Exhibit 4-qq
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XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.,
THE CHASE MANHATTAN BANK,
as Unit Agent, as Collateral Agent, as
Trustee and Paying Agent under the
Indenture referred to herein, and as
Warrant Agent under the Warrant
Agreement referred to herein
AND
THE HOLDERS FROM TIME TO
TIME OF THE UNITS DESCRIBED
HEREIN
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UNIT AGREEMENT
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Dated as of June 2, 1997
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TABLE OF CONTENTS
Page
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.1. Definitions.................................................. 2
ARTICLE 2
Units
Section 2.1. Forms Generally.............................................. 11
Section 2.2. Form of Certificate of Authentication and Countersignature... 12
Section 2.3. Amount Unlimited; Issuable in Series......................... 12
Section 2.4. Denominations................................................ 14
Section 2.5. Rights and Obligations Evidenced by the Units................ 14
Section 2.6. Execution, Authentication, Delivery and Dating............... 14
Section 2.7. Temporary Unit Certificates.................................. 15
Section 2.8. Registration of Transfer and Exchange; Global Units.......... 16
Section 2.9. Mutilated, Destroyed, Lost and Stolen Unit Certificates...... 19
Section 2.10. Persons Deemed Owners....................................... 21
Section 2.11. Cancellation................................................ 21
Section 2.12. Exchange of Global Units and Definitive Units............... 22
ARTICLE 3
The Purchase Contracts; Settlement of Warrants
Section 3.1. Form and Execution of Purchase Contracts; Temporary Purchase
Contracts.................................................... 23
Section 3.2. Number Unlimited Issuable in Series.......................... 24
Section 3.3. Countersignature, Execution on Behalf of Holder and Delivery
of Purchase Contracts........................................ 26
Section 3.4. Further Provisions Relating to Issuance of Purchase
Contracts.................................................... 29
Section 3.5. Purchase of Purchase Contract Property; Optional
Acceleration of Purchase Obligations; Authorization of Agent
by Holder; Transferees Bound................................. 29
Section 3.6. Payment of Purchase Price.................................... 31
Section 3.7. Delivery of Purchase Contract Property or Other Amounts...... 34
Section 3.8. Charges and Taxes............................................ 35
ARTICLE 4
Remedies
Section 4.1. Acceleration of Obligations.................................. 35
Section 4.2. Unconditional Rights under Purchase Contracts; Limitation on
Proceedings by Holders....................................... 36
Section 4.3. Restoration of Rights and Remedies........................... 37
Section 4.4. Rights and Remedies Cumulative............................... 37
Section 4.5. Delay or Omission Not Waiver................................. 37
Section 4.6. Waiver of Past Defaults...................................... 37
Section 4.7. Undertaking for Costs........................................ 38
Section 4.8. Waiver of Stay or Extension Laws............................. 38
Section 4.9. Agent May File Proofs of Claims.............................. 39
Section 4.10. Suits for Enforcement....................................... 39
Section 4.11. Control by Holders.......................................... 40
ARTICLE 5
Security Interests and Collateral Agent
Section 5.1. Granting of Security Interests; Rights and Remedies of
Collateral Agent; Perfection................................. 40
Section 5.2. Distribution of Principal and Interest; Release of
Collateral................................................... 42
Section 5.3. Certain Duties and Responsibilities of the Collateral
Agent.................................................... 42
Section 5.4. Knowledge of the Collateral Agent............................ 43
Section 5.5. Certain Rights of Collateral Agent........................... 44
Section 5.6. Compensation and Reimbursements.............................. 44
Section 5.7. Corporate Collateral Agent Required Eligibility.............. 45
Section 5.8. Resignation and Removal; Appointment of Successor............ 45
Section 5.9. Acceptance of Appointment by Successor....................... 46
Section 5.10. Merger, Conversion, Consolidation or Succession to
Business..................................................... 47
Section 5.11. Money Held in Trust.......................................... 47
ARTICLE 6
The Agent
Section 6.1. Certain Duties and Responsibilities.......................... 48
Section 6.2. Notice of Default............................................ 49
Section 6.3. Certain Rights of Agent...................................... 49
Section 6.4. Not Responsible for Recitals or Issuance of Units............ 50
Section 6.5. May Hold Units............................................... 50
Section 6.6. Money Held in Trust.......................................... 51
Section 6.7. Compensation and Reimbursement............................... 51
Section 6.8. Corporate Agent Required: Eligibility........................ 52
Section 6.9. Resignation and Removal: Appointment of Successor............ 52
Section 6.10. Acceptance of Appointment by Successor...................... 53
Section 6.11. Merger, Conversion, Consolidation or Succession to
Business.................................................... 54
Section 6.12. Appointment of Authenticating Agent......................... 54
Section 6.13. Corporation to Furnish Agent Names and Addresses of
Holders..................................................... 57
Section 6.14. Preservation of Information; Communications to Holders...... 57
Section 6.15. No Obligation of Holder..................................... 58
Section 6.16. Tax Compliance.............................................. 58
ARTICLE 7
Supplemental Agreements
Section 7.1. Supplemental Agreements Without Consent of Holders........... 59
Section 7.2. Supplemental Agreements with Consent of Holders.............. 60
Section 7.3. Execution of Supplemental Agreements......................... 61
Section 7.4. Effect of Supplemental Agreements............................ 62
Section 7.5. Reference to Supplemental Agreements......................... 62
ARTICLE 8
Consolidation, Merger, Sale or Conveyance
Section 8.1. Covenant Not to Merge, Consolidate, Sell or Convey Property
Except Under Certain Conditions.............................. 62
Section 8.2. Rights and Duties of Successor Corporation................... 63
Section 8.3. Opinion of Counsel to Agent.................................. 63
ARTICLE 9
Covenants
Section 9.1. Performance under Purchase Contracts......................... 64
Section 9.2. Maintenance of Office or Agency.............................. 64
Section 9.3. Money for Payments to Be Held in Trust....................... 65
Section 9.4. Statements of Officers of the Corporation as to Default...... 66
Section 9.5. Negative Pledge.............................................. 66
Section 9.6. Luxembourg Publications...................................... 67
ARTICLE 10
Redemptions
Section 10.1. Optional Redemption of Purchase Contracts; Redemption Upon
Redemption of Debt Securities............................... 67
Section 10.2. Notice of Redemption; Partial Redemptions................... 68
Section 10.3. Payment of Purchase Contracts Called for Redemption......... 69
Section 10.4. Exclusion of Certain Purchase Contracts from Eligibility
for Selection for Redemption................................ 70
ARTICLE 11
Miscellaneous Provisions
Section 11.1. Incorporators, Stockholders, Officers and Directors of the
Corporation Immune from Liability........................... 70
Section 11.2. Compliance Certificates and Opinions........................ 70
Section 11.3. Form of Documents Delivered to Agent or Collateral Agent.... 71
Section 11.4. Acts of Holders............................................. 72
Section 11.5. Notices, Etc................................................ 73
Section 11.6. Notices to Holders; Waiver.................................. 73
Section 11.7. Effect of Headings and Table of Contents.................... 74
Section 11.8. Successors and Assigns...................................... 74
Section 11.9. Separability Clause......................................... 74
Section 11.10. Benefits of Agreement....................................... 74
Section 11.11. Governing Law............................................... 74
Section 11.12. Legal Holidays.............................................. 75
Section 11.13. Counterparts................................................ 75
Section 11.14. Appointment of Certain Agents............................... 75
Section 11.15. Inspection of Agreement..................................... 75
UNIT AGREEMENT, dated as of June 2, 1997, by and among XXXXXX
XXXXXXX, XXXX XXXXXX, DISCOVER & CO., a Delaware corporation (the
"Corporation"), THE CHASE MANHATTAN BANK, a New York banking corporation
("Chase"), acting solely as unit agent and collateral agent under this
Agreement (in its capacity as unit agent, the "Agent", and, in its capacity as
collateral agent, the "Collateral Agent"), except to the extent that this
Agreement specifically states that the Agent is acting in another capacity,
Chase, as trustee and paying agent under the Indenture described below (in its
capacity as trustee under the Indenture, the "Trustee" and, in its capacity as
paying agent under the Indenture, the "Paying Agent"), and Chase, as Warrant
Agent under the Warrant Agreement described below (in its capacity as Warrant
Agent under the Warrant Agreement, the "Warrant Agent"), and the holders from
time to time of the Units described herein.
WHEREAS, Xxxxxx Xxxxxxx Group Inc. (as predecessor of the
Corporation) has entered into a Senior Indenture dated as of April 15, 1989, as
supplemented by a First Supplemental Senior Indenture dated as of May 15, 1991
and a Second Supplemental Senior Indenture dated as of April 15, 1996 between
Xxxxxx Xxxxxxx Group Inc. and The Chase Manhattan Bank (formerly known as
Chemical Bank), as Trustee as further supplemented by a Third Supplemental
Indenture dated as of May 30, 1997 between the Corporation and the Trustee (as
so supplemented, the "Senior Indenture");
WHEREAS, the Corporation has duly authorized the issuance, from
time to time, pursuant to the Indenture of senior debt securities ("Debt
Securities");
WHEREAS, the Corporation has entered into a Universal Warrant
Agreement (the "Warrant Agreement") dated as of June 2, 1997 between the
Corporation and Chase, as Warrant Agent;
WHEREAS, the Corporation has duly authorized the issuance, from
time to time, pursuant to the Warrant Agreement of Universal Warrants
("Warrants") to purchase or sell (i) securities of an entity unaffiliated with
the Corporation, a basket of such securities, an index or indices of such
securities or any combination of the above, (ii) currencies or 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, of Purchase Contracts ("Purchase Contracts") 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, Warrants or Debt Securities, or any combination thereof;
WHEREAS, the parties hereto wish to secure the performance by
the holders of Units consisting of Debt Securities and Purchase Contracts of
their obligations under such Purchase Contracts and the observance and
performance of the covenants and agreements contained herein and in such
Purchase Contracts;
NOW, THEREFORE, in consideration of the premises and the
purchases of the Units by the holders thereof, the Corporation, the Agent, the
Warrant Agent, the Collateral Agent and the Trustee and Paying Agent mutually
covenant and agree as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.1. 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 3.2.
"Acceleration Notice", has the meaning specified in Section
3.5(b).
"Act", with respect to any Holder, has the meaning specified in
Section 11.4.
"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
3.6(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 5.1(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 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
"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
3.6(a)(ii).
"Default" means an Event of Default under the Indenture or a
Purchase Contract Default.
"Definitive Securities" means any Security in definitive form.
"Definitive Unit" means any Unit comprised of Definitive
Securities.
"Depositary" means, with respect to Registered Units, DTC, or
any successor, or, with respect to any Unregistered Units, a common depositary
for Xxxxxx Guaranty Trust Company of New York, Brussels office, as operator of
the Euroclear System, or Cedel Bank, societe anonyme, or any other relevant
depositary named in an Issuer Order, in each case, as the Holder of any Global
Units.
"DTC" means The Depository Trust Company or its nominee.
"Event of Default", with respect to the Debt Securities, has the
meaning set forth in the Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Global Debt Security" means a global Debt Security in bearer or
registered form originally issued as part of a Global Unit of any series.
"Global Prepaid Purchase Contract" means a global Prepaid
Purchase Contract in bearer or registered form originally issued as part of a
Global Unit of any series.
"Global Purchase Contract" means a global Purchase Contract in
bearer or registered form originally issued as part of a Global Unit of any
series.
"Global Security" means any of a Global Debt Security, Global
Warrant, Global Purchase Contract or Global Prepaid Purchase Contract.
"Global Unit" means any Unit that comprises one or more Global
Securities and is represented by a global Unit Certificate in bearer or
registered form.
"Global Warrant" means a global Warrant in bearer or registered
form originally issued as part of a Global Unit of any series.
"Holder" means (i) in the case of any Registered Security or
Registered Unit, the Person in whose name such Registered Security or the
Registered Securities constituting a part of such Registered Unit are
registered on the relevant Security Register and (ii) in the case of any
Unregistered Security or Unregistered Unit, the bearer of such Security or
Unit, provided that, in the case of (i) above, so long as the Registered
Securities constituting part of such Units are not separable, "Holder" shall
mean the Person in whose name a Registered Security constituting a part of
such Unit is registered on the Security Register specified pursuant to Section
2.3.
"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 3.2 on which such Purchase Contracts or
Prepaid Purchase Contracts may be accelerated pursuant to Section 3.5 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 Chief Financial Officer,
Treasurer or 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 3.2 that may
be subject to acceleration pursuant to Section 3.5.
"Minimum Remaining Amount" means the minimum number of Purchase
Contracts of any series as specified pursuant to Section 3.2 that must remain
Outstanding immediately following any acceleration pursuant to Section 3.5.
"Officer's Certificate" means a certificate signed by the Chief
Financial Officer, Treasurer or any Assistant Treasurer of the Corporation or
any other person authorized by the Board of Directors and delivered to the
Agent or the Collateral Agent, as the case may be.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Corporation and who shall
otherwise be satisfactory to the Agent or the Collateral Agent, as the case
may be.
"Optional Definitive Unit Request" has the meaning set forth in
Section 2.12.
"Outstanding", with respect to any Unit, Debt Security, Warrant,
Purchase Contract or Prepaid Purchase Contract means, as of the date of
determination, all Units, Debt Securities, Warrants, Purchase Contracts or
Prepaid Purchase Contracts, as the case may be, evidenced by Units theretofore
authenticated, countersigned, executed and delivered under this Agreement,
except:
(A) Units, Debt Securities, Warrants, Purchase Contracts or
Prepaid Purchase Contracts theretofore deemed cancelled, cancelled by the
Agent, Warrant Agent or Trustee, as the case may be, or delivered to the
Agent, Warrant Agent or Trustee, as the case may be, for cancellation,
in each case pursuant to the provisions of this Agreement, the Warrant
Agreement or the Indenture;
(B) Closed Purchase Contracts; and
(C) Units, Debt Securities, Warrants, Purchase Contracts or
Prepaid Purchase Contracts evidenced by Unit Certificates in exchange for
or in lieu of which other Unit Certificates have been authenticated,
countersigned, executed and delivered pursuant to this Agreement,
other than any such Units, Debt Securities, Warrants, Purchase
Contracts or Prepaid Purchase Contracts, as the case may be, evidenced
by a Unit Certificate in respect of which there shall have been
presented to the Agent proof satisfactory to it that such Unit
Certificate is held by a bona fide purchaser in whose hands the Units,
Debt Securities, Warrants, Purchase Contracts or Prepaid Purchase
Contracts, as the case may be, evidenced by such Unit Certificate are
valid obligations of the Corporation;
provided, however, that in determining whether the Holders of the requisite
number of Outstanding Units, Debt Securities, Warrants, Purchase Contracts
and Prepaid Purchase Contracts, as the case may be, have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Units,
Debt Securities, Warrants, Purchase Contracts and Prepaid Purchase
Contracts owned by the Corporation or any Affiliate of the Corporation
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Agent shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Units, Debt Securities, Warrants, Purchase Contracts and Prepaid Purchase
Contracts which the Agent knows to be so owned shall be so disregarded.
Units, Debt Securities, Warrants, Purchase Contracts and Prepaid Purchase
Contracts that are so owned but that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of
the Agent the pledgee's right so to act with respect to such Units, Debt
Securities, Warrants, Purchase Contracts and Prepaid Purchase Contracts and
that the pledgee is not the Corporation or any Affiliate of the
Corporation.
"Paying Agent" means any Person authorized by the Corporation to
pay the Settlement Amount, redemption price or any other sums payable by the
Corporation with respect to any Purchase Contracts; provided that such Person
shall be a bank or trust company organized and in good standing under the laws
of the United States or any state in the United States, having (together with
its parent) capital, surplus and undivided profits aggregating at least
$50,000,000 or any foreign branch or office of such a bank or trust company,
and, subject to the foregoing, may be an Affiliate of the Corporation.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Pledged Items" means, as of any date, any Debt Securities
constituting a part of the Units of any series or any and all other securities,
instruments or other property as may be specified pursuant to Section 3.2.
"Prepaid Purchase Contracts" has the meaning stated in the sixth
recital in this Agreement and more particularly means any Prepaid Purchase
Contracts originally issued as part of a Unit of any series.
"Purchase Contract Default" with respect to Purchase Contracts
of any series means the occurrence of any of the following events: (i) failure
of the Corporation to deliver the Purchase Contract Property or the cash value
thereof for such Purchase Contracts against tender of payment therefor on any
Settlement Date, in the case of Purchase Contracts that obligate the
Corporation to sell the Purchase Contract Property, (ii) failure of the
Corporation to pay the Settlement Amount for such Purchase Contracts when the
same becomes due and payable, in the case of Purchase Contracts that obligate
the Corporation to purchase the Purchase Contract Property, (iii) failure on
the part of the Corporation duly to observe or perform any other of the
covenants or agreements on its part in such Purchase Contracts or in this
Agreement with respect to such Purchase Contracts and continuance of such
failure for a period of 60 days after the date on which written notice of such
failure, requiring the Corporation to remedy the same, shall have been given
to the Corporation and the Agent by Holders of at least 25% of the affected
Purchase Contracts at the time Outstanding, (iv) a Bankruptcy Event or (v) any
other Purchase Contract Default provided in any supplemental agreement under
which such series of Purchase Contracts is issued or in the form of such
Purchase Contracts.
"Purchase Contract Property" with respect to a Purchase
Contract of any series has the meaning specified pursuant to Section 3.2.
"Purchase Contract Register" and "Purchase Contract Registrar"
have the respective meanings specified in Section 2.8.
"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 3.2.
"Registered Debt Security" means any Debt Security or Prepaid
Purchase Contract registered on the Debt Security Register.
"Registered Purchase Contract" means any Purchase Contract
registered on the Purchase Contract Register.
"Registered Security" means any of a Registered Debt Security,
Registered Warrant or Registered Purchase Contract.
"Registered Unit" means any Unit consisting of Registered
Securities.
"Registered Warrant" means any Warrant registered on the Warrant
Register.
"Regular Record Date" has the meaning specified pursuant to
Section 2.3.
"Responsible Officer", with respect to the Agent or Collateral
Agent, means the chairman or vice-chairman of the board of directors, the
chairman or vice-chairman of the executive committee of the board of
directors, the president, any vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any senior trust officer, any trust officer or assistant trust
officer, the controller and any assistant controller or any other officer of
the Agent or Collateral Agent customarily performing functions similar to
those performed by any of the above-designated officers and also means, with
respect to a particular corporate trust or agency matter, any other officer to
whom such matter is referred because of his knowledge and familiarity with the
particular subject.
"Security" means any of a Debt Security, Warrant, Purchase
Contract or Prepaid Purchase Contract.
"Security Register" means any of the Debt Security Register,
Purchase Contract Register or Warrant Register.
"Settlement Amount" of any Purchase Contract that obligates the
Corporation to purchase, and the Holder to sell, the Purchase Contract
Property has the meaning specified pursuant to Section 3.2.
"Settlement Date" means the Stated Settlement Date and any
Accelerated Settlement Date.
"SRO" has the meaning specified in Section 2.1.
"Stated Settlement Date" of any Purchase Contract of any series
has the meaning specified pursuant to Section 3.2.
"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 2.3.
"Unit Certificate" means a certificate evidencing the rights and
obligations of the Corporation and a Holder with respect to the number of
Units specified on such certificate.
"Unregistered Security" means any Security other than a
Registered Security.
"Unregistered Unit" means any Unit other than a Registered Unit.
"Unsettled Purchase Contract" means any Purchase Contract that
has not been redeemed or with respect to which settlement has not occurred
pursuant to Article Four.
"Warrant Agreement" has the meaning stated in the third recital
of this Agreement.
"Warrant Property" has the meaning specified in the Warrant
Agreement.
"Warrant Register" with respect to any Warrants constituting a
part of the Units of any series means the security register of the Corporation
maintained by the Warrant Agent pursuant to the Warrant Agreement.
"Warrants" has the meaning stated in the fourth recital of this
Agreement and more particularly means any Warrants originally issued as part
of a Unit of any series.
ARTICLE 2
Units
Section 2.1. 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 2.2. Form of Certificate of Authentication and
Countersignature. The form of the Trustee's certificate of authentication of
any Debt Securities or Prepaid Purchase Contracts, the form of any Warrant
Agent's countersignature of any Warrants and the form of the Agent's execution
on behalf of the Holder and countersignature of any Purchase Contracts, each
constituting a part of the Units of any series, shall be substantially in such
form as set forth in the Indenture, the Warrant Agreement or this Agreement,
as applicable.
Section 2.3. 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 2.7, 2.8, 2.9 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 3.2;
(vi) whether the Units of the series will be issuable as
Registered Units (and if so, whether such Units will be issuable in
global form) or Unregistered Units (and if so, whether such Units will
be issuable in global form), or any combination of the foregoing, any
restrictions applicable to the offer, sale or delivery of Unregistered
Securities and, if other than as provided in Section 2.8, the terms
upon which Unregistered Units of any series may be exchanged for
Registered Units of such series and vice versa;
(vii) in the case of Units issued as Registered Units
consisting of Registered Securities that may not be separated from the
other Registered Securities constituting a part of such Units, the
designation of the Security Register to be used to determine the
Holder of such Units;
(viii) if the Units of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Unit of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(ix) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with respect
to the Units of such series;
(x) any other events of default or covenants with respect to
the Units of such series; and
(xi) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Agreement).
All Units of any one series shall be substantially identical,
except as may otherwise be provided by or pursuant to the Issuer Order or
procedures referred to above. All Units of any one series need not be issued
at the same time and may be issued from time to time, consistent with the
terms of this Agreement, if so provided by or pursuant to such Board
Resolution or such Issuer Order.
Section 2.4. Denominations. Units of any series shall be
issuable only in denominations of a single Unit and any integral multiple
thereof.
Section 2.5. 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, (b) the number of Warrants, if
any, specified on the face of a Unit Certificate representing Definitive Units
or in Schedule A attached to any Unit Certificate representing Global Units
and (c) the number of Prepaid Purchase Contracts, if any, specified on the
face of a Unit Certificate representing Definitive Units or in Schedule A
attached to any Unit Certificate representing Global Units and 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 2.6. Execution, Authentication, Delivery and Dating.
Upon the execution and delivery of this Agreement, and at any time and from
time to time thereafter, the Corporation may deliver, subject to any
limitation on the aggregate principal amount of Debt Securities, if any, or
the number of Warrants, Purchase Contracts or Prepaid Purchase Contracts, if
any, represented thereby, an unlimited number of Unit Certificates (including
the Securities executed by the Corporation constituting the Units evidenced by
such Unit Certificates) to the Trustee, Warrant Agent and/or the Agent for
authentication, countersignature or execution, as the case may be, of the
Securities comprised by such Units, together with its Issuer Orders for
authentication, countersignature or execution of such Securities, and the
Trustee in accordance with the Indenture and the Issuer Order of the
Corporation shall authenticate the Debt Securities and Prepaid Purchase
Contracts, if any, constituting a part of the Units evidenced by such Unit
Certificates, the Warrant Agent in accordance with the Warrant Agreement and
the Issuer Order of the Corporation shall countersign the Warrants, if any,
constituting a part of the Units evidenced by such Unit Certificates and the
Agent in accordance with this Agreement and the Issuer Order of the
Corporation shall countersign and execute on behalf of the Holders thereof the
Purchase Contracts, if any, constituting a part of the Units evidenced by such
Unit Certificates, and each shall deliver such Unit Certificates upon the
order of the Corporation.
Any Debt Securities or Prepaid Purchase Contracts constituting
a part of the Units of any series shall be executed on behalf of the
Corporation in accordance with the terms of the Indenture. Any Warrants
constituting a part of the Units of any series shall be executed on behalf of
the Corporation in accordance with the terms of the Warrant Agreement. Any
Purchase Contracts constituting a part of the Units shall be executed on
behalf of the Corporation in accordance with Section 3.1.
Section 2.7. Temporary Unit Certificates. Pending the
preparation of Unit Certificates for any series, the Corporation may execute
and deliver to the Trustee, the Warrant Agent and/or the Agent, as
appropriate, and the Trustee, the Warrant Agent and/or the Agent, as
appropriate, shall authenticate, countersign, execute on behalf of the Holder
and deliver, as appropriate, in lieu of such Unit Certificates, temporary Unit
Certificates for such series. Temporary Unit Certificates shall be in
substantially the form of the Unit Certificates of such series, but with such
omissions, insertions and variations as may be appropriate for temporary Unit
Certificates, all as may be determined by the Corporation with the concurrence
of the Trustee, Warrant Agent and/or Agent, as appropriate, as evidenced by
the execution and authentication and/or countersignature of the Securities
constituting a part of the Units evidenced thereby, as applicable.
If temporary Unit Certificates for any series are issued, the
Corporation will cause definitive Unit Certificates for such series to be
prepared without unreasonable delay. After the preparation of such definitive
Unit Certificates, the temporary Unit Certificates shall be exchangeable
therefor upon surrender of temporary Registered Units of such series at the
Corporate Trust Office, at the expense of the Corporation and without charge
to any Holder and, in the case of Unregistered Units, at any agency maintained
for such purpose as specified pursuant to Section 2.3. Upon surrender for
cancellation of any one or more temporary Unit Certificates, the Corporation
shall execute and deliver to the Trustee, the Warrant Agent and/or the Agent,
and the Trustee, the Warrant Agent and/or the Agent shall authenticate,
countersign, execute on behalf of the Holder and deliver, as appropriate, in
exchange therefor definitive Unit Certificates of the same series of like
tenor, of authorized denominations and evidencing a like number of Units as
the temporary Unit Certificate or Certificates so surrendered. Until so
exchanged, the temporary Unit Certificates of any series shall in all respects
evidence the same benefits and the same obligations under any Debt Securities,
Prepaid Purchase Contracts, Warrants and Purchase Contracts constituting parts
of such Units, the Indenture, the Warrant Agreement and this Agreement as
definitive Unit Certificates of such series, unless otherwise specified
pursuant to Section 2.3.
Section 2.8. Registration of Transfer and Exchange; Global
Units. The Agent shall keep at its Corporate Trust Office for each series of
Registered Units a register (the register maintained in such office being
herein referred to as the "Purchase Contract Register") in which, subject to
such reasonable regulations as it may prescribe, the Agent shall provide for
the registration of Registered Purchase Contracts, if any, constituting a part
of such series and of transfers of such Purchase Contracts (the Agent, in such
capacity, the "Purchase Contract Registrar").
At the option of the Holder thereof, Registered Units of any
series (other than a global Registered Unit, except as set forth below) may be
transferred or exchanged for a Registered Unit or Registered Units of such
series having authorized denominations evidencing the number of Units
transferred or exchanged, upon surrender of such Registered Units to be so
transferred or exchanged at the Corporate Trust Office of the Agent upon
payment, if the Corporation shall so require, of the charges hereinafter
provided. If the Units of any series are issued in both registered and
unregistered form, except as otherwise specified pursuant to Section 2.3, at
the option of the Holder thereof, Unregistered Units of such series may be
exchanged for Registered Units of such series having authorized denominations
and evidencing the number of Units transferred or exchanged, upon surrender
of such Unregistered Units to be so transferred or exchanged at the Corporate
Trust Office of the Agent and upon payment, if the Corporation shall so
require, of the charges hereinafter provided. At the option of the Holder
thereof, if Unregistered Units of any series are issued in more than one
authorized denomination, except as otherwise specified pursuant to Section
2.3, such Unregistered Units may be exchanged for Unregistered Units of such
series having authorized denominations evidencing the number of Units
exchanged, upon surrender of such Unregistered Units to be so exchanged at the
Corporate Trust Office of the Agent or as specified pursuant to Section 2.3,
and upon payment, if the Corporation shall so require, of the charges
hereinafter provided. Unless otherwise specified pursuant to Section 2.3,
Registered Units of any series may not be exchanged for Unregistered Units of
such series. Whenever any Units are so surrendered for transfer or exchange,
the Corporation shall execute, and the Trustee, Warrant Agent and/or the
Agent, as appropriate, shall authenticate, countersign or execute, as the case
may be, and deliver the Units which the Holder making the transfer or exchange
is entitled to receive. All Units (including the Securities constituting part
of such Units) surrendered upon any exchange or transfer provided for in this
Agreement shall be promptly cancelled and disposed of by the Agent and the
Agent will deliver a certificate of disposition thereof to the Corporation and
to the Trustee and the Warrant Agent, as applicable.
Unregistered Units shall be transferable by delivery.
Subject to Section 2.12, if the Corporation shall establish
pursuant to Section 2.3 that the Units of a series are to be evidenced by one
or more Global Units, then the Corporation shall execute and the Agent, Warrant
Agent and Trustee shall, in accordance with this Section and Section 206,
countersign, authenticate and execute, as appropriate, and deliver one or more
global Unit Certificates that (i) shall evidence all or a portion of the Units
of such series issued in such form and not yet cancelled, (ii) in the case of
Registered Units, shall be registered in the name of the Depositary for such
Units or the nominee of such Depositary, (iii) shall be delivered by the Agent
to the Depositary for such Units or pursuant to such Depositary's instructions
and (iv) in the case of Registered Units, shall bear a legend substantially to
the following effect: "Unless and until it is exchanged in whole or in part for
Units in definitive registered form, this Unit Certificate may not be
transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary." Whenever
Global Units of any series are exchanged for Definitive Units of such series or
whenever Definitive Units of any series are exchanged for Global Units of such
series, the Agent shall cause, as applicable: (i) Schedule A of the Global
Debt Security, if any, to be endorsed to reflect any increase or decrease, as
the case may be, in the principal amount of Debt Securities, if any, that are
comprised by Global Units as a result of such exchange, (ii) Schedule A of the
Global Warrant, if any, to be endorsed to reflect any increase or decrease, as
the case may be, in the number of Warrants, if any, that are comprised by the
Global Units as a result of such exchange, (iii) Schedule A of the Global
Purchase Contract, if any, to be endorsed to reflect any increase or decrease,
as the case may be, in the number of Purchase Contracts, if any, that are
comprised by Global Units as a result of such exchange and (iv) Schedule A of
the Global Prepaid Purchase Contract, if any, to be endorsed to reflect any
increase or decrease, as the case may be, in the number of Prepaid Purchase
Contracts, if any, that are comprised by Global Units as a result of such
exchange, whereupon such number of Global Units shall be decreased or
increased for all purposes by the number so exchanged, as noted.
All Unit Certificates authenticated, countersigned and executed
upon any registration of transfer or exchange of a Unit Certificate shall
evidence the ownership of the principal amount of Debt Securities, if any,
specified on the face thereof, the number of Warrants, if any, specified on
the face thereof and the number of Prepaid Purchase Contracts, if any,
specified on the face thereof and the rights and obligations of the Holder and
the Corporation under the number of Purchase Contracts, if any, specified on
the face thereof and shall be entitled to the same benefits, and be subject to
the same obligations, under the Indenture, the Warrant Agreement and this
Agreement as the Units evidenced by the Unit Certificate surrendered upon such
registration of transfer or exchange.
Every Unit Certificate presented or surrendered for
registration of transfer or for exchange shall (if so required by the
Corporation or the Agent) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Corporation and the Agent,
duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any transfer or exchange of
a Unit, but the Corporation and the Agent may require payment from the Holder
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Units,
other than any exchanges pursuant to Section 2.9 not involving any transfer.
Notwithstanding the foregoing, and subject to Section 2.8 of the
Indenture, the Corporation shall not be obligated to execute and deliver to the
Trustee, the Warrant Agent or the Agent, and none of the Trustee, under the
terms of the Indenture, the Warrant Agent, under the terms of the Warrant
Agreement, or the Agent hereunder shall be obligated to authenticate,
countersign or execute on behalf of the Holder any Unit Certificate presented
or surrendered for registration of transfer or for exchange of any Debt
Securities, Prepaid Purchase Contracts, Warrants or Purchase Contracts
evidenced thereby or any Unit Certificate evidencing a Definitive Unit to be
issued in exchange for interests in Global Units or to reflect any increase or
decrease in a Global Unit, Global Debt Security, Global Warrant, Global
Purchase Contract or Global Prepaid Purchase Contract (i) during the period
beginning any time on or after the opening of business 15 days before the day
of mailing of a notice of redemption or of any other exercise of any right held
by the Corporation with respect to the Unit (or any Security constituting a
part of the Units of such series) and ending at the close of business on the
day of the giving of such notice, (ii) that evidences or would evidence any
such Unit or Security selected or called for redemption or with respect to
which such right has been exercised or (iii) at any given date, if such date
is on or after any date that is after the Settlement Date or the date of
redemption, as applicable, with respect to the Purchase Contracts, if any,
evidenced or to be evidenced by such Unit Certificate (or at any time on or
after the last exercise date with respect to any Warrant constituting a part
of such Unit), except with respect to any Registered Debt Securities or
portions thereof that remain or will remain Outstanding following such
Settlement Date or date of redemption (or such last exercise date) or (iv) at
any other date specified pursuant to Section 2.3.
Section 2.9. Mutilated, Destroyed, Lost and Stolen Unit
Certificates. If any mutilated Unit Certificate is surrendered to the Agent,
the Corporation shall execute and deliver to the Trustee, the Warrant Agent
and/or the Agent, as appropriate, and the Trustee, the Warrant Agent and/or
the Agent shall authenticate, countersign, execute on behalf of the Holder and
deliver, as appropriate, in exchange therefor new Securities comprised by
Units of the same series, of like tenor, and evidenced by a new Unit
Certificate evidencing the same number of Units and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Corporation and the Trustee,
the Warrant Agent and/or the Agent, as appropriate, (i) evidence to their
satisfaction of the destruction, loss or theft of any Unit Certificate and
(ii) such security or indemnity as may be required by them to hold each of
them and any agent of any of them harmless, then, in the absence of notice to
the Corporation and the Trustee, the Warrant Agent and/or the Agent, as
appropriate, that such Unit Certificate has been acquired by a bona fide
purchaser, the Corporation shall execute and deliver to the Trustee, the
Warrant Agent and/or the Agent, as appropriate, and the Trustee (in accordance
with the provisions of the Indenture), the Warrant Agent (in accordance with
the provisions of the Warrant Agreement) and/or the Agent (in accordance with
the provisions hereof) shall authenticate, countersign, execute on behalf of
the Holder and deliver to the Holder, as appropriate, in lieu of any such
destroyed, lost or stolen Unit Certificate, new Securities comprised by Units
of the same series, of like tenor, and evidenced by a new Unit Certificate
evidencing the same number of Units and bearing a number not contemporaneously
outstanding.
Unless otherwise specified pursuant to Section 2.3,
notwithstanding the foregoing, the Corporation shall not be obligated to
execute and deliver to the Trustee, the Warrant Agent or the Agent, and none
of the Trustee (under the Indenture), the Warrant Agent (under the Warrant
Agreement), or the Agent shall be obligated to authenticate, countersign or
execute on behalf of the Holder, or deliver to the Holder, a new Unit
Certificate (or any Security constituting a part of such Unit) (i) during the
period beginning any time on or after the opening of business 15 days before
the day of mailing of a notice of redemption or of any other exercise of any
right held by the Corporation with respect to the Unit (or any Security
constituting a part of such Unit) and ending at the close of business on the
day of the giving of such notice, (ii) that evidences any Unit or Purchase
Contracts selected or called for redemption or with respect to which such
right has been exercised, (iii) at any given date, if such date is on or after
the Settlement Date or date of redemption, as applicable, with respect to any
Purchase Contracts evidenced by such Unit Certificate (or at any time on or
after the last exercise date with respect to any Warrant constituting a part
of such Unit), except with respect to any Registered Debt Security or portion
thereof evidenced by such Unit Certificate that remains or will remain
Outstanding following such Settlement Date or date of redemption (or such last
exercise date) or (iv) at any other date specified pursuant to Section 2.3. In
lieu of delivery of a new Unit Certificate, upon satisfaction of the
applicable conditions specified in clauses (i) and (ii) of the preceding
paragraph, the Agent shall deliver or cause to be delivered on the applicable
Settlement Date, redemption date or exercise date (i) in respect of Purchase
Contracts, Warrants or Debt Securities constituting a part of the Units
evidenced by such Unit Certificate that are selected or called for redemption,
the redemption price of such Purchase Contracts, Warrants or Debt Securities
or (ii) in respect of Purchase Contracts or Warrants constituting a part of
the Units evidenced by such Unit Certificate with respect to which a Cash
Settlement or Debt Security Settlement (or any equivalent manner of
settlement) has taken place, (x) the Purchase Contract Property or Warrant
Property (or cash value thereof), purchase price, cash settlement value,
Settlement Amount or other amount, as the case may be, deliverable with
respect to such Purchase Contracts or Warrants (and, in the case of an
effective Cash Settlement (or any equivalent manner of settlement), the related
Debt Securities) or (y) if a Purchase Contract Default or any default under the
Warrant Agreement or Warrant has occurred by virtue of the Corporation's
having failed to deliver the Purchase Contract Property or Warrant Property
(or cash value thereof), purchase price, cash settlement value, Settlement
Amount or other amount, as the case may be, deliverable against tender by the
Agent of the purchase price, Purchase Contract Property (or the cash value
thereof) or other Settlement Amount, exercise price or other amount, as the
case may be, such purchase price, Purchase Contract Property (or cash value
thereof) or Settlement Amount or other amount, if any, received by the Agent
from the Holder in respect of the Settlement of such Purchase Contracts or
exercise of such Warrants or in respect of principal with respect to the
related Debt Securities received by the Agent.
Upon the issuance of any new Unit Certificate under this
Section, the Corporation and the Agent may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Agent) connected therewith.
Every new Unit Certificate executed pursuant to this Section in
lieu of any destroyed, lost or stolen Unit Certificate shall constitute an
original additional contractual obligation of the Corporation and of the
Holder (with respect to any Purchase Contracts constituting a part of the
Units evidenced thereby), whether or not the destroyed, lost or stolen Unit
Certificate (and the Securities evidenced thereby) shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Unit Certificates
delivered hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Unit
Certificates.
Section 2.10. Persons Deemed Owners. Prior to due presentment
of a Unit Certificate of any series for registration of transfer, the
Corporation, the Trustee, the Warrant Agent, the Collateral Agent and the
Agent, as appropriate, and any agent of the Corporation, the Trustee, the
Warrant Agent, the Collateral Agent or the Agent, as appropriate, may treat
the Person in whose name any Registered Security evidenced by such Unit
Certificate is registered and, with respect to any Unregistered Security
constituting a part of the Units evidenced by such Unit Certificate, the
bearer thereof, as the owner of the Units evidenced thereby for all purposes
whatsoever, whether or not payment with respect to any Security constituting a
part of the Units evidenced thereby shall be overdue and notwithstanding any
notice to the contrary. None of the Corporation, the Trustee, the Warrant
Agent, the Agent, the Collateral Agent or any agent of the Corporation, the
Trustee, the Warrant Agent, the Collateral Agent or the Agent shall be
affected by notice to the contrary.
Section 2.11. Cancellation. Subject to Section 3.7, all Unit
Certificates surrendered for payment, and all Unit Certificates surrendered for
redemption of any Debt Securities, Prepaid Purchase Contracts or Purchase
Contracts evidenced thereby, exercise of any Warrants evidenced thereby,
termination or settlement of any Purchase Contracts evidenced thereby,
delivery of Purchase Contract Property or registration of transfer or exchange
shall, if surrendered to any Person other than the Trustee, the Warrant Agent
or the Agent, as appropriate, be delivered to the Trustee, the Warrant Agent
and/or the Agent, as appropriate, and, if not already cancelled, any Debt
Securities, Prepaid Purchase Contracts, Warrants or Purchase Contracts
evidenced by such Units shall be promptly cancelled by the Trustee, the
Warrant Agent and/or the Agent, as appropriate. The Corporation may at any
time deliver to the Trustee, the Warrant Agent and/or the Agent, as
appropriate, for cancellation any Unit Certificates previously authenticated,
countersigned, executed and delivered hereunder, under the Warrant Agreement
and under the Indenture, which the Corporation may have acquired in any manner
whatsoever, and all Unit Certificates so delivered shall, upon Issuer Order of
the Corporation, be promptly cancelled by the Trustee, Warrant Agent and/or
the Agent, as appropriate. No Unit Certificates shall be authenticated,
countersigned and executed in lieu of or in exchange for any Unit Certificates
cancelled as provided in this Section, except as permitted by this Agreement.
All cancelled Unit Certificates held by the Agent shall be disposed of in
accordance with its customary procedures and a certificate of their
disposition shall be delivered by the Agent to the Corporation, unless by
Issuer Order the Corporation shall direct that cancelled Unit Certificates be
returned to it.
If the Corporation or any Affiliate of the Corporation shall
acquire any Unit Certificate, such acquisition shall not operate as a
cancellation of such Unit Certificate unless and until such Unit Certificate
is delivered to the Trustee, the Warrant Agent and/or the Agent, as
appropriate, for the purpose of cancellation.
Section 2.12. Exchange of Global Units and Definitive Units.
In the case of Registered Units, Holders of Global Units of any series shall
receive Definitive Units of such series in exchange for interests in such
Global Units if DTC notifies the Corporation that it is unwilling or unable to
continue as Depositary with respect to the Global Units of such series or if
at any time it ceases to be a clearing agency under the Exchange Act, and a
successor Depositary registered as a clearing agency under the Exchange Act is
not appointed by the Corporation within 90 days after receipt of such notice or
after it becomes aware that DTC has ceased to be such a clearing agency.
If so provided pursuant to Section 2.3, interests in such
Global Units may also be transferred or exchanged for Definitive Units upon
the request of the Depositary to the Trustee, the Warrant Agent and/or the
Agent, as appropriate, to authenticate, countersign and execute, as the case
may be, Unit Certificates representing Definitive Units (such request being
referred to herein as an "Optional Definitive Unit Request").
Definitive Units exchanged for interests in Global Units
pursuant to this Section 2.12 shall be denominated in the amounts and
registered in the name of such Person or Persons as the Depositary shall
instruct the Agent, the Warrant Agent and the Trustee, as appropriate.
If so specified pursuant to Section 2.3, Holders of Definitive
Units may transfer or exchange such Definitive Units for interests in Global
Units by depositing the Unit Certificates evidencing such Definitive Units
with the Agent and requesting the Agent, the Warrant Agent and the Trustee, as
appropriate, to effect such exchange. The Agent shall notify the Depositary of
any such exchange and, upon delivery to the Agent, the Warrant Agent and the
Trustee, as appropriate, of the Unit Certificates evidencing the Definitive
Units to be so transferred or exchanged, the Agent shall take all actions
required with respect to any Global Securities evidenced by such Global Units
and Unit Certificates evidencing the remaining Definitive Units, if any, will
be issued in accordance with Section 2.8.
ARTICLE 3
The Purchase Contracts; Settlement of Warrants
Section 3.1. 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 3.2. 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) and whether the Purchase Price for such Purchase
Contracts may be paid in cash or by the exchange of any other security
of the Corporation, or both, or otherwise;
(vi) in the case of Purchase Contracts that obligate the
Corporation to purchase, and the Holders to sell, Purchase Contract
Property, the Settlement Amount for the Purchase Contracts of the
series (or the method for determining the same) and, if other than
U.S. Dollars, the coin or currency or composite currency in which
such Settlement Amount is to be paid;
(vii) whether the settlement of the Purchase Contracts of the
series is to be in cash or by delivery of the Purchase Contract
Property, or otherwise, and the method of settlement of the Purchase
Contracts of the series;
(viii) the specific date or dates on which the Purchase
Contracts will be settled, whether the settlement may be accelerated
by the Corporation or the Holders thereof and, if so, the initial
accelerated settlement date, the minimum number of Purchase Contracts
that may be accelerated and the minimum number of Purchase Contracts
greater than zero that must remain Outstanding immediately following
such acceleration;
(ix) whether the Purchase Contracts of the series will be in
registered form ("Registered Purchase Contracts") or bearer form
("Bearer Purchase Contracts") or both;
(x) whether any Purchase Contracts of the series will be
issued in global form or definitive form or both, and whether and on
what terms (if different from those set forth herein) Purchase
Contracts in one form may be converted into or exchanged for Purchase
Contracts in the other form;
(xi) any agents, depositaries, authenticating or paying
agents, transfer agents or registrars or any determination or
calculation agents or other agents with respect to Purchase Contracts
of the series;
(xii) whether and on what terms the Purchase Contracts of the
series may be separated from the other components of the Units of
which the Purchase Contracts are a component;
(xiii) whether the Purchase Contracts of such series will be
subject to redemption by the Corporation and, if so, the initial
redemption date, the minimum number of Purchase Contracts that may be
redeemed and the minimum number of Purchase Contracts greater than
zero that must remain Outstanding immediately following such
redemption; and
(xiv) any other terms of the Purchase Contracts of the series
(which terms shall not be inconsistent with the provisions of this
Agreement).
(c) All Purchase Contracts of any one series shall be substantially
identical, except as may otherwise be provided by or pursuant to the Board
Resolution or Officer's Certificate referred to above or as set forth in any
such agreement supplemental hereto. All Purchase Contracts of any one series
need not be issued at the same time and may be issued from time to time,
consistent with the terms of this Agreement, if so provided by or pursuant to
such Board Resolution, such Officer's Certificate or in any such agreement
supplemental hereto.
Section 3.3. 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 3.1 and 302 and comply with this Agreement, and covering such
other matters as the Agent may reasonably request; and
(iv) At the option of the Corporation, either an Opinion of
Counsel or a letter addressed to the Agent permitting it to rely on an
Opinion of Counsel, substantially to the effect that:
(A) the forms of the Purchase Contracts have been duly
authorized and established in conformity with the provisions of this
Agreement;
(B) the terms of the Purchase Contracts have been duly
authorized and established in conformity with the provisions of
this Agreement and certain terms of the Purchase Contracts have
been established pursuant to a Board Resolution, an Officer's
Certificate or a supplemental agreement in accordance with this
Agreement, and when such other terms as are to be established
pursuant to procedures set forth in an Issuer Order shall have
been established, all terms will have been duly authorized by the
Corporation and will have been established in conformity with the
provisions of this Agreement; and
(C) when the Purchase Contracts have been executed by
the Corporation and by the Agent on behalf of the Holders and
countersigned by the Agent in accordance with the provisions of
this Agreement and delivered to and duly paid for by the
purchasers thereof, subject to such other conditions as may be
set forth in such opinion of counsel, they will have been duly
issued under this Agreement and will be valid and legally binding
obligations of the Corporation, enforceable in accordance with
their respective terms, and will be entitled to the benefits of
this Agreement.
In rendering such opinions, such counsel may qualify any
opinions as to enforceability by stating that such enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting the rights and remedies of creditors and is
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Such
counsel may rely, as to all matters governed by the laws of jurisdictions
other than the State of New York and the federal law of the United States,
upon opinions of other counsel (copies of which shall be delivered to the
Agent), who shall be counsel reasonably satisfactory to the Agent, in which
case the opinion shall state that such counsel believes he and the Agent are
entitled so to rely. Such counsel may also state that, insofar as such opinion
involves factual matters, he has relied, to the extent he deems proper, upon
certificates of officers of the Corporation and its subsidiaries and
certificates of public officials.
(b) The Agent shall have the right to decline to countersign,
execute on behalf of the Holders and deliver any Purchase Contract under this
Section if the Agent, being advised by counsel, determines that such action
may not lawfully be taken by the Corporation or if the Agent in good faith by
its board of directors or board of trustees determines that such action would
expose the Agent to personal liability to existing registered or beneficial
holders of Purchase Contracts or would affect the Agent's own rights, duties or
immunities under the Purchase Contracts, this Agreement or otherwise.
(c) If the Corporation shall establish pursuant to Section 3.2
that the Purchase Contracts of a series are to be evidenced by one or more
Global Purchase Contracts, then unless otherwise agreed between the
Corporation and the Agent the Corporation shall execute and the Agent shall,
in accordance with this Section and the Issuer Order with respect to such
series, countersign, execute on behalf of the Holders and deliver one or more
Global Purchase Contracts that (i) shall evidence all or a portion of the
Purchase Contracts of such series issued in such form and not yet cancelled,
(ii) in the case of Registered Purchase Contracts, shall be registered in the
name of the Depositary for such Purchase Contracts or the nominee of such
Depositary, (iii) shall be delivered by the Agent to such Depositary or
pursuant to such Depositary's instructions and (iv) in the case of Registered
Purchase Contracts, shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for Purchase Contracts
in definitive registered form, this Purchase Contract may not be transferred
except as a whole by the Depositary to the nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary.
(d) If so required by applicable law, each Depositary for a series
of Registered Purchase Contracts must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Securities Exchange Act of 1934, as amended, and any other applicable
statute or regulation.
(e) Each Purchase Contract shall be dated the date of its
countersignature. A Purchase Contract shall not be valid for any purpose,
unless and until such Purchase Contract has been executed by the Agent on
behalf of the Holder and countersigned by the manual signature of an
authorized officer of the Agent. Such countersignature by an authorized
officer of the Agent upon any Purchase Contract executed by the Corporation in
accordance with this Agreement shall be conclusive evidence that the Purchase
Contract so countersigned has been duly delivered and issued hereunder.
Section 3.4. 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 3.5. Purchase of Purchase Contract Property; Optional
Acceleration of Purchase Obligations; Authorization of Agent by Holder;
Transferees Bound. (a) Unless otherwise specified pursuant to Section 3.2, the
Unsettled Purchase Contracts of any series will either (i) obligate the Holders
thereof to purchase, and the Corporation to sell or deliver the cash value of,
Purchase Contract Property or (ii) obligate the Corporation to purchase, and
the Holders thereof to sell or deliver the cash value of, Purchase Contract
Property, in each case specified pursuant to Section 3.2 (or a quantity
calculated by a method specified pursuant to Section 3.2) on the Stated
Settlement Date at the Purchase Price specified pursuant to Section 3.2.
(b) If this Section is specified as applicable pursuant to Section
3.2, 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 3.2) 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 11.5 and Section 11.6,
respectively, accelerate the obligations of the Holders of at least the
Minimum Acceleration Amount of Unsettled Purchase Contracts to purchase or
sell, as the case may be, and of the Corporation to sell or purchase, as the
case may be, on any Accelerated Settlement Date (provided that such
Accelerated Settlement Date may not be prior to the Initial Acceleration
Date), the quantity of Purchase Contract Property specified pursuant to
Section 3.2 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 3.2)
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 11.5 and 11.6 (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 3.6 are applicable to the Units
of any series, each Holder of a Unit of such series, by his acceptance thereof,
further covenants and agrees that, to the extent such Holder is deemed to have
elected to satisfy its obligations under any Purchase Contracts that are part
of such Unit or to pay the exercise price of any Warrants that are part of such
Unit, in either case by effecting a Debt Security Settlement as provided in
Section 3.6, 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 3.6. Payment of Purchase Price. (a) Unless otherwise
specified pursuant to Section 3.2 (in the case of a Unit of any series
consisting of a Debt Security and a Purchase Contract that obligates the
Corporation to sell, and the Holder to purchase, Purchase Contract Property)
or Section 1.03 of the Warrant Agreement (in the case of a Unit of any series
consisting of a Debt Security and a Warrant that is a "call warrant" (as
defined in the Warrant Agreement)), the Purchase Price for any Purchase
Contract Property purchased by a Holder pursuant to such Purchase Contract
shall be payable at the Corporate Trust Office of the Agent and the exercise
price for any Warrant Property purchased by a Holder pursuant to such Warrant
shall be payable at the place or places specified in or pursuant to the
Warrant Agreement:
(i) at the option of the Holder of the Unit of which such
Purchase Contract or Warrant is part, after receipt by the Agent, in
the case of the Purchase Contract, of written notice from the Holder
not less than 10 days nor more than 20 days prior to the applicable
Settlement Date or, in the case of the Warrant, after receipt by the
Warrant Agent of the written exercise notice on the exercise date
indicating the Holder's choice of cash settlement, by delivery by such
Holder not later than 11:00 a.m., New York City time, on the Business
Day immediately preceding the Settlement Date, in the case of the
Purchase Contract, or on the exercise date, in the case of the
Warrant, of the Purchase Price or exercise price, as the case may be
(a "Cash Settlement"), to the Agent, in the case of the Purchase
Contract, or the Warrant Agent, in the case of Warrant, in immediately
available funds payable to or upon the order of the Corporation; or
(ii) by application of any payment received by the Agent
(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 or Warrant constitutes a
part, as provided in paragraph (f) of this Section (a "Debt Security
Settlement").
A Holder of such Units who fails to provide notice to the Agent
or the Warrant Agent, as the case may be, as provided above that it will make
a Cash Settlement with respect to the settlement of a Purchase Contract or
Warrants, or a Holder of such Units who provides such notice but does not
effect a Cash Settlement in accordance with the terms of this Section 3.6,
will be deemed to have elected to have the Purchase Price for the Purchase
Contract Property, or the exercise price for the Warrant, paid pursuant to
a Debt Security Settlement.
(b) Notwithstanding paragraph (a) of this Section, in the case of
Purchase Contracts of any series that obligate the Corporation to sell, and the
Holders to purchase, Purchase Contract Property or in the case of Warrants
that are "call warrants", the Corporation shall not be entitled to sell any
Purchase Contract Property or Warrant Property, or receive any payment of the
Purchase Price or exercise price therefor, if the Corporation fails to deliver
such Purchase Contract Property or Warrant Property or the cash value thereof
(if specified pursuant to Section 3.2 or the Warrant Agreement or the
applicable Warrants) against tender by the Agent of payment therefor.
(c) Unless otherwise specified pursuant to Section 3.2, to be
effective, payment with respect to a Purchase Contract or Warrant pursuant to
a Cash Settlement must be deposited with the Agent or the Warrant Agent by
11:00 a.m., New York City time, in the case of the Purchase Contract, on the
Business Day immediately preceding the Settlement Date or, in the case of a
Warrant, on the exercise date and must be made with respect to all (and not
fewer than all) of the Purchase Contracts or Warrants to be settled on such
Settlement Date or exercise date (i) included in the Definitive Units that are
registered in the name of the Person effecting Cash Settlement in the Purchase
Contract Register or Warrant Register, as the case may be, (ii) included in the
Global Units that are beneficially owned by the Person effecting Cash
Settlement as specified in the records of the direct and indirect participants
of the Depositary or (iii) in the case of Purchase Contracts or Warrants
included in Unregistered Definitive Units, owned by the Person effecting Cash
Settlement, and, in the case of (ii) and (iii) above, as certified in writing
by such Person, which certification shall be collected, in the case of (ii)
above, on behalf of such Person by the direct and indirect participants in the
Depositary through which such Person holds interests in the Global Units, and
which will be provided to the Agent or the Warrant Agent, in the case of (iii)
above, by such Person or, in the case of (ii) above, by the Depositary or any
direct participant of such Depositary, at the time payment pursuant to a Cash
Settlement is deposited with the Agent or the Warrant Agent. Any attempted
Cash Settlement other than in accordance with this Section 3.6 shall be deemed
to have not been made and any payments made to the Agent or the Warrant Agent
by a Holder not complying with this Section 3.6 shall be returned by the Agent
or the Warrant Agent to such Holder.
(d) The Corporation shall not be obligated to deliver any Purchase
Contract Property (or the cash value thereof) with respect to a Purchase
Contract of any series that obligates the Corporation to sell, and the Holder
to purchase, Purchase Contract Property unless it shall have received payment
in full of the applicable Purchase Price for any Purchase Contract Property to
be purchased thereunder in the manner set forth herein or in any Issuer Order
relating to the issuance of the Purchase Contracts of such series. The
Corporation shall not be obligated to pay the Purchase Price or any other
Settlement Amount for any Purchase Contract Property to be purchased by the
Corporation pursuant to any Purchase Contract that obligates the Corporation
to purchase, and the Holder to sell, Purchase Contract Property unless it shall
have received such Purchase Contract Property (or the cash value thereof) or
any other Settlement Amount in the manner set forth herein or as specified
pursuant to Section 3.2.
(e) In the case of Purchase Contracts that obligate the
Corporation to sell, and the Holders to purchase, Purchase Contract Property
or Warrants that are call warrants evidencing the Holder's right to purchase
Warrant Property, in each case consisting of securities in registered form,
the Agent shall cause such securities deliverable in respect of such Purchase
Contracts or Warrants, as the case may be, to be registered, in the case of
Registered Units, in the name of the Holder of such Units as set forth in the
appropriate Securities Register.
(f) Unless a Holder of a Unit of any series has effected a Cash
Settlement in satisfaction of his obligations under any Purchase Contracts or
Warrants constituting a part of such Unit that obligate the Holder, or
represent the Holder's right, to purchase Purchase Contract Property or Warrant
Property, respectively, any payment with respect to principal of any Debt
Security evidenced by such Unit that is received by the Agent (whether in its
capacity as Agent, Collateral Agent, Trustee or Paying Agent)in connection
with any Debt Security Settlement shall be paid by the Agent to the Collateral
Agent for delivery to the Corporation in satisfaction of the Holder's
obligations under the Global Purchase Contract or Purchase Contracts or Global
Warrant or Warrants constituting a part of such Units. Any payment that is
received by the Agent (whether in its capacity as Agent, Collateral Agent,
Trustee or Paying Agent) with respect to interest on a Debt Security related
to a Purchase Contract or Warrant that has been settled in accordance with
Section 3.6(a)(ii) shall be distributed to the Holders of Units upon surrender
of the appropriate Unit Certificate.
(g) Except as otherwise specified pursuant to Section 3.2, all
payments to be made by the Holders or by the Agent (whether in its capacity
as Agent, Collateral Agent, Trustee or Paying Agent) shall be made in lawful
money of the United States of America, by certified check or wire transfer in
immediately available funds in accordance with such regulations as the Agent
may reasonably establish consistent with the provisions of this Agreement.
(h) Any payment of the applicable Purchase Price or exercise price
deposited by a Holder hereunder with respect to a Purchase Contract or Warrant
shall be held by the Agent or Warrant Agent, as the case may be, in custody
for the benefit of the Holder and applied in satisfaction of such Holder's
obligations under such Purchase Contract or Warrant, or released and delivered
to the Holder upon the failure of the Corporation to satisfy its settlement
obligations against tender by the Agent or Warrant Agent, as the case may be,
of such payment of the applicable Purchase Price or the exercise price.
Section 3.7. Delivery of Purchase Contract Property or Other
Amounts. Unless otherwise specified pursuant to Section 3.2, (i) in the case
of Purchase Contracts obligating the Corporation to sell, and the Holders to
purchase, Purchase Contract Property or Warrants that are call warrants, upon
its receipt of payment in full of the Purchase Price or exercise price for the
Purchase Contract Property or Warrant Property purchased by any Holder
pursuant to the foregoing provisions of this Article or the Warrant Agreement,
the Corporation shall cause such Purchase Contract Property or Warrant
Property to be delivered to the Holders; and (ii) in the case of Purchase
Contracts obligating the Corporation to purchase, and the Holders to sell,
Purchase Contract Property or Warrants that are "put warrants" (as defined in
the Warrant Agreement), upon its receipt of the Purchase Contract Property,
Warrant Property, Settlement Amount or other amount, the Corporation shall
cause the Purchase Price, exercise price, Settlement Amount or other amount,
as applicable, to be delivered to the Holders, provided that in each case such
delivery shall be made only upon delivery to the Agent of the related Unit
Certificate.
Upon receipt of any Unit Certificate, the Agent shall cancel
such Unit Certificate in accordance with Section 2.11 as a result of the
delivery referred to in the preceding paragraph. If any Debt Securities
relating to Closed Purchase Contracts or exercised Warrants constituting a
part of Units evidenced by such Unit Certificate remain Outstanding as a
result of Cash Settlement, the Corporation shall execute and the Trustee shall
authenticate and deliver (i) in the case of Definitive Units, to the Holder
thereof, in accordance with the terms of the Indenture, a new certificate or
certificates representing solely the principal amount of Debt Securities still
Outstanding (ii) in the case of Global Units, if a Global Debt Security not
constituting part of a Global Unit has not previously been issued by the
Corporation, a second Global Debt Security representing Debt Securities still
Outstanding that are not part of Units. If a second Global Debt Security
referred to in clause (ii) of the immediately preceding sentence has already
been issued, the Agent shall note thereon an appropriate increase in the
number of Debt Securities represented by such Global Debt Security.
Section 3.8. 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 4.1. Acceleration of Obligations. If at any time
there shall have occurred an Event of Default with respect to the Debt
Securities constituting a part of any Units that has resulted in the principal
of any Debt Securities being declared due and payable immediately pursuant to
Section 5.1 of the Indenture, then the Holders of not less than 25% of all
Unsettled Purchase Contracts constituting a part of any Units comprising Debt
Securities subject to such declaration may on behalf of all Holders of such
Unsettled Purchase Contracts by notice in writing to the Corporation and Agent
declare the obligations of such Holders to purchase or sell, as the case may
be, and of the Corporation to sell or purchase, as the case may be, the
quantity of Purchase Contract Property specified pursuant to Section 3.2 under
each such Unsettled Purchase Contract to be accelerated to the date of such
declaration and, upon any such declaration, such obligations shall be so
accelerated. The foregoing provision is subject to the condition that if, at
any time prior to settlement of such Purchase Contracts, the declaration with
respect to Debt Securities referred to in the immediately preceding sentence
and its consequences are rescinded and annulled in accordance with Section 5.1
of the Indenture, the acceleration of the obligations with respect to Unsettled
Purchase Contracts referred to in the immediately preceding sentence and its
consequences may be annulled and rescinded by vote of the Holders of not less
than 25% of all affected Unsettled Purchase Contracts Outstanding.
Section 4.2. Unconditional Rights under Purchase Contracts;
Limitation on Proceedings by Holders. (a) The Holder of any Unit shall have
the right, which is absolute and unconditional, to purchase or sell, as the
case may be, Purchase Contract Property pursuant to such Purchase Contract and
to institute suit for the enforcement of such right, and such right shall not
be impaired without the consent of such Holder.
(b) No Holder of any Unit shall have any right by virtue of or by
availing itself of any provision of this Agreement to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Agreement, or for the appointment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy
hereunder, unless such Holder previously shall have given written notice to the
Agent and the Corporation of a Default and of the continuance thereof and, (i)
in the case of an Event of Default under Debt Securities or the Indenture, the
procedures (including notice to the Trustee and the Corporation) described in
Article Five of the Indenture have been complied with and (ii) in the case of a
Purchase Contract Default specified in clause (ii) of the definition thereof,
unless the Holders of not less than 25% of all affected Purchase Contracts
comprised by all Units then Outstanding shall have made written request upon
the Agent to institute such action or proceedings in its own name as Agent
hereunder and shall have offered to the Agent such reasonable indemnity as it
may require pursuant to Article Six, and the Agent for 60 days after its
receipt of such notice, request and offer of indemnity shall have failed to
institute such action or proceedings and no direction inconsistent with such
request shall have been given to the Agent in writing by holders of a majority
of all affected Purchase Contracts constituting parts of Units then
Outstanding. Any Holder of a Unit may then (but only then) seek to enforce the
performance of the covenant or agreement with respect to which such Purchase
Contract Default exists; it being intended and expressly covenanted by the
Holder of each Unit with every other Holder and the Agent that no Holder shall
have any right by virtue of or by availing itself of any provision of this
Agreement to affect, disturb or prejudice the rights of any other Holder, or
to obtain or seek to obtain priority over or preference to any other Holder,
or to enforce any right under this Agreement, except in accordance with this
Section or the Indenture and for the equal, ratable and common benefit of all
Holders. For the protection and enforcement of the provisions of this Section,
each and every Holder of a Unit and the Agent shall be entitled to such relief
as can be given either at law or in equity.
Section 4.3. 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 4.4. Rights and Remedies Cumulative. Subject to
Section 4.2, 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 4.5. 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 4.6. 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 3.2 against tender of Purchase Contract Property or other amount
specified pursuant to Section 3.2 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 4.7. 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 3.2) with respect
thereto.
Section 4.8. 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 4.9. 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 4.2 or
the direction referred to in Section 4.11 and the security or indemnity
referred to in Section 6.3(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 6.1) 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 6.1) 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 5.1. 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 2.3:
(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 3.2; (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 3.2, 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 5.3(f)) may deem necessary or appropriate to
further perfect, or maintain the perfection of the security interests granted
hereby.
Section 5.2. Distribution of Principal and Interest; Release
of Collateral. Unless otherwise specified pursuant to Section 2.3:
(a) All payments of principal of, or interest on, any Pledged Items
received by the Collateral Agent pursuant to Section 3.6(f) shall be paid by
the Collateral Agent in same day funds no later than 2:00 p.m., New York City
time, on the Business Day such payments are received by the Collateral Agent
or, if received on a day that is not a Business Day or after 12:00 noon, New
York City time, on a Business Day, then such payment shall be made no later
than 9:00 am., New York City time, on the next succeeding Business Day to the
Corporation, in full satisfaction of the respective obligations of the Holders
of the Units of which such Pledged Items are a part under the Purchase
Contracts forming a part of such Units. Any such payments in excess of such
obligations of the Holders shall be promptly paid to the Agent to the account
designated by it for such purpose. All such payments received by the Agent as
provided herein shall be applied by the Agent pursuant to the provisions
hereof.
(b) Upon notice to the Collateral Agent by the Agent that one or
more Holders of Units have elected to effect Cash Settlement of their
respective obligations under the Purchase Contracts forming a part of such
Units in accordance with the terms hereof, and that either the Agent has
received from such Holders, and paid to the Corporation, the related amounts
pursuant to the terms of the Purchase Contracts and this Agreement or no such
payment is required, and that all other conditions to such Cash Settlement have
been satisfied, then the Collateral Agent shall release from the Pledge the
Pledged Items relating to such Purchase Contracts.
Section 5.3. 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 5.4. 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 5.5. Certain Rights of Collateral Agent. Subject to
the provisions of Section 5.3:
(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 5.6. 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 5.7. Corporate Collateral Agent Required Eligibility.
There shall at all times be a Collateral Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, having, together
with its parent, a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal, State or District of
Columbia authority and willing to act on reasonable terms. If such
corporation, or its parent, publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. The Collateral Agent hereunder shall at all times be the Agent
hereunder, the Trustee and a Paying Agent under the Indenture and the Warrant
Agent under the Warrant Agreement, subject to receipt of an Opinion of Counsel
that the same Person is not precluded by law from acting in such capacities.
If at any time the Collateral Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article. The Collateral
Agent may appoint one or more sub-collateral agents with offices or agencies
in a city or cities outside the United States.
Section 5.8. 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
5.9.
(b) The Collateral Agent may resign by giving written notice
thereof to the Corporation and the Holders, in accordance with Section 11.5 and
Section 11.6, 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 5.9 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 5.7, or shall cease to be eligible as Agent hereunder, as
Trustee under the Indenture or as Warrant Agent under the Warrant
Agreement, and shall fail to resign after written request therefor by
the Corporation, or
(ii) the Collateral Agent shall become incapable of acting
with respect to the Collateral or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Collateral Agent or of
its property shall be appointed or any public officer shall take
charge or control of the Collateral Agent or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Corporation, by Board Resolution, may remove the
Collateral Agent and appoint a successor Collateral Agent.
(d) If the Collateral Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Collateral
Agent for any cause, the Corporation, by Board Resolution, shall promptly
appoint a successor Collateral Agent or Collateral Agents (other than the
Corporation) and shall comply with the applicable requirements of Section 5.9.
(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 11.6. Each notice shall include
the name of the successor Collateral Agent and the address of its Corporate
Trust Office.
Section 5.9. 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 5.6, 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 5.6.
(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 11.6. 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 5.8. 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 6.1. 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 6.2. 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 11.6, notice of such Purchase
Contract Default hereunder, unless such Purchase Contract Default shall have
been cured or waived.
Section 6.3. Certain Rights of Agent. Subject to the
provisions of Section 6.1:
(a) the Agent may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon, security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Corporation
mentioned herein shall be sufficiently evidenced by an Officer's Certificate or
Issuer Order or Issuer Request and any resolution of the Board of Directors of
the Corporation, as the case may be, may be sufficiently evidenced by a Board
Resolution;
(c) the Agent may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Agent shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security or other paper or document, but the Agent,
in its discretion, may make reasonable further inquiry or investigation into
such facts or matters related to the issuance of the Debt Securities, Prepaid
Purchase Contracts or Warrants, as the case may be, and the execution,
delivery and performance of the Purchase Contracts as it may see fit, and, if
the Agent shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Corporation, at reasonable times during normal business hours, personally or
by agent or attorney;
(e) the Agent may execute any of the powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Agent shall not be responsible for any misconduct or negligence on the
part of any such agent or attorney appointed with due care by it hereunder;
(f) the Agent shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement at the request, order or
direction of any of the Holders pursuant to this Agreement, unless such
Holders shall have offered to the Agent reasonable security or indemnity
against the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction;
(g) the Agent shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement; and
(h) the Agent shall not be charged with notice or knowledge of a
Purchase Contract Default unless a Responsible Officer of the Agent assigned
to its Corporate Trustee Administration Department shall have actual knowledge
thereof.
Section 6.4. Not Responsible for Recitals or Issuance of
Units. The recitals contained herein, in the Indenture, in the Warrant
Agreement and in the Units, except the Trustee's, Warrant Agent's and Agent's
certificates of authentication or countersignature, shall be taken as the
statements of the Corporation, and none of the Trustee, Agent, the Warrant
Agent or any Authenticating Agent assumes any responsibility for their
correctness. The Agent makes no representations as to the validity or
sufficiency of this Agreement or of the Units. None of the Trustee, Agent, the
Warrant Agent or any Authenticating Agent shall be accountable for the use or
application by the Corporation of the proceeds with respect to Units or be
responsible for exercising any remedy hereunder on behalf of the Holders,
except as expressly provided in this Agreement.
Section 6.5. May Hold Units. The Agent, the Collateral Agent,
the Trustee, the Warrant Agent, any Authenticating Agent, any Purchase Contract
Registrar or any other agent of the Corporation, the Trustee, the Warrant
Agent, or the Agent, in its individual or any other capacity, may become the
owner or pledgee of Units and may otherwise deal with the Corporation and
receive, collect, hold and retain collections from the Corporation with the
same rights it would have if it were not Authenticating Agent, Purchase
Contract Registrar or such other agent, the Trustee, the Warrant Agent, the
Collateral Agent or the Agent.
Section 6.6. 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 6.7. 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 6.8. Corporate Agent Required: Eligibility. There
shall at all times be an Agent hereunder which shall be a corporation
organized and doing business under the laws of the United States of America,
any State thereof or the District of Columbia, having, together with its
parent, a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal, State or District of Columbia authority
and willing to act on reasonable terms. If such corporation, or its parent,
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. The Agent hereunder shall at all
times be the Collateral Agent hereunder, the Trustee under the Indenture and
the Warrant Agent under the Warrant Agreement, subject to receipt of an
Opinion of Counsel that the same Person is precluded by law from acting in
such capacities. If at any time the Agent shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article. The
Agent may appoint one or more sub-agents with offices or agencies in a city or
cities outside the United States.
Section 6.9. 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 11.5 and Section 11.6,
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 6.8,
or shall cease to be eligible as Collateral Agent hereunder, Trustee
under the Indenture or as Warrant Agent under the Warrant Agreement,
and shall fail to resign after written request therefor by the
Corporation or by any Holder, or
(ii) the Agent shall become incapable of acting with respect
to the Units or shall be adjudged a bankrupt or insolvent, or a receiver
or liquidator of the Agent or of its property shall be appointed or
any public officer shall take charge or control of the Agent or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Corporation, by Board Resolution, may remove
the Agent and appoint a successor Agent, or (B) any Holder who has been a
bona fide Holder of a Unit for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Agent and the appointment of a
successor Agent or Agents. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, remove the Agent and appoint a
successor Agent.
(d) If the Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Agent for any cause, the
Corporation, by Board Resolution, shall promptly appoint a successor Agent or
Agents (other than the Corporation) and shall comply with the applicable
requirements of Section 6.10. If no successor Agent shall have been so
appointed by the Corporation and accepted appointment in the manner required
by Section 6.10, any Holder who has been a bona fide Holder of a Unit for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Agent.
(e) The Corporation shall give, or shall cause such successor
Agent to give, notice of each resignation and each removal of the Agent and
each appointment of a successor Agent to all Holders of Units in accordance
with Section 11.6. 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 6.7, 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 6.7.
(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 11.6. 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 6.9. 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 2.9 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 11.6. 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, 6.4 and 6.5 shall be
applicable to each Authenticating Agent.
Pursuant to each appointment made under this Section, the
Purchase Contracts covered by such appointment may have endorsed thereon, in
addition to the form of Agent's countersignature and execution of the Purchase
Contracts evidenced thereby, an alternative countersignature and execution of
the Purchase Contracts contained therein in the following forms:
THE CHASE MANHATTAN BANK, as
Agent, as attorney-in-fact of the Holder
hereof
By [NAME OF AUTHENTICATING
AGENT], as Authenticating Agent
By:______________________________________
[Authorized Officer]
Title:
Countersigned:
THE CHASE MANHATTAN BANK, as
Agent
By [NAME OF AUTHENTICATING
AGENT], as Authenticating Agent
By:______________________________________
[Authorized Officer]
Title:
Section 6.13. Corporation to Furnish Agent Names and Addresses
of Holders. The Corporation will furnish or cause to be furnished to the Agent
(a) not later than 15 days after each Regular Record Date in each
year, a list, in such form as the Agent may reasonably require, of the names
and addresses of the Holders of Registered Units as of such Regular Record
Date, and
(b) at such other times as the Agent may request in writing,
within 30 days after the receipt by the Corporation of any such request, a
list of similar form and content as of a date not more than 15 days prior to
the time such list is furnished;
provided that no such list need be furnished if the Agent shall be the
Purchase Contract Registrar, the registrar under the Warrant Agreement and the
registrar under the Indenture.
Section 6.14. Preservation of Information; Communications to
Holders. (a) The Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Units contained
in the most recent list furnished to the Agent as provided in Section 6.13 and
the names and addresses of Holders of Registered Units received by the Agent
in its capacity as Purchase Contract Registrar, the registrar under the
Warrant Agreement and the registrar under the Indenture. The Agent may
destroy any list furnished to it as provided in Section 6.13 upon receipt
of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Agent, and furnish to the Agent reasonable proof that
each such applicant has owned a Unit for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their
rights under this Agreement or under the Units and is accompanied by a copy
of the form of proxy or other communication that such applicants propose to
transmit, then the Agent shall, within five Business Days after the receipt of
such application, at its election either (i) afford such applicants access to
the information preserved at the time by the Agent in accordance with Section
6.14(a) or (ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time by
the Agent, and as to the approximate cost of mailing to such Holders the form
of proxy or other communication, if any, specified in such application.
If the Agent shall elect not to afford such applicants access
to such information, the Agent shall, upon the written request of such
applicants, mail to each Holder whose name and address appears in the
information preserved at the time by the Agent, a copy of the form of proxy or
other communication that is specified in such application, with reasonable
promptness after a tender to the Agent of the material to be mailed and of
payment, or provision for payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Agent shall mail to such
applicants a written statement to the effect that in the opinion of the Agent,
such mailing would be contrary to the best interests of the Holders or would
be in violation of applicable law. Thereafter, the Agent shall be relieved of
any obligation or duty to such applicants with respect to their application.
(c) Every Holder of Units, by his acceptance thereof, agrees with
the Corporation and the Agent that neither the Corporation nor the Agent nor
any agent of any of them shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Holders in
accordance with Section 6.14(b), regardless of the source from which such
information was derived, and that the Agent shall not be held accountable by
reason of mailing any material pursuant to a request made under Section
6.14(b).
Section 6.15. No Obligation of Holder. Except to the extent
otherwise provided in this Agreement, the Agent assumes no obligations and
shall not be subject to any liability under this Agreement or any Purchase
Contract with respect to the obligations of the Holder of a Unit thereunder.
The Corporation agrees, and each Holder of a Unit Certificate, by his
acceptance thereof, shall be deemed to have agreed, that the Agent's execution
of the Purchase Contracts evidenced by the Unit Certificates shall be solely as
agent and attorney-in-fact for the Holders, and that the Agent shall have no
obligation to perform such Purchase Contracts on behalf of the Holders, except
to the extent provided in this Article.
Section 6.16. Tax Compliance. (a) The Agent, on its own
behalf and on behalf of the Corporation, will comply with all applicable
certification, information reporting and withholding (including "backup"
withholding) requirements imposed by applicable United States, federal and New
York State tax laws, regulations or administrative practice (i) with respect
to payments on, or transfer or redemption of the Debt Securities, the Prepaid
Purchase Contracts, the Warrants or the Purchase Contracts or (ii) if
specifically instructed by the Company, with respect to the issuance,
delivery, holding, or exercise of rights (other than by payment, transfer or
redemption) under the Debt Securities, the Prepaid Purchase Contracts, the
Warrants or the Purchase Contracts. Such compliance shall include, without
limitation, the preparation and timely filing of required returns with respect
to, and the timely payment of, all amounts required to be withheld to the
appropriate taxing authority or its designated agent. The Corporation will
provide to the Agent such information as it may reasonably request in order to
comply with this Section.
(b) The Agent shall comply with any direction received from the
Corporation with respect to the application of such requirements to particular
payments or holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 6.1(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 2.3, the
portion of the issue price of any Units of any series consisting of Debt
Securities and Purchase Contracts allocable to such Debt Securities shall
equal the principal amount payable at maturity of such Debt Securities. Unless
otherwise specified pursuant to Section 2.3, the portion of the issue price of
any Units of any series consisting of Debt Securities and Warrants allocable
to such Debt Securities shall equal the portion of the issue price that is in
the same proportion to such issue price as the fair market value of such Debt
Securities bears to the aggregate fair market value of such Debt Securities
and Warrants, taken as a whole. The Corporation and the Holders agree not to
file any tax returns, or take a position with any tax authority, that is
inconsistent with the characterization of the Debt Securities as debt.
(e) Unless otherwise specified pursuant to Section 2.3, 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 7.1. 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 7.2. 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 7.3. 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 6.1 and
5.3, 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 7.4. Effect of Supplemental Agreements. Upon the
execution of any supplemental agreement under this Article, this Agreement
shall be modified in accordance therewith, and such supplemental agreement
shall form a part of this Agreement for all purposes; and every Holder of
Units, theretofore or thereafter authenticated, countersigned, executed and
delivered hereunder, under the Warrant Agreement and/or under the Indenture
shall be bound thereby.
Section 7.5. Reference to Supplemental Agreements. Unit
Certificates, Debt Securities, Warrants, Purchase Contracts and Prepaid
Purchase Contracts authenticated, countersigned, executed and delivered after
the execution of any supplemental agreement pursuant to this Article may, and
shall if required by the Agent, bear a notation in form approved by the Agent
as to any matter provided for in such supplemental agreement. If the
Corporation shall so determine, new Unit Certificates, Debt Securities,
Warrants, Purchase Contracts and Prepaid Purchase Contracts so modified as to
conform, in the opinion of the Agent, and the Corporation, to any such
supplemental agreement may be prepared and executed by the Corporation and
authenticated, executed, countersigned and delivered by the Trustee, the
Warrant Agent and the Agent, as applicable, in exchange for Outstanding Unit
Certificates, Debt Securities, Warrants, Purchase Contracts and Prepaid
Purchase Contracts.
ARTICLE 8
Consolidation, Merger, Sale or Conveyance
Section 8.1. 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 8.2. Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, sale or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Corporation with the same effect as if it
had been named herein as the Corporation. Such successor corporation thereupon
may cause to be signed, and may issue (subject to the provisions of the
Indenture and the Warrant Agreement) either in its own name or in the name of
Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co. any or all of the Unit
Certificates, Debt Securities, Warrants, Prepaid Purchase Contracts and
Purchase Contracts issuable hereunder which theretofore shall not have been
signed by the Corporation and delivered to the Agent; and, upon the order of
such successor corporation, instead of the Corporation, and subject to all the
terms, conditions and limitations in this Agreement prescribed, the Trustee,
the Warrant Agent and the Agent shall authenticate, countersign, execute and
deliver, as applicable, any Unit Certificates, Debt Securities, Warrants,
Prepaid Purchase Contracts and Purchase Contracts that previously shall have
been signed and delivered by the officers of the Corporation to the Trustee,
the Warrant Agent and the Agent for authentication, execution and
countersignature, and any Unit Certificate, Debt Securities, Warrants, Prepaid
Purchase Contracts and Purchase Contracts evidencing Units which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee, the Warrant Agent and the Agent for such purpose. All the Purchase
Contracts so issued shall in all respects have the same legal rank and benefit
under this Agreement as the Purchase Contracts theretofore or thereafter issued
in accordance with the terms of this Agreement as though all of such Purchase
Contracts had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or
lease such change in phraseology and form (but not in substance) may be made in
the Unit Certificates and Purchase Contracts thereafter to be issued as may be
appropriate.
Section 8.3. Opinion of Counsel to Agent. The Agent and the
Collateral Agent, subject to Sections 6.1 and 6.3 and Sections 5.3 and 5.5,
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 9.1. 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 9.2. Maintenance of Office or Agency. So long as
Units or Purchase Contracts are authorized for issuance pursuant to this
Agreement or are Outstanding hereunder, the Corporation will maintain in the
Borough of Manhattan, The City of New York, an office or agency where
Registered Units may be presented or surrendered for payment or acquisition of
Purchase Contract Property or where Purchase Contract Property or other
property may be tendered for delivery, where Registered Units may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Corporation in respect of Units and this Agreement may
be served. The Corporation hereby initially designates the Agent as its office
or agency in the Borough of Manhattan, The City of New York, for each of said
purposes. The Corporation will give prompt written notice to the Agent of the
location, and any change in the location, of such office or agency. The
Corporation will maintain one or more offices or agencies in a city or cities
located outside the United States (including any city in which such an agency
is required to be maintained under the rules of any stock exchange on which
the Units of such series, or the Securities constituting such Units, are
listed) where the Unregistered Units, if any, of each series may be presented
or surrendered for payment or acquisition of Purchase Contract Property or
where Purchase Contract Property or other property may be tendered for
delivery. No payment or delivery of Purchase Contract Property on any
Unregistered Unit will be made upon presentation of such Unregistered Unit at
an agency of the Corporation within the United States nor will any payment or
delivery of Purchase Contract Property be made by transfer to an account in,
or by mail to an address in, the United States unless pursuant to applicable
United States laws and regulations then in effect such payment can be made
without adverse tax consequences to the Corporation. Notwithstanding the
foregoing, payments in U.S. dollars of Unregistered Units of any series
appertaining thereto which are payable in Dollars may be made at an agency of
the Corporation maintained in the Borough of Manhattan, The City of New York
if such payment in Dollars at each agency maintained by the Corporation
outside the United States for payment on such Unregistered Units is illegal or
effectively precluded by exchange controls or other similar restrictions. If
at any time the Corporation shall fail to maintain any such required office or
agency or shall fail to furnish the Agent with the name and address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Agent, and the Corporation hereby appoints
the Agent as its agent to receive all such presentations, surrenders, notices
and demands.
The Corporation may also from time to time designate one or more
other offices or agencies where Debt Securities, Warrants, Prepaid Purchase
Contracts, Purchase Contracts and Unit Certificates may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Corporation of its obligations to maintain
offices or agencies provided for in this Section. The Corporation will give
prompt written notice to the Agent of any such designation or rescission and
of any change in the location of any such other office or agency.
Section 9.3. Money for Payments to Be Held in Trust. Any
money or other property deposited with the Agent, in trust for payment with
respect to any Unit, remaining unclaimed for two years after such payment has
become due and payable shall be paid to the Corporation on request of the
Corporation pursuant to an Officer's Certificate; and the Holder of such Unit
shall thereafter, as an unsecured general creditor, look only to the
Corporation for payment thereof, and all liability of the Agent with respect
to such trust money or other property shall thereupon cease.
In the event that (i) the Corporation has delivered Purchase
Contract Property (or the cash value thereof) to the Agent against tender of
payment for such Purchase Contract Property or Warrant Property (or the cash
value thereof) to the Warrant Agent against tender of payment for such Warrant
Property (or, in the case of Purchase Contracts or Warrants calling for the
purchase of Purchase Contract Property or Warrant Property, as the case may
be, by the Corporation, the Corporation has tendered payment) and (ii) a
Holder of a Unit Certificate fails to present and surrender the appropriate
Unit Certificate to the Agent or Warrant Agent, as appropriate, the Purchase
Contract Property, the Warrant Property or the cash value thereof or the
Corporation's payment for Purchase Contract Property or Warrant Property, as
the case may be, deliverable upon settlement of the Purchase Contracts or
Warrants, as the case may be, evidenced by such Unit Certificate, together
with any distributions thereon (and, if an effective Cash Settlement with
respect to the obligations under such Purchase Contracts or Warrants has been
made, payments in respect of principal of the Debt Securities that are part of
such Units), shall be held by the Agent, in trust, for the benefit of such
Holder, until such Unit Certificate is presented and surrendered or such Holder
delivers to the Agent, the Warrant Agent, the Trustee, and the Corporation (A)
evidence to their satisfaction that such certificate has been destroyed, lost
or stolen and (B) such security or indemnity as may be required by them to hold
each of them and any agent of any of them harmless. In the event such Unit
Certificate is not presented and surrendered or such Holder does not satisfy
the applicable conditions specified in the preceding sentence on or prior to
the date two years after the date of settlement of the related Purchase
Contract or Warrant, as the case may be, any distributions received by the
Agent with respect to the Purchase Contract Property delivered in respect of
the Unit Certificates shall be paid to the Corporation, on the request of the
Corporation pursuant to an Officer's Certificate, and the Holders of such Unit
shall thereafter, as unsecured general creditors, look only to the Corporation
for payment thereof and all liability of the Agent with respect to such trust
assets shall thereafter cease.
Section 9.4. 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 9.5. [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 Xxxxxx Xxxxxxx & Co. Incorporated, a Delaware corporation and a
wholly owned subsidiary of the Corporation, or Xxxxxx Xxxxxxx & Co.
Incorporated Limited, an English company and an indirect wholly owned
subsidiary of the Corporation, Greenwood Trust Company, a Delaware chartered
bank and an indirect wholly owned subsidiary of the Corporation, Xxxx Xxxxxx
Xxxxxxxx Inc., a Delaware corporation and a wholly owned subsidiary of the
Corporation, or any Subsidiary succeeding to any substantial part of the
business now conducted by any of such corporations (collectively, the
"Principal Subsidiaries") or (ii) Voting Securities of a Subsidiary that owns,
directly or indirectly, Voting Securities of any of the Principal Subsidiaries
(other than directors' qualifying shares) unless the Corporation shall cause
the Units and the Securities constituting the Units to be secured equally and
ratably with (or, at the Corporation's option, prior to) any indebtedness
secured thereby. "Subsidiary" means any corporation, partnership or other
entity of which at the time of determination the Corporation owns or controls
directly or indirectly more than 50% of the shares of voting stock or
equivalent interest. "Permitted Liens" means liens for taxes or assessments or
governmental charges or levies not then due and delinquent or the validity of
which is being contested in good faith or which are less than $1,000,000 in
amount, liens created by or resulting from any litigation or legal proceeding
which is currently being contested in good faith by appropriate proceedings or
which involves claims of less than $1,000,000, deposits to secure (or in lieu
of) surety, stay, appeal or customs bonds and such other liens as the Board of
Directors of the Corporation determines do not materially detract from or
interfere with the present value or control of the Voting Securities subject
thereto or affected thereby. "Voting Securities" means stock of any class or
classes having general voting power under ordinary circumstances to elect a
majority of the board of directors, managers or trustees of the corporation 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 9.6. 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 10.1. Optional Redemption of Purchase Contracts;
Redemption Upon Redemption of Debt Securities. If this Article is specified as
applicable pursuant to Section 3.2 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 3.2; 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 3.2.
Unless otherwise specified pursuant to Section 2.3, in the
event that the Corporation shall redeem any Debt Security constituting part of
a Unit of any series pursuant to the provisions of the Indenture or such Debt
Security, the Corporation shall redeem any Purchase Contract or, to the extent
permitted under or pursuant to the Warrant Agreement, Warrant constituting
part of the same Unit on the redemption date of such related Debt Security.
Section 10.2. Notice of Redemption; Partial Redemptions.
Unless otherwise specified pursuant to Section 3.2, 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 11.6, 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 10.1 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 10.3. 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 3.2, 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 10.4. 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 11.1. Incorporators, Stockholders, Officers and
Directors of the Corporation Immune from Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Agreement, or in any
Debt Security, Prepaid Purchase Contract, Warrant Agreement or any Purchase
Contract, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, or against any past, present or future stockholder,
officer, attorney-in-fact or director, as such, of the Corporation or of any
successor corporation, either directly or through the Corporation or any
successor corporation, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or penalty or by any legal or
equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Units by the Holders thereof and as part
of the consideration for the issue thereof, provided that nothing in this
Article shall impair the obligations, covenants and agreements of the
Corporation contained in this Agreement and in any Debt Securities, Prepaid
Purchase Contracts, Warrants or Purchase Contracts constituting a part of the
Units of any series.
Section 11.2. 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 11.3. 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 11.4. 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 6.1) 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 2.3(a)(vii), the ownership (i) of Registered
Units of any series shall be proved by the Purchase Contract Register for such
series, with respect to any Purchase Contracts constituting a part of such
Units, the Warrant Register for such series with respect to any Warrants
constituting a part of such Units and the Debt Security Register for such
series, with respect to any Debt Securities or Prepaid Purchase Contracts
constituting a part of such Units, and (ii) of Unregistered Units shall be
proved by possession of the Unit Certificates evidencing such Units or by the
appropriate records of the depositary for such Units.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Unit Certificate shall bind every
future Holder of the same Unit Certificate and the Holder of every Unit
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof with respect to anything done, omitted or suffered
to be done by the Agent or the Corporation in reliance thereon, whether or not
notation of such action is made upon such Unit Certificate.
(e) The Corporation may set a record date for purposes of
determining the identity of Holders of Units entitled to consent to any action
by consent authorized or permitted hereby. Unless otherwise specified pursuant
to Section 2.3, 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 11.5. 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 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
, or at any other address previously furnished in writing to
the Agent and the Collateral Agent by the Corporation.
Section 11.6. 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 2.3 or 3.2) 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 11.7. 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 11.8. 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 11.9. Separability Clause. In case any provision in
this Agreement or in the Units, Unit Certificates or the Purchase Contracts
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof and thereof shall not in any
way be affected or impaired thereby.
Section 11.10. Benefits of Agreement. Nothing in this
Agreement or in the Units, Unit Certificates, the Indenture, the Debt
Securities, the Prepaid Purchase Contracts, the Warrants or the Purchase
Contracts, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, any benefits or any legal or
equitable right, remedy or claim under this Agreement. The Holders from time
to time shall be parties to this Agreement and shall be bound by all of the
terms and conditions hereof and of the Indenture, the Units, the Debt
Securities, the Prepaid Purchase Contracts, the Warrants and the Purchase
Contracts evidenced by the Units, by their acceptance of delivery of such
Units.
Section 11.11. Governing Law. This Agreement, the Units 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 3.2, 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 2.3 hereof, the Corporation may, in connection with any series of
Purchase Contracts appoint Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxx Xxxxxxx &
Co. International Limited or any other Person as Calculation Agent to make any
calculations as may be required pursuant to the terms of any such series of
Purchase Contracts. Any such Calculation Agent shall act as an independent
expert and, unless otherwise provided by this Agreement, its calculations and
determinations under this Agreement shall, absent manifest error, be final and
binding on the Corporation, the Agent and the Holders. Any such calculations
will be made available to the Holders for inspection at the Agent's Office.
(b) Unless otherwise specified pursuant to Section 2.3, the
Corporation hereby appoints Chase as the Paying Agent under the Indenture with
respect to each Debt Security comprised by any Unit issued hereunder.
Section 11.15. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times during normal business
hours at the Corporate Trust Office of the Agent for inspection by any Holder.
IN WITNESS WHEREOF, the Corporation, the Agent, the Collateral
Agent, the Trustee and the Warrant Agent have duly executed this Agreement as
of the day and year first above set forth, and all Holders of Units shall
become parties hereto by and upon acceptance by them of delivery of Units
issued in accordance with the terms hereof.
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
By:______________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Agent
By:______________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Collateral Agent
By:______________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee and Paying Agent under the
Indenture
By:______________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Warrant Agent under the Warrant
Agreement
By:______________________________________
Name:
Title:
EXHIBIT A
[[FORM OF UNIT CERTIFICATE]
[FACE]
[IF THE UNIT CERTIFICATE IS TO BE A GLOBAL REGISTERED UNIT
CERTIFICATE, INSERT--This Unit Certificate is a global Unit Certificate within
the meaning of the Unit Agreement hereinafter referred to and is registered in
the name of the Depository Trust Company (the "Depositary") or a nominee of
the Depositary. Unless and until it is exchanged in whole or in part for Units
in definitive registered form, this Unit Certificate may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary).
Unless this Unit Certificate is presented by an authorized
representative of The Depositary (55 Xxxxx Xxxxxx, Xxx Xxxx) to Xxxxxx
Xxxxxxx, Xxxx Xxxxxx, Discover & Co. or its agent for registration of
transfer, exchange or payment, and any Unit issued is registered in the name
of Cede & Co. or such other name as requested by an authorized representative
of the Depositary and any payment hereon is made to Cede & Co. or such other
entity as is requested by an authorized representative of the Depositary, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
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 June 2, 1997 among the Corporation, The Chase
Manhattan Bank, as Agent, as Collateral Agent, as Trustee and Paying Agent
under the Indenture referred to therein, and as Warrant Agent under the
Warrant Agreement referred to therein and the Holders from time to time of the
Units described therein. Pursuant to the Unit Agreement, the Debt Securities
constituting part of the Units evidenced hereby have been pledged to the
Collateral Agent to secure the obligations of the Holder under the Purchase
Contract constituting part of such Units.](4)
[For so long as the [Warrant] [Purchase Contract] underlying
each Unit represented hereby remains in effect such Unit shall not be
separable into its constituent parts and the rights and obligations of the
Holder of such Unit in respect of such constituent parts may be transferred
and exchanged only as a Unit.](5)
[Designated Security Register:](6)
[Other Terms of Units:]
[INSERT APPROPRIATE DEBT SECURITY CERTIFICATE OR
WARRANT
CERTIFICATE, AS APPLICABLE]
----------
(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.
(6) Insert in non-separable Registered Units.
------------------------------------------------------------------------------
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.
------------------------------------------------------------------------------
[FORM OF PURCHASE CONTRACT
CONTEMPLATING SALE BY XXXXXX XXXXXXX,
XXXX XXXXXX, DISCOVER & CO.]
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
[Insert Designation of Purchase Contracts]
PURCHASE CONTRACT(S)
Purchase Contracts between
Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co.
and
________________
or registered assigns,
as holder hereunder (the "Holder")
All capitalized terms used but not defined herein that are
defined in the Unit Agreement (described below) have the meanings set forth
therein, and if not defined therein, have the meaning set forth below.
Purchase Contract Property:
Quantity:
Purchase Price:
Settlement Date:
Payment Location:
Method of Settlement:
Currency of Settlement
Payment:
Authorized Number of
Purchase Contracts:
Contract Fees:
Corporation Acceleration:
Holders' Acceleration:
Redemption Provisions:
Other Terms:
Subject to the conditions hereinafter set forth, the Holder
agrees to purchase and Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co., a
corporation duly incorporated and existing under the laws of the State of
Delaware (the "Corporation"), agrees to sell, subject to the terms of the Unit
Agreement referred to below and as set forth herein, on the Settlement Date,
the Quantity of Purchase Contract Property, for the Purchase Price. The
Purchase Contract(s) evidenced hereby shall not entitle the Holder to purchase
the Purchase Contract Property prior to the Settlement Date.
The Purchase Price for the Purchase Contract Property purchased
pursuant to the Purchase Contracts evidenced hereby shall be payable at the
Payment Location on the Settlement Date pursuant to the Method of Settlement
in the Currency of Settlement Payment.
Each Purchase Contract evidenced hereby is one of a duly
authorized issue of not more than the Authorized Number of Purchase Contracts
of the Corporation relating to the purchase by Holders of not more than the
Aggregate Quantity of Purchase Contract Property issued under the Unit
Agreement, dated as of June 2, 1997 (the "Unit Agreement"), among the
Corporation, The Chase Manhattan Bank, as Agent (the "Agent") and as
Collateral Agent thereunder, as Warrant Agent (the "Warrant Agent") under the
Warrant Agreement referred to therein, as Trustee (the "Trustee") and Paying
Agent under the Indenture referred to therein, and the holders from time to
time of Units, to which Unit Agreement and supplemental agreements thereto
reference is hereby made for a description of the respective rights,
limitations of rights, obligations, duties and immunities thereunder of the
Agent, the Collateral Agent, the Corporation and the Holders and of the terms
upon which the Purchase Contracts are, and are to be, executed, countersigned,
executed on behalf of the Holder and delivered.
The Agent may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents in connection with any
transfer or exchange of each Purchase Contract evidenced hereby. No service
charge shall be required for any such registration of transfer or exchange,
but the Corporation and the Agent may require payment of a sum sufficient
to cover any tax or other 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, the Warrant Agent and the Collateral Agent, and any agent of the
Corporation, the Trustee, the Agent, the Warrant Agent and the Collateral
Agent may treat the Person in whose name this Purchase Contract is registered
as a party to the Purchase Contracts evidenced hereby for the purpose of
performance of such Purchase Contracts and for all other purposes whatsoever,
and neither the Corporation, the Trustee, the Agent, the Warrant Agent and the
Collateral Agent nor any such agent shall be affected by notice to the
contrary.
The Holder, by his acceptance hereof, authorizes the Agent to
execute the Purchase Contracts evidenced hereby on his behalf, authorizes and
directs the Agent on his behalf to take such other action, and covenants and
agrees to take such other action, as may be necessary or appropriate, or as
may be required by the Agent, to effectuate the provisions of the Unit
Agreement relating to the purchase of the Purchase Contract Property [and the
pledge of the Debt Securities constituting part of the Unit of which this
Purchase Contract forms a part to the Collateral Agent on the Holder's
behalf,](7) appoints the agent as his attorney-in-fact for any and all such
purposes, and agrees to be bound by the terms thereof.
The Purchase Contracts shall not, prior to the performance
thereof, entitle the Holder to any of the rights of a holder of the Purchase
Contract Property.
No Purchase Contract evidenced hereby shall be valid or
obligatory for any purpose until countersigned and executed on behalf of the
Holder by the Agent, pursuant to the Unit Agreement.
IN WITNESS WHEREOF, Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co.
has caused this instrument to be duly executed.
XXXXXX XXXXXXX, XXXX XXXXXX,
DISCOVER & CO.
By:______________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Agent, and as attorney-in-fact
of the Holder hereof
By:____________________________
Authorized Officer
Countersigned:
THE CHASE MANHATTAN BANK,
as Agent
By:____________________________
Authorized Officer
----------
(7) Insert in Registered Units consisting of Non-Separable Debt Securities and
Purchase Contracts.
[FORM OF PURCHASE CONTRACT
CONTEMPLATING PURCHASE BY XXXXXX XXXXXXX,
XXXX XXXXXX, DISCOVER & CO.]
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
PURCHASE CONTRACT(S)
Purchase Contracts between
Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co.
and
________________
or registered assigns,
as holder hereunder (the "Holder")
All capitalized terms used but not defined herein that are defined in the Unit
Agreement (described below) have the meanings set forth therein, and if not
defined therein, have the meaning set forth below.
Purchase Contract Property:
Quantity:
Purchase Price:
Settlement Date:
Payment Location:
Method of Settlement:
Method of Computing Settlement
Amount:
Currency of Settlement Payment:
Authorized Number of Purchase
Contracts:
Aggregate Purchase Price:
Contract Fees:
Corporation Acceleration:
Holders' Acceleration:
Redemption Provisions:
Other Terms:
Subject to the conditions hereinafter set forth, the Holder
agrees to sell and Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co., a corporation
duly incorporated and existing under the laws of the State of Delaware (the
"Corporation"), agrees to purchase, subject to the terms of the Unit Agreement
referred to below and as set forth herein, on the Settlement Date, the
Quantity of Purchase Contract Property, for the Purchase Price. The Purchase
Contract(s) evidenced hereby shall not entitle the Corporation to purchase the
Purchase Contract Property, or the Holder to receive the Purchase Price, prior
to the Settlement Date.
If so indicated under Method of Settlement above, the parties'
obligations under the Purchase Contracts evidenced hereby may be settled by
payment of the Settlement Amount by the Corporation or the Holder, as the case
may be. The Settlement Amount payable pursuant to the Purchase Contracts
evidenced hereby, as determined in accordance with the Method of Computing
Settlement Amount, shall be payable on the Settlement Date in the Currency of
Settlement Payment pursuant to the Method of Settlement at the Payment
Location; provided that any Settlement Amount payable by Holders pursuant to
the Purchase Contracts evidenced hereby may be deducted from the principal
payment that may be payable by the Corporation with respect to any Debt
Securities comprised by the Units of which such Purchase Contacts are a part.
Each Purchase Contract evidenced hereby is one of a duly
authorized issue of not more than the Authorized Number of Purchase Contracts
of the Corporation issued under the Unit Agreement, dated as of June 2, 1997
(the "Unit Agreement"), among the Corporation, The Chase Manhattan Bank, as
Agent (the "Agent") and as Collateral Agent thereunder, as Warrant Agent (the
"Warrant Agent") under the Warrant Agreement referred to therein, as Trustee
(the "Trustee") and Paying Agent under the Indenture referred to therein, and
the holders from time to time of Units, to which Unit Agreement and
supplemental agreements thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and
immunities thereunder of the Agent, the Corporation and the Holders and of the
terms upon which the Purchase Contracts are, and are to be, executed,
countersigned, executed on behalf of the Holder and delivered.
The Agent may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents in connection with any
transfer 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, the Warrant Agent and the Collateral Agent, and any agent of the
Corporation, the Agent, the Trustee, the Warrant Agent and the Collateral
Agent may treat the Person in whose name this Purchase Contract is registered
as a party to the Purchase Contracts evidenced hereby for the purpose of
performance of such Purchase Contracts and for all other purposes whatsoever,
and neither the Corporation, the Agent, the Trustee, the Warrant Agent and the
Collateral Agent nor any such agent shall be affected by notice to the
contrary.
The Holder, by his acceptance hereof, authorizes the Agent to
execute the Purchase Contracts evidenced hereby on his behalf, authorizes and
directs the Agent on his behalf to take such other action, and covenants and
agrees to take such other action, as may be necessary or appropriate, or as
may be required by the Agent, to effectuate the provisions of the Unit
Agreement relating to the purchase of the Purchase Contract Property [and the
pledge of the Debt Securities constituting part of the Unit of which this
Purchase Contract forms a part to the Collateral Agent on the Holder's
behalf,](8) appoints the agent as his attorney-in-fact for any and all such
purposes, and agrees to be bound by the terms thereof.
No Purchase Contract evidenced hereby shall be valid or
obligatory for any purpose until countersigned and executed on behalf of the
Holder by the Agent, pursuant to the Unit Agreement.
IN WITNESS WHEREOF, Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co.
has caused this instrument to be duly executed.
XXXXXX XXXXXXX, XXXX XXXXXX,
DISCOVER & CO.
By:___________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as
Agent, and as attorney-in-fact of the
Holder hereof
By:____________________________
Authorized Officer
Countersigned:
THE CHASE MANHATTAN BANK, as
Agent
By:____________________________
Authorized Officer
----------
(8) Insert in Registered Units consisting of Debt Securities and Purchase
Contracts.
[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
Exchange or Purchase Such Purchase Such Contracts Such on Behalf of
Settlement Contract(1) Exchange(1) Contract(2) Exchange(2) Settled Settlement Agent
------------------------------------------------------------------------------------------------------------------------
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----------
1 Applies only if this Purchase Contractis 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
Separation of the Number Reduced by Number Reduced by Number of Units Notation Made by or
Date of Component Parts of Exercise of Universal Settlement of Purchase Outstanding Following on Behalf of Paying
Reduction this Unit Warrants Contracts any such Reduction Agent
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[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.]
