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XXXXXX XXXXXXX GROUP INC.,
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 January 24, 1997
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TABLE OF CONTENTS
ARTICLE ONE
Section 101. Definitions...................................... 2
ARTICLE TWO
Section 201. Forms Generally.................................. 12
Section 202. Form of Certificate of Authentication and
Countersignature................................. 12
Section 203. Amount Unlimited; Issuable in Series............. 13
Section 204. Denominations.................................... 14
Section 205. Rights and Obligations Evidenced by the Units.... 14
Section 206. Execution, Authentication, Delivery and Dating... 15
Section 207. Temporary Unit Certificates...................... 15
Section 208. Registration of Transfer and Exchange; Global
Units............................................ 16
Section 209. Mutilated, Destroyed, Lost and Stolen Unit
Certificates..................................... 19
Section 210. Persons Deemed Owners............................ 21
Section 211. Cancellation..................................... 22
Section 212. Exchange of Global Units and Definitive Units.... 22
ARTICLE THREE
Section 301. Form and Execution of Purchase Contracts;
Temporary Purchase Contracts..................... 23
Section 302. Number Unlimited; Issuable in Series............. 25
Section 303. Countersignature, Execution on Behalf of Holder
and Delivery of Purchase Contracts............... 27
Section 304. Further Provisions Relating to Issuance of
Purchase Contracts............................... 30
Section 305. Purchase of Purchase Contract Property; Optional
Acceleration of Purchase Obligations;
Authorization of Agent by Holder; Transferees
Bound............................................ 30
Section 306. Payment of Purchase Price........................ 32
Section 307. Delivery of Purchase Contract Property, Warrant
Property or Other Amounts........................ 35
Section 308. Charges and Taxes................................ 36
ARTICLE FOUR
Section 401. Acceleration of Obligations...................... 36
Section 402. Unconditional Rights Under Purchase Contracts;
Limitation on Proceedings by Holders............. 37
Section 403. Restoration of Rights and Remedies............... 38
Section 404. Rights and Remedies Cumulative................... 38
Section 405. Delay or Omission Not Waiver..................... 38
Section 406. Waiver of Past Defaults.......................... 38
Section 407. Undertaking for Costs............................ 39
Section 408. Waiver of Stay or Extension Laws................. 39
Section 409. Agent May File Proofs of Claim................... 40
Section 410. Suits for Enforcement............................ 40
Section 411. Control by Holders............................... 41
ARTICLE FIVE
Section 501. Granting of Security Interests; Rights and
Remedies of Collateral Agent; Perfection......... 42
Section 502. Distribution of Principal and Interest; Release
of Collateral.................................... 43
Section 503. Certain Duties and Responsibilities of the
Collateral Agent................................. 44
Section 504. Knowledge of the Collateral Agent................ 45
Section 505. Certain Rights of Collateral Agent............... 45
Section 506. Compensation and Reimbursement................... 46
Section 507. Corporate Collateral Agent Required:
Eligibility...................................... 47
Section 508. Resignation and Removal; Appointment of Successor 47
Section 509. Acceptance of Appointment by Successor........... 49
Section 510. Merger, Conversion, Consolidation or Succession
to Business...................................... 50
Section 511. Money Held in Trust.............................. 50
ARTICLE SIX
Section 601. Certain Duties and Responsibilities.............. 50
Section 602. Notice of Default................................ 51
Section 603. Certain Rights of Agent.......................... 52
Section 604. Not Responsible for Recitals or Issuance of Xxxxx 00
Xxxxxxx 000. May Hold Units................................... 53
Section 606. Money Held in Trust.............................. 54
Section 607. Compensation and Reimbursement................... 54
Section 608. Corporate Agent Required: Eligibility........... 55
Section 609. Resignation and Removal; Appointment of Successor 55
Section 610. Acceptance of Appointment by Successor........... 57
Section 611. Merger, Conversion, Consolidation or Succession
to Business...................................... 58
Section 612. Appointment of Authenticating Agent.............. 58
Section 613. Corporation to Furnish Agent Names and Addresses
of Holders....................................... 61
Section 614. Preservation of Information; Communications to
Holders.......................................... 61
Section 615. No Obligation of Holder.......................... 62
Section 616. Tax Compliance................................... 62
ARTICLE SEVEN
Section 701. Supplemental Agreements Without Consent of
Holders.......................................... 64
Section 702. Supplemental Agreements with Consent of Holders.. 65
Section 703. Execution of Supplemental Agreements............. 66
Section 704. Effect of Supplemental Agreements................ 66
Section 705. Reference to Supplemental Agreements............. 66
ARTICLE EIGHT
Section 801. Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions.. 67
Section 802. Rights and Duties of Successor Corporation....... 67
Section 803. Opinion of Counsel to Agent...................... 68
ARTICLE NINE
Section 901. Performance Under Purchase Contracts............. 68
Section 902. Maintenance of Office or Agency.................. 68
Section 903. Money for Payments to Be Held in Trust........... 69
Section 904. Statements of Officers of the Corporation as to
Default.......................................... 70
Section 905. Negative Pledge.................................. 71
Section 906. Luxembourg Publications.......................... 71
ARTICLE TEN
Section 1001. Optional Redemption of Purchase Contracts;
Redemption Upon Redemption of Debt Securities.... 72
Section 1002. Notice of Redemption; Partial Redemptions........ 72
Section 1003. Payment of Purchase Contracts Called for
Redemption....................................... 73
Section 1004. Exclusion of Certain Purchase Contracts from
Eligibility for Selection for Redemption......... 74
ARTICLE ELEVEN
Section 1101. Incorporators, Stockholders, Officers and
Directors of the Corporation Immune from
Liability........................................ 75
Section 1102. Compliance Certificates and Opinions............. 75
Section 1103. Form of Documents Delivered to Agent or
Collateral Agent................................. 76
Section 1104. Acts of Holders.................................. 77
Section 1105. Notices. Etc..................................... 78
Section 1106. Notice to Holders; Waiver........................ 78
Section 1107. Effect of Headings and Table of Contents......... 79
Section 1108. Successors and Assigns........................... 79
Section 1109. Separability Clause.............................. 79
Section 1110. Benefits of Agreement............................ 79
Section 1111. Governing Law.................................... 80
Section 1112. Legal Holidays................................... 80
Section 1113. Counterparts..................................... 80
Section 1114. Appointment of Certain Agents.................... 80
Section 1115. Inspection of Agreement.......................... 80
UNIT AGREEMENT, dated as of January 24, 1997, by and among XXXXXX
XXXXXXX GROUP INC., a Delaware corporation (the "Corporation"), THE CHASE
MANHATTAN BANK, a New York banking corporation ("Chase"), acting solely as unit
agent and collateral agent under this Agreement (in its capacity as unit agent,
the "Agent," and, in its capacity as collateral agent, the "Collateral Agent"),
except to the extent that this Agreement specifically states that the Agent is
acting in another capacity, Chase, as trustee and paying agent under the
Indenture described below (in its capacity as trustee under the Indenture, the
"Trustee" and, in its capacity as paying agent under the Indenture, the "Paying
Agent"), and Chase, as Warrant Agent under the Warrant Agreement described below
(in its capacity as Warrant Agent under the Warrant Agreement, the "Warrant
Agent"), and the holders from time to time of the Units described herein.
WHEREAS, the Corporation has entered into 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 (as so supplemented, the "Indenture"), between the
Corporation and The Chase Manhattan Bank (formerly known as Chemical Bank), as
Trustee;
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 January 24, 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 ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) 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
(3) 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 302.
"Acceleration Notice," has the meaning specified in Section
305(b).
"Act," with respect to any Holder, has the meaning specified in
Section 1104.
"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
306(a)(1).
"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 501(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
306(a)(2).
"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 203.
"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 302 on which such Purchase Contracts or Prepaid
Purchase Contracts may be accelerated pursuant to Section 305 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 Managing Director 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.
"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 302 that may
be subject to acceleration pursuant to Section 305.
"Minimum Remaining Amount" means the minimum number of Purchase
Contracts of any series as specified pursuant to Section 302 that must remain
Outstanding immediately following any acceleration pursuant to Section 305.
"Officer's Certificate" means a certificate signed by the Chief
Financial Officer, Treasurer or any Managing Director 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 212.
"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:
(i) 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;
(ii) Closed Purchase Contracts; and
(iii) 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 302.
"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 302.
"Purchase Contract Register" and "Purchase Contract Registrar"
have the respective meanings specified in Section 208.
"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 302.
"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 203.
"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 302.
"Settlement Date" means the Stated Settlement Date and any
Accelerated Settlement Date.
"SRO" has the meaning specified in Section 201.
"Stated Settlement Date" of any Purchase Contract of any series
has the meaning specified pursuant to Section 302.
"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 203.
"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 TWO
Units
Section 201. 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 202. 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 203. Amount Unlimited; Issuable in Series. 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:
(1) the designation of the Units of the series, which shall
distinguish the Units of the series from the Units of all other
series;
(2) 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 207, 208, 209 or 212);
(3) the designation of the Securities constituting a part of
the Units of the series;
(4) 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;
(5) in the case of Units of a series consisting in any part of
Purchase Contracts, the information specified pursuant to Section
302;
(6) 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 208, the terms
upon which Unregistered Units of any series may be exchanged for
Registered Units of such series and vice versa;
(7) 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;
(8) 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;
(9) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the
Units of such series;
(10) any other events of default or covenants with respect to
the Units of such series; and
(11) 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 204. Denominations. Units of any series shall be
issuable only in denominations of a single Unit and any integral multiple
thereof.
Section 205. Rights and Obligations Evidenced by the Units. Units
of any series shall evidence (i) the ownership by the Holder thereof of (A) the
principal amount of Debt Securities, if any, specified on the face of a Unit
Certificate representing Definitive Units or in Schedule A attached to any Unit
Certificate representing Global Units, (B) the number of Warrants, if any,
specified on the face of a Unit Certificate representing Definitive Units or in
Schedule A attached to any Unit Certificate representing Global Units 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 (ii) 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 206. 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 301.
Section 207. 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 203. 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
203.
Section 208. 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 203, 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 203, 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 203, and upon payment,
if the Corporation shall so require, of the charges hereinafter provided. Unless
otherwise specified pursuant to Section 203, 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 212, if the Corporation shall establish
pursuant to Section 203 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 209 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 203.
Section 209. 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 203,
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 203. 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 210. 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 211. Cancellation. Subject to Section 307, 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 212. 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 203, 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 212 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 203, 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 208.
ARTICLE THREE
The Purchase Contracts; Settlement of Warrants
Section 301. 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 302. 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:
(1) 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;
(2) 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);
(3) 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);
(4) 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;
(5) 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;
(6) 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;
(7) 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;
(8) 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;
(9) whether the Purchase Contracts of the series will be in
registered form ("Registered Purchase Contracts") or bearer form
("Bearer Purchase Contracts") or both;
(10) 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;
(11) 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;
(12) 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;
(13) 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
(14) 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 303. 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 2, 3 and 4 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:
(1) 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;
(2) any Board Resolution, Officer's Certificate and/or executed
supplemental agreement pursuant to which the forms and terms of the
Purchase Contracts were established;
(3) 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 301
and 302 and comply with this Agreement, and covering such other matters
as the Agent may reasonably request; and
(4) 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:
(i) the forms of the Purchase Contracts have been duly
authorized and established in conformity with the provisions
of this Agreement;
(ii) 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
(iii) 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 302
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 304. 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 305. Purchase of Purchase Contract Property; Optional
Acceleration of Purchase Obligations; Authorization of Agent by Holder;
Transferees Bound. (a) Unless otherwise specified pursuant to Section 302, 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 302 (or a quantity
calculated by a method specified pursuant to Section 302) on the Stated
Settlement Date at the Purchase Price specified pursuant to Section 302.
(b) If this Section is specified as applicable pursuant to
Section 302, 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 302) 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 1105 and Section 1106,
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 302 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 302) 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 1105
and 1106 (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 306 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 306, 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 306. Payment of Purchase Price. (a) Unless otherwise
specified pursuant to Section 302 (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:
(1) 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
(2) 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 306, 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 302 or the Warrant Agreement or the applicable
Warrants) against tender by the Agent of payment therefor.
(c) Unless otherwise specified pursuant to Section 302, 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 306 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 306 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 302.
(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 306(a)(2) shall be
distributed to the Holders of Units upon surrender of the appropriate Unit
Certificate.
(g) Except as otherwise specified pursuant to Section 302, 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 307. Delivery of Purchase Contract Property, Warrant
Property or Other Amounts. Unless otherwise specified pursuant to Section 302,
(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 211 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 308. 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 FOUR
Remedies
Section 401. 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 302 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 402. 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 403. 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 404. Rights and Remedies Cumulative. Subject to Section
402, 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 405. 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 406. 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 302
against tender of Purchase Contract Property or other amount specified pursuant
to Section 302 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 407. 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 302) with respect thereto.
Section 408. 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 409. Agent May File Proofs of Claim. 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,
(1) 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
(2) 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 410. 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 402 or the direction
referred to in Section 411 and the security or indemnity referred to in Section
603(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 411. 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 601) 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 601) 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 410) to take any action deemed proper by
the Agent and which is not inconsistent with such direction or directions by
Holders.
ARTICLE FIVE
Security Interests and Collateral Agent
Section 501. 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 203:
(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 302; (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 302, accompanied by an instrument of transfer
executed in blank, and the Corporation shall notify the Collateral Agent of the
Pledge and receipt of such notification shall constitute acknowledgement 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 503(f)) may deem necessary or appropriate to further
perfect, or maintain the perfection of the security interests granted hereby.
Section 502. Distribution of Principal and Interest;
Release of Collateral. Unless otherwise specified pursuant to Section 203:
(a) All payments of principal of, or interest on, any Pledged
Items received by the Collateral Agent pursuant to Section 306(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 503. 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
(1) 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
(2) 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 504. 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 505. Certain Rights of Collateral Agent. Subject
to the provisions of Section 503:
(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 506. Compensation and Reimbursement. 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 507. 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 508. 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 509.
(b) The Collateral Agent may resign by giving written notice
thereof to the Corporation and the Holders, in accordance with Section 1105 and
Section 1106, 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
509 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
(1) the Collateral Agent shall cease to be eligible under Section
507, 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
(2) 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 509.
(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 1106. Each notice shall include the
name of the successor Collateral Agent and the address of its Corporate Trust
Office.
Section 509. 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 506, 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 506.
(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 1106. 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 508. 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 510. 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 511. 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 SIX
The Agent
Section 601. 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
(1) 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
(2) 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 602. 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 1106, notice of such Purchase Contract Default
hereunder, unless such Purchase Contract Default shall have been cured or
waived.
Section 603. Certain Rights of Agent. Subject to the
provisions of Section 601:
(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 604. 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 605. 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 606. 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 607. 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 608. 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 609. 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 610.
(b) The Agent may resign by giving written notice thereof to the
Corporation and the Holders, in accordance with Section 1105 and Section 1106,
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 610 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
(1) the Agent shall cease to be eligible under Section 608, 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
(2) 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, (i) the Corporation, by Board Resolution, may remove the
Agent and appoint a successor Agent, or (ii) 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 610. If no successor Agent shall have been so appointed
by the Corporation and accepted appointment in the manner required by Section
610, 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 1106. Each notice shall include the name of the successor Agent and the
address of its Corporate Trust Office.
Section 610. 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 607, 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 607.
(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 1106. 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 609. 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 611. 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 612. 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 209 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 1106. 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 210, 604 and 605 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]
Countersigned:
THE CHASE MANHATTAN BANK,
as Agent
By [NAME OF AUTHENTICATING AGENT],
as Authenticating Agent
By_________________________________________
[Authorized Officer]
Section 613. 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 614. 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 613 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 613 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 614(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 614(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 614(b).
Section 615. 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 616. 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 601(b)(2) 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 203, 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 203, 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 203, 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 SEVEN
Supplemental Agreements
Section 701. 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:
(1) 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
(2) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent or Collateral Agent with respect to
the Units; or
(3) 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
(4) to comply with the Securities Act of 1933, as amended, the
Exchange Act or the Investment Company Act of 1940, as amended; or
(5) 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 702. 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 703. 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 601 and 503, 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 704. 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 705. 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 EIGHT
Consolidation, Merger, Sale or Conveyance
Section 801. 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 802. 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 Group Inc. 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 803. Opinion of Counsel to Agent. The Agent and the
Collateral Agent, subject to Sections 601 and 603 and Sections 503 and 505,
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 NINE
Covenants
Section 901. 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 902. 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 903. 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 (i) evidence to their satisfaction that
such certificate has been destroyed, lost or stolen 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. 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 904. 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 905. 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,
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 906. 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 TEN
Redemptions
Section 1001. Optional Redemption of Purchase Contracts;
Redemption Upon Redemption of Debt Securities. If this Article is specified as
applicable pursuant to Section 302 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 302; 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 302.
Unless otherwise specified pursuant to Section 203, 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 1002. Notice of Redemption; Partial Redemptions. Unless
otherwise specified pursuant to Section 302, 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 1106, 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 1001 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 1003. 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 302, 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 211. 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 1004. 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 ELEVEN
Miscellaneous Provisions
Section 1101. 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 1102. 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:
(1) a statement that each individual signing such certificate or
opinion has reached such covenant or condition and the definitions
herein relating thereto;
(2) 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;
(3) 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
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1103. 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 1104. 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 601)
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 203(7), 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 203, 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 1105. 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: Xxxxxxxx X. Xxxxx, or at any other address
previously furnished in writing to the Agent and the Collateral Agent
by the Corporation.
Section 1106. Notice 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 203
or 302) 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 1107. 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 1108. 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 1109. 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 1110. 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 1111. 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 1112. Legal Holidays. Unless otherwise specified pursuant
to Section 302, 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 1113. 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 1114. Appointment of Certain Agents. (a) Pursuant to
Section 203 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 203, 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 1115. 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 GROUP INC.
By____________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
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
Group, Inc. or its agent for registration of transfer, exchange or payment, and
any Unit issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of the Depositary and any payment
hereon is made to Cede & Co. or such other entity as is requested by an
authorized representative of the Depositary, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.]
UNIT CERTIFICATE
(issuable in integral multiples of whole Units)
Evidencing the Ownership of, or Rights and Obligations
of the Holder Under, the Securities
Specified Below
[Specify Securities Constituting Part of these Units]
Certificate No. _____ Number of Units
[Up To]*
This Unit Certificate certifies that ______________________ (the
"Holder"), or [registered assigns]**, is the [registered]** owner of [ ( )
Units]*** [the number of Units specified in Schedule A hereto.]*
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
January __, 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.]****
[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.]*****
[Designated Security Register:]******
[Other Terms of Units:]
------------
* Insert in Global Unit Certificates
** Insert in Registered Units
*** Insert in Definitive Unit Certificates
**** Insert in Registered Units consisting of Non-Separable Debt
Securities and Purchase Contracts
***** Insert in non-separable Units.
****** Insert in non-separable Registered Units.
[INSERT APPROPRIATE DEBT SECURITY CERTIFICATE OR WARRANT
CERTIFICATE, AS APPLICABLE]
---------------------------------------------------------------------------
|Reference is hereby made to the further provisions of this certificate set|
|forth on the succeeding pages hereof, which further provisions shall for |
|all purposes have the same effect as if set forth at this place. |
---------------------------------------------------------------------------
[FORM OF PURCHASE CONTRACT
CONTEMPLATING SALE BY XXXXXX XXXXXXX GROUP INC.]
XXXXXX XXXXXXX GROUP INC.
[Insert Designation of Purchase Contracts]
PURCHASE CONTRACT(S)
Purchase Contracts between
Xxxxxx Xxxxxxx Group Inc.
and
----------------
or registered assigns,
as holder hereunder (the "Holder")
All capitalized terms used but not defined herein that are defined in
the Unit Agreement (described below) have the meanings set forth therein, and if
not defined therein, have the meaning set forth below.
------------------------------------------------------------------------------
Purchase Contract Property:
------------------------------------------------------------------------------
Quantity:
------------------------------------------------------------------------------
Purchase Price:
------------------------------------------------------------------------------
Settlement Date:
------------------------------------------------------------------------------
Payment Location:
------------------------------------------------------------------------------
Method of Settlement:
------------------------------------------------------------------------------
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 Group Inc., a corporation duly incorporated and
existing under the laws of the State of Delaware (the "Corporation"), agrees to
sell, subject to the terms of the Unit Agreement referred to below and as set
forth herein, on the Settlement Date, the Quantity of Purchase Contract
Property, for the Purchase Price. The Purchase Contract(s) evidenced hereby
shall not entitle the Holder to purchase the Purchase Contract Property prior to
the Settlement Date.
The Purchase Price for the Purchase Contract Property purchased
pursuant to the Purchase Contracts evidenced hereby shall be payable at the
Payment Location on the Settlement Date pursuant to the 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 January __, 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,]*******
appoints the agent as his attorney-in-fact for any and all such purposes, and
agrees to be bound by the terms thereof.
------------
******* Insert in Registered Units consisting of Non-Separable Debt
Securities and Purchase Contracts.
The Purchase Contracts shall not, prior to the performance thereof,
entitle the Holder to any of the rights of a holder of the Purchase Contract
Property.
No Purchase Contract evidenced hereby shall be valid or obligatory for
any purpose until countersigned and executed on behalf of the Holder by the
Agent, pursuant to the Unit Agreement.
IN WITNESS WHEREOF, Xxxxxx Xxxxxxx Group Inc. has caused this
instrument to be duly executed.
Dated:
XXXXXX XXXXXXX GROUP INC.
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
[FORM OF PURCHASE CONTRACT
CONTEMPLATING PURCHASE BY XXXXXX XXXXXXX GROUP INC.]
XXXXXX XXXXXXX GROUP INC.
PURCHASE CONTRACT(S)
Purchase Contracts between
Xxxxxx Xxxxxxx Group Inc.
and
----------------
or registered assigns,
as holder hereunder (the "Holder")
All capitalized terms used but not defined herein that are defined in
the Unit Agreement (described below) have the meanings set forth therein, and if
not defined therein, have the meaning set forth below.
------------------------------------------------------------------------------
Purchase Contract Property:
------------------------------------------------------------------------------
Quantity:
------------------------------------------------------------------------------
Purchase Price:
------------------------------------------------------------------------------
Settlement Date:
------------------------------------------------------------------------------
Payment Location:
------------------------------------------------------------------------------
Method of Settlement:
------------------------------------------------------------------------------
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 Group Inc., a corporation duly incorporated and existing
under the laws of the State of Delaware (the "Corporation"), agrees to purchase,
subject to the terms of the Unit Agreement referred to below and as set forth
herein, on the Settlement Date, the Quantity of Purchase Contract Property, for
the Purchase Price. The Purchase Contract(s) evidenced hereby shall not entitle
the Corporation to purchase the Purchase Contract Property, or the Holder to
receive the Purchase Price, prior to the Settlement Date.
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 January __, 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,]********
appoints the agent as his attorney-in-fact for any and all such purposes, and
agrees to be bound by the terms thereof.
------------
******** Insert in Registered Units consisting of Debt Securities and Purchase
Contracts.
No Purchase Contract evidenced hereby shall be valid or obligatory for
any purpose until countersigned and executed on behalf of the Holder by the
Agent, pursuant to the Unit Agreement.
IN WITNESS WHEREOF, Xxxxxx Xxxxxxx Group Inc. has caused this
instrument to be duly executed.
Dated:
XXXXXX XXXXXXX GROUP INC.
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
[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
Purchase
Number Reduced Contracts Increased Reduced
Exchanged for Number represented by Number Number
Date of Separated Outstanding this Separated Outstanding Number of Outstanding Notation Made
Exchange or Purchase Following Such Purchase Following Such Purchase Following Such by or on Behalf
Settlement Contract(1) Exchange(1) Contract(2) Exchange(2) Contracts Settled Settlement of Agent
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
---------------
(1) Applies only if this Purchase Contract is part of a Unit.
(2) Applies only if this Purchase Contract has been separated from a Unit.
[IF PURCHASE CONTRACT IS SEPARATED FROM UNIT, INSERT -
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned assigns and transfers the Purchase
Contract(s) represented by this Certificate to:
_________________ (Insert assignee's social security or tax identification
number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Certificate on the books of the Corporation. The agent
may substitute another to act for him or her.
Date:
Signature(s):
-------------------------------------------------
-------------------------------------------------
(Sign exactly as your name appears on the other side of this Certificate)
NOTICE: The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion program),
pursuant to S.E.C. Rule 17Ad-15.]
[IF UNIT CERTIFICATE IS A GLOBAL UNIT CERTIFICATE, INSERT -
SCHEDULE A
GLOBAL
UNIT CERTIFICATE
SCHEDULE OF EXCHANGES
The initial number of Units represented by this Global Unit Certificate is
_________. In accordance with the Unit Agreement pursuant to which this Global
Unit Certificate has been issued, the following reductions of the number of
Units represented by this Global Unit Certificate have occurred:
BIK
==================================================================================================================================
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
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
[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.]
