Exhibit 4.16
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COMCAST CABLE COMMUNICATIONS, INC.
[_________________],
as Unit Agent, as Collateral Agent, and
as Trustee and Paying Agent under the
Indenture 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 [____], 1998
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions...................................................2
ARTICLE 2
UNITS
SECTION 2.01. Forms Generally..............................................10
SECTION 2.02. Form of Certificate of Authentication and
Countersignature.........................................11
SECTION 2.03. Amount Unlimited; Issuable in Series.........................11
SECTION 2.04. Denominations................................................12
SECTION 2.05. Rights and Obligations Evidenced by the Units................12
SECTION 2.06. Execution, Authentication, Delivery and Dating...............13
SECTION 2.07. Temporary Unit Certificates..................................13
SECTION 2.08. Registration of Transfer and Exchange; Global
Units....................................................14
SECTION 2.09. Mutilated, Destroyed, Lost and Stolen Unit
Certificates.............................................16
SECTION 2.10. Persons Deemed Owners........................................18
SECTION 2.11. Cancellation.................................................18
SECTION 2.12. Exchange of Global Units and Definitive Units................19
ARTICLE 3
THE PURCHASE CONTRACTS
SECTION 3.01. Form and Execution of Purchase Contracts;
Temporary Purchase Contracts.............................20
SECTION 3.02. Number Unlimited Issuable in Series..........................21
SECTION 3.03. Countersignature, Execution on Behalf of Holder
and Delivery of Purchase Contracts.......................24
SECTION 3.04. Further Provisions Relating to Issuance of
Purchase Contracts.......................................26
SECTION 3.05. Purchase of Purchase Contract Property;
Optional Acceleration of Purchase Obligations;
Authorization of Agent by Holder; Transferees
Bound....................................................27
SECTION 3.06. Payment of Settlement Amount.................................28
SECTION 3.07. Delivery of Settlement Amount................................30
SECTION 3.08. Charges and Taxes............................................31
ARTICLE 4
REMEDIES
SECTION 4.01. Acceleration of Obligations..................................31
SECTION 4.02. Unconditional Rights under Purchase Contracts;
Limitation on Proceedings by Holders.....................31
SECTION 4.03. Restoration of Rights and Remedies...........................32
SECTION 4.04. Rights and Remedies Cumulative...............................33
SECTION 4.05. Delay or Omission Not Waiver.................................33
SECTION 4.06. Waiver of Past Defaults......................................33
SECTION 4.07. Undertaking for Costs........................................34
SECTION 4.08. Waiver of Stay or Extension Laws.............................34
SECTION 4.09. Agent May File Proofs of Claims..............................34
SECTION 4.10. Suits for Enforcement........................................35
SECTION 4.11. Control by Holders...........................................35
ARTICLE 5
SECURITY INTERESTS AND COLLATERAL AGENT
SECTION 5.01. Granting of Security Interests; Rights and
Remedies of Collateral Agent; Perfection.................36
SECTION 5.02. Distribution of Principal and Interest; Release of
Collateral...............................................37
SECTION 5.03. Certain Duties and Responsibilities of the
Collateral Agent .......................................38
SECTION 5.04. Knowledge of the Collateral Agent............................39
SECTION 5.05. Certain Rights of Collateral Agent...........................39
SECTION 5.06. Compensation and Reimbursements..............................40
SECTION 5.07. Corporate Collateral Agent Required; Eligibility.............41
SECTION 5.08. Resignation and Removal; Appointment of
Successor................................................41
SECTION 5.09. Acceptance of Appointment by Successor.......................42
SECTION 5.10. Merger, Conversion, Consolidation or Succession
to Business..............................................43
SECTION 5.11. Money Held in Trust..........................................44
ARTICLE 6
THE AGENT
SECTION 6.01. Certain Duties and Responsibilities..........................44
SECTION 6.02. Notice of Default............................................45
SECTION 6.03. Certain Rights of Agent......................................45
SECTION 6.04. Not Responsible for Recitals or Issuance of Units............47
SECTION 6.05. May Hold Units...............................................47
SECTION 6.06. Money Held in Trust..........................................47
SECTION 6.07. Compensation and Reimbursement...............................47
SECTION 6.08. Corporate Agent Required; Eligibility........................48
SECTION 6.09. Resignation and Removal; Appointment of
Successor................................................48
SECTION 6.10. Acceptance of Appointment by Successor.......................50
SECTION 6.11. Merger, Conversion, Consolidation or Succession
to Business..............................................50
SECTION 6.12. Appointment of Authenticating Agent..........................51
SECTION 6.13. Corporation to Furnish Agent Names and
Addresses of Holders.....................................53
SECTION 6.14. Preservation of Information; Communications to
Holders..................................................53
SECTION 6.15. No Obligation of Holder......................................54
SECTION 6.16. Tax Compliance...............................................54
ARTICLE 7
SUPPLEMENTAL AGREEMENTS
SECTION 7.01. Supplemental Agreements Without Consent of
Holders..................................................56
SECTION 7.02. Supplemental Agreements with Consent of Holders..............57
SECTION 7.03. Execution of Supplemental Agreements.........................58
SECTION 7.04. Effect of Supplemental Agreements............................58
SECTION 7.05. Reference to Supplemental Agreements.........................58
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.01. Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions..........59
SECTION 8.02. Rights and Duties of Successor Corporation...................59
SECTION 8.03. Opinion of Counsel to Agent..................................60
ARTICLE 9
COVENANTS
SECTION 9.01. Performance under Purchase Contracts.........................60
SECTION 9.02. Maintenance of Office or Agency..............................60
SECTION 9.03. Money for Payments to Be Held in Trust.......................61
SECTION 9.04. Statements of Officers of the Corporation as to
Default..................................................62
SECTION 9.05. Negative Pledge..............................................62
SECTION 9.06. Luxembourg Publications......................................63
ARTICLE 10
REDEMPTIONS
SECTION 10.01. Optional Redemption of Purchase Contracts;
Redemption Upon Redemption of Debt Securities............63
SECTION 10.02. Notice of Redemption; Partial Redemptions...................64
SECTION 10.03. Payment of Purchase Contracts Called for
Redemption...............................................65
SECTION 10.04. Exclusion of Certain Purchase Contracts from
Eligibility for Selection for Redemption.................66
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and
Directors of the Corporation Immune from
Liability................................................66
SECTION 11.02. Compliance Certificates and Opinions........................66
SECTION 11.03. Form of Documents Delivered to Agent or
Collateral Agent.........................................67
SECTION 11.04. Acts of Holders.............................................68
SECTION 11.05. Notices, Etc................................................69
SECTION 11.06. Notices to Holders; Waiver..................................69
SECTION 11.07. Effect of Headings and Table of Contents....................70
SECTION 11.08. Successors and Assigns......................................70
SECTION 11.09. Separability Clause.........................................70
SECTION 11.10. Benefits of Agreement.......................................70
SECTION 11.11. Governing Law...............................................70
SECTION 11.12. Legal Holidays..............................................70
SECTION 11.13. Counterparts................................................71
SECTION 11.14. Appointment of Certain Agents...............................71
SECTION 11.15. Inspection of Agreement.....................................71
UNIT AGREEMENT, dated as of [____], 1998, by and among COMCAST CABLE
COMMUNICATIONS, INC., a Delaware corporation (the "Corporation"), [_____], a
[_____] banking corporation ("[Bank]"), 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, [Bank], 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 the holders from time to time of the Units described herein.
WHEREAS, the Corporation has entered into a Senior Indenture dated as
of May 1, 1997, between the Corporation and the Bank of Montreal Trust Company,
as Trustee (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 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
Corporation, a basket of such securities, an index or indices of such
securities or any combination of the above, (ii) currencies or composite
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 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 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 DTC, or any successor, 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 registered form
originally issued as part of a Global Unit of any series.
"Global Prepaid Purchase Contract" means a global Prepaid Purchase
Contract in registered form originally issued as part of a Global Unit of any
series.
"Global Purchase Contract" means a global Purchase Contract in
registered form originally issued as part of a Global Unit of any series.
"Global Security" means any of a Global Debt Security, 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 registered form.
"Holder" means 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, 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, Purchase
Contract or Prepaid Purchase Contract means, as of the date of determination,
all Units, Debt Securities, 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, Purchase Contracts or Prepaid
Purchase Contracts theretofore deemed cancelled, cancelled by the
Agent or Trustee, as the case may be, or delivered to the Agent or
Trustee, as the case may be, for cancellation, in each case pursuant
to the provisions of this Agreement or the Indenture;
(B) Closed Purchase Contracts; and
(C) Units, Debt Securities, 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, 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,
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, 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, 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, Purchase Contracts and
Prepaid Purchase Contracts which the Agent knows to be so owned shall be so
disregarded. Units, Debt Securities, 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, 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 cash value of the Purchase Contract Property 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 or
Registered Purchase Contract.
"Registered Unit" means any Unit consisting of Registered Securities.
"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, Purchase Contract or Prepaid
Purchase Contract.
"Security Register" means either of the Debt Security Register or
Purchase Contract 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.
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 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 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) 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;
(vii) 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;
(viii) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with respect
to the Units of such series;
(ix) any other events of default or covenants with respect to the
Units of such series; and
(x) 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 (a) the ownership by the Holder thereof of 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 and (b) 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 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
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 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 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 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 and/or the Agent, as appropriate, and the Trustee 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 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 and/or the Agent, and the Trustee
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 and
Purchase Contracts constituting parts of such Units, the Indenture 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. Whenever any Units are so surrendered for transfer or exchange, the
Corporation shall execute, and the Trustee 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.
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 and Trustee
shall, in accordance with this Section and Section 2.06, 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) 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) 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 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 (iii) 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 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 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 [__] of the
Indenture, the Corporation shall not be obligated to execute and deliver to the
Trustee or the Agent, and none of the Trustee, under the terms of the
Indenture, 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 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 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, 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 and/or the Agent, as appropriate, and
the Trustee 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 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 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 and/or the Agent, as appropriate, and the Trustee (in accordance
with the provisions of the Indenture), 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 or the Agent, and none of the Trustee (under the Indenture), 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, 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 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 or Debt Securities or (ii) in respect of Purchase Contracts
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 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 (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 has occurred by virtue of the Corporation's
having failed to deliver the cash value of the Purchase Contract Property,
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,
cash value of the Purchase Contract Property or other Settlement Amount,
exercise price or other amount, as the case may be, such purchase price, cash
value of the Purchase Contract Property 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 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 Collateral Agent and the Agent, as appropriate, and any agent
of the Corporation, the Trustee, 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 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 Agent, the Collateral Agent or any agent of the
Corporation, the Trustee, 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, 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 or the Agent, as appropriate, be delivered to the Trustee
and/or the Agent, as appropriate, and, if not already cancelled, any Debt
Securities, Prepaid Purchase Contracts or Purchase Contracts evidenced by such
Units shall be promptly cancelled by the Trustee and/or the Agent, as
appropriate. The Corporation may at any time deliver to the Trustee and/or the
Agent, as appropriate, for cancellation any Unit Certificates previously
authenticated, countersigned, executed and delivered hereunder 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 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 and/or the Agent, as appropriate, for the purpose of cancellation.
SECTION 2.12. Exchange of Global Units and Definitive 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 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 and
the Trustee, as appropriate.
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 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 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
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 or composite 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);
(vi) in the case of Purchase Contracts that obligate the
Corporation to purchase, and the Holders to sell, Purchase Contract
Property, the amount payable by the Corporation in settlement of the
Purchase Contracts of the series (or the method for determining the
same) (the "Settlement Amount") and, if other than U.S. Dollars, the
coin or currency or composite currency in which such Settlement Amount
is to be paid;
(vii) 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 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;
(x) 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;
(xi) 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;
(xii) 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
(xiii) 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 3.02 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) 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) 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
Corporation to deliver the cash value of Purchase Contract Property or (ii)
obligate the Holders thereof to 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.
(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 or the Corporation, as the
case may be, to deliver the cash value of Purchase Contract Property on any
Accelerated Settlement Date (provided that such Accelerated Settlement Date may
not be prior to the Initial Acceleration Date), 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 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 Settlement Amount. (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),
the Settlement Amount payable in respect of such Purchase Contract shall be
payable at the Corporate Trust Office of the Agent:
(i) at the option of the Holder of the Unit of which such
Purchase Contract is part, after receipt by the Agent of written
notice from the Holder not less than 10 days nor more than 20 days
prior to the applicable Settlement Date 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, of the Settlement Amount (a "Cash Settlement"), to the
Agent, in the case of the Purchase Contract in immediately available
funds payable to or upon the order of the Corporation; or
(ii) by application of any payment received by the Agent (whether
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 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 as
provided above that it will make a Cash Settlement with respect to the
settlement of a Purchase Contract, 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 Settlement Amount
paid pursuant to a Debt Security Settlement.
(b) Unless otherwise specified pursuant to Section 3.02, to be
effective, payment with respect to a Purchase Contract pursuant to a Cash
Settlement must be deposited with the Agent by 11:00 a.m., New York City time,
on the Business Day immediately preceding the Settlement Date and must be made
with respect to all (and not fewer than all) of the Purchase Contracts 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, (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 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, 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. 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 by a Holder not complying
with this Section 3.06 shall be returned by the Agent to such Holder.
(c) Unless a Holder of a Unit of any series has effected a Cash
Settlement in satisfaction of his obligations under any Purchase Contracts
constituting a part of such Unit that obligate the Holder, or represent the
Holder's right, to purchase Purchase Contract Property, 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 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 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.
(d) 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.
SECTION 3.07. Delivery of Settlement Amount. Delivery of the
Settlement Amount to the Holder or the Corporation, as the case may be, 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 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 [__]
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 [__] 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 [__] 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(c) 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, 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, 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 or Prepaid
Purchase Contracts, 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 and in the Units, except the
Trustee's and Agent's certificates of authentication or countersignature, shall
be taken as the statements of the Corporation, and none of the Trustee, 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 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, any Authenticating Agent, any Purchase Contract Registrar or any other
agent of the Corporation, the Trustee, 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
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 and the Trustee under the Indenture, 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 or Trustee
under the Indenture, 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:
[_______________________], as Agent,
as attorney-in-fact of the Holder
hereof
By [NAME OF AUTHENTICATING
AGENT], as Authenticating Agent
By:
---------------------------------------
[Authorized Officer]
Title:
Countersigned:
[_______________________], 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 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 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 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 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. 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
and/or under the Indenture shall be bound thereby.
SECTION 7.05. Reference to Supplemental Agreements. Unit Certificates,
Debt Securities, 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, 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 and the Agent, as applicable, in exchange for
Outstanding Unit Certificates, Debt Securities, 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) either in
its own name or in the name of Comcast Cable Communications, Inc. any or all of
the Unit Certificates, Debt Securities, 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 and
the Agent shall authenticate, countersign, execute and deliver, as applicable,
any Unit Certificates, Debt Securities, Prepaid Purchase Contracts and Purchase
Contracts that previously shall have been signed and delivered by the officers
of the Corporation to the Trustee and the Agent for authentication, execution
and countersignature, and any Unit Certificate, Debt Securities, Prepaid
Purchase Contracts and Purchase Contracts evidencing Units which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee
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, 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 the Settlement
Amount to the Agent and (ii) a Holder of a Unit Certificate fails to present
and surrender the appropriate Unit Certificate to the Agent such Settlement
Amount (and, if an effective Cash Settlement with respect to the obligations
under such Purchase Contracts 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 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, 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 [TO COME] 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 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 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 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)(vi), 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 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 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 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 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 [_________] 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 [________] 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
and the Trustee 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.
COMCAST CABLE COMMUNICATIONS,
INC.
By:
--------------------------------------
Name:
Title:
[------------------------------],
as Agent
By:
--------------------------------------
Name:
Title:
[------------------------------],
as Collateral Agent
By:
--------------------------------------
Name:
Title:
[------------------------------],
as Trustee and Paying Agent under the
Indenture
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 Comcast Cable
Communications, Inc. 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.]
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]
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, [__________], as Agent, as
Collateral Agent, as Trustee and Paying Agent under the Indenture 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 [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
respect of such constituent parts may be transferred and exchanged only as a
Unit.][5]
--------
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
5 Insert in non-separable Units.
[Designated Security Register:][6]
[Other Terms of Units:]
[INSERT APPROPRIATE DEBT SECURITY CERTIFICATE]
-----------------------------------------------------------------------------
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.
-----------------------------------------------------------------------------
--------
6 Insert in non-separable Registered Units.
[FORM OF PURCHASE CONTRACT
CONTEMPLATING SALE BY
COMCAST CABLE COMMUNICATIONS, INC.]
COMCAST CABLE COMMUNICATIONS, INC.
[Insert Designation of Purchase Contracts]
PURCHASE CONTRACT(S)
Purchase Contracts between
Comcast Cable Communications, Inc.
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: Cash
Currency of Settlement Payment:
Authorized Number of Purchase
Contracts:
Contract Fees:
Corporation Acceleration:
Holders' Acceleration:
Redemption Provisions:
Other Terms:
==========================================================
Subject to the conditions hereinafter set forth, the Holder agrees to
purchase and Comcast Cable Communications, Inc., 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 Cash 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 [____], 1998 (the "Unit Agreement"), among the Corporation,[_______], as
Agent (the "Agent") and as Collateral Agent thereunder, 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 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 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 and the
Collateral Agent, and any agent of the Corporation, the Trustee, the 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 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.
--------
7 Insert in Registered Units consisting of Non-Separable Debt Securities and
Purchase Contracts.
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.
IN WITNESS WHEREOF, Comcast Cable Communications, Inc. has
caused this instrument to be duly executed.
COMCAST CABLE
COMMUNICATIONS, INC.
By:
---------------------------------
Name:
Title:
[---------------],
as Agent, and as attorney-in-fact of the
Holder hereof
By:
------------------------------------
Authorized Officer
Countersigned:
[---------------],
as Agent
By:
------------------------------------
Authorized Officer
[FORM OF PURCHASE CONTRACT
CONTEMPLATING PURCHASE BY
COMCAST CABLE COMMUNICATIONS, INC.]
COMCAST CABLE COMMUNICATIONS, INC.
PURCHASE CONTRACT(S)
Purchase Contracts between
Comcast Cable Communications, Inc.
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: Cash
Method of Computing Settlement
Amount:
Currency of Settlement Payment:
Authorized Number of Purchase
Contracts:
Aggregate Purchase Price:
Contract Fees:
Corporation Acceleration:
Holders' Acceleration:
Redemption Provisions:
Other Terms:
==========================================================
Subject to the conditions hereinafter set forth, the Holder agrees to
sell and Comcast Cable Communications, Inc., 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.
As indicated under Method of Settlement above, the parties'
obligations under the Purchase Contracts evidenced hereby are to 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 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 [_____], 1998 (the
"Unit Agreement"), among the Corporation, [_________], as Agent (the "Agent")
and as Collateral Agent thereunder, 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
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.
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 and the
Collateral Agent, and any agent of the Corporation, the Agent, the Trustee 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 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.
--------
8 Insert in Registered Units consisting of Debt Securities and Purchase
Contracts.
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.
IN WITNESS WHEREOF, Comcast Cable Communications, Inc. has
caused this instrument to be duly executed.
COMCAST CABLE
COMMUNICATIONS, INC.
By:
---------------------------------
Name:
Title:
[_______________],
as Agent, and as attorney-in-fact of the
Holder hereof
By:
------------------------------------
Authorized Officer
Countersigned:
[_______________],
as Agent
By:
------------------------------------
Authorized Officer
[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.
[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 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.]
[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 Number Reduced by Number of Units Outstanding
Separation of the Component Settlement of Purchase Following any such Notation Made by or on
Date of Reduction Parts of this Unit Contracts Reduction Behalf of Paying Agent
------------------ ----------------------------- ----------------------- ---------------------------- ----------------------
================== ============================= ======================= ============================ ======================
[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.]