the Warrants, notice of such amendment or modification shall be given by the Company or by the Agent, on behalf of and at the instruction of the Company, to the Registered Owners by mail as such owner's address as it appears on the Register. The failure to give such notice on a timely basis shall not invalidate such amendment or modification, 19 but such notice shall be given as soon as practicable upon discovering such failure or upon any impediment to the giving of such notice being overcome. ARTICLE VIII MEETINGS SECTION 8.1. MEETINGS OF REGISTERED OWNERS OF WARRANTS. A meeting of Registered Owners of Warrants may be called at any time and from time to time to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement or the Warrants to be made, given or taken by Registered Owners of Warrants. The Agent may at any time call a meeting of Registered Owners of Warrants for any purpose specified herein to be held at such time and at such place in __________ or _________________ as the Agent shall determine. Notice of every meeting of Registered Owners of Warrants, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, by mail to each registered Owner at its address as it appears on the Register, not less than 21 nor more than [45] days prior to the date fixed for the meeting. In case at any time the Company or the Registered Owners of at least 25% in aggregate principal amount of the Outstanding Warrants shall have requested the Agent to call a meeting of the Registered Owners of Warrants for any purpose, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Agent shall not have mailed notice of such meeting within 14 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Registered Owners of Warrants in the amount previously specified, as the case may be, may determine the time and the place in __________ or for such meeting and may call such meeting for such purposes by giving notice thereof as provided herein. To be entitled to vote at any meeting of Registered Owners of Warrants, a Person shall be a registered Owner of Outstanding Warrants. The Persons entitled to vote a majority in aggregate principal amount of the Outstanding Warrants shall constitute a quorum. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of the Registered Owners of Warrants, be dissolved. In any other case the meeting may be adjourned for a period of not less than 5 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 5 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in this Section 8.1 with respect to an original 20 meeting, except that such notice need be given only once not less than 3 days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the percentage of the principal amount of the Outstanding Warrants which shall constitute a quorum. Subject to the foregoing, at the reconvening of any meeting adjourned for a lack of a quorum the persons entitled to vote 25% in aggregate principal amount of the Outstanding Warrants shall constitute a quorum for the taking of any action set forth in the notice of the original meeting. Any meeting of Registered Owners of Warrants at which a quorum is present may be adjourned from time to time by a vote as hereinafter provided in this Section 8.1, and the meeting may be held as so adjourned without further notice. At a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid, any resolution and all matters shall be effectively passed or decided if passed or decided by persons entitled to vote the lesser of (a) a majority in aggregate principal amount of Outstanding Warrants or (b) 75% in aggregate principal amount of Outstanding Warrants represented and voting at such meeting. The Agent may make such reasonable regulations as it may deem advisable for any meeting of Registered Owners of Warrants in regard to proof of the holding of Warrants and such other matters concerning the conduct of the meeting as it shall deem appropriate. The Agent shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or Registered Owners of Warrants as provided herein, in which case the Company or the Registered Owners calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the persons entitled to vote a majority in aggregate principal amount of the Outstanding Warrants represented at the meeting. The chairman of the meeting shall have no right to vote, except as a Holder of Warrants. SECTION 8.2. RECORD OF MEETINGS. A record, at least in triplicate, of the proceedings of each meeting of Registered Owners of Warrants shall be prepared, and one such copy shall be delivered to the Company and the Agent. The copy delivered to the Agent shall be preserved by the Agent and, upon reasonable notice, made available to any Registered Owners of Outstanding Warrants. ARTICLE IX CONCERNING THE AGENT SECTION 9.1. APPOINTMENT OF AGENT. The Company hereby appoints , at present having its principal office in [__________ at _________________, __________, __________ ] as the Agent in respect of the Warrants, upon the terms and subject to the conditions set forth in this Agreement. 21 SECTION 9.2. ACCEPTANCE OF APPOINTMENT BY AGENT; LIMITATIONS OF DUTIES OF AGENT. The Agent accepts its obligations set forth herein and in the Warrants upon the terms and conditions hereof and thereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Registered Owners from time to time of the Warrants shall be subject: (a) The Agent shall be entitled to the compensation agreed upon with the Company for all services rendered by it, and the Company agrees promptly to pay such compensation and to reimburse the Agent for its reasonable out-of-pocket expenses (including, without limitation, the reasonable compensation of its counsel) incurred by it in connection with the services rendered by it hereunder. The Company also agrees to indemnify the 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 its acting as such Agent hereunder, including the costs and expenses of defending against any claim of liability. (b) In acting under this Agreement and in connection with the Warrants, the Agent is acting solely as the agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the Registered Owners of the Warrants. (c) The Agent may consult with one or more counsel (who may also be counsel to the Company), and, in the absence of bad faith, the written opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by it hereunder in the good faith reliance thereon. (d) The Agent shall be protected and shall incur no liability for or in respect of any action taken, omitted or suffered by it in the good faith reliance upon any Warrant, notice, direction, consent, certificate, affidavit, statement or other paper or document signed by the Company reasonably believed by the Agent to be genuine and to have been signed by the proper persons. (e) The Agent and its officers, directors and employees may become the owner of, or acquire any interest in, any Warrants, with the same rights that it or they would have if it were not the Agent hereunder, may engage or be interested in any financial or other transaction with the Company and may act on, or as depository, trustee or agent for, any committee or body of Registered Owners of the Warrants or holders of other obligations of the Company as freely as if it were not the Agent hereunder. (f) The recitals contained herein and in the Warrants (except in the Agent's certificates of authentication) shall be taken as the statements of the Company, and the Agent assumes no responsibility for their 22 correctness. The Agent makes no representation as to the validity or sufficiency of this Agreement or the Warrants, provided that the Agent shall not be relieved of its duty to authenticate Warrants as authorized by this Agreement. The Agent shall not be accountable for the use or application by the Company of the proceeds of the Warrants. (g) The Agent shall be obligated to perform such duties and only such duties as are herein and in the Warrants specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrants against the Agent. (h) No provision of this Agreement shall be construed to relieve the Agent from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct or that of its officers or employees. (i) The Agent shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company and. SECTION 9.3. AGENT REQUIRED. The Company agrees that, until all Warrants (i) shall have been delivered to the Agent for cancellation or (ii) have become null and void because of the passage of the Expiry Date, there shall at all times be a Agent hereunder which shall be a corporation doing business in the United States and which alone or with its affiliates has a combined capital and surplus of at least $[___,000,000. SECTION 9.4. RESIGNATION AND REMOVAL OF AGENT; APPOINTMENT OF SUCCESSOR. The Agent may at any time resign by giving written notice (in accordance with Section 10.1 hereof) to the Company of such intention on its part, specifying the date on which its desired resignation shall become effective; provided, however, that such date shall never be less than [90] days after the receipt of such notice by the Company unless the Company agrees to accept less notice. Upon receipt of such notice of resignation, the Company shall promptly act to appoint a successor Agent. The Agent may be removed at any time by the Company by delivering written notice thereof specifying such removal and the date when it is intended to become effective. Any resignation or removal of the Agent shall take effect upon the date of the appointment by the Company as hereinafter provided of a successor and the acceptance of such appointment by such successor. In case at any time the Agent shall resign, or shall be removed, or shall become incapable of acting or shall be adjudged a bankrupt or insolvent, or if a receiver of it or of its property shall be appointed, or if any public officer shall take charge or control of it or of its property or affairs, for the purpose of rehabilitation, conservation or liquidation, a successor agent, eligible as aforesaid, shall be appointed by the Company. Upon the appointment as aforesaid of a successor agent and acceptance by it of such appointment, the Agent so superseded shall cease to be the Agent hereunder. If no successor Agent shall have been so appointed by the Company and shall have accepted appointment as hereinafter provided, then the Registered Owners of a 23 majority in aggregate principal amount of the Outstanding Warrants, on such Holders' behalf and on behalf of all others similarly situated may petition any court of competent jurisdiction for the appointment of a successor Agent. Any successor Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument accepting such appointment hereunder, and thereupon such successor Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, immunities, duties and obligations of such predecessor with like effect as if originally named as such Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall simultaneously therewith become obligated to transfer, deliver and pay over, and such successor Agent shall be entitled to receive, all moneys, [Notes/Debentures] or other property on deposit with or held by such predecessor, as such Agent hereunder. The Company or, at the direction of the Company, the successor Agent, will give prompt written notice by U.S. Mail to each Registered Owners of the Warrants at such owners address as it appear on the Register of the appointment of a successor Agent. Failure to give such notice or any defect therein shall not affect the appointment of a successor Agent. SECTION 9.5. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF AGENT. Any corporation into which the Agent may be merged or converted, or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Agent shall be a party, or any corporation succeeding to all or substantially all the assets and business of the Agent, shall be the successor to the Agent hereunder, provided such corporation shall be otherwise eligible under this Article VII, without the execution or filing of any document or any further act on the part of any of the parties hereto. In case any Warrants shall have been authenticated, but not delivered, by the Agent then in office, any successor by merger, conversion or consolidation to such authenticating Agent may adopt such authentication and deliver the Warrants so authenticated with the same effect as if such successor Agent had itself authenticated such Warrants. ARTICLE X MISCELLANEOUS SECTION 10.1. NOTICES. All notices or demands hereunder upon the Company or the Agent may be electronically communicated or hand delivered or sent by overnight courier, addressed to any party hereto as provided in this Section 10.1. All communications intended for the Company shall be sent to: 24 AirTouch Communications, Inc. San Francisco, CA Attention: [Treasurer] Fax Number: (415) ________ All communications intended for the Agent shall be sent to: Agent-Name Attention: Fax Number: or at any other address of which either of the foregoing shall have notified the other in any manner prescribed in this Section 10.01. For all purposes of this 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 day on which commercial banks are open for business (a "Local Business Day") in the city specified in the address for notice provided by the recipient or (ii) if delivered after the close of business on a Local Business Day, then on the next succeeding Local Business Day or (b) if sent by facsimile transmission, on the date transmitted, provided that oral or written confirmation of receipt is obtained by the sender unless the date of transmission and confirmation is not a Local Business Day, in which case, on the next succeeding Local Business Day. Any notice, direction, request, demand, consent or waiver by the Company or any Registered Owner to or upon the Agent shall be deemed to have been sufficiently given, made or filed, for all purposes, if given, made or filed in writing with the Agent in accordance with the provisions of this Section 10.1. SECTION 10.2. DAY NOT A BUSINESS DAY. If any date on which a payment is to be made, notice given or other action taken hereunder is not a Business Day, then such payments, notice or other action shall be made, given or taken on the next succeeding business 25 day in such place, and in the case of any payment, not interest shall accrue for the delay. SECTION 10.3. CURRENCY. All amounts herein are expressed in [United States Dollars/Specified Currency]. SECTION 10.4. GOVERNING LAW. This Agreement and the Warrants shall be construed in accordance with the laws of [California]. SECTION 10.4. LIMITATION OF RIGHTS TO PARTIES AND REGISTERED OWNERS OF WARRANTS. Nothing in this Agreement or in the Warrants expressed or implied is intended or shall be construed to give to any Person other than the Company, the Agent and the Registered Owners of the Warrants any legal or equitable right, remedy or claim under or in respect of this Agreement or any covenant, condition or provision herein or in the Warrants. All such covenants, conditions and provisions are and shall be held to be for the sole and exclusive benefit of the Company, the Agent and the Registered Owners of the Warrants. SECTION 10.5. SEPARABILITY OF INVALID PROVISIONS. In case any one or more of the provisions contained in this Agreement or in the Warrants shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, but this Agreement shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. SECTION 10.6. NO WAIVER OF RIGHTS. A failure or delay in exercising any right, power or privilege in respect of this Warrant Agreement will no be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to precluded any subsequent or further exercise of that right power or privilege or the exercise of any other right, power or privilege. SECTION 10.7. EXECUTION IN SEVERAL COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall for all purposes be deemed to be an original; but such counterparts shall together constitute but one and the same instrument. SECTION 10.8. ARTICLE AND SECTION HEADINGS. The headings or titles of the several Articles and Sections hereof and any table of contents appended to copies hereof shall be solely for convenience of reference and shall not affect the meaning, construction or effect of this Agreement. SECTION 10.9. SUCCESSORS AND ASSIGNS. All the covenants and agreements in this Agreement contained by or on behalf of the Company or the Agent shall bind their respective successors and assigns, whether so expressed or not. 26 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. AIRTOUCH COMMUNICATIONS, INC. By AGENT-NAME, as Agent By EX-4.13 6 PREFERRED SECURITIES GUARANTEE AGREEMENT 1 EXHIBIT 4.13 ================================================================================ PREFERRED SECURITIES GUARANTEE AGREEMENT Dated as of , 199[ ] ================================================================================ 2 CROSS-REFERENCE TABLE*
Section of Section of Trust Indenture Act Guarantee of 1939, as amended Agreement ------------------- ---------- 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
-------------------- *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. 2 3 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; 3 4 (c) all references to "the Guarantee Agreement" or "this Guarantee Agreement" are to this Guarantee Agreement as modified, supplemented or amended from time to time; (d) all references in this Guarantee Agreement to Articles and Sections are to Articles and Sections of this Guarantee Agreement unless otherwise specified; (e) a term defined in the Trust Indenture Act has the same meaning when used in this Guarantee Agreement unless otherwise defined in this Guarantee Agreement or unless the context otherwise requires; and (f) a reference to the singular includes the plural and vice versa. "Affiliate" has the same meaning as given to that term in Rule 405 of the Securities Act of 1933, as amended, or any successor rule thereunder. "Common Securities" means the securities representing common undivided beneficial interests in the assets of the Trust Issuer. "Covered Person" means any Holder or beneficial owner of Preferred Securities. "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. 4 5 "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. 5 6 "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 6 7 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. 7 8 (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 8 9 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. 9 10 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: 10 11 (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. 11 12 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. 12 13 (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 13 14 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 14 15 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 15 16 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 16 17 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. 17 18 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 18 19 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). 19 20 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 20 21 (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:_______________________ 21 EX-12.1 7 STATEMENT RE COMPUTATION OF RATIOS 1 EXHIBIT 12.1 AIRTOUCH COMMUNICATIONS, INC. COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
9 Mos. Year Year Year Year Year (Dollars in millions) 1995 1994 1993 1992 1991 1990 -------- -------- -------- -------- -------- ------- EARNINGS Reported pre-tax income from continuing operations $ 228.7 $ 206.4 $ 107.9 $ 14.4 $ 92.9 $ 101.7 Add back: Equity in net losses of less-than- fifty-percent-owned unconsolidated wireless systems 78.6 35.3 36.6 38.6 21.5 11.5 Distributed income of less-than- fifty-percent-owned unconsolidated wireless systems 1.7 1.1 8.7 7.8 0.0 0.0 Fixed charges included in reported pre-tax income 15.7 24.5 34.5 64.3 46.8 27.8 Deduct: Minority interests in net losses of consolidated wireless systems (21.1) (21.7) (3.8) (2.5) 0.0 (4.9) -------- -------- -------- -------- -------- ------- Total $ 303.6 $ 245.6 $ 183.9 $ 122.6 $ 161.2 $ 136.1 -------- -------- -------- -------- -------- ------- FIXED CHARGES Total interest on debt $ 11.6 $ 10.7 $ 25.8 $ 56.5 $ 49.2 $ 29.5 1/3 operating rental expense 11.3 14.2 12.4 11.4 9.2 6.1 -------- -------- -------- -------- -------- ------- Total $ 22.9 $ 24.9 $ 38.2 $ 67.9 $ 58.4 $ 35.6 -------- -------- -------- -------- -------- ------- RATIO OF EARNINGS TO FIXED CHARGES 13.3 9.9 4.8 1.8 2.8 3.8 ======== ======== ======== ======== ======== =======
Prior to April 1, 1994, the Company was an 86.1% owned subsidiary of Pacific Telesis Group ("Telesis"). As a subsidiary of Telesis, the Company met its funding requirements primarily through short-term borrowings and equity contributions from Telesis. During 1993, Telesis provided equity contributions of $1,179.8 million which the Company used to significantly reduce its indebtedness to Telesis. The Company's indebtedness to Telesis totaled $958.4 million, $0.3 million, and $0.0 million at December 31, 1992, 1993, and 1994, respectively. EX-15.1 8 EXHIBIT 15.1 1 Exhibit 15.1 November 20, 1995 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20849 Re: AirTouch Communications, Inc. Amendment No. 1 to the Registration Statement on Form S-3 Ladies and Gentlemen: We are aware that our reports dated May 11, 1995 and August 10, 1995 on our review of interim financial information of AirTouch Communications, Inc. for the periods ended March 31, 1995 and June 30, 1995, respectively, and included in the Company's quarterly reports on Form 10-Q for the quarters then ended are incorporated by reference in this Amendment No. 1 to the registration statement. Pursuant to Rule 438(e) under the Securities Act of 1933, these reports should not be considered part of the registration statement prepared or certified by us within the meaning of Sections 7 and 11 of that Act. Very truly yours, /s/ Coopers & Lybrand L.L.P. EX-23.1 9 CONSENT OF INDEPENDENT ACCOUNTANTS-COOPERS 1 Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this Amendment No. 1 to registration statement on Form S-3 of our report dated March 13, 1995 on our audit of the consolidated financial statements and related financial statement schedule of AirTouch Communications, Inc. We also consent to the reference to our firm under the caption "Exports." /s/ Coopers & Lybrand L.L.P. San Francisco, California November 20, 1995 EX-23.2 10 CONSENT OF INDEPENDENT AUDITORS-ERNST AND YOUNG 1 Exhibit 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in Amendment No. 1 to the Registration Statement (Form S-3 No. 33-62787) and related Prospectus of AirTouch Communications, Inc., ATI Financing I, and ATI Financing II for the registration of Common Stock, Preferred Stock, Depositary Shares, Debt Securities, Common Stock Warrants, Preferred Stock Warrants, Third Party Warrants, Debt Warrants, Stock Purchase Contracts, Stock Purchase Units and Preferred Securities and to the incorporation by reference of our report dated February 14, 1995 with respect to the consolidated financial statements of New Par (A Partnership) included in AirTouch Communications, Inc.'s Annual Report (Form 10K) for the year ended December 31, 1994, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Columbus, Ohio November 16, 1995 EX-23.3 11 CONSENT OF INDEPENDENT AUDITORS-ERNST AND YOUNG 1 Exhibit 23.3 CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in Amendment No.1 to the Registration Statement (Form S-3 No. 33-62787) and related Prospectus of AirTouch Communications, Inc., ATI Financing I and ATI Financing II for the registration of Common Stock, Preferred Stock, Depositary Shares, Debt Securities, Common Stock Warrants, Preferred Stock Warrants, Third Party Warrants, Debt Warrants, Stock Purchase Contracts, Stock Purchase Units and Preferred Securities and to the incorporation by reference therein of our report dated February 15, 1995 with respect to the consolidated financial statements and schedule of Cellular Communications, Inc. incorporated by reference in AirTouch Communications, Inc. Current Report on Form 8-K dated September 20, 1995 filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP New York, New York November 16, 1995 EX-23.4 12 CONSENT OF INDEPENDENT ACCOUNTANTS-COOPERS 1 Exhibit 23.4 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference, in this Amendment No. 1 registration statement on Form S-3 pertaining to AirTouch Communications, Inc., of our report dated January 30, 1995 on our audit of the consolidated financial statements of CMT Partners included in the Annual Report (Form 10-K) of AirTouch Communications, Inc. for the year ended December 31, 1994. We also consent to the reference to our firm under the caption "Experts." /s/ Coopers & Lybrand L.L.P. San Francisco, California November 20, 1995 EX-23.5 13 CONSENT OF INDEPENDENT AUDITORS-KPMG DEUTSCHE 1 Exhibit 23.5 CONSENT OF INDEPENDENT AUDITORS The Board of Directors and Capital Subscribers Mannesmann Mobilfunk GmbH: We consent to incorporation by reference in the registration statement on Form S-3 of AirTouch Communications, Inc., ATI Financing I, and ATI Financing II of our report, dated February 27, 1995, relating to the balance sheets of Mannesmann Mobilfunk GmbH as of December 31, 1994 and 1993, and the related statements of income, capital subscribers' equity, and cash flows for the years ended December 31, 1994, 1993, 1992, which appears in the December 31, 1994 annual report on Form 10-K of AirTouch Communications, Inc. Dusseldorf, Germany, November 17, 1995 KPMG Deutsche Treuhand-Gesellschaft Aktiengesellschaft Wirtsshaftsprufungsgesellschaft /s/ Scheffler /s/ Maas Wirtschaftsprufer Wirtschaftsprufer -----END PRIVACY-ENHANCED MESSAGE-----