EXHIBIT 4-ff
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & CO.,
THE CHASE MANHATTAN BANK,
as Unit Agent, as Collateral Agent, as
Trustee and Paying Agent under the
Indenture referred to herein, and as
Warrant Agent under the Warrant
Agreement referred to herein
AND
THE HOLDERS FROM TIME TO TIME
OF THE UNITS DESCRIBED HEREIN
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UNIT AGREEMENT
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Dated as of May 6, 1999
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TABLE OF CONTENTS
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PAGE
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions....................................................2
ARTICLE 2
UNITS
SECTION 2.01. Forms Generally...............................................11
SECTION 2.02. Form of Certificate of Authentication and
Countersignature..........................................12
SECTION 2.03. Amount Unlimited; Issuable in Series..........................12
SECTION 2.04. Denominations.................................................13
SECTION 2.05. Rights and Obligations Evidenced by the Units.................13
SECTION 2.06. Execution, Authentication, Delivery and Dating................14
SECTION 2.07. Temporary Unit Certificates...................................14
SECTION 2.08. Registration of Transfer and Exchange; Global
Units.....................................................15
SECTION 2.09. Mutilated, Destroyed, Lost and Stolen Unit
Certificates..............................................18
SECTION 2.10. Persons Deemed Owners.........................................20
SECTION 2.11. Cancellation..................................................21
SECTION 2.12. Exchange of Global Units and Definitive Units.................21
ARTICLE 3
THE PURCHASE CONTRACTS; SETTLEMENT OF WARRANTS
SECTION 3.01. Form and Execution of Purchase Contracts;
Temporary Purchase Contracts..............................22
SECTION 3.02. Number Unlimited Issuable in Series...........................24
SECTION 3.03. Countersignature, Execution on Behalf of Holder
and Delivery of Purchase Contracts........................26
SECTION 3.04. Further Provisions Relating to Issuance of
Purchase Contracts........................................29
SECTION 3.05. Purchase of Purchase Contract Property;
Optional Acceleration of Purchase Obligations;
Authorization of Agent by Holder; Transferees
Bound.....................................................29
SECTION 3.06. Payment of Purchase Price.....................................31
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PAGE
SECTION 3.07. Delivery of Purchase Contract Property or Other
Amounts...................................................34
SECTION 3.08. Charges and Taxes.............................................35
ARTICLE 4
REMEDIES
SECTION 4.01. Acceleration of Obligations...................................35
SECTION 4.02. Unconditional Rights under Purchase Contracts;
Limitation on Proceedings by Holders......................36
SECTION 4.03. Restoration of Rights and Remedies............................37
SECTION 4.04. Rights and Remedies Cumulative................................37
SECTION 4.05. Delay or Omission Not Waiver..................................37
SECTION 4.06. Waiver of Past Defaults.......................................37
SECTION 4.07. Undertaking for Costs.........................................38
SECTION 4.08. Waiver of Stay or Extension Laws..............................38
SECTION 4.09. Agent May File Proofs of Claims...............................38
SECTION 4.10. Suits for Enforcement.........................................39
SECTION 4.11. Control by Holders............................................40
ARTICLE 5
SECURITY INTERESTS AND COLLATERAL AGENT
SECTION 5.01. Granting of Security Interests; Rights and
Remedies of Collateral Agent; Perfection..................40
SECTION 5.02. Distribution of Principal and Interest; Release of
Collateral................................................41
SECTION 5.03. Certain Duties and Responsibilities of the
Collateral Agent ........................................42
SECTION 5.04. Knowledge of the Collateral Agent.............................43
SECTION 5.05. Certain Rights of Collateral Agent............................44
SECTION 5.06. Compensation and Reimbursements...............................44
SECTION 5.07. Corporate Collateral Agent Required Eligibility...............45
SECTION 5.08. Resignation and Removal; Appointment of
Successor.................................................46
SECTION 5.09. Acceptance of Appointment by Successor........................47
SECTION 5.10. Merger, Conversion, Consolidation or Succession
to Business...............................................48
SECTION 5.11. Money Held in Trust...........................................48
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ARTICLE 6
THE AGENT
SECTION 6.01. Certain Duties and Responsibilities...........................48
SECTION 6.02. Notice of Default.............................................49
SECTION 6.03. Certain Rights of Agent.......................................50
SECTION 6.04. Not Responsible for Recitals or Issuance of Units.............51
SECTION 6.05. May Hold Units................................................51
SECTION 6.06. Money Held in Trust...........................................51
SECTION 6.07. Compensation and Reimbursement................................52
SECTION 6.08. Corporate Agent Required: Eligibility.........................52
SECTION 6.09. Resignation and Removal: Appointment of
Successor.................................................53
SECTION 6.10. Acceptance of Appointment by Successor........................54
SECTION 6.11. Merger, Conversion, Consolidation or Succession
to Business...............................................55
SECTION 6.12. Appointment of Authenticating Agent...........................55
SECTION 6.13. Corporation to Furnish Agent Names and
Addresses of Holders......................................57
SECTION 6.14. Preservation of Information; Communications to
Holders...................................................58
SECTION 6.15. No Obligation of Holder.......................................59
SECTION 6.16. Tax Compliance................................................59
ARTICLE 7
SUPPLEMENTAL AGREEMENTS
SECTION 7.01. Supplemental Agreements Without Consent of
Holders...................................................60
SECTION 7.02. Supplemental Agreements with Consent of Holders...............61
SECTION 7.03. Execution of Supplemental Agreements..........................62
SECTION 7.04. Effect of Supplemental Agreements.............................62
SECTION 7.05. Reference to Supplemental Agreements..........................63
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.01. Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions...........63
SECTION 8.02. Rights and Duties of Successor Corporation....................63
SECTION 8.03. Opinion of Counsel to Agent...................................64
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ARTICLE 9
COVENANTS
SECTION 9.01. Performance under Purchase Contracts.........................64
SECTION 9.02. Maintenance of Office or Agency..............................65
SECTION 9.03. Money for Payments to Be Held in Trust.......................66
SECTION 9.04. Statements of Officers of the Corporation as to
Default..................................................67
SECTION 9.05. Negative Pledge..............................................67
SECTION 9.06. Luxembourg Publications......................................68
ARTICLE 10
REDEMPTIONS
SECTION 10.01. Optional Redemption of Purchase Contracts;
Redemption Upon Redemption of Debt Securities............68
SECTION 10.02. Notice of Redemption; Partial Redemptions...................68
SECTION 10.03. Payment of Purchase Contracts Called for
Redemption...............................................69
SECTION 10.04. Exclusion of Certain Purchase Contracts from
Eligibility for Selection for Redemption.................70
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and
Directors of the Corporation Immune from
Liability................................................71
SECTION 11.02. Compliance Certificates and Opinions........................71
SECTION 11.03. Form of Documents Delivered to Agent or
Collateral Agent.........................................72
SECTION 11.04. Acts of Holders.............................................73
SECTION 11.05. Notices, Etc................................................74
SECTION 11.06. Notices to Holders; Waiver..................................74
SECTION 11.07. Effect of Headings and Table of Contents....................75
SECTION 11.08. Successors and Assigns......................................75
SECTION 11.09. Separability Clause.........................................75
SECTION 11.10. Benefits of Agreement.......................................75
SECTION 11.11. Governing Law...............................................75
SECTION 11.12. Legal Holidays..............................................75
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SECTION 11.13. Counterparts................................................76
SECTION 11.14. Appointment of Certain Agents...............................76
SECTION 11.15. Inspection of Agreement.....................................76
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UNIT AGREEMENT, dated as of May 6, 1999, by and among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ & CO., a Delaware corporation (the "Corporation"), THE CHASE
MANHATTAN BANK, a New York banking corporation ("Chase"), acting solely as
unit agent and collateral agent under this Agreement (in its capacity as unit
agent, the "Agent", and, in its capacity as collateral agent, the "Collateral
Agent"), except to the extent that this Agreement specifically states that the
Agent is acting in another capacity, Chase, as trustee and paying agent under
the Indenture described below (in its capacity as trustee under the Indenture,
the "Trustee" and, in its capacity as paying agent under the Indenture, the
"Paying Agent"), and Chase, as Warrant Agent under the Warrant Agreement
described below (in its capacity as Warrant Agent under the Warrant Agreement,
the "Warrant Agent"), and the holders from time to time of the Units described
herein.
WHEREAS, the Corporation has entered into an Amended and Restated
Senior Indenture dated as of May 1, 1999 with the Trustee (as further
supplemented or amended from time to time, the "Senior Indenture");
WHEREAS, the Corporation has duly authorized the issuance, from time
to time, pursuant to the Indenture of senior debt securities ("Debt
Securities");
WHEREAS, the Corporation has entered into a Universal Warrant
Agreement (the "Warrant Agreement") dated as of May 1, 1999 between the
Corporation and Chase, as Warrant Agent;
WHEREAS, the Corporation has duly authorized the issuance, from time
to time, pursuant to the Warrant Agreement of Universal Warrants ("Warrants")
to purchase or sell (i) securities of an entity unaffiliated with the
Corporation, a basket of such securities, an index or indices of such
securities or any combination of the above, (ii) currencies or (iii)
commodities, in each case on terms to be determined at the time of sale;
WHEREAS, the Corporation has duly authorized the issuance, from time
to time, of Purchase Contracts ("Purchase Contracts") requiring the holder
thereof to purchase or sell (i) securities of an entity unaffiliated with the
Corpor ation, a basket of such securities, an index or indices of such
securities or any combination of the above, (ii) currencies or (iii)
commodities, in each case on terms to be determined at the time of sale;
WHEREAS, the Corporation has duly authorized the issuance, from time
to time, pursuant to the Indenture, of Purchase Contracts that require holders
to satisfy their obligations thereunder upon issuance of such Purchase
Contracts ("Prepaid Purchase Contracts");
WHEREAS, the Corporation desires to provide for the issuance of units
("Units") consisting of one or more Purchase Contracts, Prepaid Purchase
Contracts, Warrants or Debt Securities, or any combination thereof;
WHEREAS, the parties hereto wish to secure the performance by the
holders of Units consisting of Debt Securities and Purchase Contracts of their
obligations under such Purchase Contracts and the observance and performance
of the covenants and agreements contained herein and in such Purchase
Contracts;
NOW, THEREFORE, in consideration of the premises and the purchases of
the Units by the holders thereof, the Corporation, the Agent, the Warrant
Agent, the Collateral Agent and the Trustee and Paying Agent mutually covenant
and agree as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Agreement, except
as otherwise expressly provided or unless the context otherwise requires:
(i) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(ii) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States in effect at the time of
any computation; and
(iii) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Accelerated Settlement Date" with respect to a Purchase Contract of
any series, means any date to which the Corporation accelerates the
obligations of the Holder of the Units of which such Purchase Contract
constitutes a part, subject to any limitations as may be specified pursuant to
Section 3.02.
"Acceleration Notice", has the meaning specified in Section 3.05(b).
"Act", with respect to any Holder, has the meaning specified in Section
11.04.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", with respect to any specified Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means the Person named as the "Agent" in the first paragraph
of this Agreement until a successor Agent shall have become such pursuant to
the applicable provisions of this Agreement, and thereafter "Agent" shall mean
such successor Person.
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Authenticating Agent" means any Person authorized by the Agent to
act on behalf of the Agent to countersign and execute Purchase Contracts.
"Bankruptcy Event" means any of the following events: (i) a court
having jurisdiction in the premises shall enter a decree or order for relief
with respect to the Corporation in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Corporation or for any substantial part of its
property or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or (ii) the Corporation shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Corporation or for any substantial
part of its property, or make any general assignment for the benefit of
creditors.
"Board of Directors", means the board of directors of the Corporation
or any other committee duly authorized to act on its behalf with respect to
this Agreement.
"Board Resolution", means one or more resolutions, certified by the
Secretary or an Assistant Secretary of the Corporation to have been duly
adopted or consented to by the Board of Directors and to be in full force and
effect on the date of such certification and delivered to the Agent or the
Collateral Agent, as the case may be.
"Business Day" means any day that is not a Saturday or Sunday or a
legal holiday in The City of New York or a day on which banking institutions
in The City of New York are authorized or required by law, regulation or
executive order to be closed.
"Cash Settlement" has the meaning set forth in Section 3.06(a)(i).
"Closed Purchase Contract" means any Purchase Contract or Prepaid
Purchase Contract with respect to which a purchase or sale of, or other
settlement with respect to, the Purchase Contract Property has occurred
pursuant to Article Four or that has been redeemed or is otherwise not
Outstanding.
"Collateral" has the meaning specified in Section 5.01(a).
"Collateral Agent" means the Person named as the "Collateral Agent"
in the first paragraph of this Agreement until a successor Collateral Agent
shall have become such pursuant to the applicable provisions of this
Agreement, and thereafter "Collateral Agent" shall mean such successor Person.
"Corporate Trust Office" means the office of the Agent or the
Collateral Agent, as appropriate, at which at any particular time its
corporate trust business shall be principally administered, which office at
the date hereof is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇.
"Corporation" means the Person named as the "Corporation" in the
first paragraph of this Agreement until a successor Person shall have become
such pursuant to the applicable provisions of this Agreement, and thereafter
the "Corporation" shall mean such successor Person.
"Debt Securities" has the meaning stated in the second recital in
this Agreement and more particularly means any Debt Securities originally
issued as part of a Unit of any series.
"Debt Security Register" with respect to any Debt Securities
constituting a part of the Units of any series means the security register of
the Corporation maintained by the Trustee pursuant to the Indenture.
"Debt Security Settlement" has the meaning set forth in Section
3.06(a)(ii).
"Default" means an Event of Default under the Indenture or a Purchase
Contract Default.
"Definitive Securities" means any Security in definitive form.
"Definitive Unit" means any Unit comprised of Definitive Securities.
"Depositary" means, with respect to Registered Units, DTC, or any
successor, or, with respect to any Unregistered Units, a common depositary for
▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System, or Cedel Bank, societe anonyme, or any other relevant
depositary named in an Issuer Order, in each case, as the Holder of any Global
Units.
"DTC" means The Depository Trust Company or its nominee.
"Event of Default", with respect to the Debt Securities, has the
meaning set forth in the Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Debt Security" means a global Debt Security in bearer or
registered form originally issued as part of a Global Unit of any series.
"Global Prepaid Purchase Contract" means a global Prepaid Purchase
Contract in bearer or registered form originally issued as part of a Global
Unit of any series.
"Global Purchase Contract" means a global Purchase Contract in bearer
or registered form originally issued as part of a Global Unit of any series.
"Global Security" means any of a Global Debt Security, Global Warrant,
Global Purchase Contract or Global Prepaid Purchase Contract.
"Global Unit" means any Unit that comprises one or more Global
Securities and is represented by a global Unit Certificate in bearer or
registered form.
"Global Warrant" means a global Warrant in bearer or registered form
originally issued as part of a Global Unit of any series.
"Holder" means (i) in the case of any Registered Security or
Registered Unit, the Person in whose name such Registered Security or the
Registered Securities constituting a part of such Registered Unit are
registered on the relevant Security Register and (ii) in the case of any
Unregistered Security or Unregistered Unit, the bearer of such Security or
Unit, provided that, in the case of (i) above, so long as the Registered
Securities constituting part of such Units are not separable, "Holder" shall
mean the Person in whose name a Registered Security constituting
a part of such Unit is registered on the Security Register specified pursuant
to Section 2.03.
"Indenture" has the meaning specified in the first recital in this
Agreement.
"Initial Acceleration Date" means, with respect to Purchase Contracts
or Prepaid Purchase Contracts of any series, the initial date, if any,
specified pursuant to Section 3.02 on which such Purchase Contracts or Prepaid
Purchase Contracts may be accelerated pursuant to Section 3.05 hereof.
"Interest Payment Date", with respect to any Debt Security, has the
meaning set forth in the Indenture or in any document executed pursuant to the
terms of the Indenture relating to such Debt Security.
"Issuer Order" or "Issuer Request", means a written order or request
signed in the name of the Corporation by the Chairman of the Board, the
President, the Chief Financial Officer, the Chief Strategic and Administrative
Officer, the Chief Legal Officer, the Treasurer, any Assistant Treasurer or
any other person authorized by the Board of Directors and delivered to the
Agent or
the Collateral Agent, as the case may be.
"Letter of Representations" means, as of any date, the Letter of
Representations or Letters of Representations to DTC in effect as of such date
from the Agent relating to the Units covered by this Agreement.
"Minimum Acceleration Amount" means the minimum number of Purchase
Contracts of any series as specified pursuant to Section 3.02 that may be
subject to acceleration pursuant to Section 3.05.
"Minimum Remaining Amount" means the minimum number of Purchase
Contracts of any series as specified pursuant to Section 3.02 that must remain
Outstanding immediately following any acceleration pursuant to Section 3.05.
"Officer's Certificate" means a certificate signed by the Chairman of
the Board, the President, the Chief Financial Officer, the Chief Strategic and
Administrative Officer, the Chief Legal Officer, the Treasurer, any Assistant
Treasurer of the Corporation or any other person authorized by the Board of
Directors and delivered to the Agent or the Collateral Agent, as the case may
be.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Corporation and who shall
otherwise be satisfactory to the Agent or the Collateral Agent, as the case
may be.
"Optional Definitive Unit Request" has the meaning set forth in Section
2.12.
"Outstanding", with respect to any Unit, Debt Security, Warrant,
Purchase Contract or Prepaid Purchase Contract means, as of the date of
determination, all Units, Debt Securities, Warrants, Purchase Contracts or
Prepaid Purchase Contracts, as the case may be, evidenced by Units theretofore
authenticated, countersigned, executed and delivered under this Agreement,
except:
(A) Units, Debt Securities, Warrants, Purchase Contracts or Prepaid
Purchase Contracts theretofore deemed cancelled, cancelled by the
Agent, Warrant Agent or Trustee, as the case may be, or delivered to
the Agent, Warrant Agent or Trustee, as the case may be, for
cancellation, in each case pursuant to the provisions of this
Agreement, the Warrant Agreement or the Indenture;
(B) Closed Purchase Contracts; and
(C) Units, Debt Securities, Warrants, Purchase Contracts or Prepaid
Purchase Contracts evidenced by Unit Certificates in exchange for or
in lieu of which other Unit Certificates have been authenticated,
countersigned, executed and delivered pursuant to this Agreement,
other than any such Units, Debt Securities, Warrants, Purchase
Contracts or Prepaid Purchase Contracts, as the case may be,
evidenced by a Unit Certificate in respect of which there shall have
been presented to the Agent proof satisfactory to it that such Unit
Certificate is held by a bona fide purchaser in whose hands the
Units, Debt Securities, Warrants, Purchase Contracts or Prepaid
Purchase Contracts, as the case may be, evidenced by such Unit
Certificate are valid obligations of the Corporation;
provided, however, that in determining whether the Holders of the requisite
number of Outstanding Units, Debt Securities, Warrants, Purchase Contracts and
Prepaid Purchase Contracts, as the case may be, have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Units,
Debt Securities, Warrants, Purchase Contracts and Prepaid Purchase Contracts
owned by the Corporation or any Affiliate of the Corporation shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Agent shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Units, Debt
Securities, Warrants, Purchase Contracts and Prepaid Purchase Contracts which
the Agent knows to be so owned shall be so disregarded. Units, Debt
Securities, Warrants, Purchase Contracts and Prepaid Purchase Contracts that
are so owned but that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction
of the Agent the pledgee's right so to act with respect to such Units, Debt
Securities, Warrants, Purchase Contracts and Prepaid Purchase Contracts and
that the pledgee is not the Corporation or any Affiliate of the Corporation.
"Paying Agent" means any Person authorized by the Corporation to pay
the Settlement Amount, redemption price or any other sums payable by the
Corporation with respect to any Purchase Contracts; provided that such Person
shall be a bank or trust company organized and in good standing under the laws
of the United States or any state in the United States, having (together with
its parent) capital, surplus and undivided profits aggregating at least
$50,000,000 or any foreign branch or office of such a bank or trust company,
and, subject to the foregoing, may be an Affiliate of the Corporation.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Pledged Items" means, as of any date, any Debt Securities
constituting a part of the Units of any series or any and all other
securities, instruments or other property as may be specified pursuant to
Section 3.02.
"Prepaid Purchase Contracts" has the meaning stated in the sixth
recital in this Agreement and more particularly means any Prepaid Purchase
Contracts originally issued as part of a Unit of any series.
"Purchase Contract Default" with respect to Purchase Contracts of any
series means the occurrence of any of the following events: (i) failure of the
Corporation to deliver the Purchase Contract Property or the cash value
thereof for such Purchase Contracts against tender of payment therefor on any
Settlement Date, in the case of Purchase Contracts that obligate the
Corporation to sell the Purchase Contract Property, (ii) failure of the
Corporation to pay the Settlement Amount for such Purchase Contracts when the
same becomes due and payable, in the case of Purchase Contracts that obligate
the Corporation to purchase the Purchase Contract Property, (iii) failure on
the part of the Corporation duly to observe or perform any other of the
covenants or agreements on its part in such Purchase Contracts or in this
Agreement with respect to such Purchase Contracts and continuance of such
failure for a period of 60 days after the date on which written notice of such
failure, requiring the Corporation to remedy the same, shall have been given
to the Corporation and the Agent by Holders of at least 25% of the affected
Purchase Contracts at the time Outstanding, (iv) a Bankruptcy Event or (v) any
other Purchase Contract Default provided in any supplemental agreement under
which such series of Purchase Contracts is issued or in the form of such
Purchase Contracts.
"Purchase Contract Property" with respect to a Purchase Contract of
any series has the meaning specified pursuant to Section 3.02.
"Purchase Contract Register" and "Purchase Contract Registrar" have
the respective meanings specified in Section 2.08.
"Purchase Contracts" has the meaning stated in the fifth recital in
this Agreement and more particularly means any Purchase Contracts constituting
a part of the Units of any series countersigned, executed and delivered in
accordance with this Agreement.
"Purchase Price" of any Purchase Contract that obligates the
Corporation to sell, and the Holder to purchase, the Purchase Contract
Property has the meaning specified pursuant to Section 3.02.
"Registered Debt Security" means any Debt Security or Prepaid
Purchase Contract registered on the Debt Security Register.
"Registered Purchase Contract" means any Purchase Contract registered
on the Purchase Contract Register.
"Registered Security" means any of a Registered Debt Security,
Registered Warrant or Registered Purchase Contract.
"Registered Unit" means any Unit consisting of Registered Securities.
"Registered Warrant" means any Warrant registered on the Warrant
Register.
"Regular Record Date" has the meaning specified pursuant to
Section 2.03.
"Responsible Officer," with respect to the Agent or Collateral Agent,
means the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer, any trust officer or assistant trust officer, the
controller and any assistant controller or any other officer of the Agent or
Collateral Agent customarily performing functions similar to those performed
by any of the above-designated officers and also means, with respect to a
particular corporate trust or agency matter, any other officer to whom such
matter is referred because of his knowledge and familiarity with the
particular subject.
"Security" means any of a Debt Security, Warrant, Purchase Contract or
Prepaid Purchase Contract.
"Security Register" means any of the Debt Security Register, Purchase
Contract Register or Warrant Register.
"Settlement Amount" of any Purchase Contract that obligates the
Corporation to purchase, and the Holder to sell, the Purchase Contract
Property has the meaning specified pursuant to Section 3.02.
"Settlement Date" means the Stated Settlement Date and any Accelerated
Settlement Date.
"SRO" has the meaning specified in Section 2.01.
"Stated Settlement Date" of any Purchase Contract of any series has
the meaning specified pursuant to Section 3.02.
"Trustee", with respect to any Debt Securities or Prepaid Purchase
Contracts, means the Person acting as Trustee under the Indenture until a
successor Trustee shall have become such pursuant to the applicable provisions
of such Indenture, and thereafter "Trustee" shall mean such successor Trustee.
"Unit" has the meaning stated in the seventh recital to this
Agreement and more particularly the collective rights and obligations of the
Corporation and a Holder with respect to the Securities comprising such Unit,
as specified pursuant to Section 2.03.
"Unit Certificate" means a certificate evidencing the rights and
obligations of the Corporation and a Holder with respect to the number of
Units specified on such certificate.
"Unregistered Security" means any Security other than a Registered
Security.
"Unregistered Unit" means any Unit other than a Registered Unit.
"Unsettled Purchase Contract" means any Purchase Contract that has
not been redeemed or with respect to which settlement has not occurred
pursuant to Article Four.
"Warrant Agreement" has the meaning stated in the third recital of this
Agreement.
"Warrant Property" has the meaning specified in the Warrant
Agreement.
"Warrant Register" with respect to any Warrants constituting a part
of the Units of any series means the security register of the Corporation
maintained by the Warrant Agent pursuant to the Warrant Agreement.
"Warrants" has the meaning stated in the fourth recital of this
Agreement and more particularly means any Warrants originally issued as part
of a Unit of any series.
ARTICLE 2
UNITS
SECTION 2.01. Forms Generally. The Units of each series shall be
substantially in the form of Exhibit A or in such form (not inconsistent with
this Agreement) as shall be established by or pursuant to one or more Board
Resolutions (as set forth in a Board Resolution or, to the extent established
pursuant to rather than set forth in a Board Resolution, an Officer's
Certificate detailing such establishment). The Unit Certificates may have
imprinted or otherwise reproduced thereon such letters, numbers or other marks
of identification or designation and such legends or endorsements as the
officers of the Corporation executing the Securities constituting a part
thereof may approve (execution thereof to be conclusive evidence of such
approval) and that are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation
made pursuant thereto, or with any rule or regulation of any self-regulatory
organization (an "SRO") on which the Units of such series may be listed or
quoted or of any securities depository or to conform to general usage.
The Unit Certificates shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Unit Certificates, as evidenced by
their execution of the Securities constituting a part of the Units evidenced
by such Unit Certificates.
SECTION 2.02. Form of Certificate of Authentication and
Countersignature. The form of the Trustee's certificate of authentication of
any Debt Securities or Prepaid Purchase Contracts, the form of any Warrant
Agent's countersignature of any Warrants and the form of the Agent's execution
on behalf of the Holder and countersignature of any Purchase Contracts, each
constituting a part of the Units of any series, shall be substantially in such
form as set forth in the Indenture, the Warrant Agreement or this Agreement,
as applicable.
SECTION 2.03. Amount Unlimited; Issuable in Series. (a) The aggregate
number of Units that may be authenticated, countersigned and delivered under
this Agreement is unlimited.
The Units may be issued in one or more series. There shall be
established, upon the order of the Corporation (contained in an Issuer Order)
or pursuant to such procedures acceptable to the Agent as may be specified
from time to time by an Issuer Order, prior to the initial issuance of Units
of any series:
(i) the designation of the Units of the series, which shall
distinguish the Units of the series from the Units of all other
series;
(ii) any limit upon the aggregate number of Units of the series
that may be authenticated and delivered under this Agreement (except
for Units authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Units of the series
pursuant to Section 2.07, 2.08, 2.09 or 2.12);
(iii) the designation of the Securities constituting a part of the
Units of the series;
(iv) whether and on what terms any Securities constituting a part
of the Units of the series may be separated from the Units of the
series and the other Securities constituting a part of such Units;
(v) in the case of Units of a series consisting in any part of
Purchase Contracts, the information specified pursuant to Section
3.02;
(vi) whether the Units of the series will be issuable as
Registered Units (and if so, whether such Units will be issuable in
global form) or Unregistered Units (and if so, whether such Units
will be issuable in global form), or any combination of the
foregoing, any restrictions applicable to the offer, sale or delivery
of Unregistered Securities and, if other than as provided in Section
2.08, the terms upon which Unregistered Units of any series may be
exchanged for Registered Units of such series and vice versa;
(vii) in the case of Units issued as Registered Units consisting
of Registered Securities that may not be separated from the other
Registered Securities constituting a part of such Units, the
designation of the Security Register to be used to determine the
Holder of such Units;
(viii) if the Units of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary
Unit of
such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of
such certificates, documents or conditions;
(ix) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the
Units of such series;
(x) any other events of default or covenants with respect to the
Units of such series; and
(xi) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Agreement).
All Units of any one series shall be substantially identical, except
as may otherwise be provided by or pursuant to the Issuer Order or procedures
referred to above. All Units of any one series need not be issued at the same
time and may be issued from time to time, consistent with the terms of this
Agreement, if so provided by or pursuant to such Board Resolution or such
Issuer Order.
SECTION 2.04. Denominations. Units of any series shall be issuable
only in denominations of a single Unit and any integral multiple thereof.
SECTION 2.05. Rights and Obligations Evidenced by the Units. Units of
any series shall evidence the ownership by the Holder thereof of (a) the
principal amount of Debt Securities, if any, specified on the face of a Unit
Certificate representing Definitive Units or in Schedule A attached to any
Unit Certificate representing Global Units, (b) the number of Warrants, if
any, specified on the face of a Unit Certificate representing Definitive Units
or in Schedule A attached to any Unit Certificate representing Global Units,
(c) the number of Prepaid Purchase Contracts, if any, specified on the face of
a Unit Certificate representing Definitive Units or in Schedule A attached to
any Unit Certificate representing Global Units and (d) the rights and
obligations of the Corporation and the Holder under the number of Purchase
Contracts, if any, specified on the face of a Unit Certificate representing
Definitive Units or in Schedule A attached to any Unit Certificate
representing Global Units.
SECTION 2.06. Execution, Authentication, Delivery and Dating. Upon
the execution and delivery of this Agreement, and at any time and from time to
time thereafter, the Corporation may deliver, subject to any limitation on the
aggregate principal amount of Debt Securities, if any, or the number of
Warrants, Purchase Contracts or Prepaid Purchase Contracts, if any,
represented thereby, an unlimited number of Unit Certificates (including the
Securities executed by the Corporation constituting the Units evidenced by
such Unit Certificates) to the Trustee, Warrant
Agent and/or the Agent for authentication, countersignature or execution, as
the case may be, of the Securities comprised by such Units, together with its
Issuer Orders for authentication, countersignature or execution of such
Securities, and the Trustee in accordance with the Indenture and the Issuer
Order of the Corporation shall authenticate the Debt Securities and Prepaid
Purchase Contracts, if any, constituting a part of the Units evidenced by such
Unit Certificates, the Warrant Agent in accordance with the Warrant Agreement
and the Issuer Order of the Corporation shall countersign the Warrants, if
any, constituting a part of the Units evidenced by such Unit Certificates and
the Agent in accordance with this Agreement and the Issuer Order of the
Corporation shall countersign and execute on behalf of the Holders thereof the
Purchase Contracts, if any, constituting a part of the Units evidenced by such
Unit Certificates, and each shall deliver such Unit Certificates upon the
order of the Corporation.
Any Debt Securities or Prepaid Purchase Contracts constituting a part
of the Units of any series shall be executed on behalf of the Corporation in
accordance with the terms of the Indenture. Any Warrants constituting a part
of the Units of any series shall be executed on behalf of the Corporation in
accordance with the terms of the Warrant Agreement. Any Purchase Contracts
constituting a part of the Units shall be executed on behalf of the
Corporation in accordance with Section 3.01.
SECTION 2.07. Temporary Unit Certificates. Pending the preparation of
Unit Certificates for any series, the Corporation may execute and deliver to
the Trustee, the Warrant Agent and/or the Agent, as appropriate, and the
Trustee, the Warrant Agent and/or the Agent, as appropriate, shall
authenticate, countersign, execute on behalf of the Holder and deliver, as
appropriate, in lieu of such Unit Certificates, temporary Unit Certificates
for such series. Temporary Unit Certificates shall be in substantially the
form of the Unit Certificates of such series, but with such omissions,
insertions and variations as may be appropriate for temporary Unit
Certificates, all as may be determined by the Corporation with the concurrence
of the Trustee, Warrant Agent and/or Agent, as appropriate, as evidenced by
the execution and authentication and/or countersignature of the Securities
constituting a part of the Units evidenced thereby, as applicable.
If temporary Unit Certificates for any series are issued, the
Corporation will cause definitive Unit Certificates for such series to be
prepared without unreasonable delay. After the preparation of such definitive
Unit Certificates, the temporary Unit Certificates shall be exchangeable
therefor upon surrender of temporary Registered Units of such series at the
Corporate Trust Office, at the expense of the Corporation and without charge
to any Holder and, in the case of Unregistered Units, at any agency maintained
for such purpose as specified pursuant to Section 2.03. Upon surrender for
cancellation of any one or more temporary Unit Certificates, the Corporation
shall execute and deliver to the
Trustee, the Warrant Agent and/or the Agent, and the Trustee, the Warrant
Agent and/or the Agent shall authenticate, countersign, execute on behalf of
the Holder and deliver, as appropriate, in exchange therefor definitive Unit
Certificates of the same series of like tenor, of authorized denominations and
evidencing a like number of Units as the temporary Unit Certificate or
Certificates so surrendered. Until so exchanged, the temporary Unit
Certificates of any series shall in all respects evidence the same benefits
and the same obligations under any Debt Securities, Prepaid Purchase
Contracts, Warrants and Purchase Contracts constituting parts of such Units,
the Indenture, the Warrant Agreement and this Agreement as definitive Unit
Certificates of such series, unless otherwise specified pursuant to Section
2.03.
SECTION 2.08. Registration of Transfer and Exchange; Global Units.
The Agent shall keep at its Corporate Trust Office for each series of
Registered Units a register (the register maintained in such office being
herein referred to as the "Purchase Contract Register") in which, subject to
such reasonable regulations as it may prescribe, the Agent shall provide for
the registration of Registered Purchase Contracts, if any, constituting a part
of such series and of transfers of such Purchase Contracts (the Agent, in such
capacity, the "Purchase Contract Registrar").
At the option of the Holder thereof, Registered Units of any series
(other than a global Registered Unit, except as set forth below) may be
transferred or exchanged for a Registered Unit or Registered Units of such
series having authorized denominations evidencing the number of Units
transferred or exchanged, upon surrender of such Registered Units to be so
transferred or exchanged at the Corporate Trust Office of the Agent upon
payment, if the Corporation shall so require, of the charges hereinafter
provided. If the Units of any series are issued in both registered and
unregistered form, except as otherwise specified pursuant to Section 2.03, at
the option of the Holder thereof, Unregistered Units of such series may be
exchanged for Registered Units of such series having authorized denominations
and evidencing the number of Units transferred or exchanged, upon surrender of
such Unregistered Units to be so transferred or exchanged at the Corporate
Trust Office of the Agent and upon payment, if the Corporation shall so
require, of the charges hereinafter provided. At the option of the Holder
thereof, if Unregistered Units of any series are issued in more than one
authorized denomination, except as otherwise specified pursuant to Section
2.03, such Unregistered Units may be exchanged for Unregistered Units of such
series having authorized denominations evidencing the number of Units
exchanged, upon surrender of such Unregistered Units to be so exchanged at the
Corporate Trust Office of the Agent or as specified pursuant to Section 2.03,
and upon payment, if the Corporation shall so require, of the charges
hereinafter provided. Unless otherwise specified pursuant to Section 2.03,
Registered Units of any series may not be exchanged for Unregistered Units of
such series. Whenever any Units are so surrendered for transfer or exchange,
the Corporation shall execute, and the Trustee, Warrant Agent and/or the
Agent, as appropriate, shall authenticate, countersign or execute, as the case
may be, and deliver the Units which the Holder making the transfer or exchange
is entitled to receive. All Units (including the Securities constituting part
of such Units) surrendered upon any exchange or transfer provided for in this
Agreement shall be promptly cancelled and disposed of by the Agent and the
Agent will deliver a certificate of disposition thereof to the Corporation and
to the Trustee and the Warrant Agent, as applicable.
Unregistered Units shall be transferable by delivery.
Subject to Section 2.12, if the Corporation shall establish pursuant
to Section 2.03 that the Units of a series are to be evidenced by one or more
Global Units, then the Corporation shall execute and the Agent, Warrant Agent
and Trustee shall, in accordance with this Section and Section 206,
countersign, authenticate and execute, as appropriate, and deliver one or more
global Unit Certificates that (i) shall evidence all or a portion of the Units
of such series issued in such form and not yet cancelled, (ii) in the case of
Registered Units, shall be registered in the name of the Depositary for such
Units or the nominee of such Depositary, (iii) shall be delivered by the Agent
to the Depositary for such Units or pursuant to such Depositary's instructions
and (iv) in the case of Registered Units, shall bear a legend substantially to
the following effect: "Unless and until it is exchanged in whole or in part
for Units in definitive registered form, this Unit Certificate may not be
transferred except as a whole by the Depositary to the 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 such nominee to a
successor Depositary or a nominee of such successor Depositary." Whenever
Global Units of any series are exchanged for Definitive Units of such series
or whenever Definitive Units of any series are exchanged for Global Units of
such series, the Agent shall cause, as applicable: (i) Schedule A of the
Global Debt Security, if any, to be endorsed to reflect any increase or
decrease, as the case may be, in the principal amount of Debt Securities, if
any, that are comprised by Global Units as a result of such exchange, (ii)
Schedule A of the Global Warrant, if any, to be endorsed to reflect any
increase or decrease, as the case may be, in the number of Warrants, if any,
that are comprised by the Global Units as a result of such exchange, (iii)
Schedule A of the Global Purchase Contract, if any, to be endorsed to reflect
any increase or decrease, as the case may be, in the number of Purchase
Contracts, if any, that are comprised by Global Units as a result of such
exchange and (iv) Schedule A of the Global Prepaid Purchase Contract, if any,
to be endorsed to reflect any increase or decrease, as the case may be, in the
number of Prepaid Purchase Contracts, if any, that are comprised by Global
Units as a result of such exchange, whereupon such number of Global
Units shall be decreased or increased for all purposes by the number so
exchanged, as noted.
All Unit Certificates authenticated, countersigned and executed upon
any registration of transfer or exchange of a Unit Certificate shall evidence
the ownership of the principal amount of Debt Securities, if any, specified on
the face thereof, the number of Warrants, if any, specified on the face
thereof and the number of Prepaid Purchase Contracts, if any, specified on the
face thereof and the rights and obligations of the Holder and the Corporation
under the number of Purchase Contracts, if any, specified on the face thereof
and shall be entitled to the same benefits, and be subject to the same
obligations, under the Indenture, the Warrant Agreement and this Agreement as
the Units evidenced by the Unit Certificate surrendered upon such registration
of transfer or exchange.
Every Unit Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Corporation or the
Agent) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Corporation and the Agent, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any transfer or exchange of a
Unit, but the Corporation and the Agent may require payment from the Holder of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Units,
other than any exchanges pursuant to Section 2.09 not involving any transfer.
Notwithstanding the foregoing, and subject to Section 2.8 of the
Indenture, the Corporation shall not be obligated to execute and deliver to
the Trustee, the Warrant Agent or the Agent, and none of the Trustee, under
the terms of the Indenture, the Warrant Agent, under the terms of the Warrant
Agreement, or the Agent hereunder shall be obligated to authenticate,
countersign or execute on behalf of the Holder any Unit Certificate presented
or surrendered for registration of transfer or for exchange of any Debt
Securities, Prepaid Purchase Contracts, Warrants or Purchase Contracts
evidenced thereby or any Unit Certificate evidencing a Definitive Unit to be
issued in exchange for interests in Global Units or to reflect any increase or
decrease in a Global Unit, Global Debt Security, Global Warrant, Global
Purchase Contract or Global Prepaid Purchase Contract (i) during the period
beginning any time on or after the opening of business 15 days before the day
of mailing of a notice of redemption or of any other exercise of any right
held by the Corporation with respect to the Unit (or any Security constituting
a part of the Units of such series) and ending at the close of business on the
day of the giving of such notice, (ii) that evidences or would evidence any
such Unit or Security selected or called for redemption or with respect to
which such right has been exercised or (iii) at any given date, if such date
is on or after
any date that is after the Settlement Date or the date of redemption, as
applicable, with respect to the Purchase Contracts, if any, evidenced or to be
evidenced by such Unit Certificate (or at any time on or after the last
exercise date with respect to any Warrant constituting a part of such Unit),
except with respect to any Registered Debt Securities or portions thereof that
remain or will remain Outstanding following such Settlement Date or date of
redemption (or such last exercise date) or (iv) at any other date specified
pursuant to Section 2.03.
SECTION 2.09. Mutilated, Destroyed, Lost and Stolen Unit
Certificates. If any mutilated Unit Certificate is surrendered to the Agent,
the Corporation shall execute and deliver to the Trustee, the Warrant Agent
and/or the Agent, as appropriate, and the Trustee, the Warrant Agent and/or
the Agent shall authenticate, countersign, execute on behalf of the Holder and
deliver, as appropriate, in exchange therefor new Securities comprised by
Units of the same series, of like tenor, and evidenced by a new Unit
Certificate evidencing the same number of Units and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Corporation and the Trustee, the
Warrant Agent and/or the Agent, as appropriate, (i) evidence to their
satisfaction of the destruction, loss or theft of any Unit Certificate and
(ii) such security or indemnity as may be required by them to hold each of
them and any agent of any of them harmless, then, in the absence of notice to
the Corporation and the Trustee, the Warrant Agent and/or the Agent, as
appropriate, that such Unit Certificate has been acquired by a bona fide
purchaser, the Corporation shall execute and deliver to the Trustee, the
Warrant Agent and/or the Agent, as appropriate, and the Trustee (in accordance
with the provisions of the Indenture), the Warrant Agent (in accordance with
the provisions of the Warrant Agreement) and/or the Agent (in accordance with
the provisions hereof) shall authenticate, countersign, execute on behalf of
the Holder and deliver to the Holder, as appropriate, in lieu of any such
destroyed, lost or stolen Unit Certificate, new Securities comprised by Units
of the same series, of like tenor, and evidenced by a new Unit Certificate
evidencing the same number of Units and bearing a number not contemporaneously
outstanding.
Unless otherwise specified pursuant to Section 2.03, notwithstanding
the foregoing, the Corporation shall not be obligated to execute and deliver
to the Trustee, the Warrant Agent or the Agent, and none of the Trustee (under
the Indenture), the Warrant Agent (under the Warrant Agreement), or the Agent
shall be obligated to authenticate, countersign or execute on behalf of the
Holder, or deliver to the Holder, a new Unit Certificate (or any Security
constituting a part of such Unit) (i) during the period beginning any time on
or after the opening of business 15 days before the day of mailing of a notice
of redemption or of any other exercise of any right held by the Corporation
with respect to the Unit (or any Security constituting a part of such Unit)
and ending at the close of business on
the day of the giving of such notice, (ii) that evidences any Unit or Purchase
Contracts selected or called for redemption or with respect to which such
right has been exercised, (iii) at any given date, if such date is on or after
the Settlement Date or date of redemption, as applicable, with respect to any
Purchase Contracts evidenced by such Unit Certificate (or at any time on or
after the last exercise date with respect to any Warrant constituting a part
of such Unit), except with respect to any Registered Debt Security or portion
thereof evidenced by such Unit Certificate that remains or will remain
Outstanding following such Settlement Date or date of redemption (or such last
exercise date) or (iv) at any other date specified pursuant to Section 2.03.
In lieu of delivery of a new Unit Certificate, upon satisfaction of the
applicable conditions specified in clauses (i) and (ii) of the preceding
paragraph, the Agent shall deliver or cause to be delivered on the applicable
Settlement Date, redemption date or exercise date (i) in respect of Purchase
Contracts, Warrants or Debt Securities constituting a part of the Units
evidenced by such Unit Certificate that are selected or called for redemption,
the redemption price of such Purchase Contracts, Warrants or Debt Securities
or (ii) in respect of Purchase Contracts or Warrants constituting a part of
the Units evidenced by such Unit Certificate with respect to which a Cash
Settlement or Debt Security Settlement (or any equivalent manner of
settlement) has taken place, (x) the Purchase Contract Property or Warrant
Property (or cash value thereof), purchase price, cash settlement value,
Settlement Amount or other amount, as the case may be, deliverable with
respect to such Purchase Contracts or Warrants (and, in the case of an
effective Cash Settlement (or any equivalent manner of settlement), the
related Debt Securities) or (y) if a Purchase Contract Default or any default
under the Warrant Agreement or Warrant has occurred by virtue of the
Corporation's having failed to deliver the Purchase Contract Property or
Warrant Property (or cash value thereof), purchase price, cash settlement
value, Settlement Amount or other amount, as the case may be, deliverable
against tender by the Agent of the purchase price, Purchase Contract Property
(or the cash value thereof) or other Settlement Amount, exercise price or
other amount, as the case may be, such purchase price, Purchase Contract
Property (or cash value thereof) or Settlement Amount or other amount, if any,
received by the Agent from the Holder in respect of the Settlement of such
Purchase Contracts or exercise of such Warrants or in respect of principal
with respect to the related Debt Securities received by the Agent.
Upon the issuance of any new Unit Certificate under this Section, the
Corporation and the Agent 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 (including the fees and expenses of the Agent)
connected therewith.
Every new Unit Certificate executed pursuant to this Section in lieu
of any destroyed, lost or stolen Unit Certificate shall constitute an original
additional
contractual obligation of the Corporation and of the Holder (with respect to
any Purchase Contracts constituting a part of the Units evidenced thereby),
whether or not the destroyed, lost or stolen Unit Certificate (and the
Securities evidenced thereby) shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Unit Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Unit
Certificates.
SECTION 2.10. Persons Deemed Owners. Prior to due presentment of a
Unit Certificate of any series for registration of transfer, the Corporation,
the Trustee, the Warrant Agent, the Collateral Agent and the Agent, as
appropriate, and any agent of the Corporation, the Trustee, the Warrant Agent,
the Collateral Agent or the Agent, as appropriate, may treat the Person in
whose name any Registered Security evidenced by such Unit Certificate is
registered and, with respect to any Unregistered Security constituting a part
of the Units evidenced by such Unit Certificate, the bearer thereof, as the
owner of the Units evidenced thereby for all purposes whatsoever, whether or
not payment with respect to any Security constituting a part of the Units
evidenced thereby shall be overdue and notwithstanding any notice to the
contrary. None of the Corporation, the Trustee, the Warrant Agent, the Agent,
the Collateral Agent or any agent of the Corporation, the Trustee, the Warrant
Agent, the Collateral Agent or the Agent shall be affected by notice to the
contrary.
SECTION 2.11. Cancellation. Subject to Section 3.07, all Unit
Certificates surrendered for payment, and all Unit Certificates surrendered
for redemption of any Debt Securities, Prepaid Purchase Contracts or Purchase
Contracts evidenced thereby, exercise of any Warrants evidenced thereby,
termination or settlement of any Purchase Contracts evidenced thereby,
delivery of Purchase Contract Property or registration of transfer or exchange
shall, if surrendered to any Person other than the Trustee, the Warrant Agent
or the Agent, as appropriate, be delivered to the Trustee, the Warrant Agent
and/or the Agent, as appropriate, and, if not already cancelled, any Debt
Securities, Prepaid Purchase Contracts, Warrants or Purchase Contracts
evidenced by such Units shall be promptly cancelled by the Trustee, the
Warrant Agent and/or the Agent, as appropriate. The Corporation may at any
time deliver to the Trustee, the Warrant Agent and/or the Agent, as
appropriate, for cancellation any Unit Certificates previously authenticated,
countersigned, executed and delivered hereunder, under the Warrant Agreement
and under the Indenture, which the Corporation may have acquired in any manner
whatsoever, and all Unit Certificates so delivered shall, upon Issuer Order of
the Corporation, be promptly cancelled by the Trustee, Warrant Agent and/or
the Agent, as appropriate. No Unit Certificates shall be authenticated,
countersigned
and executed in lieu of or in exchange for any Unit Certificates cancelled as
provided in this Section, except as permitted by this Agreement. All cancelled
Unit Certificates held by the Agent shall be disposed of in accordance with
its customary procedures and a certificate of their disposition shall be
delivered by the Agent to the Corporation, unless by Issuer Order the
Corporation shall direct that cancelled Unit Certificates be returned to it.
If the Corporation or any Affiliate of the Corporation shall acquire
any Unit Certificate, such acquisition shall not operate as a cancellation of
such Unit Certificate unless and until such Unit Certificate is delivered to
the Trustee, the Warrant Agent and/or the Agent, as appropriate, for the
purpose of cancellation.
SECTION 2.12. Exchange of Global Units and Definitive Units. In the
case of Registered Units, Holders of Global Units of any series shall receive
Definitive Units of such series in exchange for interests in such Global Units
if DTC notifies the Corporation that it is unwilling or unable to continue as
Depositary with respect to the Global Units of such series or if at any time
it ceases to be a clearing agency under the Exchange Act, and a successor
Depositary registered as a clearing agency under the Exchange Act is not
appointed by the Corporation within 90 days after receipt of such notice or
after it becomes aware that DTC has ceased to be such a clearing agency.
If so provided pursuant to Section 2.03, interests in such Global
Units may also be transferred or exchanged for Definitive Units upon the
request of the Depositary to the Trustee, the Warrant Agent and/or the Agent,
as appropriate, to authenticate, countersign and execute, as the case may be,
Unit Certificates representing Definitive Units (such request being referred
to herein as an "Optional Definitive Unit Request").
Definitive Units exchanged for interests in Global Units pursuant to
this Section 2.12 shall be denominated in the amounts and registered in the
name of such Person or Persons as the Depositary shall instruct the Agent, the
Warrant Agent and the Trustee, as appropriate.
Whenever Global Units are exchanged for Definitive Units, the Agent
shall cause Schedule A of the Global Unit to be endorsed to reflect any
decrease in the Global Units as a result of such exchange, whereupon the
Global Unit Certificate or Certificates shall be canceled and disposed of in
accordance with Section 2.11.
If so specified pursuant to Section 2.03, Holders of Definitive Units
may transfer or exchange such Definitive Units for interests in Global Units
by depositing the Unit Certificates evidencing such Definitive Units with the
Agent and requesting the Agent, the Warrant Agent and the Trustee, as
appropriate, to
effect such exchange. The Agent shall notify the Depositary of any such
exchange and, upon delivery to the Agent, the Warrant Agent and the Trustee,
as appropriate, of the Unit Certificates evidencing the Definitive Units to be
so transferred or exchanged, the Agent shall take all actions required with
respect to any Global Securities evidenced by such Global Units and Unit
Certificates evidencing the remaining Definitive Units, if any, will be issued
in accordance with Section 2.08.
ARTICLE 3
THE PURCHASE CONTRACTS; SETTLEMENT OF WARRANTS
SECTION 3.01. Form and Execution of Purchase Contracts; Temporary
Purchase Contracts. (a) Purchase Contracts of each series shall be
substantially in the forms attached as Exhibit A, as appropriate, or in such
form (not inconsistent with this Agreement) as shall be established by or
pursuant to one or more Board Resolutions (as set forth in a Board Resolution
or, to the extent established pursuant to rather than set forth in a Board
Resolution, an Officer's Certificate detailing such establishment, in each
case, which may be included in any Board Resolution or Officer's Certificate
made pursuant to this Agreement) or in one or more agreements supplemental
hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement. The Purchase Contracts may have imprinted or otherwise reproduced
thereon such letters, numbers or other marks of identification or designation
and such legends or endorsements as the officers of the Corporation executing
the same may approve (execution thereof to be conclusive evidence of such
approval) and that are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation
made pursuant thereto, or with any rule or regulation of any SRO on which the
Purchase Contracts of such series may be listed or quoted, or of any
securities depository, or to conform to general usage. Purchase Contracts
shall be signed on behalf of the Corporation by the chairman or vice chairman
of the Board of Directors, the president, the chief financial officer, the
treasurer or any managing director of the Corporation or such other person
specifically designated by the Board of Directors or the Executive Committee
thereof to execute Purchase Contracts, which signature may or may not be
attested by the secretary or an assistant secretary of the Corporation. The
signature of any of such officers may be either manual or facsimile.
Typographical and other minor errors or defects in any such signature shall
not affect the validity or enforceability of any Purchase Contract that has
been duly countersigned and delivered by the Agent.
(b) In case any officer of the Corporation who shall have signed a
Purchase Contract, either manually or by facsimile signature, shall cease to
be such officer before such Purchase Contract shall have been countersigned
and delivered by the Agent to the Corporation or delivered by the Corporation,
such Purchase Contract nevertheless may be countersigned and delivered as
though the person who signed such Purchase Contract had not ceased to be such
officer of the Corporation; and a Purchase Contract may be signed on behalf of
the Corporation by any person who, at the actual date of the execution of such
Purchase Contract, shall be a proper officer of the Corporation to sign such
Purchase Contract, although at the date of the execution of this Agreement any
such person was not such officer.
(c) Pending the preparation of final Purchase Contracts of any
series, the Corporation may execute and the Agent shall countersign and
deliver temporary Purchase Contracts (printed, lithographed, typewritten or
otherwise produced, in each case in form satisfactory to the Agent). Such
temporary Purchase Contracts shall be issuable substantially in the form of
the final Purchase Contracts but with such omissions, insertions and
variations as may be appropriate for temporary Purchase Contracts, all as may
be determined by the Corporation with the concurrence of the Agent. Such
temporary Purchase Contracts may contain such reference to any provisions of
this Agreement as may be appropriate. Every such temporary Purchase Contract
shall be executed by the Corporation and shall be countersigned by the Agent
upon the same conditions and in substantially the same manner, and with like
effect, as the final Purchase Contracts. Without unreasonable delay, the
Corporation shall execute and shall furnish final Purchase Contracts and
thereupon such temporary Purchase Contracts may be surrendered in exchange
therefor without charge, and the Agent shall countersign and deliver in
exchange for such temporary Purchase Contracts final Purchase Contracts
evidencing a like aggregate number of Purchase Contracts of the same series
and of like tenor as those evidenced by such temporary Purchase Contracts.
Until so exchanged, such temporary Purchase Contracts shall be entitled to the
same benefits under this Agreement as final Purchase Contracts.
SECTION 3.02. Number Unlimited Issuable in Series. (a) The aggregate
number of Purchase Contracts that may be delivered under this Agreement is
unlimited.
(b) The Purchase Contracts may be issued in one or more series.
There shall be established in or pursuant to one or more Board Resolutions
(and to the extent established pursuant to rather than set forth in a Board
Resolution, in an Officer's Certificate detailing such establishment) or
established in one or more agreements supplemental hereto, prior to the
initial issuance of Purchase Contracts of any series:
(i) the designation of the Purchase Contracts of the series,
which shall distinguish the Purchase Contracts of the series from the
Purchase Contracts of all other series;
(ii) any limit upon the aggregate number of the Purchase
Contracts of the series that may be countersigned and delivered under
this Agreement (except for Purchase Contracts countersigned and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Purchase Contracts of the series);
(iii) the specific property (the "Purchase Contract Property")
used to determine the amount payable upon settlement of the Purchase
Contracts of the series, and the amount of such property (or the
method for determining the same);
(iv) whether the Purchase Contracts of the series provide for the
purchase by the Corporation and the sale by the Holder or the sale by
the Corporation and the purchase by the Holder of the Purchase
Contract Property;
(v) in the case of Purchase Contracts that obligate the
Corporation to sell, and the Holder to purchase, Purchase Contract
Property, the Purchase Price at which and, if other than U.S.
Dollars, the coin or currency with which the Purchase Contract
Property is to be purchased by the Holder upon settlement of the
Purchase Contracts of the series (or the method for determining the
same) and whether the Purchase Price for such Purchase Contracts may
be paid in cash or by the exchange of any other security of the
Corporation, or both, or otherwise;
(vi) in the case of Purchase Contracts that obligate the
Corporation to purchase, and the Holders to sell, Purchase Contract
Property, the Settlement Amount for the Purchase Contracts of the
series (or the method for determining the same) and, if other than
U.S. Dollars, the coin or currency in which such Settlement Amount is
to be paid;
(vii) whether the settlement of the Purchase Contracts of the
series is to be in cash or by delivery of the Purchase Contract
Property, or otherwise, and the method of settlement of the Purchase
Contracts of the series;
(viii) the specific date or dates on which the Purchase Contracts
will be settled, whether the settlement may be accelerated by the
Corporation or the Holders thereof and, if so, the initial
accelerated settlement date, the minimum number of Purchase Contracts
that may be
accelerated and the minimum number of Purchase Contracts greater than
zero that must remain Outstanding immediately following such
acceleration;
(ix) whether the Purchase Contracts of the series will be in
registered form ("Registered Purchase Contracts") or bearer form
("Bearer Purchase Contracts") or both;
(x) whether any Purchase Contracts of the series will be issued
in global form or definitive form or both, and whether and on what
terms (if different from those set forth herein) Purchase Contracts
in one form may be converted into or exchanged for Purchase Contracts
in the other form;
(xi) any agents, depositaries, authenticating or paying agents,
transfer agents or registrars or any determination or calculation
agents or other agents with respect to Purchase Contracts of the
series;
(xii) whether and on what terms the Purchase Contracts of the
series may be separated from the other components of the Units of
which the Purchase Contracts are a component;
(xiii) whether the Purchase Contracts of such series will be subject
to redemption by the Corporation and, if so, the initial redemption
date, the minimum number of Purchase Contracts that may be redeemed
and the minimum number of Purchase Contracts greater than zero that
must remain Outstanding immediately following such redemption; and
(xiv) any other terms of the Purchase Contracts of the series
(which terms shall not be inconsistent with the provisions of this
Agreement).
(c) All Purchase Contracts of any one series shall be substantially
identical, except as may otherwise be provided by or pursuant to the Board
Resolution or Officer's Certificate referred to above or as set forth in any
such agreement supplemental hereto. All Purchase Contracts of any one series
need not be issued at the same time and may be issued from time to time,
consistent with the terms of this Agreement, if so provided by or pursuant to
such Board Resolution, such Officer's Certificate or in any such agreement
supplemental hereto.
SECTION 3.03. Countersignature, Execution on Behalf of Holder and
Delivery of Purchase Contracts. (a) The Corporation may deliver Purchase
Contracts of any series executed by the Corporation to the Agent for
countersignature and execution on behalf of the Holders, together with the
applicable documents referred to below in this Section, and the Agent shall
thereupon countersign, execute on behalf of the Holders and deliver such
Purchase Contracts to or upon the order of the Corporation (contained in the
Issuer Order referred to below in this Section) or pursuant to such procedures
acceptable to the Agent as may be specified from time to time by an Issuer
Order. If provided for in such procedures, such Issuer Order may authorize
countersignature, execution on behalf of the Holders and delivery pursuant to
oral instructions from the Corporation or its duly authorized agent, which
instructions shall be promptly confirmed in writing. In countersigning such
Purchase Contracts, executing such Purchase Contracts on behalf of the Holders
and accepting the responsibilities under this Agreement in relation to the
Purchase Contracts, the Agent shall be entitled to receive (in the case of
subparagraphs (ii), (iii) and (iv) below only at or before the time of the
first request of the Corporation to the Agent to countersign and execute on
behalf of the Holders Purchase Contracts in a particular form) and shall be
fully protected in relying upon, unless and until such documents have been
superseded or revoked:
(i) an Issuer Order requesting such countersignature and
execution and setting forth delivery instructions if the Purchase
Contracts are not to be delivered to the Corporation;
(ii) any Board Resolution, Officer's Certificate and/or executed
supplemental agreement pursuant to which the forms and terms of the
Purchase Contracts were established;
(iii) an Officer's Certificate setting forth the forms and terms of
the Purchase Contracts, stating that the form or forms and terms of
such Purchase Contracts have been established pursuant to Sections
3.01 and 302 and comply with this Agreement, and covering such other
matters as the Agent may reasonably request; and
(iv) At the option of the Corporation, either an Opinion of
Counsel or a letter addressed to the Agent permitting it to rely on
an Opinion of Counsel, substantially to the effect that:
(A) the forms of the Purchase Contracts have been duly
authorized and established in conformity with the provisions
of this Agreement;
(B) the terms of the Purchase Contracts have been duly
authorized and established in conformity with the provisions
of this Agreement and certain terms of the Purchase
Contracts have been established pursuant to a Board
Resolution, an Officer's Certificate or a supplemental
agreement in accordance with this
Agreement, and when such other terms as are to be
established pursuant to procedures set forth in an Issuer
Order shall have been established, all terms will have been
duly authorized by the Corporation and will have been
established in conformity with the provisions of this
Agreement; and
(C) when the Purchase Contracts have been executed by
the Corporation and by the Agent on behalf of the Holders
and countersigned by the Agent in accordance with the
provisions of this Agreement and delivered to and duly paid
for by the purchasers thereof, subject to such other
conditions as may be set forth in such opinion of counsel,
they will have been duly issued under this Agreement and
will be valid and legally binding obligations of the
Corporation, enforceable in accordance with their respective
terms, and will be entitled to the benefits of this
Agreement.
In rendering such opinions, such counsel may qualify any opinions as
to enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the State of New
York and the federal law of the United States, upon opinions of other counsel
(copies of which shall be delivered to the Agent), who shall be counsel
reasonably satisfactory to the Agent, in which case the opinion shall state
that such counsel believes he and the Agent are entitled so to rely. Such
counsel may also state that, insofar as such opinion involves factual matters,
he has relied, to the extent he deems proper, upon certificates of officers of
the Corporation and its subsidiaries and certificates of public officials.
(b) The Agent shall have the right to decline to countersign,
execute on behalf of the Holders and deliver any Purchase Contract under this
Section if the Agent, being advised by counsel, determines that such action
may not lawfully be taken by the Corporation or if the Agent in good faith by
its board of directors or board of trustees determines that such action would
expose the Agent to personal liability to existing registered or beneficial
holders of Purchase Contracts or would affect the Agent's own rights, duties
or immunities under the Purchase Contracts, this Agreement or otherwise.
(c) If the Corporation shall establish pursuant to Section 3.02 that
the Purchase Contracts of a series are to be evidenced by one or more Global
Purchase Contracts, then unless otherwise agreed between the Corporation and
the Agent the Corporation shall execute and the Agent shall, in accordance
with this
Section and the Issuer Order with respect to such series, countersign, execute
on behalf of the Holders and deliver one or more Global Purchase Contracts
that (i) shall evidence all or a portion of the Purchase Contracts of such
series issued in such form and not yet cancelled, (ii) in the case of
Registered Purchase Contracts, shall be registered in the name of the
Depositary for such Purchase Contracts or the nominee of such Depositary,
(iii) shall be delivered by the Agent to such Depositary or pursuant to such
Depositary's instructions and (iv) in the case of Registered Purchase
Contracts, shall bear a legend substantially to the following effect: "Unless
and until it is exchanged in whole or in part for Purchase Contracts in
definitive registered form, this Purchase Contract may not be transferred
except as a whole by the Depositary to the 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 such nominee to a successor Depositary
or a nominee of such successor Depositary.
(d) If so required by applicable law, each Depositary for a series
of Registered Purchase Contracts must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Securities Exchange Act of 1934, as amended, and any other applicable
statute or regulation.
(e) Each Purchase Contract shall be dated the date of its
countersignature. A Purchase Contract shall not be valid for any purpose,
unless and until such Purchase Contract has been executed by the Agent on
behalf of the Holder and countersigned by the manual signature of an
authorized officer of the Agent. Such countersignature by an authorized
officer of the Agent upon any Purchase Contract executed by the Corporation in
accordance with this Agreement shall be conclusive evidence that the Purchase
Contract so countersigned has been duly delivered and issued hereunder.
SECTION 3.04. Further Provisions Relating to Issuance of Purchase
Contracts. Purchase Contracts may be executed by the Corporation and delivered
to the Agent upon the execution of this Agreement or from time to time
thereafter and in connection with exchanges, substitutions and transfers of
Units of any series. Subsequent to the original issuance of the Purchase
Contracts, the Agent shall, subject to the conditions set forth in this
Article and Article Two, countersign and execute on behalf of the Holder
Purchase Contracts issued in exchange or substitution for or upon transfer of
Unit Certificates evidencing one or more previously countersigned and executed
Unsettled Purchase Contracts evidenced by the Unit Certificates to be
exchanged, substituted for or transferred.
SECTION 3.05. Purchase of Purchase Contract Property; Optional
Acceleration of Purchase Obligations; Authorization of Agent by Holder;
Transferees Bound. (a) Unless otherwise specified pursuant to Section 3.02, the
Unsettled Purchase Contracts of any series will either (i) obligate the Holders
thereof to purchase, and the Corporation to sell or deliver the cash value of,
Purchase Contract Property or (ii) obligate the Corporation to purchase, and
the Holders thereof to sell or deliver the cash value of, Purchase Contract
Property, in each case specified pursuant to Section 3.02 (or a quantity
calculated by a method specified pursuant to Section 3.02) on the Stated
Settlement Date at the Purchase Price specified pursuant to Section 3.02.
(b) If this Section is specified as applicable pursuant to Section
3.02, the Corporation may, subject to paragraph (c) of this Section, at its
sole option and in its sole discretion at any time or from time to time
(unless otherwise specified pursuant to Section 3.02) on not less than 30 nor
more than 60 days' written notice (an "Acceleration Notice") to the Agent and
the Holders, in the manner provided in Section 11.05 and Section 11.06,
respectively, accelerate the obligations of the Holders of at least the
Minimum Acceleration Amount of Unsettled Purchase Contracts to purchase or
sell, as the case may be, and of the Corporation to sell or purchase, as the
case may be, on any Accelerated Settlement Date (provided that such
Accelerated Settlement Date may not be prior to the Initial Acceleration
Date), the quantity of Purchase Contract Property specified pursuant to
Section 3.02 for each Unsettled Purchase Contract subject to such
acceleration; provided that no such acceleration with respect to fewer than
all Unsettled Purchase Contracts shall (unless otherwise specified pursuant to
Section 3.02) result in fewer than the Minimum Remaining Amount of Unsettled
Purchase Contracts remaining Outstanding after such Accelerated Settlement
Date; and provided further that the Corporation shall have the right, in its
sole discretion, on or before the 10th day prior to such Accelerated
Settlement Date, to rescind any Acceleration Notice by written notice to the
Agent and written notice to the Holders pursuant to Sections 11.05 and 11.06
(whereupon all rights and obligations of the Corporation and the Holders that
would have arisen as a result of such Acceleration Notice shall be of no force
and effect), without prejudice to the rights of the Corporation, including
without limitation its rights to deliver an Acceleration Notice in the future.
If fewer than all Unsettled Purchase Contracts of such series are to be
accelerated to a particular Accelerated Settlement Date, the Agent shall
select from among the Unsettled Purchase Contracts such number thereof as are
being accelerated on a pro rata basis, by lot or by such other means
reasonably acceptable to the Agent, with appropriate adjustment being made to
prevent the fractional acceleration of the settlement of Purchase Contracts,
such that the settlement of Purchase Contracts are accelerated only in whole
and not in part.
(c) Each Holder of a Unit, by his acceptance thereof, authorizes and
directs the Agent to enter into, deliver and perform any Purchase Contracts
that are part of such Unit on his behalf, agrees to be bound by the terms and
provisions thereof, covenants and agrees to perform its obligations under the
Purchase Contracts evidenced by such Unit, and consents and agrees to the
provisions
hereof. If the provisions of Section 3.06 are applicable to the Units of any
series, each Holder of a Unit of such series, by his acceptance thereof,
further covenants and agrees that, to the extent such Holder is deemed to have
elected to satisfy its obligations under any Purchase Contracts that are part
of such Unit or to pay the exercise price of any Warrants that are part of
such Unit, in either case by effecting a Debt Security Settlement as provided
in Section 3.06, and subject to the terms thereof, redemption payments with
respect to principal of any Debt Securities that are part of such Unit shall
be applied by the Agent in satisfaction of such Holder's obligations under
such Purchase Contract on the applicable Settlement Date or in payment of such
exercise price on the applicable exercise date.
(d) Upon registration of transfer of a Purchase Contract of any
series, the transferee shall be bound (without the necessity of any other
action on the part of such transferee, except as may be required by the Agent
pursuant to this Article Three) under the terms of this Agreement and such
Purchase Contract, and the transferor shall be released from the obligations
under the Purchase Contract so transferred.
(e) Each Holder of a Unit of any series, by his acceptance thereof,
authorizes the Agent to execute on his behalf any Purchase Contracts that are
part of such Unit, authorizes and directs the Agent on his behalf to take such
other action (including without limitation any actions required under Article
Five), and covenants and agrees to take such other action as may be necessary
or appropriate, or as may be required by the Agent, to effect the provisions
of this Agreement, the Units and the Purchase Contracts and appoints the Agent
as his attorney-in-fact for any and all such purposes.
SECTION 3.06. Payment of Purchase Price. (a) Unless otherwise
specified pursuant to Section 3.02 (in the case of a Unit of any series
consisting of a Debt Security and a Purchase Contract that obligates the
Corporation to sell, and the Holder to purchase, Purchase Contract Property)
or Section 1.03 of the Warrant Agreement (in the case of a Unit of any series
consisting of a Debt Security and a Warrant that is a "call warrant" (as
defined in the Warrant Agreement)), the Purchase Price for any Purchase
Contract Property purchased by a Holder pursuant to such Purchase Contract
shall be payable at the Corporate Trust Office of the Agent and the exercise
price for any Warrant Property purchased by a Holder pursuant to such Warrant
shall be payable at the place or places specified in or pursuant to the
Warrant Agreement:
(i) at the option of the Holder of the Unit of which such
Purchase Contract or Warrant is part, after receipt by the Agent, in
the case of the Purchase Contract, of written notice from the Holder
not less than 10 days nor more than 20 days prior to the applicable
Settlement Date or,
in the case of the Warrant, after receipt by the Warrant Agent of the
written exercise notice on the exercise date indicating the Holder's
choice of cash settlement, by delivery by such Holder not later than
11:00 a.m., New York City time, on the Business Day immediately
preceding the Settlement Date, in the case of the Purchase Contract,
or on the exercise date, in the case of the Warrant, of the Purchase
Price or exercise price, as the case may be (a "Cash Settlement"), to
the Agent, in the case of the Purchase Contract, or the Warrant
Agent, in the case of Warrant, in immediately available funds payable
to or upon the order of the Corporation; or
(ii) by application of any payment received by the Agent (whethe
in its capacity as Agent, Collateral Agent, Trustee or Paying Agent)
with respect to the principal of any Debt Security included in the
Unit of which such Purchase Contract or Warrant constitutes a part,
as provided in paragraph (f) of this Section (a "Debt Security
Settlement").
A Holder of such Units who fails to provide notice to the Agent or
the Warrant Agent, as the case may be, as provided above that it will make a
Cash Settlement with respect to the settlement of a Purchase Contract or
Warrants, or a Holder of such Units who provides such notice but does not
effect a Cash Settlement in accordance with the terms of this Section 3.06,
will be deemed to have elected to have the Purchase Price for the Purchase
Contract Property, or the exercise price for the Warrant, paid pursuant to a
Debt Security Settlement.
(b) Notwithstanding paragraph (a) of this Section, in the case of
Purchase Contracts of any series that obligate the Corporation to sell, and
the Holders to purchase, Purchase Contract Property or in the case of Warrants
that are "call warrants", the Corporation shall not be entitled to sell any
Purchase Contract Property or Warrant Property, or receive any payment of the
Purchase Price or exercise price therefor, if the Corporation fails to deliver
such Purchase Contract Property or Warrant Property or the cash value thereof
(if specified pursuant to Section 3.02 or the Warrant Agreement or the
applicable Warrants) against tender by the Agent of payment therefor.
(c) Unless otherwise specified pursuant to Section 3.02, to be
effective, payment with respect to a Purchase Contract or Warrant pursuant to
a Cash Settlement must be deposited with the Agent or the Warrant Agent by
11:00 a.m., New York City time, in the case of the Purchase Contract, on the
Business Day immediately preceding the Settlement Date or, in the case of a
Warrant, on the exercise date and must be made with respect to all (and not
fewer than all) of the Purchase Contracts or Warrants to be settled on such
Settlement Date or exercise date (i) included in the Definitive Units that are
registered in the name of the Person effecting Cash Settlement in the Purchase
Contract Register or Warrant
Register, as the case may be, (ii) included in the Global Units that are
beneficially owned by the Person effecting Cash Settlement as specified in the
records of the direct and indirect participants of the Depositary or (iii) in
the case of Purchase Contracts or Warrants included in Unregistered Definitive
Units, owned by the Person effecting Cash Settlement, and, in the case of (ii)
and (iii) above, as certified in writing by such Person, which certification
shall be collected, in the case of (ii) above, on behalf of such Person by the
direct and indirect participants in the Depositary through which such Person
holds interests in the Global Units, and which will be provided to the Agent
or the Warrant Agent, in the case of (iii) above, by such Person or, in the
case of (ii) above, by the Depositary or any direct participant of such
Depositary, at the time payment pursuant to a Cash Settlement is deposited
with the Agent or the Warrant Agent. Any attempted Cash Settlement other than
in accordance with this Section 3.06 shall be deemed to have not been made and
any payments made to the Agent or the Warrant Agent by a Holder not complying
with this Section 3.06 shall be returned by the Agent or the Warrant Agent to
such Holder.
(d) The Corporation shall not be obligated to deliver any Purchase
Contract Property (or the cash value thereof) with respect to a Purchase
Contract of any series that obligates the Corporation to sell, and the Holder
to purchase, Purchase Contract Property unless it shall have received payment
in full of the applicable Purchase Price for any Purchase Contract Property to
be purchased thereunder in the manner set forth herein or in any Issuer Order
relating to the issuance of the Purchase Contracts of such series. The
Corporation shall not be obligated to pay the Purchase Price or any other
Settlement Amount for any Purchase Contract Property to be purchased by the
Corporation pursuant to any Purchase Contract that obligates the Corporation
to purchase, and the Holder to sell, Purchase Contract Property unless it
shall have received such Purchase Contract Property (or the cash value
thereof) or any other Settlement Amount in the manner set forth herein or as
specified pursuant to Section 3.02.
(e) In the case of Purchase Contracts that obligate the Corporation
to sell, and the Holders to purchase, Purchase Contract Property or Warrants
that are call warrants evidencing the Holder's right to purchase Warrant
Property, in each case consisting of securities in registered form, the Agent
shall cause such securities deliverable in respect of such Purchase Contracts
or Warrants, as the case may be, to be registered, in the case of Registered
Units, in the name of the Holder of such Units as set forth in the appropriate
Securities Register.
(f) Unless a Holder of a Unit of any series has effected a Cash
Settlement in satisfaction of his obligations under any Purchase Contracts or
Warrants constituting a part of such Unit that obligate the Holder, or
represent the Holder's right, to purchase Purchase Contract Property or
Warrant Property, respectively, any payment with respect to principal of any
Debt Security
evidenced by such Unit that is received by the Agent (whether in its capacity
as Agent, Collateral Agent, Trustee or Paying Agent)in connection with any
Debt Security Settlement shall be paid by the Agent to the Collateral Agent
for delivery to the Corporation in satisfaction of the Holder's obligations
under the Global Purchase Contract or Purchase Contracts or Global Warrant or
Warrants constituting a part of such Units. Any payment that is received by
the Agent (whether in its capacity as Agent, Collateral Agent, Trustee or
Paying Agent) with respect to interest on a Debt Security related to a
Purchase Contract or Warrant that has been settled in accordance with Section
3.06(a)(ii) shall be distributed to the Holders of Units upon surrender of the
appropriate Unit Certificate.
(g) Except as otherwise specified pursuant to Section 3.02, all
payments to be made by the Holders or by the Agent (whether in its capacity as
Agent, Collateral Agent, Trustee or Paying Agent) shall be made in lawful
money of the United States of America, by certified check or wire transfer in
immediately available funds in accordance with such regulations as the Agent
may reasonably establish consistent with the provisions of this Agreement.
(h) Any payment of the applicable Purchase Price or exercise price
deposited by a Holder hereunder with respect to a Purchase Contract or Warrant
shall be held by the Agent or Warrant Agent, as the case may be, in custody
for the benefit of the Holder and applied in satisfaction of such Holder's
obligations under such Purchase Contract or Warrant, or released and delivered
to the Holder upon the failure of the Corporation to satisfy its settlement
obligations against tender by the Agent or Warrant Agent, as the case may be,
of such payment of the applicable Purchase Price or the exercise price.
SECTION 3.07. Delivery of Purchase Contract Property or Other
Amounts. Unless otherwise specified pursuant to Section 3.02, (i) in the case
of Purchase Contracts obligating the Corporation to sell, and the Holders to
purchase, Purchase Contract Property or Warrants that are call warrants, upon
its receipt of payment in full of the Purchase Price or exercise price for the
Purchase Contract Property or Warrant Property purchased by any Holder
pursuant to the foregoing provisions of this Article or the Warrant Agreement,
the Corporation shall cause such Purchase Contract Property or Warrant
Property to be delivered to the Holders; and (ii) in the case of Purchase
Contracts obligating the Corporation to purchase, and the Holders to sell,
Purchase Contract Property or Warrants that are "put warrants" (as defined in
the Warrant Agreement), upon its receipt of the Purchase Contract Property,
Warrant Property, Settlement Amount or other amount, the Corporation shall
cause the Purchase Price, exercise price, Settlement Amount or other amount,
as applicable, to be delivered to the Holders, provided that in each case such
delivery shall be made only upon delivery to the Agent of the related Unit
Certificate.
Upon receipt of any Unit Certificate, the Agent shall cancel such
Unit Certificate in accordance with Section 2.11 as a result of the delivery
referred to in the preceding paragraph. If any Debt Securities relating to
Closed Purchase Contracts or exercised Warrants constituting a part of Units
evidenced by such Unit Certificate remain Outstanding as a result of Cash
Settlement, the Corporation shall execute and the Trustee shall authenticate
and deliver (i) in the case of Definitive Units, to the Holder thereof, in
accordance with the terms of the Indenture, a new certificate or certificates
representing solely the principal amount of Debt Securities still Outstanding
(ii) in the case of Global Units, if a Global Debt Security not constituting
part of a Global Unit has not previously been issued by the Corporation, a
second Global Debt Security representing Debt Securities still Outstanding
that are not part of Units. If a second Global Debt Security referred to in
clause (ii) of the immediately preceding sentence has already been issued, the
Agent shall note thereon an appropriate increase in the number of Debt
Securities represented by such Global Debt Security.
SECTION 3.08. Charges and Taxes. The Corporation shall not be
required to pay any tax or taxes that may be payable with respect to any
exchange of or substitution for a Unit Certificate or Security and the
Corporation shall not be required to issue or deliver such Unit Certificate or
such Security unless or until the Person or Persons requesting the transfer or
issuance thereof shall have paid to the Corporation the amount of such tax or
shall have established to the satisfaction of the Corporation that such tax
has been paid. The Agent shall be under no obligation to pay any such tax.
ARTICLE 4
REMEDIES
SECTION 4.01. Acceleration of Obligations. If at any time there shall
have occurred an Event of Default with respect to any Debt Securities
constituting a part of any Units that has resulted in the principal of any
Debt Securities being declared due and payable immediately pursuant to Section
5.1 of the Indenture, then the Holders of not less than 25% of all Unsettled
Purchase Contracts constituting a part of any Units comprising Debt Securities
subject to such declaration may on behalf of all Holders of such Unsettled
Purchase Contracts by notice in writing to the Corporation and Agent declare
the obligations of such Holders to purchase or sell, as the case may be, and
of the Corporation to sell or purchase, as the case may be, the quantity of
Purchase Contract Property specified pursuant to Section 3.02 under each such
Unsettled Purchase Contract to be accelerated to the date of such declaration
and, upon any such declaration, such obligations shall be so accelerated. The
foregoing provision is subject to the condition that if, at any time prior to
settlement of such Purchase Contracts, the
declaration with respect to Debt Securities referred to in the immediately
preceding sentence and its consequences are rescinded and annulled in
accordance with Section 5.1 of the Indenture, the acceleration of the
obligations with respect to Unsettled Purchase Contracts referred to in the
immediately preceding sentence and its consequences may be annulled and
rescinded by vote of the Holders of not less than 25% of all affected
Unsettled Purchase Contracts Outstanding.
SECTION 4.02. Unconditional Rights under Purchase Contracts;
Limitation on Proceedings by Holders. (a) The Holder of any Unit shall have
the right, which is absolute and unconditional, to purchase or sell, as the
case may be, Purchase Contract Property pursuant to such Purchase Contract and
to institute suit for the enforcement of such right, and such right shall not
be impaired without the consent of such Holder.
(b) No Holder of any Unit shall have any right by virtue of or by
availing itself of any provision of this Agreement to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Agreement, or for the appointment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy
hereunder, unless such Holder previously shall have given written notice to
the Agent and the Corporation of a Default and of the continuance thereof and,
(i) in the case of an Event of Default under Debt Securities or the Indenture,
the procedures (including notice to the Trustee and the Corporation) described
in Article Five of the Indenture have been complied with and (ii) in the case
of a Purchase Contract Default specified in clause (ii) of the definition
thereof, unless the Holders of not less than 25% of all affected Purchase
Contracts comprised by all Units then Outstanding shall have made written
request upon the Agent to institute such action or proceedings in its own name
as Agent hereunder and shall have offered to the Agent such reasonable
indemnity as it may require pursuant to Article Six, and the Agent for 60 days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute such action or proceedings and no direction inconsistent
with such request shall have been given to the Agent in writing by holders of
a majority of all affected Purchase Contracts constituting parts of Units then
Outstanding. Any Holder of a Unit may then (but only then) seek to enforce the
performance of the covenant or agreement with respect to which such Purchase
Contract Default exists; it being intended and expressly covenanted by the
Holder of each Unit with every other Holder and the Agent that no Holder shall
have any right by virtue of or by availing itself of any provision of this
Agreement to affect, disturb or prejudice the rights of any other Holder, or
to obtain or seek to obtain priority over or preference to any other Holder,
or to enforce any right under this Agreement, except in accordance with this
Section or the Indenture and for the equal, ratable and common benefit of all
Holders. For the protection and enforcement of the provisions of this Section,
each and every
Holder of a Unit and the Agent shall be entitled to such relief as can be
given either at law or in equity.
SECTION 4.03. Restoration of Rights and Remedies. If any Holder of
Units has instituted any proceeding to enforce any right or remedy under this
Agreement and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to such Holder, then and in every
such case, subject to any determination in such proceeding the Corporation,
the Agent, the Trustee and such Holder shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies the Corporation, the Agent, the Trustee and such Holder shall
continue as though no such proceeding had been instituted.
SECTION 4.04. Rights and Remedies Cumulative. Subject to Section
4.02, and except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Unit Certificates, no right or
remedy herein conferred upon or reserved to the Holders of Units is intended
to be exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at law or
in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 4.05. Delay or Omission Not Waiver. No delay or omission of
any Holder to exercise any right or remedy accruing upon any Default shall
impair any such right or remedy or constitute a waiver of any such Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by such Holders.
SECTION 4.06. Waiver of Past Defaults. The Holders of not less than a
majority of all affected Purchase Contracts evidenced by Units of all series
at the time Outstanding may on behalf of the Holders of all affected Units
waive any past Purchase Contract Default hereunder and its consequences,
except, unless theretofore cured (i) a Purchase Contract Default resulting
from the failure of the Corporation to deliver (A) in the case of Purchase
Contracts obligating the Corporation to sell, and the Holders to purchase,
Purchase Contract Property (or the cash value thereof) Purchase Contract
Property (or the cash value thereof) against tender of payment therefor or (B)
in the case of Purchase Contracts obligating the Corporation to purchase, and
the Holders to sell, Purchase Contract Property (or the cash value thereof)
the applicable Purchase Price or other Settlement Amount specified pursuant to
Section 3.02 against tender of Purchase Contract Property or other amount
specified pursuant to Section 3.02 therefor or
(ii) a Purchase Contract Default with respect to a covenant or provision
hereof which under Article Seven cannot be modified or amended without
approval of the Holder of each affected Purchase Contract that is a part of an
Outstanding Unit of any series. In the case of any such waiver, the Holders,
the Agent and the Corporation shall be restored to their former positions and
rights hereunder, respectively.
Upon any such waiver, such Purchase Contract Default shall cease to
exist, for every purpose of this Agreement, but no such waiver shall extend to
any subsequent or other Purchase Contract Default or impair any right
consequent thereon unless so expressly therein provided.
SECTION 4.07. Undertaking for Costs. All parties to this Agreement
agree, and each Holder of any Unit by his 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 Agreement, or in any suit
against the Agent for any action taken, suffered or omitted by it as Agent,
the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; provided that the provisions
of this Section shall not apply to any suit instituted by the Agent, to any
suit instituted by any Holder of Units, or group of Holders, holding in the
aggregate more than 10% of the Outstanding Units, or to any suit instituted by
any Holder for enforcement of the right to purchase or sell Purchase Contract
Property under the Purchase Contracts constituting a part of the Units held by
such Holder or to receive payment of the applicable Purchase Price (or other
Settlement Amount that may be specified pursuant to Section 3.02) with respect
thereto.
SECTION 4.08. Waiver of Stay or Extension Laws. The Corporation
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance
of this Agreement; and the Corporation (to the extent that it may lawfully do
so) each hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Agent, or the Holders, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 4.09. Agent May File Proofs of Claims. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy or other judicial
proceeding relating to the Corporation or the property of the Corporation or
its
creditors, the Agent shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Agent, its
agents and counsel) and of the Holders allowed in such judicial
proceeding; and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator or other similar official in
any such proceeding is hereby authorized by each Holder to make such payments
to the Agent, and in the event that the Agent shall consent to the making of
such payments directly to the Holders, to pay to the Agent any amount due to
it hereunder; provided, however, that nothing herein shall be deemed to
authorize the Agent to authorize or consent to or vote for or accept or adopt
on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Units or the rights of any Holder thereof, or to
authorize the Agent to vote in respect of the claim of any Holder of Units in
any such proceeding.
SECTION 4.10. Suits for Enforcement. In case a Purchase Contract
Default has occurred, has not been waived and is continuing, and subject to
receipt by the Agent of the request referred to in Section 4.02 or the
direction referred to in Section 4.11 and the security or indemnity referred
to in Section 6.03(f), the Agent shall have the right to enforce, on behalf of
the Holders, the Purchase Contracts and the covenants and agreements of the
Corporation contained in the Purchase Contracts and in this Agreement with
respect to the Purchase Contracts and to proceed to protect and enforce such
rights by appropriate judicial proceedings to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise, whether for
the specific enforcement of any such covenant or agreement contained in this
Agreement or in the Purchase Contracts or in aid of the exercise of any power
granted in this Agreement or to enforce any other legal or equitable right
vested in the Agent by this Agreement or by law.
All rights of action and of asserting claims under this Agreement, or
under the Units or any Securities comprised by the Units, may be enforced by
the Agent without the possession of the Units or any of the Securities
comprised by the Units or the production thereof on any trial or other
proceedings relative thereto, and any such actions or proceedings instituted
by the Agent shall be brought in its own name as agent and any recovery of
judgment, subject to the payment of the expenses, disbursements and
compensation of the Agent, each predecessor Agent
and their respective agents and attorneys, shall be for the ratable benefit of
the Holders of the Units or Securities in respect of which such action was
taken.
SECTION 4.11. Control by Holders. The Holders of a majority of
affected Outstanding Purchase Contracts constituting a part of any Outstanding
Units shall have the right to direct the time, method, and place of conducting
any proceeding for any remedy available to the Agent, or exercising any power
conferred on the Agent with respect to such Purchase Contracts by this
Agreement; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this Agreement and provided further
that (subject to the provisions of Section 6.01) the Agent shall have the
right to decline to follow any such direction if the Agent, being advised by
counsel, shall determine that the action or proceeding so directed may not
lawfully be taken or if the Agent in good faith by its board of directors or
board of trustees or a committee of its Responsible Officers, shall determine
that the action or proceedings so directed could involve the Agent in personal
liability or if the Agent in good faith shall so determine that the actions or
forebearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of Units not joining in the giving of
said direction, it being understood that (subject to Section 6.01) the Agent
shall have no duty to ascertain whether or not such actions or forebearances
are unduly prejudicial to such Holders.
Nothing in this Agreement shall impair the right of the Agent in its
discretion (but subject to Section 4.10) to take any action deemed proper by
the Agent and which is not inconsistent with such direction or directions by
Holders.
ARTICLE 5
SECURITY INTERESTS AND COLLATERAL AGENT
SECTION 5.01. Granting of Security Interests; Rights and Remedies of
Collateral Agent; Perfection. In order to secure the observance and
performance of the covenants and agreements of the Holders of Purchase
Contracts contained herein and in such Purchase Contracts, unless otherwise
specified pursuant to Section 2.03:
(a) Effective upon issuance of Units of any series consisting of
Debt Securities and Purchase Contracts, the Holders thereof acting through the
Agent, as their attorney-in-fact, shall be deemed to grant, sell, convey,
assign, transfer and pledge unto the Collateral Agent, as agent of and for the
benefit of the Corporation, as collateral security for the performance when
due by such Holders of their respective obligations hereunder and under the
Purchase Contracts constituting a part of such Units, a security interest in
and to, and a lien upon and
right of set-off (the "Pledge") against, all of their right, title and
interest in and to (i) the Pledged Items; (ii) all additions to and
substitutions for such Pledged Items as may be permissible, if so specified
pursuant to Section 3.02; (iii) all income, proceeds and collections received
or to be received, or derived or to be derived, now or any time hereafter from
or in connection with (i) and (ii) above, and (iv) all powers and rights now
owned or hereafter acquired under or with respect to the Pledged Items (such
Pledged Items, additions, substitutions, proceeds, collections, powers and
rights being herein collectively called the "Collateral").
(b) Prior to or concurrently with the issuance of Global Units of
any series of which Debt Securities and Purchase Contracts constitute a part,
the initial Holders and the Agent shall cause the Debt Securities constituting
a part of such Global Units to be delivered to the Collateral Agent, and, if
specified pursuant to Section 3.02, accompanied by an instrument of transfer
executed in , and the Corporation shall notify the Collateral Agent of the
Pledge and receipt of such notification shall constitute acknowledgment by the
Collateral Agent (as third party in possession or otherwise) of the Pledge and
its holding of the Collateral subject to the Pledge, in each case for purposes
of perfecting the Pledge under applicable law. Subject to the Pledge, the
Holders from time to time of the Units of which the Debt Securities constitute
a part shall have full beneficial ownership of such Debt Securities.
(c) The Collateral Agent shall have all of the rights, remedies and
recourse with respect to the Collateral afforded a secured party by the
Uniform Commercial Code as in effect in the State of New York (whether or not
said Code is in effect in the jurisdiction where the rights and remedies are
asserted), in addition to, and not in limitation of, the other rights,
remedies and recourse afforded to the Collateral Agent by this Agreement.
(d) Each Holder, to the extent permitted by applicable law, by
accepting Units of any series issued hereunder authorizes the Collateral Agent
to execute and file, in the name of such Holder, Uniform Commercial Code
financing or continuation statements (which may be carbon, photographic,
photostatic or other reproductions of this Agreement or of a financing
statement relating to this Agreement) which the Collateral Agent in its sole
discretion (but subject to Section 5.03(f)) may deem necessary or appropriate
to further perfect, or maintain the perfection of the security interests
granted hereby.
SECTION 5.02. Distribution of Principal and Interest; Release of
Collateral. Unless otherwise specified pursuant to Section 2.03:
(a) All payments of principal of, or interest on, any Pledged Items
received by the Collateral Agent pursuant to Section 3.06(f) shall be paid by
the Collateral Agent in same day funds no later than 2:00 p.m., New York City
time,
on the Business Day such payments are received by the Collateral Agent or, if
received on a day that is not a Business Day or after 12:00 noon, New York
City time, on a Business Day, then such payment shall be made no later than
9:00 am., New York City time, on the next succeeding Business Day to the
Corporation, in full satisfaction of the respective obligations of the Holders
of the Units of which such Pledged Items are a part under the Purchase
Contracts forming a part of such Units. Any such payments in excess of such
obligations of the Holders shall be promptly paid to the Agent to the account
designated by it for such purpose. All such payments received by the Agent as
provided herein shall be applied by the Agent pursuant to the provisions
hereof.
(b) Upon notice to the Collateral Agent by the Agent that one or
more Holders of Units have elected to effect Cash Settlement of their
respective obligations under the Purchase Contracts forming a part of such
Units in accordance with the terms hereof, and that either the Agent has
received from such Holders, and paid to the Corporation, the related amounts
pursuant to the terms of the Purchase Contracts and this Agreement or no such
payment is required, and that all other conditions to such Cash Settlement
have been satisfied, then the Collateral Agent shall release from the Pledge
the Pledged Items relating to such Purchase Contracts.
SECTION 5.03. Certain Duties and Responsibilities of the Collateral
Agent. The Collateral Agent accepts its duties and responsibilities hereunder
as agent for the Corporation, on and subject to the following terms and
conditions:
(a) The Collateral Agent undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement. No provision of
this Agreement shall be construed to relieve the Collateral Agent from
liability for its own negligent action, its own negligent failure to act, or
its own wilful misconduct, except that
(i) the duties and obligations of the Collateral Agent with
respect to the Units shall be determined solely by the express
provisions of this Agreement and the Collateral Agent shall not be
liable except for the performance of such duties and obligations as
are specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement against
the Collateral Agent; and
(ii) in the absence of bad faith on its part, the Collateral
Agent may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Collateral
Agent and conforming to the requirements of this Agreement, but in
the case of any such statements, certificates or opinions that by any
provision hereof are specifically
required to be furnished to the Collateral Agent, the Collateral
Agent shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Agreement.
(b) The Collateral Agent shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Collateral Agent,
unless it shall be proved that the Collateral Agent was negligent in
ascertaining the pertinent facts.
(c) No provision of this Agreement shall require the Collateral
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Collateral Agent shall be subject to the
provisions of this Section.
(e) The Collateral Agent is acting solely as agent for the
Corporation hereunder and owes no fiduciary duties to any Person by virtue of
this Agreement.
(f) Except as specifically provided herein, the Collateral Agent
shall not be responsible for the validity, sufficiency, collectibility or
marketability of any Collateral given to or held by it hereunder or for the
validity or sufficiency of the lien on the Collateral purported to be created
hereby and shall have no obligation to file any financing or continuation
statement with respect to the Collateral in any public office at any time or
time.
SECTION 5.04. Knowledge of the Collateral Agent. The Collateral Agent
shall not be deemed to have knowledge of any default by any person under any
Purchase Contract, unless and until a Responsible Officer of the Collateral
Agent assigned to its Corporate Trustee Administration Department shall have
actual knowledge thereof or shall have received written notice thereof from
the Corporation or any Holder.
SECTION 5.05. Certain Rights of Collateral Agent. Subject to the
provisions of Section 5.03:
(a) the Collateral Agent may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note,
coupon, security or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Corporation
mentioned herein shall be sufficiently evidenced by an Officer's Certificate,
Issuer Order or Issuer Request, and any resolution of the Board of Directors
of the Corporation, as the case may be, may be sufficiently evidenced by a
Board Resolution;
(c) the Collateral Agent may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Collateral Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security or other paper or
document;
(e) the Collateral Agent may execute any of the powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Collateral Agent shall not be responsible for any misconduct
or negligence on the part of any such agent or attorney appointed with due
care by it hereunder; and
(f) the Collateral Agent shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement.
SECTION 5.06. Compensation and Reimbursements. The Corporation
agrees:
(a) to pay to the Collateral Agent from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law with regard to the compensation
of a trustee of an express trust),
(b) except as otherwise expressly provided herein, to reimburse the
Collateral Agent and any predecessor Collateral Agent upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Collateral Agent in accordance with any provision of this Agreement (including
the reasonable compensation and the expenses and disbursements of its agents
and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the Collateral Agent and any predecessor Collateral
Agent for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Agreement and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim of liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The obligations of the Corporation under this Section to compensate
and indemnify the Collateral Agent and any predecessor Collateral Agent and to
pay or reimburse the Collateral Agent and any predecessor Collateral Agent for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the resignation or removal of such Collateral
Agent or predecessor Collateral Agent or the termination hereof or of any
Purchase Contract. Such additional indebtedness shall be a senior claim to
that of the Units upon all property and funds held or collected by the
Collateral Agent as such, except funds held in trust for the benefit of the
Holders of Units, and the Units are hereby subordinated to such senior claim.
SECTION 5.07. Corporate Collateral Agent Required Eligibility. There
shall at all times be a Collateral Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, having, together
with its parent, a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal, State or District of
Columbia authority and willing to act on reasonable terms. If such
corporation, or its parent, publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. The Collateral Agent hereunder shall at all times be the Agent
hereunder, the Trustee and a Paying Agent under the Indenture and the Warrant
Agent under the Warrant Agreement, subject to receipt of an Opinion of Counsel
that the same Person is not precluded by law from acting in such capacities.
If at any time the Collateral Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article. The Collateral
Agent may appoint one or more sub-collateral agents with offices or agencies
in a city or cities outside the United States.
SECTION 5.08. Resignation and Removal; Appointment of Successor. (a)
No resignation or removal of the Collateral Agent and no appointment of a
successor Collateral Agent pursuant to this Article shall become effective
until the acceptance of appointment by the successor Collateral Agent in
accordance with the applicable requirements of Section 5.09.
(b) The Collateral Agent may resign by giving written notice thereof
to the Corporation and the Holders, in accordance with Section 11.05 and
Section 11.06, 60 days prior to the effective date of such resignation. The
Collateral Agent may be removed at any time upon 60 days' notice by the filing
with it of an instrument in writing signed on behalf of the Corporation and
specifying such removal and the date when it is intended to become effective.
If the instrument of acceptance by a successor Collateral Agent required by
Section 5.09 shall not have been delivered to the Collateral Agent within 30
days after the giving of such notice of resignation, the resigning Collateral
Agent may petition any court of competent jurisdiction for the appointment of
a successor Collateral Agent.
(c) If at any time
(i) the Collateral Agent shall cease to be eligible under
Section 5.07, or shall cease to be eligible as Agent hereunder, as
Trustee under the Indenture or as Warrant Agent under the Warrant
Agreement, and shall fail to resign after written request therefor by
the Corporation, or
(ii) the Collateral Agent shall become incapable of acting with
respect to the Collateral or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Collateral Agent or of
its property shall be appointed or any public officer shall take
charge or control of the Collateral Agent or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Corporation, by Board Resolution, may remove the
Collateral Agent and appoint a successor Collateral Agent.
(d) If the Collateral Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Collateral
Agent for any cause, the Corporation, by Board Resolution, shall promptly
appoint a successor Collateral Agent or Collateral Agents (other than the
Corporation) and shall comply with the applicable requirements of Section
5.09.
(e) The Corporation shall give, or shall cause such successor
Collateral Agent to give, notice of each resignation and each removal of the
Collateral Agent and each appointment of a successor Collateral Agent to all
Holders of Units in
accordance with Section 11.06. Each notice shall include the name of the
successor Collateral Agent and the address of its Corporate Trust Office.
SECTION 5.09. Acceptance of Appointment by Successor. (a) In case of
the appointment hereunder of a successor Collateral Agent, every such
successor Collateral Agent so appointed shall execute, acknowledge and deliver
to the Corporation and to the retiring Collateral Agent an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Collateral Agent shall become effective and such successor Collateral
Agent, without any further act, deed or conveyance, shall become vested with
all the rights, powers, agencies and duties of the retiring Collateral Agent,
with like effect as if originally named as Collateral Agent hereunder; but, on
the request of the Corporation or the successor Collateral Agent, such
retiring Collateral Agent shall, upon payment of all amounts due and payable
to it pursuant to Section 5.06, execute and deliver an instrument transferring
to such successor Collateral Agent all the rights and powers of the retiring
Collateral Agent and shall duly assign, transfer and deliver to such successor
Collateral Agent all property and money held by such retiring Collateral Agent
hereunder. Any retiring Collateral Agent shall, nonetheless, retain a prior
claim upon all property or funds held or collected by such Collateral Agent to
secure any amounts then due it pursuant to Section 5.06.
(b) Upon request of any such successor Collateral Agent, the
Corporation shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Collateral Agent all such rights,
powers and agencies referred to in paragraph (a) of this Section.
(c) No successor Collateral Agent shall accept its appointment
unless at the time of such acceptance such successor Collateral Agent shall be
eligible under this Article.
(d) Upon acceptance of appointment by any successor Collateral Agent
as provided in this Section, the Corporation shall give notice thereof to the
Holders of Units in accordance with Section 11.06. If the acceptance of
appointment is substantially contemporaneous with the resignation of the
Collateral Agent, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 5.08. If the Corporation fails
to give such notice within ten days after acceptance of appointment by the
successor Collateral Agent, the successor Collateral Agent shall cause such
notice to be given at the expense of the Corporation.
SECTION 5.10. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Collateral 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 Collateral Agent
shall be a
party, or any corporation succeeding to all or substantially all the agency
business of the Collateral Agent, shall be the successor of the Collateral
Agent hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided that such corporation
shall be otherwise eligible under this Article.
SECTION 5.11. Money Held in Trust. Money held by the Collateral Agent
in trust hereunder need not be segregated from other funds held by the
Collateral Agent, except to the extent required by law. The Collateral Agent
shall be under no obligation to invest or pay interest on any money received
by it hereunder, except as otherwise agreed with the Corporation. Any interest
accrued on funds deposited with the Collateral Agent or any Paying Agent under
this Agreement shall be paid to the Corporation from time to time and the
Holders of Units (whether or not any Purchase Contracts are to be redeemed
with such funds) shall have no claim to any such interest.
ARTICLE 6
THE AGENT
SECTION 6.01. Certain Duties and Responsibilities. (a) The Agent
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement.
(b) No provision of this Agreement shall be construed to relieve the
Agent from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(i) the duties and obligations of the Agent with respect to the
Units shall be determined solely by the express provisions of this
Agreement and the Agent shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Agreement, and no implied covenants or obligations
shall be read into this Agreement against the Agent; and
(ii) in the absence of bad faith on its part, the Agent may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Agent and conforming to the
requirements of this Agreement, but in the case of any such
statements, certificates or opinions that by any provision hereof are
specifically required to be furnished to the Agent, the Agent shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Agreement.
(c) The Agent shall not be liable for any error of judgment made in
good faith by a Responsible Officer of the Agent, unless it shall be proved
that the Agent was negligent in ascertaining the pertinent facts.
(d) The Agent 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 a majority in number of affected Outstanding Purchase Contracts
relating to the time, method and place of conducting any proceeding for any
remedy available to the Agent, or exercising any power conferred upon the
Agent, under this Agreement.
(e) No provision of this Agreement shall require the Agent to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(f) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Agent shall be subject to the provisions of this
Section.
(g) The Agent is acting solely as agent for the Corporation
hereunder and owes no fiduciary duties to any person by virtue of this
Agreement.
SECTION 6.02. Notice of Default. Within 90 days after the occurrence
of any Purchase Contract Default of which a Responsible Officer of the Agent
assigned to its Corporate Trustee Administration Department has actual
knowledge (and except with respect to a Purchase Contract Default under the
Purchase Contracts existing on the Settlement Date, in which event, as
promptly as practicable thereafter) the Agent shall provide to all Holders of
Units, in the manner provided in Section 11.06, notice of such Purchase
Contract Default hereunder, unless such Purchase Contract Default shall have
been cured or waived.
SECTION 6.03. Certain Rights of Agent. Subject to the provisions of
Section 6.01:
(a) the Agent may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon, security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Corporation
mentioned herein shall be sufficiently evidenced by an Officer's Certificate
or Issuer Order or Issuer Request and any resolution of the Board of Directors
of the Corporation, as the case may be, may be sufficiently evidenced by a
Board Resolution;
(c) the Agent may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Agent shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security or other paper or document, but the Agent,
in its discretion, may make reasonable further inquiry or investigation into
such facts or matters related to the issuance of the Debt Securities, Prepaid
Purchase Contracts or Warrants, as the case may be, and the execution,
delivery and performance of the Purchase Contracts as it may see fit, and, if
the Agent shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Corporation, at reasonable times during normal business hours, personally or
by agent or attorney;
(e) the Agent may execute any of the powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and the
Agent shall not be responsible for any misconduct or negligence on the part of
any such agent or attorney appointed with due care by it hereunder;
(f) the Agent shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement at the request, order or
direction of any of the Holders pursuant to this Agreement, unless such
Holders shall have offered to the Agent reasonable security or indemnity
against the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction;
(g) the Agent shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Agreement; and
(h) the Agent shall not be charged with notice or knowledge of a
Purchase Contract Default unless a Responsible Officer of the Agent assigned
to its Corporate Trustee Administration Department shall have actual knowledge
thereof.
SECTION 6.04. Not Responsible for Recitals or Issuance of Units. The
recitals contained herein, in the Indenture, in the Warrant Agreement and in
the Units, except the Trustee's, Warrant Agent's and Agent's certificates of
authentication or countersignature, shall be taken as the statements of the
Corporation, and none of the Trustee, Agent, the Warrant Agent or any
Authenticating Agent assumes any responsibility for their correctness. The
Agent makes no representations as to the validity or sufficiency of this
Agreement or of the Units. None of the Trustee, Agent, the Warrant Agent or
any Authenticating Agent shall be accountable for the use or application by
the Corporation of the proceeds with respect to Units or be responsible for
exercising any remedy hereunder on behalf of the Holders, except as expressly
provided in this Agreement.
SECTION 6.05. May Hold Units. The Agent, the Collateral Agent, the
Trustee, the Warrant Agent, any Authenticating Agent, any Purchase Contract
Registrar or any other agent of the Corporation, the Trustee, the Warrant
Agent, or the Agent, in its individual or any other capacity, may become the
owner or pledgee of Units and may otherwise deal with the Corporation and
receive, collect, hold and retain collections from the Corporation with the
same rights it would have if it were not Authenticating Agent, Purchase
Contract Registrar or such other agent, the Trustee, the Warrant Agent, the
Collateral Agent or the Agent.
SECTION 6.06. Money Held in Trust. Money held by the Agent in trust
hereunder need not be segregated from other funds held by the Agent, except to
the extent required by law. The Agent shall be under no obligation to invest
or pay interest on any money received by it hereunder, except as otherwise
agreed with the Corporation. Any interest accrued on funds deposited with the
Agent or any Paying Agent under this Agreement shall be paid to the
Corporation from time to time and the Holders of Units (whether or not any
Purchase Contracts are to be redeemed with such funds) shall have no claim to
any such interest.
SECTION 6.07. Compensation and Reimbursement. The Corporation
agrees:
(a) to pay to the Agent from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law with regard to the compensation of a trustee
of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Agent and any predecessor Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Agent in accordance with
any provision of this Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or
bad faith; and
(c) to indemnify the Agent and any predecessor Agent for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Agreement and its duties hereunder,
including the costs and expenses of defending itself against or investigating
any claim of liability in connection with the exercise or performance of any
of its powers or duties hereunder.
The obligations of the Corporation under this Section to compensate
and indemnify the Agent and any predecessor Agent and to pay or reimburse the
Agent and any predecessor Agent for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the resignation
or removal of such Agent or predecessor Agent or the termination hereof or any
Purchase Contract. Such additional indebtedness shall be a senior claim to
that of the Units upon all property and funds held or collected by the Agent
as such, except funds held in trust for the benefit of the Holders of
particular Units, and the Units are hereby subordinated to such senior claim.
SECTION 6.08. Corporate Agent Required: Eligibility. There shall at
all times be an Agent hereunder which shall be a corporation organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia, having, together with its parent, a
combined capital and surplus of at least $50,000,000, subject to supervision
or examination by Federal, State or District of Columbia authority and willing
to act on reasonable terms. If such corporation, or its parent, publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. The Agent hereunder shall at all times be
the Collateral Agent hereunder, the Trustee under the Indenture and the
Warrant Agent under the Warrant Agreement, subject to receipt of an Opinion of
Counsel that the same Person is precluded by law from acting in such
capacities. If at any time the Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article. The Agent may
appoint one or more sub-agents with offices or agencies in a city or cities
outside the United States.
SECTION 6.09. Resignation and Removal: Appointment of Successor. (a)
No resignation or removal of the Agent and no appointment of a successor Agent
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Agent in accordance with the applicable
requirements of Section 6.10.
(b) The Agent may resign by giving written notice thereof to the
Corporation and the Holders, in accordance with Section 11.05 and Section
11.06, 60 days prior to the effective date of such resignation. The Agent may
be removed at any time upon 60 days' notice by the filing with it of an
instrument in writing signed on behalf of the Corporation and specifying such
removal and the date when it is intended to become effective. If the
instrument of acceptance by a successor Agent required by Section 6.10 shall
not have been delivered to the Agent within 30 days after the giving of such
notice of resignation, the resigning Agent may petition any court of competent
jurisdiction for the appointment of a successor Agent.
(c) If at any time
(i) the Agent shall cease to be eligible under Section 6.08, or
shall cease to be eligible as Collateral Agent hereunder, Trustee
under the Indenture or as Warrant Agent under the Warrant Agreement,
and shall fail to resign after written request therefor by the
Corporation or by any Holder, or
(ii) the Agent shall become incapable of acting with respect to
the Units or shall be adjudged a bankrupt or insolvent, or a receiver
or liquidator of the Agent or of its property shall be appointed or
any public officer shall take charge or control of the Agent or of
its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Corporation, by Board Resolution, may remove
the Agent and appoint a successor Agent, or (B) any Holder who has been a bona
fide Holder of a Unit for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction
for the removal of the Agent and the appointment of a successor Agent or
Agents. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Agent and appoint a successor Agent.
(d) If the Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Agent for any cause, the
Corporation, by Board Resolution, shall promptly appoint a successor Agent or
Agents (other than the Corporation) and shall comply with the applicable
requirements of Section 6.10. If no successor Agent shall have been so
appointed by the Corporation and accepted appointment in the manner required
by Section 6.10, any Holder who has been a bona fide Holder of a Unit for at
least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Agent.
(e) The Corporation shall give, or shall cause such successor Agent
to give, notice of each resignation and each removal of the Agent and each
appointment of a successor Agent to all Holders of Units in accordance with
Section 11.06. Each notice shall include the name of the successor Agent and
the address of its Corporate Trust Office.
SECTION 6.10. Acceptance of Appointment by Successor. (a) In case of
the appointment hereunder of a successor Agent, every such successor Agent so
appointed shall execute, acknowledge and deliver to the Corporation and to the
retiring Agent an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Agent shall become effective and such
successor Agent, without any further act, deed or conveyance, shall become
vested with all the rights, powers, agencies and duties of the retiring Agent,
with like effect as if originally named as Agent hereunder; but, on the
request of the Corporation or the successor Agent, such retiring Agent shall,
upon payment of all amounts due and payable to it pursuant to Section 6.07,
execute and deliver an instrument transferring to such successor Agent all the
rights and powers of the retiring Agent and shall duly assign, transfer and
deliver to such successor Agent all property and money held by such retiring
Agent hereunder. Any retiring Agent shall, nonetheless, retain a prior claim
upon all property or funds held or collected by such Agent to secure any
amounts then due it pursuant to Section 6.07.
(b) Upon request of any such successor Agent, the Corporation shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at the
time of such acceptance such successor Agent shall be eligible under this
Article.
(d) Upon acceptance of appointment by any successor Agent as
provided in this Section, the Corporation shall give notice thereof to the
Holders of Units in accordance with Section 11.06. If the acceptance of
appointment is substantially contemporaneous with the resignation of the
Agent, then the notice called for by the preceding sentence may be combined
with the notice called for by Section 6.09. If the Corporation fails to give
such notice within ten days after acceptance of appointment by the successor
Agent, the successor Agent shall cause such notice to be given at the expense
of the Corporation.
SECTION 6.11. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Agent shall be a party, or
any corporation succeeding to all or substantially all the agency business of
the Agent, shall be the successor of the Agent hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that such corporation shall be otherwise eligible
under this Article. In case any Purchase Contracts shall have been
countersigned and executed, but not delivered, by the Agent then in office,
any successor by merger, conversion or consolidation to such Agent may adopt
such countersignature and execution and deliver the Purchase Contracts so
countersigned and executed with the same effect as if such successor Agent had
itself countersigned and executed such Purchase Contracts.
SECTION 6.12. Appointment of Authenticating Agent. At any time when
any of the Units remain Outstanding the Agent may, by an instrument in
writing, appoint an Authenticating Agent or Agents with respect to the
Purchase Contracts to be authorized to act on behalf of the Agent to
countersign, execute and deliver the Purchase Contracts issued upon exchange,
registration of transfer or pursuant to Section 2.09 and Purchase Contracts so
countersigned, executed and delivered shall be entitled to the benefits of
this Agreement and shall be valid and obligatory for all purposes as if
countersigned by the Agent hereunder. Wherever reference is made in this
Agreement to the countersignature, execution and delivery of Purchase
Contracts by the Agent or the Agent's countersignature or execution, such
references shall be deemed to include countersignature, execution and delivery
on behalf of the Agent by an Authenticating Agent and a countersignature and
execution executed on behalf of the Agent by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Corporation and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, subject to
supervision or examination by Federal or State or District of Columbia
authority and having, together with its parent, a combined capital and surplus
of not less than $50,000,000. If such Authenticating Agent, or its parent,
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section. The Agent may
also appoint one or more Authenticating Agents with offices or agencies in a
city or cities outside the United States.
Any corporation into which an Authenticating 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 such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all
the agency business of an Authenticating Agent, shall continue to be an
Authenticating Agent, without the execution or filing of any paper or any
further act on the part of the Agent or the Authenticating Agent, provided
that such corporation shall be otherwise eligible under this Section.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Agent and to the Corporation. The Agent may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Corporation. Upon receiving
such a notice of resignation or upon such a termination, or in case at any
time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Agent may appoint a successor
Authenticating Agent which shall be acceptable to the Corporation and shall
provide written notice of such appointment to all Holders of Units in the
manner and to the extent provided in Section 11.06. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section. No Authenticating Agent shall have any
responsibility or liability for any action taken by it as such at the
direction of the Agent.
The provisions of Sections 2.10, 6.04 and 6.05 shall be applicable to
each Authenticating Agent.
Pursuant to each appointment made under this Section, the Purchase
Contracts covered by such appointment may have endorsed thereon, in addition
to the form of Agent's countersignature and execution of the Purchase
Contracts evidenced thereby, an alternative countersignature and execution of
the Purchase Contracts contained therein in the following forms:
THE CHASE MANHATTAN BANK, as
Agent, as attorney-in-fact of the
Holder hereof
By [NAME OF AUTHENTICATING
AGENT], as Authenticating Agent
By:______________________________________
[Authorized Officer]
Title:
Countersigned:
THE CHASE MANHATTAN BANK, as
Agent
By [NAME OF AUTHENTICATING
AGENT], as Authenticating Agent
By:______________________________________
[Authorized Officer]
Title:
SECTION 6.13. Corporation to Furnish Agent Names and Addresses of
Holders. The Corporation will furnish or cause to be furnished to the Agent
(a) not later than 15 days after each Regular Record Date in each
year, a list, in such form as the Agent may reasonably require, of the names
and addresses of the Holders of Registered Units as of such Regular Record
Date, and
(b) at such other times as the Agent may request in writing, within
30 days after the receipt by the Corporation of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
provided that no such list need be furnished if the Agent shall be the
Purchase Contract Registrar, the registrar under the Warrant Agreement and the
registrar under the Indenture.
SECTION 6.14. Preservation of Information; Communications to Holders.
(a) The Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Units contained
in the most recent list furnished to the Agent as provided in Section 6.13 and
the names and addresses of Holders of Registered Units received by the Agent
in its capacity as Purchase Contract Registrar, the registrar under the
Warrant Agreement and the registrar under the Indenture. The Agent may destroy
any list furnished to it as provided in Section 6.13 upon receipt of a new
list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Agent, and furnish to the Agent reasonable proof that
each such applicant has owned a Unit for a period of at least six months
preceding the date
of such application, and such application states that the applicants desire to
communicate with other Holders with respect to their rights under this
Agreement or under the Units and is accompanied by a copy of the form of proxy
or other communication that such applicants propose to transmit, then the
Agent shall, within five Business Days after the receipt of such application,
at its election either (i) afford such applicants access to the information
preserved at the time by the Agent in accordance with Section 6.14(a) or (ii)
inform such applicants as to the approximate number of Holders whose names and
addresses appear in the information preserved at the time by the Agent, and as
to the approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Agent shall elect not to afford such applicants access to such
information, the Agent shall, upon the written request of such applicants,
mail to each Holder whose name and address appears in the information
preserved at the time by the Agent, a copy of the form of proxy or other
communication that is specified in such application, with reasonable
promptness after a tender to the Agent of the material to be mailed and of
payment, or provision for payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Agent shall mail to such
applicants a written statement to the effect that in the opinion of the Agent,
such mailing would be contrary to the best interests of the Holders or would
be in violation of applicable law. Thereafter, the Agent shall be relieved of
any obligation or duty to such applicants with respect to their application.
(c) Every Holder of Units, by his acceptance thereof, agrees with
the Corporation and the Agent that neither the Corporation nor the Agent nor
any agent of any of them shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Holders in
accordance with Section 6.14(b), regardless of the source from which such
information was derived, and that the Agent shall not be held accountable by
reason of mailing any material pursuant to a request made under Section
6.14(b).
SECTION 6.15. No Obligation of Holder. Except to the extent otherwise
provided in this Agreement, the Agent assumes no obligations and shall not be
subject to any liability under this Agreement or any Purchase Contract with
respect to the obligations of the Holder of a Unit thereunder. The Corporation
agrees, and each Holder of a Unit Certificate, by his acceptance thereof,
shall be deemed to have agreed, that the Agent's execution of the Purchase
Contracts evidenced by the Unit Certificates shall be solely as agent and
attorney-in-fact for the Holders, and that the Agent shall have no obligation
to perform such Purchase Contracts on behalf of the Holders, except to the
extent provided in this Article.
SECTION 6.16. Tax Compliance. (a) The Agent, on its own behalf and on
behalf of the Corporation, will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable United States, federal and New York State
tax laws, regulations or administrative practice (i) with respect to payments
on, or transfer or redemption of the Debt Securities, the Prepaid Purchase
Contracts, the Warrants or the Purchase Contracts or (ii) if specifically
instructed by the Company, with respect to the issuance, delivery, holding, or
exercise of rights (other than by payment, transfer or redemption) under the
Debt Securities, the Prepaid Purchase Contracts, the Warrants or the Purchase
Contracts. Such compliance shall include, without limitation, the preparation
and timely filing of required returns with respect to, and the timely payment
of, all amounts required to be withheld to the appropriate taxing authority or
its designated agent. The Corporation will provide to the Agent such
information as it may reasonably request in order to comply with this Section.
(b) The Agent shall comply with any direction received from the
Corporation with respect to the application of such requirements to particular
payments or holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 6.01(b)(ii) hereof.
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available on
request at reasonable times during normal business hours to the Corporation or
to their authorized representatives duly authorized in writing.
(d) Unless otherwise specified pursuant to Section 2.03, the portion
of the issue price of any Units of any series consisting of Debt Securities
and Purchase Contracts allocable to such Debt Securities shall equal the
principal amount payable at maturity of such Debt Securities. Unless otherwise
specified pursuant to Section 2.03, the portion of the issue price of any
Units of any series consisting of Debt Securities and Warrants allocable to
such Debt Securities shall equal the portion of the issue price that is in the
same proportion to such issue price as the fair market value of such Debt
Securities bears to the aggregate fair market value of such Debt Securities
and Warrants, taken as a whole. The Corporation and the Holders agree not to
file any tax returns, or take a position with any tax authority, that is
inconsistent with the characterization of the Debt Securities as debt.
(e) Unless otherwise specified pursuant to Section 2.03, the
Corporation by the issuance and sale of any Unit and any Holder of a Unit by
his acceptance thereof agree to (in the absence of any applicable
administrative ruling or judicial determination to the contrary) treat the
Securities that constitute any Unit as
separate securities and to file all United States federal, state and local tax
returns consistent with the treatment of such Unit as constituted by separate
securities.
ARTICLE 7
SUPPLEMENTAL AGREEMENTS
SECTION 7.01. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Corporation, when authorized by a
Board Resolution or Officer's Certificate, the Agent and the Collateral Agent,
at any time and from time to time, may enter into one or more agreements
supplemental hereto, in form satisfactory to the Agent, for any of the
following purposes:
(i) to evidence the succession of another Person to the
Corporation and the assumption by any such successor of the covenants
of the Corporation herein and in the Purchase Contracts; or
(ii) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent or Collateral Agent with respect to
the Units; or
(iii) to add to the covenants of the Corporation, Collateral Agent
or Agent such further covenants, restrictions, conditions or
provisions as the Corporation, Collateral Agent and Agent shall
consider to be for the protection of the Holders, and to make the
occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions, conditions or provisions of
the Corporation a Purchase Contract Default permitting the
enforcement of all or any of the several remedies provided in this
Agreement as herein set forth; provided that in respect of any such
additional covenant, restriction, condition or provision such
supplemental agreement may provide for a particular period of grace
after default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an
immediate enforcement upon such a Purchase Contract Default or may
limit the remedies available to the Holders upon such a Purchase
Contract Default or may limit the right of the Holders to waive such
Purchase Default; or
(iv) to comply with the Securities Act of 1933, as amended, the
Exchange Act or the Investment Company Act of 1940, as amended; or
(v) to cure any ambiguity, to correct or supplement any
provision herein or in the Purchase Contracts of any series that may
be inconsistent with any other provision herein or therein, or to
modify, alter, amend or
supplement any other provisions with respect to matters or questions
arising under this Agreement or under such Purchase Contracts;
provided that such action shall not adversely affect the interests of
the Holders in any material respect.
SECTION 7.02. Supplemental Agreements with Consent of Holders. With
the consent of the Holders of not less than a majority of all Unsettled
Purchase Contracts constituting a part of any series of Units Outstanding, in
the case of clause (A) below, and with the consent of the Holders of not less
than a majority of all Units Outstanding, in the case of clause (B) below, by
Act of said Holders delivered to the Corporation and the Agent, the
Corporation, when authorized by a Board Resolution or Officer's Certificate,
the Agent and the Collateral Agent may enter into an agreement or agreements
supplemental hereto for the purpose of (A) modifying in any manner the terms
of the Purchase Contracts or this Agreement with respect to the Purchase
Contracts or the rights of the Holders of Units with respect to the Purchase
Contracts or (B) modifying in any manner the other terms of this Agreement or
the other rights of Holders of Units; provided, however, that no such
supplemental agreement shall (i) without the consent of the Holder of each
Outstanding Purchase Contract affected thereby in the case of clauses (1), (2)
and (3) below and (ii) without the consent of the Holder of each Unit affected
thereby, in the case of clauses (4) and (5) below:
(1) impair the right to institute suit for the enforcement of
any Purchase Contract, or
(2) reduce the percentage of the Purchase Contracts constituting
a part of any series of Units Outstanding, the consent of whose
Holders is required for any modification or amendment of the
provisions of this Agreement relating to the Purchase Contracts or
for any waiver of any Purchase Contract Defaults hereunder and their
consequences provided for in this Agreement relating to the Purchase
Contracts, or
(3) modify or affect (in any manner materially adverse to the
Holders) the Holders' rights and obligations under the Purchase
Contracts; or
(4) modify or affect (in any manner materially adverse to the
Holders) the terms of this Agreement or such Holder's Units (other
than the terms referred to in clause (1), (2) or (3) above); or
(5) reduce the percentage of Holders of Units whose consent is
required for any modification or amendment of the provisions of this
Agreement (other than the terms referred to in clause (1), (2) or (3)
above).
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental agreement, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 7.03. Execution of Supplemental Agreements. In exchange for
accepting the additional agencies or duties created by, any supplemental
agreement permitted by this Article or the modifications thereby of the
agencies or duties created by this Agreement, each of the Agent and the
Collateral Agent shall be entitled to receive and (subject to Sections 6.01
and 5.03, respectively) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental agreement is
authorized or permitted by this Agreement. Each of the Agent and the
Collateral Agent may, but shall not be obligated to, enter into any such
supplemental agreement that affects the Agent's or the Collateral Agent's
rights, duties or immunities under this Agreement or otherwise.
SECTION 7.04. Effect of Supplemental Agreements. Upon the execution
of any supplemental agreement under this Article, this Agreement shall be
modified in accordance therewith, and such supplemental agreement shall form a
part of this Agreement for all purposes; and every Holder of Units,
theretofore or thereafter authenticated, countersigned, executed and delivered
hereunder, under the Warrant Agreement and/or under the Indenture shall be
bound thereby.
SECTION 7.05. Reference to Supplemental Agreements. Unit
Certificates, Debt Securities, Warrants, Purchase Contracts and Prepaid
Purchase Contracts authenticated, countersigned, executed and delivered after
the execution of any supplemental agreement pursuant to this Article may, and
shall if required by the Agent, bear a notation in form approved by the Agent
as to any matter provided for in such supplemental agreement. If the
Corporation shall so determine, new Unit Certificates, Debt Securities,
Warrants, Purchase Contracts and Prepaid Purchase Contracts so modified as to
conform, in the opinion of the Agent, and the Corporation, to any such
supplemental agreement may be prepared and executed by the Corporation and
authenticated, executed, countersigned and delivered by the Trustee, the
Warrant Agent and the Agent, as applicable, in exchange for Outstanding Unit
Certificates, Debt Securities, Warrants, Purchase Contracts and Prepaid
Purchase Contracts.
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.01. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions. The Corporation covenants that it
will not merge or consolidate with any other corporation or sell, convey or
lease all or substantially all of its assets to any Person, firm or
corporation, except that the Corporation may merge or consolidate with, or
sell, convey or lease all or substantially all of its assets to, any other
corporation, provided that (i) the Corporation shall be the continuing
corporation, or the successor corporation (if other than the Corporation)
shall be a corporation organized and existing under the laws of the United
States of America or a state thereof or the District of Columbia and such
corporation shall assume the due and punctual performance and observance of
all of the covenants and conditions of this Agreement to be performed by the
Corporation by supplemental agreement in form satisfactory to the Agent and
the Collateral Agent, executed and delivered to the Agent and the Collateral
Agent by such corporation, and (ii) neither the Corporation nor such successor
corporation immediately after such merger or consolidation, or such sale,
conveyance or lease shall be in default in the performance of any such
covenant or condition.
SECTION 8.02. Rights and Duties of Successor Corporation. In case of
any such consolidation, merger, sale or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Corporation with the same effect as if
it had been named herein as the Corporation. Such successor corporation
thereupon may cause to be signed, and may issue (subject to the provisions of
the Indenture and the Warrant Agreement) either in its own name or in the name
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co. any or all of the Unit Certificates, Debt
Securities, Warrants, Prepaid Purchase Contracts and Purchase Contracts
issuable hereunder which theretofore shall not have been signed by the
Corporation and delivered to the Agent; and, upon the order of such successor
corporation, instead of the Corporation, and subject to all the terms,
conditions and limitations in this Agreement prescribed, the Trustee, the
Warrant Agent and the Agent shall authenticate, countersign, execute and
deliver, as applicable, any Unit Certificates, Debt Securities, Warrants,
Prepaid Purchase Contracts and Purchase Contracts that previously shall have
been signed and delivered by the officers of the Corporation to the Trustee,
the Warrant Agent and the Agent for authentication, execution and
countersignature, and any Unit Certificate, Debt Securities, Warrants, Prepaid
Purchase Contracts and Purchase Contracts evidencing Units which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee, the Warrant Agent and the Agent for such purpose. All the Purchase
Contracts so issued shall in all respects have the same legal rank and benefit
under this Agreement as the Purchase Contracts theretofore or thereafter
issued in accordance with the terms of this Agreement as though all of such
Purchase Contracts had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease
such change in phraseology and form (but not in substance) may be made in the
Unit Certificates and Purchase Contracts thereafter to be issued as may be
appropriate.
SECTION 8.03. Opinion of Counsel to Agent. The Agent and the
Collateral Agent, subject to Sections 6.01 and 6.03 and Sections 5.03 and
5.05, respectively, may receive an Opinion of Counsel as conclusive evidence
that any such consolidation, merger, sale, conveyance or lease, and any such
assumption, complies with the provisions of this Article.
ARTICLE 9
COVENANTS
SECTION 9.01. Performance under Purchase Contracts. The Corporation
covenants and agrees for the benefit of the Holders of the Units that it will
duly and punctually perform its obligations under the Purchase Contracts in
accordance with the terms of the Purchase Contracts and this Agreement.
SECTION 9.02. Maintenance of Office or Agency. So long as Units or
Purchase Contracts are authorized for issuance pursuant to this Agreement or
are Outstanding hereunder, the Corporation will maintain in the Borough of
Manhattan, The City of New York, an office or agency where Registered Units
may be presented or surrendered for payment or acquisition of Purchase
Contract Property or where Purchase Contract Property or other property may be
tendered for delivery, where Registered Units may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Corporation in respect of Units and this Agreement may be served. The
Corporation hereby initially designates the Agent as its office or agency in
the Borough of Manhattan, The City of New York, for each of said purposes. The
Corporation will give prompt written notice to the Agent of the location, and
any change in the location, of such office or agency. The Corporation will
maintain one or more offices or agencies in a city or cities located outside
the United States (including any city in which such an agency is required to
be maintained under the rules of any stock exchange on which the Units of such
series, or the Securities constituting such Units, are listed) where the
Unregistered Units, if any, of each series may be presented or surrendered for
payment or acquisition of Purchase Contract Property or where Purchase
Contract Property or other property may be tendered for delivery. No payment
or delivery of Purchase Contract Property on any Unregistered Unit will be
made upon presentation of such Unregistered Unit at an
agency of the Corporation within the United States nor will any payment or
delivery of Purchase Contract Property be made by transfer to an account in,
or by mail to an address in, the United States unless pursuant to applicable
United States laws and regulations then in effect such payment can be made
without adverse tax consequences to the Corporation. Notwithstanding the
foregoing, payments in U.S. dollars of Unregistered Units of any series
appertaining thereto which are payable in Dollars may be made at an agency of
the Corporation maintained in the Borough of Manhattan, The City of New York
if such payment in Dollars at each agency maintained by the Corporation
outside the United States for payment on such Unregistered Units is illegal or
effectively precluded by exchange controls or other similar restrictions. If
at any time the Corporation shall fail to maintain any such required office or
agency or shall fail to furnish the Agent with the name and address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Agent, and the Corporation hereby appoints
the Agent as its agent to receive all such presentations, surrenders, notices
and demands.
The Corporation may also from time to time designate one or more
other offices or agencies where Debt Securities, Warrants, Prepaid Purchase
Contracts, Purchase Contracts and Unit Certificates may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Corporation of its obligations to maintain
offices or agencies provided for in this Section. The Corporation will give
prompt written notice to the Agent of any such designation or rescission and
of any change in the location of any such other office or agency.
SECTION 9.03. Money for Payments to Be Held in Trust. Any money or
other property deposited with the Agent, in trust for payment with respect to
any Unit, remaining unclaimed for two years after such payment has become due
and payable shall be paid to the Corporation on request of the Corporation
pursuant to an Officer's Certificate; and the Holder of such Unit shall
thereafter, as an unsecured general creditor, look only to the Corporation for
payment thereof, and all liability of the Agent with respect to such trust
money or other property shall thereupon cease.
In the event that (i) the Corporation has delivered Purchase Contract
Property (or the cash value thereof) to the Agent against tender of payment
for such Purchase Contract Property or Warrant Property (or the cash value
thereof) to the Warrant Agent against tender of payment for such Warrant
Property (or, in the case of Purchase Contracts or Warrants calling for the
purchase of Purchase Contract Property or Warrant Property, as the case may
be, by the Corporation, the Corporation has tendered payment) and (ii) a
Holder of a Unit Certificate fails to present and surrender the appropriate
Unit Certificate to the Agent or Warrant
Agent, as appropriate, the Purchase Contract Property, the Warrant Property or
the cash value thereof or the Corporation's payment for Purchase Contract
Property or Warrant Property, as the case may be, deliverable upon settlement
of the Purchase Contracts or Warrants, as the case may be, evidenced by such
Unit Certificate, together with any distributions thereon (and, if an
effective Cash Settlement with respect to the obligations under such Purchase
Contracts or Warrants has been made, payments in respect of principal of any
Debt Securities that are part of such Units), shall be held by the Agent, in
trust, for the benefit of such Holder, until such Unit Certificate is
presented and surrendered or such Holder delivers to the Agent, the Warrant
Agent, the Trustee, and the Corporation (A) evidence to their satisfaction
that such certificate has been destroyed, lost or stolen and (B) such security
or indemnity as may be required by them to hold each of them and any agent of
any of them harmless. In the event such Unit Certificate is not presented and
surrendered or such Holder does not satisfy the applicable conditions
specified in the preceding sentence on or prior to the date two years after
the date of settlement of the related Purchase Contract or Warrant, as the
case may be, any distributions received by the Agent with respect to the
Purchase Contract Property delivered in respect of the Unit Certificates shall
be paid to the Corporation, on the request of the Corporation pursuant to an
Officer's Certificate, and the Holders of such Unit shall thereafter, as
unsecured general creditors, look only to the Corporation for payment thereof
and all liability of the Agent with respect to such trust assets shall
thereafter cease.
SECTION 9.04. Statements of Officers of the Corporation as to
Default. The Corporation will deliver to the Agent, on or before March 31 in
each year, an Officer's Certificate stating whether or not to the best
knowledge of the signers thereof the Corporation is in default in the
performance and observance of any of the terms, provisions and conditions
hereof or of any Purchase Contracts, and, if the Corporation shall be in
default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 9.05. Negative Pledge. Neither the Corporation nor any
successor corporation will, or will permit any Subsidiary (as hereinafter
defined) to, create, assume, incur or guarantee any indebtedness for borrowed
money secured by a pledge, lien or other encumbrance (except for Permitted
Liens, as hereinafter defined) on the Voting Securities (as hereinafter
defined) of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, a Delaware corporation and a
wholly owned subsidiary of the Corporation, or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
International Limited, an English company and an indirect wholly owned
subsidiary of the Corporation, Greenwood Trust Company, a Delaware chartered
bank and an indirect wholly owned subsidiary of the Corporation, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Inc., a Delaware corporation and a wholly owned subsidiary of the
Corporation, or any Subsidiary succeeding to any substantial part of the
business now conducted by any of such corporations (collectively, the
"Principal Subsidiaries") or (ii) Voting Securities
of a Subsidiary that owns, directly or indirectly, Voting Securities of any of
the Principal Subsidiaries (other than directors' qualifying shares) unless
the Corporation shall cause the Units and the Securities constituting the
Units to be secured equally and ratably with (or, at the Corporation's option,
prior to) any indebtedness secured thereby. "Subsidiary" means any
corporation, partnership or other entity of which at the time of determination
the Corporation owns or controls directly or indirectly more than 50% of the
shares of voting stock or equivalent interest. "Permitted Liens" means liens
for taxes or assessments or governmental charges or levies not then due and
delinquent or the validity of which is being contested in good faith or which
are less than $1,000,000 in amount, liens created by or resulting from any
litigation or legal proceeding which is currently being contested in good
faith by appropriate proceedings or which involves claims of less than
$1,000,000, deposits to secure (or in lieu of) surety, stay, appeal or customs
bonds and such other liens as the Board of Directors of the Corporation
determines do not materially detract from or interfere with the present value
or control of the Voting Securities subject thereto or affected thereby.
"Voting Securities" means stock of any class or classes having general voting
power under ordinary circumstances to elect a majority of the board of
directors, managers or trustees of the Subsidiary in question, provided that,
for the purposes hereof, stock which carries only the right to vote
conditionally on the happening of an event shall not be considered voting
stock whether or not such event shall have happened.
SECTION 9.06. Luxembourg Publications. In the event of the
publication of any notice pursuant to this Agreement, the party making such
publication in the Borough of Manhattan, The City of New York, and London
shall also, to the extent that notice is required to be given to Holders of
Units of any series or Securities constituting such Units by applicable
Luxembourg law or stock exchange regulation, as evidenced by an Officer's
Certificate delivered to such party, make a similar publication in Luxembourg.
ARTICLE 10
REDEMPTIONS
SECTION 10.01. Optional Redemption of Purchase Contracts; Redemption
Upon Redemption of Debt Securities. If this Article is specified as applicable
pursuant to Section 3.02 in connection with the issuance of the Purchase
Contracts of a series, any or all of such Purchase Contracts may be redeemed
at the option of the Corporation, or from time to time in part, on such date
or dates and at a redemption price per Purchase Contract as shall be specified
pursuant to Section 3.02; provided that no redemption shall result in there
being more than zero but
fewer than the minimum amount of Unsettled Purchase Contracts that may remain
Outstanding after such redemption, as specified pursuant to Section 3.02.
Unless otherwise specified pursuant to Section 2.03, in the event
that the Corporation shall redeem any Debt Security constituting part of a
Unit of any series pursuant to the provisions of the Indenture or such Debt
Security, the Corporation shall redeem any Purchase Contract or, to the extent
permitted under or pursuant to the Warrant Agreement, Warrant constituting
part of the same Unit on the redemption date of such related Debt Security.
SECTION 10.02. Notice of Redemption; Partial Redemptions. Unless
otherwise specified pursuant to Section 3.02, the Corporation or, upon Issuer
Order of the Corporation, the Agent in the name and at the expense of the
Corporation, shall give notice of redemption to the Holders of Purchase
Contracts in the manner and to the extent provided in Section 11.06, at least
30 days and not more than 60 days prior to the date fixed for redemption. Any
notice which is given in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives the
notice. Failure to give notice by mail, or any defect in the notice to the
Holder of any Purchase Contract, shall not affect the validity of the
proceedings for the redemption of any other Purchase Contract.
The notice of redemption to each Holder of Registered Purchase
Contracts shall specify the number of Registered Purchase Contracts held by
such Holder to be redeemed, the date fixed for redemption, the redemption
price, the place or places of payment and that payment will be made upon
presentation and surrender of Unit Certificates with respect to such
Registered Purchase Contracts evidenced by Unit Certificates.
The Corporation's obligation to provide funds for redemption shall be
deemed fulfilled if, on or before 12:00 noon, local time in the place of
payment, on the redemption date specified in the notice of redemption given as
provided in this Section, the Corporation shall deposit with the Agent or with
one or more paying agents an amount of money sufficient to redeem on the
redemption date all the Purchase Contracts called for redemption at the
appropriate redemption price, together with irrevocable instructions and
authorization that such funds be applied to the redemption of the Purchase
Contracts called for redemption upon surrender of Unit Certificates
representing such Purchase Contracts, properly endorsed and assigned for
transfer, in accordance with this Article.
The Corporation will deliver to the Agent at least 15 days prior to
the mailing of the notice of redemption an Officer's Certificate stating the
aggregate number of Purchase Contracts to be redeemed on such date and that
the
Corporation has complied with the provisions of Section 10.01 and of said
Purchase Contracts subject to said redemption.
If fewer than all the Purchase Contracts are to be redeemed, the
Agent, prior to the mailing of the redemption notice, shall select the
Purchase Contracts to be redeemed on a pro rata basis, by lot or by such other
means as shall be acceptable to the Agent. Appropriate adjustment shall be
made to prevent the fractional redemption of Purchase Contracts, such that
Purchase Contracts are redeemed only in whole and not in part.
The Agent shall promptly notify the Corporation in writing of the
Purchase Contracts so selected for redemption.
SECTION 10.03. Payment of Purchase Contracts Called for Redemption.
If notice of redemption has been given as above provided, (i) the Purchase
Contracts specified in such notice shall become due and payable on the date
and at the place stated in such notice at the applicable redemption price, and
(ii) on and after the date fixed for redemption (unless the Corporation shall
default in the payment of such Purchase Contracts at the redemption price)
such Purchase Contracts shall cease from and after the date fixed for
redemption to be entitled to any benefit under this Agreement, the Holders
thereof shall have no right or obligation in respect of such Purchase
Contracts except the right to receive the redemption price thereof and the
Purchase Contracts shall terminate and shall no longer be deemed to be
Outstanding.
If so specified pursuant to Section 3.02, on presentation and
surrender of Unit Certificates representing such Purchase Contracts, properly
endorsed and assigned for transfer, at a place of payment specified in said
notice, said Purchase Contracts shall be paid and redeemed by the Corporation
at the applicable redemption price. Following such redemption, the Unit
Certificates evidencing such Closed Purchase Contracts shall be cancelled in
accordance with Section 2.11. In the case of (i) Definitive Units,
certificates evidencing any Outstanding Debt Securities relating to such
redeemed Purchase Contracts shall be executed, authenticated and delivered in
accordance with the terms of the Indenture and (ii) Global Units, if a Global
Debt Security not constituting part of a Global Unit has not previously been
issued by the Corporation, a second Global Debenture evidencing any
Outstanding Debt Security relating to such redeemed Purchase Contracts shall
be executed, authenticated and delivered in accordance with the Indenture. If
a second Global Debt Security referred to in clause (ii) of the immediately
preceding sentence has already been issued, the Agent shall note thereon an
appropriate increase in the number of Debt Securities represented by such
Global Debt Security.
Any interest accrued on funds deposited with the Agent or any Paying
Agent in connection with this Article Ten shall be paid to the Corporation
from time to time and the Holders of Purchase Contracts (whether or not such
Purchase Contracts are to be redeemed with such funds) shall have no claim to
any such interest. Any funds deposited and unclaimed at the end of two years
from any redemption date shall be repaid or released to the Corporation, on
the request of the Corporation pursuant to an Officer's Certificate, after
which the Holder(s) of Purchase Contracts so called for redemption shall look
only to the Corporation for payment of the redemption price, without any
interest thereon and all liability of the Agent with respect to the redemption
price shall cease.
SECTION 10.04. Exclusion of Certain Purchase Contracts from
Eligibility for Selection for Redemption. Purchase Contracts shall be excluded
from eligibility for selection for a partial redemption if they are identified
by registration and certificate number in an Officer's Certificate delivered
by the Corporation to the Agent at least 10 days prior to the date of the
mailing of a notice of redemption as being owned of record and beneficially
by, and not pledged or hypothecated by (a) the Corporation or (b) an Affiliate
of the Corporation. Purchase Contracts shall also be excluded from eligibility
for selection for a partial redemption if they are the subject of an
Acceleration Notice.
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and Directors of
the Corporation Immune from Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Agreement, or in any Debt
Security, Prepaid Purchase Contract, Warrant Agreement or any Purchase
Contract, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, or against any past, present or future stockholder,
officer, attorney-in-fact or director, as such, of the Corporation or of any
successor corporation, either directly or through the Corporation or any
successor corporation, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or penalty or by any legal
or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Units by the Holders thereof and
as part of the consideration for the issue thereof, provided that nothing in
this Article shall impair the obligations, covenants and agreements of the
Corporation contained in this Agreement and in any Debt Securities, Prepaid
Purchase Contracts, Warrants or Purchase Contracts constituting a part of the
Units of any series.
SECTION 11.02. Compliance Certificates and Opinions. Except as
otherwise expressly provided by this Agreement, upon any application or
request by the Corporation to the Agent or Collateral Agent to take any action
under any provision of this Agreement, the Corporation, as applicable, shall
furnish to the Agent or Collateral Agent an Officer's Certificate stating that
all conditions precedent, if any, provided for in this Agreement relating to
the proposed action have been complied with and an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required
by any provision of this Agreement relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(i) a statement that each individual signing such certificate or
opinion has reached such covenant or condition and the definitions
herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 11.03. Form of Documents Delivered to Agent or Collateral
Agent. In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate, statement or opinion of an officer or counsel of or
for the Corporation may be based, insofar as it relates to legal matters, upon
a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate,
statement or opinion is based are erroneous. Any such certificate, statement
or opinion may be based, insofar as it relates to factual matters, upon a
certificate, statement or opinion of, or representations by, an officer or
officers of the Corporation, as applicable, stating that the information with
respect to such factual matters is in the possession of the Corporation,
unless such counsel knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
SECTION 11.04. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Agent and, where it is
hereby expressly required, to the Corporation. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Agreement and (subject to Section 6.01) conclusive in favor of the Agent and
the Corporation, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Agent deems
sufficient.
(c) Subject to Section 2.03(a)(vii), the ownership (i) of Registered
Units of any series shall be proved by the Purchase Contract Register for such
series, with respect to any Purchase Contracts constituting a part of such
Units, the Warrant Register for such series with respect to any Warrants
constituting a part of such Units and the Debt Security Register for such
series, with respect to any Debt Securities or Prepaid Purchase Contracts
constituting a part of such Units, and (ii) of Unregistered Units shall be
proved by possession of the Unit Certificates evidencing such Units or by the
appropriate records of the depositary for such Units.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Unit Certificate shall bind every
future Holder of the same Unit Certificate and the Holder of every Unit
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof with respect to anything done, omitted or suffered
to be done by the Agent or the Corporation in reliance thereon, whether or not
notation of such action is made upon such Unit Certificate.
(e) The Corporation may set a record date for purposes of
determining the identity of Holders of Units entitled to consent to any action
by consent authorized or permitted hereby. Unless otherwise specified pursuant
to Section 2.03, such record date shall be the later of 30 days prior to the
first solicitation of such consent or the date of the most recent list of
Holders of Units furnished to the Agent, pursuant hereto.
SECTION 11.05. Notices, Etc.. Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other document
provided or permitted by this Agreement to be made upon, given or furnished
to, or filed with,
(a) the Agent or the Collateral Agent, as the case may be, by any
Holder or by the Corporation shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if made, given, furnished or
filed in writing and personally delivered or mailed, first-class postage
prepaid, to the Agent at its Corporate Trust Office, Attention: Corporate
Trustee Administration Department, or at any other address previously
furnished in writing by the Agent or the Collateral Agent, as the case may be,
to the Holders and the Corporation, or
(b) the Corporation by the Agent, the Collateral Agent or by any
Holder shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if made, given, furnished or filed in writing and
personally delivered or mailed, first-class postage prepaid, addressed to the
Corporation at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer,
or at any other address previously furnished in writing to the Agent and the
Collateral Agent by the Corporation.
SECTION 11.06. Notices to Holders; Waiver. Where this Agreement
provides for notice to Holders of Registered Securities or Registered Units of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided or as provided in the Letter of Representations) if in
writing and mailed, first-class postage prepaid, to each such Holder affected
by such event, at such Holder's address as it appears in the relevant Security
Registers, with respect to the Securities constituting such Unit, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any
defect in any notice so mailed to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Agreement
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Agent, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Agent
shall constitute a sufficient notification for every purpose hereunder.
Where this Agreement provides for notice to Holders of Unregistered
Securities or Unregistered Units of any event, such notice shall be
sufficiently given (unless otherwise specified herein or pursuant to Section
2.03 or 3.02) by publication in a newspaper in the English language of general
circulation in the Borough of Manhattan, The City of New York, and in The City
of London or, if publication in London is not practical, in an English
language newspaper with general circulation in Western Europe. Such notices
will be deemed to have been given on the date of such publication, or if
published in such newspapers on different dates, on the date of the first such
publication.
SECTION 11.07. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 11.08. Successors and Assigns. All covenants and agreements
in this Agreement, the Units, the Purchase Contracts and the Unit Certificates
by the Corporation shall bind its successors and assigns, whether so expressed
or not.
SECTION 11.09. Separability Clause. In case any provision in this
Agreement or in the Units, Unit Certificates or the Purchase Contracts shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof and thereof shall not in any
way be affected or impaired thereby.
SECTION 11.10. Benefits of Agreement. Nothing in this Agreement or in
the Units, Unit Certificates, the Indenture, the Debt Securities, the Prepaid
Purchase Contracts, the Warrants or the Purchase Contracts, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, any benefits or any legal or equitable right, remedy or
claim under this Agreement. The Holders from time to time shall be parties to
this Agreement and shall be bound by all of the terms and conditions hereof
and of the Indenture, the
Units, the Debt Securities, the Prepaid Purchase Contracts, the Warrants and
the Purchase Contracts evidenced by the Units, by their acceptance of delivery
of such Units.
SECTION 11.11. Governing Law. This Agreement, the Units, the Unit
Certificates and the Purchase Contracts shall be governed and construed in
accordance with the laws of the State of New York.
SECTION 11.12. Legal Holidays. Unless otherwise specified pursuant to
Section 3.02, in any case where any Settlement Date shall not be a Business
Day, then (notwithstanding any other provisions of this Agreement or the
Purchase Contracts) the Purchase Contracts shall not be performed on such
date, but shall be performed on the next succeeding Business Day with the same
force and effect as if performed on such Settlement Date; provided that no
interest or other amounts shall accrue or be payable by the Corporation or any
Holder for the period from and after any such Settlement Date.
SECTION 11.13. Counterparts. This Agreement may be executed in any
number of counterparts by the parties hereto on separate counterparts, each of
which, when so executed and delivered, shall be deemed an original, but all
such counterparts shall together constitute one and the same instrument.
SECTION 11.14. Appointment of Certain Agents. (a) Pursuant to Section
2.03 hereof, the Corporation may, in connection with any series of Purchase
Contracts appoint ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
International Limited or any other Person as Calculation Agent to make any
calculations as may be required pursuant to the terms of any such series of
Purchase Contracts. Any such Calculation Agent shall act as an independent
expert and, unless otherwise provided by this Agreement, its calculations and
determinations under this Agreement shall, absent manifest error, be final and
binding on the Corporation, the Agent and the Holders. Any such calculations
will be made available to the Holders for inspection at the Agent's Office.
(b) Unless otherwise specified pursuant to Section 2.03, the
Corporation hereby appoints Chase as the Paying Agent under the Indenture with
respect to each Debt Security comprised by any Unit issued hereunder.
SECTION 11.15. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times during normal business hours at the
Corporate Trust Office of the Agent for inspection by any Holder.
IN WITNESS WHEREOF, the Corporation, the Agent, the Collateral Agent,
the Trustee and the Warrant Agent have duly executed this Agreement as of the
day and year first above set forth, and all Holders of Units shall become
parties hereto by and upon acceptance by them of delivery of Units issued in
accordance with the terms hereof.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & CO.
By:____________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Agent
By:____________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Collateral Agent
By:____________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee and Paying Agent under the
Indenture
By:____________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Warrant Agent under the Warrant
Agreement
By:____________________________________
Name:
Title:
EXHIBIT A
[[FORM OF UNIT CERTIFICATE]
[FACE]
[IF THE UNIT CERTIFICATE IS TO BE A GLOBAL REGISTERED UNIT
CERTIFICATE, INSERT--This Unit Certificate is a global Unit Certificate within
the meaning of the Unit Agreement hereinafter referred to and is registered in
the name of the Depository Trust Company (the "Depositary") or a nominee of
the Depositary. Unless and until it is exchanged in whole or in part for Units
in definitive registered form, this Unit Certificate 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 such nominee to a successor Depositary
or a nominee of such successor Depositary).
Unless this Unit Certificate is presented by an authorized
representative of The Depositary (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇) to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ & Co. or its agent for registration of transfer, exchange or
payment, and any Unit issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of the Depositary and
any payment hereon is made to Cede & Co. or such other entity as is requested
by an authorized representative of the Depositary, ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.]
A-1
UNIT CERTIFICATE
(issuable in integral multiples of whole Units)
Evidencing the Ownership of, or Rights and Obligations
of the Holder Under, the Securities
Specified Below
[Specify Securities Constituting Part of these Units]
CUSIP No. __________
Certificate No. _____Number of Units [Up To]1
This Unit Certificate certifies that ______________________ (the
"Holder"), or [registered assigns]2, is the [registered]2 owner of [ ( )
Units]3 [the number of Units specified in Schedule A hereto.]1
Each Unit represents ownership by the Holder of [specify Securities
constituting parts of the Unit] [, subject to the pledge of such Debt
Securities by such Holder pursuant to the Unit Agreement (the "Unit
Agreement") dated as of March 12, 1998 among the Corporation, The Chase
Manhattan Bank, as Agent, as Collateral Agent, as Trustee and Paying Agent
under the Indenture referred to therein, and as Warrant Agent under the
Warrant Agreement referred to therein and the Holders from time to time of the
Units described therein. Pursuant to the Unit Agreement, the Debt Securities
constituting part of the Units evidenced hereby have been pledged to the
Collateral Agent to secure the obligations of the Holder under the Purchase
Contract constituting part of such Units.]4
[For so long as the [Warrant] [Purchase Contract] underlying each
Unit represented hereby remains in effect such Unit shall not be separable
into its constituent parts and the rights and obligations of the Holder of
such Unit in
--------
1 Insert in Global Unit Certificates
2 Insert in Registered Units
3 Insert in Definitive Unit Certificates
4 Insert in Registered Units consisting of Non-Separable Debt Securities and
Purchase Contracts
A-2
respect of such constituent parts may be transferred and exchanged only as a
Unit.]5
[Designated Security Register:]6
[Other Terms of Units:]
[INSERT APPROPRIATE DEBT SECURITY CERTIFICATE OR WARRANT
CERTIFICATE, AS APPLICABLE]
-------------------------------------------------------------------------------
Reference is hereby made to the further provisions of this certificate set
forth on the succeeding pages hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
-------------------------------------------------------------------------------
----------
5 Insert in non-separable Units. 6 Insert in non-separable Registered
Units.
6 Insert in non-separable Registered Units.
A-3
[FORM OF PURCHASE CONTRACT
CONTEMPLATING SALE BY ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ & CO.]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & CO.
[Insert Designation of Purchase Contracts]
PURCHASE CONTRACT(S)
Purchase Contracts between
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co.
and
----------------
or registered assigns,
as holder hereunder (the "Holder")
All capitalized terms used but not defined herein that are defined in
the Unit Agreement (described below) have the meanings set forth therein, and
if not defined therein, have the meaning set forth below.
==============================================================================
Purchase Contract Property:
Quantity:
Purchase Price
Settlement Date:
Payment Location:
Method of Settlement:
Currency of Settlement
Payment:
Authorized Number of
Purchase Contracts:
Aggregate Purchase Price:
A-4
Contract Fees:
Corporation Acceleration:
Holders' Acceleration:
Redemption Provisions:
Other Terms:
==============================================================================
Subject to the conditions hereinafter set forth, the Holder agrees to
purchase and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co., a corporation duly incorporated
and existing under the laws of the State of Delaware (the "Corporation"),
agrees to sell, subject to the terms of the Unit Agreement referred to below
and as set forth herein, on the Settlement Date, the Quantity of Purchase
Contract Property, for the Purchase Price. The Purchase Contract(s) evidenced
hereby shall not entitle the Holder to purchase the Purchase Contract Property
prior to the Settlement Date.
The Purchase Price for the Purchase Contract Property purchased
pursuant to the Purchase Contracts evidenced hereby shall be payable at the
Payment Location on the Settlement Date pursuant to the Method of Settlement
in the Currency of Settlement Payment.
Each Purchase Contract evidenced hereby is one of a duly authorized
issue of not more than the Authorized Number of Purchase Contracts of the
Corporation relating to the purchase by Holders of not more than the Aggregate
Quantity of Purchase Contract Property issued under the Unit Agreement, dated
as of March 12, 1998 (the "Unit Agreement"), among the Corporation, The Chase
Manhattan Bank, as Agent (the "Agent") and as Collateral Agent thereunder, as
Warrant Agent (the "Warrant Agent") under the Warrant Agreement referred to
therein, as Trustee (the "Trustee") and Paying Agent under the Indenture
referred to therein, and the holders from time to time of Units, to which Unit
Agreement and supplemental agreements thereto reference is hereby made for a
description of the respective rights, limitations of rights, obligations,
duties and immunities thereunder of the Agent, the Collateral Agent, the
Corporation and the Holders and of the terms upon which the Purchase Contracts
are, and are to be, executed, countersigned, executed on behalf of the Holder
and delivered.
The Agent may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents in connection with any
transfer or exchange of each Purchase Contract evidenced hereby. No service
charge shall be required for any such registration of transfer or exchange,
but the Corporation and the Agent may require payment of a sum sufficient to
cover any tax or other
A-5
governmental charge imposed in connection with any registration of transfer or
exchange of Units.
Upon registration of transfer of this Purchase Contract, the
transferee shall be bound (without the necessity of any other action on the
part of such transferee, except as may be required by the Agent pursuant to
the Unit Agreement), under the terms of the Unit Agreement and the Purchase
Contracts evidenced hereby and the transferor shall be released from the
obligations under the Purchase Contracts hereby. The Corporation covenants and
agrees, and the Holder, by his acceptance hereof, likewise covenants and
agrees, to be bound by the provisions of this paragraph.
The extent to which, and the terms upon which, any cash or other
property (other than the Purchase Contract Property) is payable or deliverable
with respect to the Purchase Contracts evidenced hereby is described above
under "Contract Fees". The extent to which, and the terms upon which, the
Corporation may accelerate the obligations of the Corporation and the Holders
of the Purchase Contracts evidenced hereby is described above under
"Corporation Acceleration". The extent to which, and the terms upon which, the
Holders of such Purchase Contracts may accelerate the obligations of the
Corporation and the Holders of the Purchase Contracts is described above under
"Holders' Acceleration". The extent to which, and the terms upon which, the
Corporation may redeem the Purchase Contracts evidenced hereby is described
above under "Redemption Provisions".
Subject to certain exceptions, the terms of the Purchase Contracts
and the provisions of the Unit Agreement may be amended with the consent of
the affected Holders of not less than a majority of the Purchase Contracts
evidenced by all Outstanding Units and certain Purchase Contract Defaults may
be waived with the consent of the Holders of a majority of the Purchase
Contracts evidenced by all Outstanding Units. Without the consent of any
Holder of Units, the terms of the Unit Agreement the Purchase Contracts may be
amended to, among other things, cure any ambiguity, to correct or supplement
any provision in the Unit Agreement or Purchase Contract to add to covenants
of the Corporation, Collateral Agent or Agent or to make any other provisions
with respect to matters or questions arising under the Unit Agreement or the
Purchase Contracts that do not adversely affect the interests of the Holders
in any material respect.
Holders of the Purchase Contracts may not enforce the Unit Agreement
or such Purchase Contracts except as provided in the Unit Agreement.
Any incorporator, or past, present or future stockholder, officer,
attorney-in-fact or director, as such, of the Corporation shall not have any
liability for any obligations of the Corporation under the Purchase Contracts
or the Unit
A-6
Agreement or for any claim based on, with respect to or by reason of such
obligations or their creation. The Holder by his acceptance hereof waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
Prior to due presentment of a Unit Certificate or Purchase Contract
for registration of transfer, the Corporation, the Trustee, the Agent, the
Warrant Agent and the Collateral Agent, and any agent of the Corporation, the
Trustee, the Agent, the Warrant Agent and the Collateral Agent may treat the
Person in whose name this Purchase Contract is registered as a party to the
Purchase Contracts evidenced hereby for the purpose of performance of such
Purchase Contracts and for all other purposes whatsoever, and neither the
Corporation, the Trustee, the Agent, the Warrant Agent and the Collateral
Agent nor any such agent shall be affected by notice to the contrary.
The Holder, by his acceptance hereof, authorizes the Agent to execute
the Purchase Contracts evidenced hereby on his behalf, authorizes and directs
the Agent on his behalf to take such other action, and covenants and agrees to
take such other action, as may be necessary or appropriate, or as may be
required by the Agent, to effectuate the provisions of the Unit Agreement
relating to the purchase of the Purchase Contract Property [and the pledge of
the Debt Securities constituting part of the Unit of which this Purchase
Contract forms a part to the Collateral Agent on the Holder's behalf,]7
appoints the agent as his attorney-in-fact for any and all such purposes, and
agrees to be bound by the terms thereof.
The Purchase Contracts shall not, prior to the performance thereof,
entitle the Holder to any of the rights of a holder of the Purchase Contract
Property.
No Purchase Contract evidenced hereby shall be valid or obligatory
for any purpose until countersigned and executed on behalf of the Holder by
the Agent, pursuant to the Unit Agreement.
--------
7 Insert in Registered Units consisting of Non-Separable Debt Securities and
Purchase Contracts.
A-7
IN WITNESS WHEREOF, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co. has
caused this instrument to be duly executed.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & CO.
By:____________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Agent, and as attorney-in-fact
of the Holder hereof
By:______________________________
Authorized Officer
Countersigned:
THE CHASE MANHATTAN BANK,
as Agent
By:_______________________________
Authorized Officer
A-8
[FORM OF PURCHASE CONTRACT
CONTEMPLATING PURCHASE BY ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ & CO.]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & CO.
PURCHASE CONTRACT(S)
Purchase Contracts between
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co.
and
----------------
or registered assigns,
as holder hereunder (the "Holder")
All capitalized terms used but not defined herein that are defined in the Unit
Agreement (described below) have the meanings set forth therein, and if not
defined therein, have the meaning set forth below.
===============================================================================
Purchase Contract Property:
Quantity:
Purchase Price:
Settlement Date:
Payment Location:
Method of Settlement:
Method of Computing Settlement
Amount:
Currency of Settlement Payment
Authorized Number of Purchase
Contracts:
Aggregate Purchase Price:
Contract Fees:
Corporation Acceleration:
A-9
Holders' Acceleration
Redemption Provisions:
Other Terms:
===============================================================================
Subject to the conditions hereinafter set forth, the Holder agrees to
sell and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co., a corporation duly incorporated and
existing under the laws of the State of Delaware (the "Corporation"), agrees
to purchase, subject to the terms of the Unit Agreement referred to below and
as set forth herein, on the Settlement Date, the Quantity of Purchase Contract
Property, for the Purchase Price. The Purchase Contract(s) evidenced hereby
shall not entitle the Corporation to purchase the Purchase Contract Property,
or the Holder to receive the Purchase Price, prior to the Settlement Date.
If so indicated under Method of Settlement above, the parties'
obligations under the Purchase Contracts evidenced hereby may be settled by
payment of the Settlement Amount by the Corporation or the Holder, as the case
may be. The Settlement Amount payable pursuant to the Purchase Contracts
evidenced hereby, as determined in accordance with the Method of Computing
Settlement Amount, shall be payable on the Settlement Date in the Currency of
Settlement Payment pursuant to the Method of Settlement at the Payment
Location; provided that any Settlement Amount payable by Holders pursuant to
the Purchase Contracts evidenced hereby may be deducted from the principal
payment that may be payable by the Corporation with respect to any Debt
Securities comprised by the Units of which such Purchase Contacts are a part.
Each Purchase Contract evidenced hereby is one of a duly authorized
issue of not more than the Authorized Number of Purchase Contracts of the
Corporation issued under the Unit Agreement, dated as of March 12, 1998 (the
"Unit Agreement"), among the Corporation, The Chase Manhattan Bank, as Agent
(the "Agent") and as Collateral Agent thereunder, as Warrant Agent (the
"Warrant Agent") under the Warrant Agreement referred to therein, as Trustee
(the "Trustee") and Paying Agent under the Indenture referred to therein, and
the holders from time to time of Units, to which Unit Agreement and
supplemental agreements thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and
immunities thereunder of the Agent, the Corporation and the Holders and of the
terms upon which the Purchase Contracts are, and are to be, executed,
countersigned, executed on behalf of the Holder and delivered.
The Agent may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents in connection with any
transfer
A-10
or exchange of each Purchase Contract evidenced hereby. No service charge
shall be required for any such registration of transfer or exchange, but the
Corporation and the Agent may require payment of a sum sufficient to cover any
tax or other governmental charge imposed in connection with any registration
of transfer or exchange of Units.
Upon registration of transfer of this Purchase Contract, the
transferee shall be bound (without the necessity of any other action on the
part of such transferee, except as may be required by the Agent pursuant to
the Unit Agreement), under the terms of the Unit Agreement and the Purchase
Contracts evidenced hereby and the transferor shall be released from the
obligations under the Purchase Contracts hereby. The Corporation covenants and
agrees, and the Holder, by his acceptance hereof, likewise covenants and
agrees, to be bound by the provisions of this paragraph.
The extent to which, and the terms upon which, any cash or other
property (other than the Purchase Contract Property) is payable or deliverable
with respect to the Purchase Contracts evidenced hereby is described above
under "Contract Fees". The extent to which, and the terms upon which, the
Corporation may accelerate the obligations of the Corporation and the Holders
of the Purchase Contracts evidenced hereby is described above under
"Corporation Acceleration". The extent to which, and the terms upon which, the
Holders of such Purchase Contracts may accelerate the obligations of the
Corporation and the Holders of the Purchase Contracts is described above under
"Holders' Acceleration". The extent to which, and the terms upon which, the
Corporation may redeem the Purchase Contracts evidenced hereby is described
above under "Redemption Provisions".
Subject to certain exceptions, the terms of the Purchase Contracts
and the provisions of the Unit Agreement may be amended with the consent of
the affected Holders of not less than a majority of the Purchase Contracts
evidenced by all Outstanding Units and certain Purchase Contract Defaults may
be waived with the consent of the Holders of a majority of the Purchase
Contracts evidenced by all Outstanding Units. Without the consent of any
Holder of Units, the terms of the Unit Agreement or the Purchase Contracts may
be amended to, among other things, cure any ambiguity, to correct or
supplement any provision in the Unit Agreement or Purchase Contract, to add to
the covenants of the Corporation, Collateral Agent or Agent for the protection
of the Holders, or to make any other provisions with respect to matters or
questions arising under the Unit Agreement or the Purchase Contracts that do
not adversely affect the interests of the Holders in any material respect.
Holders of the Purchase Contracts may not enforce the Unit Agreement
or such Purchase Contracts except as provided in the Unit Agreement.
A-11
Any incorporator, or past, present or future stockholder, officer,
attorney-in-fact or director, as such, of the Corporation shall not have any
liability for any obligations of the Corporation under the Purchase Contracts
or the Unit Agreement or for any claim based on, with respect to or by reason
of such obligations or their creation. The Holder by his acceptance hereof
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
Prior to due presentment of a Unit Certificate or Purchase Contract
for registration of transfer, the Corporation, the Agent, the Trustee, the
Warrant Agent and the Collateral Agent, and any agent of the Corporation, the
Agent, the Trustee, the Warrant Agent and the Collateral Agent may treat the
Person in whose name this Purchase Contract is registered as a party to the
Purchase Contracts evidenced hereby for the purpose of performance of such
Purchase Contracts and for all other purposes whatsoever, and neither the
Corporation, the Agent, the Trustee, the Warrant Agent and the Collateral
Agent nor any such agent shall be affected by notice to the contrary.
The Holder, by his acceptance hereof, authorizes the Agent to execute
the Purchase Contracts evidenced hereby on his behalf, authorizes and directs
the Agent on his behalf to take such other action, and covenants and agrees to
take such other action, as may be necessary or appropriate, or as may be
required by the Agent, to effectuate the provisions of the Unit Agreement
relating to the purchase of the Purchase Contract Property [and the pledge of
the Debt Securities constituting part of the Unit of which this Purchase
Contract forms a part to the Collateral Agent on the Holder's behalf,]8
appoints the agent as his attorney-in-fact for any and all such purposes, and
agrees to be bound by the terms thereof.
No Purchase Contract evidenced hereby shall be valid or obligatory
for any purpose until countersigned and executed on behalf of the Holder by
the Agent, pursuant to the Unit Agreement.
--------
8 Insert in Registered Units consisting of Debt Securities and Purchase
Contracts.
A-12
IN WITNESS WHEREOF, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co. has
caused this instrument to be duly executed.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & CO.
By____________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Agent, and as attorney-in-fact of
the Holder hereof
By:___________________________________
Authorized Officer
Countersigned:
THE CHASE MANHATTAN BANK,
as Agent
By:___________________________________
Authorized Officer
A-13
[IF PURCHASE CONTRACT IS A GLOBAL PURCHASE CONTRACT, INSERT]
SCHEDULE I
GLOBAL
PURCHASE CONTRACT
SCHEDULE OF EXCHANGES
The initial number of Purchase Contracts represented by this Global
Purchase Contract is __________. In accordance with the Unit Agreement
pursuant to which this Global Purchase Contract has been issued, the following
(A) exchanges of [the number of Purchase Contracts indicated below for a like
number of Purchase Contracts represented by a Global Purchase Contract that
has been separated from a Unit (a "Separated Purchase Contract")]1 [the number
of Purchase Contracts that had been represented by a Global Purchase Contract
that is part of a Unit (an "Attached Unit Purchase Contract") for a like
number of Purchase Contracts represented by this Purchase Contract]2 and (B)
settlements of the number of Purchase Contracts indicated below have been
made:
Number of
Attached Unit
Purchase
Contracts
Exchanged for
Reduced Purchase Increased Reduced
Number Number Contracts Number Number
Exchanged for Outstanding represented by Outstanding Number of Outstanding Notation
Date of Separated Following this Separated Following Purchase Following Made by or on
Exchange or Purchase Such Purchase Such Contracts Such Behalf of
Settlement Contract1 Exchange1 Contract2 Exchange2 Settled Settlement Agent
---------- ------------- ------------ -------------- ----------- ---------- ------------ -------------
---------- ------------- ------------ -------------- ----------- ---------- ------------ -------------
---------- ------------- ------------ -------------- ----------- ---------- ------------ -------------
---------- ------------- ------------ -------------- ----------- ---------- ------------ -------------
---------- ------------- ------------ -------------- ----------- ---------- ------------ -------------
---------- ------------- ------------ -------------- ----------- ---------- ------------ -------------
=========== ============= =========== ============== ============ ========= =========== =============
--------
1 Applies only if this Purchase Contract is part of a Unit.
2 Applies only if this Purchase Contract has been separated from a Unit.
A-14
[IF PURCHASE CONTRACT IS SEPARATED FROM UNIT, INSERT]
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned assigns and transfers the Purchase
Contract(s) represented by this Certificate to:
__________________________ (Insert assignee's social security or tax
identification number)
__________________________ (Insert address and zip code of assignee)
and irrevocably appoints _________________
agent to transfer this Certificate on the books of the Corporation. The agemt
may substitute another to act for him or her.
Date:
Signature(s):
------------------------------------------------------------------------
------------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Certificate)
NOTICE: The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion program),
pursuant to S.E.C. Rule 17Ad-15.]
A-15
[IF UNIT CERTIFICATE IS A GLOBAL UNIT CERTIFICATE, INSERT -
SCHEDULE A
GLOBAL
UNIT CERTIFICATE
SCHEDULE OF EXCHANGES
The initial number of Units represented by this Global Unit
Certificate is _________. In accordance with the Unit Agreement pursuant to
which this Global Unit Certificate has been issued, the following reductions
of the number of Units represented by this Global Unit Certificate have
occurred:
Number Reduced by
Separation of the Number Reduced by Number Reduced by Number of Units Notation Made by or
Component Parts of Exercise of Settlement of Outstanding Following on Behalf of Paying
Date of Reduction this Unit Universal Warrants Purchase Contracts any such Reduction Agent
----------------- ------------------ ------------------ ------------------ --------------------- -------------------
----------------- ------------------ ------------------ ------------------ --------------------- -------------------
----------------- ------------------ ------------------ ------------------ --------------------- -------------------
----------------- ------------------ ------------------ ------------------ --------------------- -------------------
----------------- ------------------ ------------------ ------------------ --------------------- -------------------
----------------- ------------------ ------------------ ------------------ --------------------- -------------------
----------------- ------------------ ------------------ ------------------ --------------------- -------------------
----------------- ------------------ ------------------ ------------------ --------------------- -------------------
----------------- ------------------ ------------------ ------------------ --------------------- -------------------
----------------- ------------------ ------------------ ------------------ --------------------- -------------------
----------------- ------------------ ------------------ ------------------ --------------------- -------------------
----------------- ------------------ ------------------ ------------------ --------------------- -------------------
----------------- ------------------ ------------------ ------------------ --------------------- -------------------
==============================================================================================================================
A-16
[IF UNIT IS A DEFINITIVE UNIT, INSERT -
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned assigns and transfers the Unit(s)
represented by this Certificate to:
________________(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Unit Certificate on the books of the Corporation. The
agent may substitute another to act for him or her.
Date:
Signature(s):
------------------------------------------------------------------------
------------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Certificate)
NOTICE: The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion program),
pursuant to S.E.C. Rule 17Ad-15.]
A-17