Exhibit 4.4
EXECUTION COPY
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UNIT AGREEMENT
Between
GLOBE HOLDINGS, INC.
and
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Unit Agent, Warrant Agent and Trustee
Dated as of August 6, 1998
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TABLE OF CONTENTS
Page
SECTION 1. Appointment of Unit Agent......................................... 1
SECTION 2. Unit Certificates................................................. 2
SECTION 3. Execution of Unit Certificates.................................... 2
SECTION 4. Registration and Authentication................................... 3
SECTION 5. Registration of Transfers and Exchanges........................... 3
SECTION 6. Separation of the Notes and the Warrants.......................... 7
SECTION 7. Rights of Unit Holders............................................ 8
SECTION 8. Unit Agent........................................................ 8
SECTION 9. Resignation and Appointment of Successor..........................10
SECTION 10. Notices to the Company and Unit Agent, Trustee and Warrant Agent..12
SECTION 11. Supplements and Amendments........................................13
SECTION 12. Successors........................................................13
SECTION 13. Governing Law.....................................................13
SECTION 14. Benefits of This Agreement........................................13
SECTION 15. Counterparts......................................................13
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UNIT AGREEMENT
This UNIT AGREEMENT (this "Agreement") dated as of August 6, 1998 is
between Globe Holdings, Inc., a Massachusetts corporation (the "Company"), and
Norwest Bank Minnesota, National Association, as Unit Agent (in such capacity,
together with any successor unit agent, the "Unit Agent") and as Warrant Agent
(as defined below) and as Trustee (as defined below).
WHEREAS, the Company proposes to issue $49,086,000 aggregate principal
amount at maturity of its 14% Senior Discount Notes due 2009 (the "Notes")
pursuant to an Indenture dated as of August 6, 1998 (the "Indenture") between
the Company and Norwest Bank Minnesota, National Association, as Trustee (in
such capacity, the "Trustee"), and to issue warrants (the "Warrants") to
initially purchase an aggregate of 69,481 shares of its Class A Common Stock,
par value $.01 per share (the "Common Stock"), pursuant to a Warrant Agreement
dated as of August 6, 1998 (the "Warrant Agreement") between the Company and
Norwest Bank Minnesota, National Association, as Warrant Agent (in such
capacity, the "Warrant Agent"). The Notes and the Warrants will initially be
represented by units (the "Units"), with each Unit consisting of $1,000
principal amount of Notes and one Warrant initially entitling the holder thereof
to purchase 1.4155 shares of Common Stock (the "Warrant Shares").
WHEREAS, the Company, the Trustee and the Warrant Agent desire to
appoint the Unit Agent to act as their agent for the purpose of issuing
certificates ("Unit Certificates") representing the Units and for the
registration of transfers and exchanges thereof.
WHEREAS, the Units will be exchangeable for the Notes and Warrants
represented thereby upon the earliest to occur of: (i) the date that is six
months following the initial sale of the Units, (ii) the commencement of the
Exchange Offer (as defined in the Indenture), (iii) the date a Shelf
Registration Statement (as defined in the Registration Rights Agreement) with
respect to the Notes is declared effective, (iv) a Change of Control (as defined
in the Indenture), and (v) such date as the BancAmerica Xxxxxxxxx Xxxxxxxx (the
"Initial Purchaser") may, in its sole discretion, deem appropriate. The earliest
date on which an event listed in the preceding sentence occurs is referred to as
the "Separation Date."
WHEREAS, capitalized terms used herein and not otherwise defined shall
have the meanings given to such terms in the Indenture.
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. Appointment of Unit Agent. (a) The Company hereby appoints
the Unit Agent to act as agent for the Company in accordance with the
instructions set forth hereinafter in this Agreement, and the Unit Agent hereby
accepts such appointment.
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(b) The Trustee and the Company hereby appoint the Unit Agent as an
Authenticating Agent and Registrar (as such terms are defined in the Indenture)
for the Notes for so long as the Notes are represented by the Units. In its
capacity as an Authenticating Agent and Registrar, the Unit Agent shall have the
rights and obligations provided for such capacities in the Indenture.
(c) The Warrant Agent and the Company hereby appoint the Unit Agent as
Warrant Registrar (as such term is defined in the Warrant Agreement) for the
Warrants for so long as the Warrants are represented by the Units. In its
capacity as Warrant Registrar, the Unit Agent shall have the rights and
obligations provided for such capacity in the Warrant Agreement.
SECTION 2. Unit Certificates. Units issued in global form ("Global
Units") shall be substantially in the form of Exhibit A attached hereto and
shall include the Global Unit Legend set forth on Exhibit B (the "Global Unit
Legend") and the "Schedule of Exchanges of Interests in Global Units." Units
issued in definitive form (the "Definitive Units") shall be substantially in the
form of Exhibit A attached hereto but shall not include the Global Unit Legend
or the "Schedule of Exchanges of Interests in Global Units." Global Units shall
represent such of the outstanding Units as shall be specified therein and each
shall provide that it shall represent the aggregate Units from time to time
endorsed thereon and that the aggregate amount of outstanding Units represented
thereby may from time to time be reduced or increased, as appropriate. Any
endorsement of a Global Unit to reflect the amount of any increase or decrease
in the amount of outstanding Units represented thereby shall be made by the Unit
Agent in accordance with instructions given by the holder thereof. The
Depository Trust Company shall act as the Depositary with respect to the Global
Units until a successor shall be appointed by the Company and the Unit Agent.
Upon written request, a Unit holder may receive from the Unit Agent Definitive
Units as set forth in Section 5 below.
SECTION 3. Execution of Unit Certificates. Unit Certificates shall be
signed on behalf of the Company by two Officers (as such term is defined in the
Indenture). Each such signature upon the Unit Certificates may be in the form of
a facsimile signature of any person who is an Officer as of or subsequent to the
date hereof and may be imprinted or otherwise reproduced on the Unit
Certificates and for that purpose the Company may adopt and use the facsimile
signature of any person who shall have been an Officer, notwithstanding the fact
that at the time the Unit Certificates shall be authenticated and delivered or
disposed of he or she shall have ceased to hold such office. The seal of the
Company, if affixed to a Unit Certificate, may be in the form of a facsimile
thereof.
In case any Officer of the Company who shall have signed any of the
Unit Certificates shall cease to be such Officer before the Unit Certificates so
signed shall have been authenticated by the Unit Agent, or disposed of by the
Company, such Unit Certificates nevertheless may be authenticated and delivered
or disposed of as though such person had not ceased to be such Officer of the
Company; and any Unit Certificate may be signed on behalf of the Company by any
person who, at the actual date of the execution of such Unit Certificate, shall
be a proper Officer of the Company to sign such Unit Certificate, although at
the date of the execution of this Unit Agreement any such person was not such
officer.
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Unit Certificates shall be dated the date of authentication by the
Unit Agent.
SECTION 4. Registration and Authentication. The Unit Agent, on behalf
of the Company, shall number and register the Unit Certificates in a register as
they are issued by the Company.
Unit Certificates shall be manually authenticated by the Unit Agent
and shall not be valid for any purpose unless so authenticated. The Unit Agent
shall, upon written instructions of an Officer of the Company specifying the
number of Units to be authenticated, whether the Units are to be Global Units or
Definitive Units, the date of such Units, and such other information as the Unit
Agent may request, initially authenticate and deliver not more than 49,086 Units
and shall thereafter authenticate and deliver Units as otherwise provided in
this Agreement.
SECTION 5. Registration of Transfers and Exchanges.
(a) Transfer and Exchange. The Unit Certificates shall be issued in
registered form only. The Company shall cause to be kept at the office of the
Unit Agent a register in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Unit Certificates
and transfers or exchanges of Unit Certificates as herein provided. All Unit
Certificates issued upon any registration of transfer or exchange of Unit
Certificates shall be valid obligations of the Company, evidencing the same
obligations, and entitled to the same benefits under this Agreement, as the Unit
Certificates surrendered for such registration of transfer or exchange.
A holder of Units may transfer its Units only by complying with the
terms of this Agreement, the Indenture and the Warrant Agreement. No such
transfer shall be effected until final acceptance and registration of the
transfer by the Unit Agent in the register. Prior to the registration of any
transfer of Units as provided herein, the Company, the Unit Agent and any agent
of the Company or the Unit Agent may treat the Person in whose name the Units
are registered as the owner thereof for all purposes and as the Person entitled
to exercise the rights represented thereby, any notice to the contrary
notwithstanding. Furthermore, any holder of a Global Unit, shall, by acceptance
of such Global Unit, agree that transfers of beneficial interests in such Global
Unit may be effected only through a book-entry system maintained by the holder
of such Global Unit (or its agent), and that ownership of a beneficial interest
in the Units represented thereby shall be required to be reflected in a book
entry. When Unit Certificates are presented to the Unit Agent with a request to
register the transfer or to exchange them for an equal number of Units of other
authorized denominations, the Unit Agent shall register the transfer or make the
exchange in accordance with the provisions hereof.
(b) Registration, Registration of Transfer and Exchange. Prior to the
Separation Date, when Unit Certificates are presented to the Unit Agent with a
request from the holder of such Units to register the transfer or to exchange
them for an equal number of Units of other authorized denominations, the Unit
Agent shall register the transfer or make the exchange as requested; provided,
however, that every Unit presented and surrendered for registration of transfer
or exchange, as well as the Notes and Warrants to which it relates, shall be
duly endorsed and be accompanied by a written
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instrument of transfer in form satisfactory to the Company, duly executed by the
holder thereof or such holder's attorneys duly authorizing in writing.
Prior to the Separation Date, to permit registrations of transfer and
exchanges, the Company shall make available to the Unit Agent a sufficient
number of executed Unit Certificates to effect such registrations of transfers
and exchanges. No service charge shall be made to the holder of Units for any
registration of transfer or exchange of Units, but the Company may require from
the transferring or exchanging holder payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable under the Indenture or the
Warrant Agreement, and such transfer or exchange shall not be consummated unless
or until such holder shall have paid to the Company the amount of such tax or
shall have established to the satisfaction of the Company and the Unit Agent
that such tax has been paid.
(c) Book-Entry Provisions for Global Units.
(i) The Global Units initially shall (A) be registered in the
name of the Depositary (as defined in the Indenture) for such Global Units or
the nominee of such Depositary, (B) be delivered to the Unit Agent as custodian
for such Depositary and (C) bear the legends as set forth on Exhibit A and
Exhibit B.
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Agreement with respect to any Global Unit held
on their behalf by the Depositary or the Unit Agent as its custodian, or under
any Global Unit, and the Depositary may be treated by the Company, the Unit
Agent and any agent of the Company or the Unit Agent as the absolute owner of
any Global Unit for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Unit Agent or any agent of the
Company or the Unit Agent from giving effect to any written certification, proxy
or other authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a holder of any Unit.
(ii) Transfers of Global Units shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in the Global Units may be transferred
or exchanged for Definitive Units and Definitive Units may be transferred or
exchanged for beneficial interests in the Global Units in accordance with the
rules and procedures of the Depositary and the provisions of Section 5(d). In
addition, Definitive Units shall be transferred to all beneficial owners in
exchange for their beneficial interests in Global Units if (x) the Company
notifies the Unit Agent that the Depositary is unwilling or unable to continue
as Depositary for any Global Unit and a successor Depositary is not appointed by
the Company within 90 days of such notice or (y) the Company, at its option,
notifies the Unit Agent in writing that it elects to cause the issuance of the
Units in definitive form under the Unit Agreement.
(iii) In connection with any transfer or exchange of a portion
of the beneficial interest in any Global Unit to beneficial owners pursuant to
paragraph (ii) above, the Unit
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Agent shall (if one or more Definitive Units are to be issued) reflect on its
books and records the date and a decrease in the number of Units represented by
the Global Unit in an amount equal to the number of Units represented by the
beneficial interest in the Global Unit to be transferred, and the Company shall
execute, and the Unit Agent shall authenticate and cause to be delivered, one or
more Definitive Units in an amount equal to the beneficial interest in the
Global Unit so transferred.
(iv) In connection with the transfer of Global Units as an
entirety to beneficial owners pursuant to paragraph (ii) above, the Global Units
shall be deemed to be surrendered to the Unit Agent for cancellation, and the
Company shall execute, and the Unit Agent shall authenticate and cause to be
delivered to each beneficial owner identified by the Depositary in exchange for
its beneficial interest in the Global Units, Definitive Units of authorized
denominations representing, in the aggregate, the number of Units theretofore
represented by the Global Units so transferred.
(v) Any Definitive Unit delivered in exchange for an interest
in a Global Unit pursuant to paragraph (ii) or (iii) shall bear the legend
described as the Private Placement Legend on Exhibit A (the "Private Placement
Legend").
(vi) The registered holder of any Global Unit may grant proxies
and otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a holder is
entitled to take under this Unit Agreement or the Units.
(d) Special Transfer Restrictions.
(i) Transfers to Non-QIB Institutional Accredited Investors
and Non-U.S. Persons and other Transfers Exempt under the Securities Act. The
following provisions shall apply (x) with respect to the registration of any
proposed transfer of a Unit to any Institutional Accredited Investor which is
not a QIB or to any Non-U.S. Person and (y) with respect to the registration of
any proposed transfer pursuant to another available exemption from the
registration requirements of the Securities Act:
(A) the Unit Agent shall register the transfer of any Units if (x)
the requested transfer is to an Institutional Accredited Investor pursuant
to a private placement exemption from the registration requirements of the
Securities Act or (y) the requested transfer is to a Non-U.S. Person
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 904 under the Securities Act or (z)
the requested transfer is being made in reliance on another exemption from
the registration requirements of the Securities Act, together, in the case
of either clause (x), (y) or (z) with a certification to such effect (in
substantially the form set forth in the form of Unit attached hereto as
Exhibit A) and such other certifications, Opinions of Counsel or other
information as the Company or the Unit Agent may reasonably require to
confirm that such transfer is being made pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the
Securities Act; and
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(B) the Unit Agent shall register the transfer of any Unit if the
proposed transferor is an Agent Member holding a beneficial interest in a
Global Unit, upon, receipt by the Unit Agent of (x) the certificate, if
any, required by paragraph (A) above and (y) instructions given in
accordance with the Depositary's and the Unit Agent's procedures,
whereupon (a) the Unit Agent shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Definitive Units) a
decrease in the number of Units represented by the applicable Global Unit, in an
amount equal to the number of Units represented by the beneficial interest in
the Global Warrant to be transferred (the "Transfer Amount"), (b) if the Units
to be transferred are to be evidenced by Definitive Units, the Company shall
execute and the Unit Agent shall authenticate upon receipt of a written order
from the Company and cause to be delivered one or more Definitive Units in an
aggregate number equal to the Transfer Amount and (c) if the Units to be
transferred are to be evidenced by an interest in a Global Unit, upon receipt of
instructions given in accordance with the Depositary's and the Unit Agent's
procedures, the Unit Agent shall reflect on its books and records the date and
an increase in the number of Units represented by the Global Unit in which the
transferee will hold its beneficial interest in an amount equal to the Transfer
Amount.
(ii) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Unit to a QIB
(excluding transfers to Non-U.S. Persons):
(A) the Unit Agent shall register the transfer if such transfer is
being made by a proposed transferor who has delivered a certification (in
substantially the form set forth in the form of Unit attached hereto as
Exhibit A) stating, or has otherwise advised the Company and the Unit Agent
in writing, that the sale has been made in compliance with the provisions
of Rule 144A to a transferee who has advised the Company and the Unit Agent
in writing that it is purchasing the Unit for its own account or an account
with respect to which it exercises sole investment discretion and that it
and any such account is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the Company and the transferor are
relying upon its foregoing representations in order to claim the exemption
from registration provided by Rule 144A; if the Unit Agent or the Company
shall so request, such proposed transferor shall have delivered an Opinion
of Counsel, an officers' certificate and such other information as the Unit
Agent or the Company may reasonably require in connection with such
proposed transfer; and
(B) if the proposed transferee is an Agent Member, and the Units to
be transferred consist of Definitive Units which after transfer are to be
evidenced by an interest in the Global Unit, upon receipt by the Unit Agent
of instructions given in accordance with the Depositary's and the Unit
Agent's procedures, the Unit Agent shall reflect on its books and records
the date and an increase in the number of Units represented by the Global
Unit in an amount equal to the number of Definitive Units to be
transferred, and the Unit Agent shall cancel the Definitive Units so
transferred; and
(C) if the proposed transferee is an Agent Member, and the Units to
be transferred consist of a beneficial interest in a Global Unit which
after transfer is to continue to be evidenced
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by an interest in a Global Unit, upon receipt by the Unit Agent of
instructions given in accordance with the Depositary's and the Unit Agent's
procedures, the Unit Agent shall reflect on its books and records (A) the
date, (B) a decrease in the number of Units represented by the Global Unit
in which the transferor owns the beneficial interest to be transferred in
an amount equal to the number of Units represented by the beneficial
interest to be transferred and (C) an increase in the number of Units
represented by the Global Unit in which the transferee will hold its
beneficial interest in a like amount.
(iii) Other Restrictions on Transfer. In addition to the
restrictions on transfer set forth in (i) and (ii) above, any transfers of Units
shall be made in accordance with the transfer and exchange provisions set forth
in the Indenture and the Warrant Agreement.
(e) Private Placement Legend. Upon the transfer, exchange or
replacement of Units, the Unit Agent shall deliver only Units that bear the
Private Placement Legend.
(f) Cancellation and/or Adjustment of Global Unit. At such time
as all beneficial interests in Global Units have either been exchanged for
Definitive Units or canceled, all Global Units shall be returned to or retained
and canceled by the Unit Agent and destroyed by the Company, or by the Unit
Agent at the Company's request. At any time prior to such cancellation, if any
beneficial interest in a Global Unit is exchanged for Definitive Units or
canceled, the number of Units represented by such Global Unit shall be reduced
and an endorsement shall be made on such Global Unit by the Unit Agent to
reflect such reduction.
(g) Legends. Each Unit Certificate evidencing the Global Units and
the Definitive Units (and all Units issued in exchange therefor or substitution
thereof) shall bear a legend substantially to the following effect:
THIS SECURITY HAS BEEN OFFERED AS PART OF A UNIT. EACH OF THE UNITS
CONSISTS OF $1,000 PRINCIPAL AMOUNT OF 14% SENIOR DISCOUNT NOTES DUE 2009
(THE "NOTES") OF GLOBE HOLDINGS, INC. (THE "COMPANY") AND ONE WARRANT TO
PURCHASE 1.4155 SHARES OF COMMON STOCK OF THE COMPANY (THE "WARRANT"). THE
NOTES AND WARRANTS WILL NOT BE TRANSFERABLE BY A HOLDER THEREOF SEPARATELY
FROM EACH OTHER UNTIL THE "SEPARATION DATE," WHICH SHALL BE THE EARLIEST TO
OCCUR OF (i) THE DATE THAT IS SIX MONTHS FOLLOWING THE INITIAL SALE OF THE
UNITS, (ii) THE COMMENCEMENT OF AN EXCHANGE OFFER WITH RESPECT TO THE
NOTES, (iii) THE DATE A SHELF REGISTRATION STATEMENT (AS DEFINED IN THE
REGISTRATION RIGHTS AGREEMENT) WITH RESPECT TO THE NOTES IS DECLARED
EFFECTIVE, (iv) A CHANGE OF CONTROL (AS DEFINED IN THE INDENTURE), OR (v)
SUCH DATE AS BANCAMERICA XXXXXXXXX XXXXXXXX MAY, IN ITS SOLE DISCRETION,
DEEM APPROPRIATE.
SECTION 6. Separation of the Notes and the Warrants. After the
Separation Date, the Notes and the Warrants represented by the Units shall be
separately transferable. Upon
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presentation after the Separation Date of any Unit Certificate for exchange for
Warrants and Notes or for registration of transfer or otherwise, (i) the Unit
Agent shall notify the Trustee and the Warrant Agent of the number of Units so
presented, the registered owner thereof, such owner's registered address, the
nature of any legends or restrictive endorsements set forth on such Unit
Certificate and any other information provided by the holder thereof in
connection therewith, (ii) the Trustee and Registrar under the Indenture, if the
requirements of the Indenture for such transaction are met, shall promptly
register, authenticate and deliver a new Note equal in principal amount to the
Notes represented by such Unit Certificate in accordance with the direction of
such holder and (iii) the Warrant Agent, if the requirements of the Warrant
Agreement for such transactions are met, shall promptly countersign, register
and deliver a new Warrant Certificate for the number of Warrants previously
represented by such Unit Certificate in accordance with the directions of such
holder. The Warrant Agent and the Trustee will notify the Unit Agent of any
additional requirements in connection with a particular transfer or exchange.
Following the Separation Date, no Unit Certificates shall be issued
upon transfer or exchange of Unit Certificates, or otherwise.
SECTION 7. Rights of Unit Holders. The registered holder of a Unit
Certificate shall have all the rights and privileges of a registered owner of
the principal amount of Notes represented thereby and the number of Warrants
represented thereby and shall be treated as the registered owner thereof for all
purposes. The Company agrees that it shall be bound by all provisions of the
Indenture, the Notes, the Warrant Agreement and the Warrants and that the Notes
and Warrants represented by each Unit Certificate shall be deemed legal, valid
and binding obligations of the Company and that upon exercise of the Warrants,
the Warrant Shares will be validly issued, fully paid and nonassessable.
SECTION 8. Unit Agent. The Unit Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by which the Company and the holders of Units, by their acceptance thereof,
shall be bound:
(a) The statements contained herein and in the Unit Certificates
shall be taken as statements of the Company, and the Unit Agent assumes no
responsibility for the correctness of any of the same, other than with
respect to the certificate of authentication, except such as describe the
Unit Agent or action taken or to be taken by it. The Unit Agent assumes no
responsibility with respect to the distribution of the Unit Certificates
except as herein otherwise specifically provided.
(b) The Unit Agent shall not be responsible for any failure of the
Company to comply with any of the covenants in this Agreement, the Unit
Certificates, the Indenture or the Warrant Agreement to be complied with by
the Company.
(c) The Unit Agent may consult at any time with counsel satisfactory
to it (who may be counsel for the Company) and the Unit Agent shall incur
no liability or responsibility to the Company or to any holder of any Unit
Certificate in respect of any action taken, suffered
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or omitted by it hereunder in good faith and in accordance with the written
opinion or the written advice of such counsel.
(d) The Unit Agent shall incur no liability or responsibility to the
Company or to any holder of any Unit Certificate for any action taken in
reliance on any Unit Certificate, certificate of shares, notice,
resolution, waiver, consent, order, certificate, or other paper, document
or instrument reasonably believed by the Unit Agent to be genuine and to
have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Unit Agent reasonable
compensation for all services rendered by the Unit Agent in connection with
this Agreement, to reimburse the Unit Agent for all expenses (including
reasonable fees, expenses and disbursements of counsel), taxes and
governmental charges and other charges of any kind and nature incurred by
the Unit Agent in connection with this Agreement and to indemnify the Unit
Agent and save it harmless against any and all losses and liabilities,
including judgments, costs and counsel fees and actual expenses, for any
action taken or omitted by the Unit Agent or arising in connection with
this Agreement and the exercise by the Unit Agent of its rights hereunder
and the performance by the Unit Agent of any of its obligations hereunder
except as a result of the Unit Agent's gross negligence, bad faith or
willful misconduct.
(f) The Unit Agent, and any stockholder, director, officer, affiliate
or employee ("Related Parties") of it, may buy, sell or deal in any of the
Units, Notes, Warrants, Common Stock or other securities of the Company or
become pecuniarily interested in any transaction in which the Company may
be interested, or contract with or lend money to the Company or otherwise
act as fully and freely as though it were not Unit Agent under this
Agreement. Nothing herein shall preclude the Unit Agent or such Related
Parties from acting in any other capacity for the Company or for any other
legal entity.
(g) The Unit Agent shall act hereunder solely as agent for the
Company, the Trustee and the Warrant Agent, and its duties shall be
determined solely by the provisions hereof. The Unit Agent shall not be
liable for anything which it may do or refrain from doing in connection
with this Agreement except for its own negligence, bad faith or willful
misconduct.
(h) No provision of this Agreement shall require the Unit 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.
(i) The Unit Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action unless the
Company or one or more registered holders of Unit Certificates shall
furnish the Unit Agent with security and indemnity for any costs and
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expenses which may be incurred acceptable to the Unit Agent. This provision
shall not affect the power of the Unit Agent to take such action as it may
consider proper, whether with or without any such security or indemnity.
All rights of action under this Agreement or under any of the Units may be
enforced by the Unit Agent without the possession of any of the Unit
Certificates or the production thereof at any trial or other proceeding
relative thereto, and any such action, suit or proceeding instituted by the
Unit Agent shall be brought in its name as Unit Agent and any recovery of
judgment shall be for the ratable benefit of the registered holders of the
Units, as their respective rights or interests may appear.
(j) Before the Unit Agent acts or refrains from acting with respect
to any matter contemplated by this Unit Agreement, it may require:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Unit
Agreement relating to the proposed action have been complied with; and
(2) an opinion of counsel for the Company stating that, in the
opinion of such counsel, all such conditions precedent have been
complied with.
Each Officers' Certificate or opinion of counsel with respect to
compliance with a condition or covenant provided for in this Unit Agreement
shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(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 such person, he or she
has made such examination or investigation as is necessary to enable
him or her 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 or not, in the opinion of such
person, such condition or covenant has been complied with.
The Unit Agent shall not be liable for any action it takes or omits to
take in good faith in reliance on any such certificate or opinion.
(k) In the absence of bad faith on its part, the Unit Agent may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Unit Agent and conforming to the requirements of this
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Unit Agreement. However, the Unit Agent shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Unit Agreement.
(l) The Unit Agent may rely and shall be fully protected in relying
upon any document believed by it to be genuine and to have been signed or
presented by the proper person. The Unit Agent need not investigate any
fact or matter stated in the document.
(m) The Unit Agent may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with
due care.
SECTION 9. Resignation and Appointment of Successor. (a) The
Company agrees, for the benefit of the Holders from time to time of the Units,
that there shall at all times be a Unit Agent hereunder.
(b) The Unit Agent may at any time resign as Unit Agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective, provided that such date
shall be at least 30 days after the date on which such notice is given unless
the Company agrees to accept less notice. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor Unit Agent,
qualified as provided in Section 9(d) hereof, by written instrument in duplicate
signed on behalf of the Company, one copy of which shall be delivered to the
resigning Unit Agent and one copy to the successor Unit Agent. As provided in
Section 9(d) hereof, such resignation shall become effective upon the earlier of
(x) the acceptance of the appointment by the successor Unit Agent or (y) 30 days
after receipt by the Company of notice of such resignation. The Company shall
remove the Unit Agent and appoint a successor Unit Agent by written instrument
signed by the Company, one copy of which shall be delivered to the Unit Agent
being removed and one copy to the successor Unit Agent, if the Unit Agent shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Unit Agent or of its property shall be appointed, or any public
officer shall take charge or control of it or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation. The Company may also
remove the Unit Agent for any reason, in the manner described in the preceding
sentence, with the consent of the Trustee and the Warrant Agent. Any removal of
the Unit Agent and any appointment of a successor Unit Agent shall become
effective upon acceptance of appointment by the successor Unit Agent as provided
in Section 9(d). As soon as practicable after appointment of the successor Unit
Agent, the Company shall cause written notice of the change in the Unit Agent to
be given to each of the registered holders of the Units in the manner provided
for in Section 10 hereof.
(c) Upon resignation or removal of the Unit Agent, if the Company
shall fail to appoint a successor Unit Agent within a period of 30 days after
receipt of such notice of resignation or removal, then the holder of any Unit
Certificate or the Unit Agent may apply to a court of competent jurisdiction for
the appointment of a successor to the Unit Agent. Pending appointment of a
successor to the Unit Agent, either by the Company or by such a court, the
duties of the Unit Agent shall be carried out by the Company.
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(d) Any successor Unit Agent, whether appointed by the Company or by
a court, shall be an institution that meets the eligibility requirements for a
trustee under the Indenture. Such successor Unit Agent shall execute and deliver
to its predecessor and to the Company an instrument accepting such appointment
hereunder and all the provisions of this Agreement, and thereupon such successor
Unit Agent, without any further act, deed or conveyance, shall become vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Unit Agent hereunder, and
such predecessor shall thereupon become obligated to (i) transfer and deliver,
and such successor Unit Agent shall be entitled to receive, all securities,
records or other property on deposit with or held by such predecessor as Unit
Agent hereunder and (ii) upon payment of the amounts then due it pursuant to
Section 8(e) hereof, pay over, and such successor Unit Agent shall be entitled
to receive, all monies deposited with or held by any predecessor Unit Agent
hereunder.
(e) Any corporation or bank into which the Unit Agent hereunder may
be merged or converted, or any corporation or bank with which the Unit Agent may
be consolidated, or any corporation or bank resulting from any merger,
conversion or consolidation to which the Unit Agent shall be a party, or any
corporation or bank to which the Unit Agent shall sell or otherwise transfer all
or substantially all of its corporate trust business, shall be the successor to
the Unit Agent under this Agreement (provided that such corporation or bank
shall be qualified as aforesaid) without the execution or filing of any document
or any further act on the part of any of the parties hereto.
(f) No Unit Agent under this Unit Agreement shall be personally
liable for any action or omission of any successor Unit Agent.
(g) The indemnity provisions of Section 8(e) hereof shall survive the
resignation or removal of the Unit Agent.
SECTION 10. Notices to the Company and Unit Agent, Trustee and Warrant
Agent. Notice to the Unit Agent, the Warrant Agent and the Trustee shall be
sufficiently given or made when received by the Unit Agent, the Warrant Agent or
the Trustee, as applicable, at the addresses set forth below. Notice or demand
authorized by this Agreement to be given to or on the Company shall be
sufficiently given or made when and if deposited in the mail, first class or
registered, postage paid, addressed to:
Globe Holdings, Inc.
000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer
Copies to: Code, Xxxxxxxx & Xxxxxxx LLC
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
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Attention: Xxxxx Xxxxxx
and
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Address of the Unit Agent, the Warrant Agent and the Trustee:
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services
The parties hereto by notice to the other parties may designate
additional or different addresses for subsequent communications or notice.
Any notice to be mailed to a holder of Units shall be mailed to him or
her at the address that appears on the register of Units maintained by the Unit
Agent. Copies of any such communication shall also be mailed to the Unit Agent,
Trustee and Warrant Agent. The Unit Agent shall furnish the Company, the Trustee
or the Warrant Agent promptly when requested with a list of registered holders
of Units for the purpose of mailing any notice or communication to the holders
of the Notes or Warrants and at such other times as may be reasonably requested.
SECTION 11. Supplements and Amendments. The Company and the Unit
Agent may from time to time supplement or amend this Agreement without the
approval of any holders of Units in order to cure any ambiguity or to correct or
supplement any provision contained herein which may be defective or inconsistent
with any other provision herein, or to make any other provisions in regard to
matters or questions arising hereunder which the Company, the Trustee, the
Warrant Agent and the Unit Agent may deem necessary or desirable and which shall
not adversely affect the interests of the holders of Unit Certificates in any
material respect. Any amendment or supplement to this Agreement that has a
material adverse effect on the interests of Unit holders shall require the
written consent of registered holders of the then outstanding Units representing
not less than a majority of the then outstanding Units.
SECTION 12. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company, the Trustee, the Warrant Agent
or the Unit Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
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SECTION 13. Governing Law. THIS AGREEMENT AND EACH UNIT CERTIFICATE
ISSUED HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE
STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF SAID STATE, WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
SECTION 14. Benefits of This Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company,
the Trustee, the Warrant Agent, the Unit Agent and the registered holders of the
Unit Certificates any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive benefit of the
Company, the Trustee, the Warrant Agent, the Unit Agent and the registered
holders of the Unit Certificates.
SECTION 15. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
GLOBE HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx, III
------------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: President
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Unit Agent, Warrant Agent
and Trustee
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
EXHIBIT A
[FORM OF UNIT CERTIFICATE]
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR ANOTHER EXEMPTION UNDER THE
SECURITIES ACT. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (i) (a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT), PURCHASING FOR ITS OWN ACCOUNT IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A UNDER THE SECURITIES ACT, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 OF THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO
A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT PROVIDED THAT
IN THE CASE OF A TRANSFER PURSUANT TO CLAUSE (d) SUCH TRANSFER IS EFFECTED BY
THE DELIVERY TO THE TRANSFEREE OF DEFINITIVE SECURITIES REGISTERED IN ITS NAME
(OR ITS NOMINEE'S NAME) IN THE BOOKS MAINTAINED BY THE REGISTRAR, AND IS SUBJECT
TO THE RECEIPT BY THE REGISTRAR (AND THE COMPANY, IF ITS SO REQUESTS) OF A
CERTIFICATION OF THE TRANSFEROR AND AN OPINION OF COUNSEL TO THE EFFECT THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (ii) TO THE COMPANY OR
(iii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE SECURITIES EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH
IN (A) ABOVE.
THE NOTE COMPRISING A PART OF THIS SECURITY WAS ISSUED WITH "ORIGINAL ISSUE
DISCOUNT" FOR FEDERAL INCOME TAX PURPOSES. FOR THE ISSUE PRICE, AMOUNT OF
ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY OF THE NOTE FOR
FEDERAL INCOME TAX PURPOSES, HOLDERS MAY CONTACT THE
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COMPANY'S REPRESENTATIVE, XXXXXXXX X. XXXXX, VICE PRESIDENT, FINANCE AND
ADMINISTRATION, AT (000) 000-0000.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART OF AN
ISSUANCE OF UNITS (THE "UNITS"), EACH OF WHICH CONSIST OF $1,000 PRINCIPAL
AMOUNT AT MATURITY OF 14% SENIOR DISCOUNT NOTES DUE 2009 OF THE COMPANY (THE
"NOTES") AND ONE WARRANT ("WARRANT") INITIALLY ENTITLING THE HOLDER THEREOF TO
PURCHASE 1.4155 SHARES OF CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE, OF
THE COMPANY. PRIOR TO THE EARLIEST TO OCCUR OF (I) THE DATE THAT IS SIX MONTHS
FOLLOWING THE INITIAL SALE OF THE UNITS, (II) THE COMMENCEMENT OF AN EXCHANGE
OFFER (AS DEFINED IN THE REGISTRATION RIGHTS AGREEMENT) WITH RESPECT TO THE
NOTES, (III) THE DATE A SHELF REGISTRATION STATEMENT (AS DEFINED IN THE
REGISTRATION RIGHTS AGREEMENT) WITH RESPECT TO THE NOTES IS DECLARED EFFECTIVE,
(IV) A CHANGE OF CONTROL (AS DEFINED IN THE INDENTURE), OR (V) SUCH DATE AS
BANCAMERICA XXXXXXXXX XXXXXXXX MAY, IN ITS SOLE DISCRETION, DEEM APPROPRIATE,
THE SECURITIES EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED
SEPARATE FROM. BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE
WARRANTS.
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GLOBE HOLDINGS, INC.
Units, Each Consisting of $1,000 Principal Amount at Maturity of 14% Senior
Discount Notes due 2009 and one Warrant to Purchase 1.4155 Shares of Common
Stock
No._______ CUSIP No._________
_______ Units
Globe Holdings, Inc., a Massachusetts corporation (the "Company,"
which term includes any successor corporation), hereby certifies that
_____________ is the owner of __________ Units as described above, transferable
only on the books of the Company by the holder thereof in person or by his or
her duly authorized attorney, on surrender of this Certificate properly
endorsed.
Each Unit consists of $1,000 principal amount at maturity of 14%
Senior Discount Notes due 2009 of the Company (collectively, the "Notes") and
one warrant (collectively, the "Warrants") to purchase 1.4155 shares of Class A
Common Stock of the Company, par value $.01 per share (the "Common Stock"),
subject to adjustment as provided in the Warrant Agreement (as defined below).
The Notes and the Warrants represented by this Unit Certificate, which are
attached hereto and made a part hereof, are non-detachable and not separately
transferrable except as set forth herein. This Unit is issued pursuant to the
Unit Agreement dated as of August 6, 1998 (the "Unit Agreement"), between the
Company and Norwest Bank Minnesota, National Association, in its capacity as
Unit Agent (in such capacity, the "Unit Agent") as well as in its capacities as
Warrant Agent under the Warrant Agreement and Trustee under the Indenture (as
defined below) and is subject to the terms and provisions contained therein, to
all of which terms and provisions the holder of this Unit Certificate consents
by acceptance hereof. The terms of the Notes are governed by an Indenture dated
as of August 6, 1998 (the "Indenture") between the Company and Norwest Bank
Minnesota, National Association, as Trustee (the "Trustee"), and are subject to
the terms and provisions contained therein, to all of which terms and provisions
the holder of this Unit Certificate consents by acceptance hereof.
The terms of the Warrants are governed by a Warrant Agreement dated as
of August 6, 1998 (the "Warrant Agreement") between the Company and Norwest Bank
Minnesota, National Association, as Warrant Agent (the "Warrant Agent"), and are
subject to the terms and provisions contained therein, to all of which terms and
provisions the holder of this Unit Certificate consents by acceptance hereof.
The Company will furnish to any Holder of a Unit upon written request and
without charge a copy of the Unit Agreement, the Indenture and the Warrant
Agreement. Requests may be made to: Globe Holdings, Inc., 000 Xxxxxxx Xxxxxx,
Xxxx Xxxxx, Xxxxxxxxxxxxx 00000, Attn: Chief Financial Officer.
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Dated:
GLOBE HOLDINGS, INC.
By:______________________________________
Name:
Title:
By:_______________________________________
Name:
Title:
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Certificate of Authentication: This is one
of the Units referred to in the above
mentioned Unit Agreement.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Unit Agent
By:___________________________________
Authorized Signatory
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NOTICE: THIS UNIT MAY NOT BE TRANSFERRED SEPARATELY
FROM THE NOTES AND WARRANTS THAT COMPRISE THIS UNIT
ASSIGNMENT FORM
To assign this Unit, fill in the form below: (I) or (we) assign and
transfer this Unit to:
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Unit on the books of the Company. The agent may substitute
another to act for him.
[Check One]
[_] (a) this Unit is being transferred in compliance with the exemption
from registration under the Securities Act provided by Rule 144A
thereunder.
[_] (b) this Unit is being transferred pursuant to Rule 904 under the
Securities Act and documents are being furnished which comply with the
conditions of transfer set forth in the Unit Agreement.
[_] (c) this Unit is being transferred other than in accordance with (a) or
(b) above and documents are being furnished which comply with the
conditions of transfer set forth in the Unit Agreement.
If none of the foregoing boxes is checked, the Unit Agent shall not be obligated
to register this Unit in the name of any person other than the holder hereof
unless and until the conditions to any such transfer of registration set forth
herein and in Section 5 of the Unit Agreement shall have been satisfied.
Transfer of this Unit is subject to the terms of the Indenture and the Warrant
Agreement.
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Date: ____________________
Your Signature:__________________________________________________
(Sign exactly as your names appears on the face of
this Unit)
Signature Guarantee:___________________________________________________________
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Registrar)
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants to the Company, the Unit Agent, the
Trustee and the Warrant Agent that it is purchasing this Unit for its own
account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date:__________________________ _______________________________________
NOTICE: to be executed by an executive
officer
A-8
SCHEDULE OF EXCHANGES OF INTERESTS IN GLOBAL UNITS/1/
-----------------------------------------------------
The following exchanges of a part of this Global Unit for Definitive Units have
been made:
Number of Units
Decrease in Increase in of this Global Signature of
Number of Number of Unit following authorized
Units of this Units of this such decrease signatory of
Date of Exchange Global Unit Global Unit (or increase) Unit Agent
================================================================================
------------------
/1/ This is to be included only if the Unit is in global form.
EXHIBIT B
FORM OF LEGEND FOR GLOBAL UNIT
Any Global Unit authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required under the Unit
Agreement) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE UNIT
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY TRUST COMPANY (THE "DEPOSITARY") OR A NOMINEE OF THE DEPOSITARY
OR A SUCCESSOR. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE UNIT AGREEMENT, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY 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) MAY BE REGISTERED
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE UNIT AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO 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 OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF GLOBAL SECURITIES SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO THE DEPOSITARY, ITS SUCCESSORS OR THEIR RESPECTIVE
NOMINEES. INTERESTS OF BENEFICIAL OWNERS IN THE GLOBAL SECURITIES MAY BE
TRANSFERRED OR EXCHANGED FOR CERTIFICATED SECURITIES IN ACCORDANCE WITH THE
RULES AND PROCEDURES OF THE DEPOSITARY AND THE PROVISIONS OF SECTION 5 OF
THE UNIT AGREEMENT. IN ADDITION, CERTIFICATED SECURITIES SHALL BE
TRANSFERRED TO ALL BENEFICIAL OWNERS IN EXCHANGE FOR THEIR
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BENEFICIAL INTERESTS IN GLOBAL SECURITIES IF (i) THE COMPANY NOTIFIES THE
REGISTRAR THAT THE DEPOSITARY IS UNWILLING OR UNABLE TO CONTINUE AS
DEPOSITARY FOR ANY GLOBAL SECURITY AND A SUCCESSOR DEPOSITARY IS NOT
APPOINTED BY THE ISSUER WITHIN 90 DAYS OF SUCH NOTICE OR (ii) THE COMPANY,
AT ITS OPTION, NOTIFIES THE REGISTRAR IN WRITING THAT IT ELECTS TO CAUSE
THE ISSUANCE OF SECURITIES IN DEFINITIVE FORM UNDER THE UNIT AGREEMENT.
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