Exhibit 4-zz
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XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
AND
THE CHASE MANHATTAN BANK,
as Unit Agent, as Trustee and Paying
Agent under the Indenture referred to
herein, and as Warrant Agent under the
Warrant Agreement referred to herein
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FORM OF UNIT AGREEMENT
(For Units Without Holder Obligations)
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Dated as of __________
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TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.................................................. 2
ARTICLE 2
UNITS
Section 2.1. Forms Generally............................................. 6
Section 2.2. Form of Certificate of Authentication and
Countersignature............................................ 6
Section 2.3. Units....................................................... 7
Section 2.4. Denominations............................................... 7
Section 2.5. Rights and Obligations Evidenced by the Units................ 7
Section 2.6. Execution, Authentication, Delivery and Dating.............. 7
Section 2.7. Registration of Transfer and Exchange....................... 8
Section 2.8. Mutilated, Destroyed, Lost and Stolen Unit Certificates..... 9
Section 2.9. Persons Deemed Owners....................................... 10
Section 2.10. Cancellation................................................ 10
Section 2.11. Exchange of Global Units and Definitive Units............... 11
ARTICLE 3
AUTOMATIC SEPARATION OF UNITS; TERMINATION OF UNIT AGREEMENT
Section 3.1. Automatic Separation of Units; Termination of Unit
Agreement................................................... 11
Section 3.2. Effect of Termination....................................... 11
ARTICLE 4
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF UNITS
Section 4.1. Holder May Enforce Rights................................... 12
ARTICLE 5
THE AGENT
Section 5.1. Certain Duties and Responsibilities......................... 12
Section 5.2. Certain Rights of Agent..................................... 13
Section 5.3. Not Responsible for Recitals or Issuance of Units........... 14
Section 5.4. May Hold Units.............................................. 14
Section 5.5. Compensation and Reimbursement.............................. 14
Section 5.6. Corporate Agent Required; Eligibility....................... 15
Section 5.7. Resignation and Removal; Appointment of Successor........... 16
Section 5.8. Acceptance of Appointment by Successor...................... 17
Section 5.9. Merger, Conversion, Consolidation or Succession to Business. 18
Section 5.10. Tax Compliance.............................................. 18
ARTICLE 6
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 6.1. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions.................... 18
Section 6.2. Rights and Duties of Successor Corporation.................. 19
Section 6.3. Opinion of Counsel to Agent................................. 19
ARTICLE 7
MISCELLANEOUS PROVISIONS
Section 7.1. Amendments.................................................. 19
Section 7.2. Incorporators, Stockholders, Officers and Directors of the
Corporation Immune from Liability........................... 21
Section 7.3. Compliance Certificates and Opinions........................ 21
Section 7.4. Form of Documents Delivered to Agent........................ 22
Section 7.5. Maintenance of Office or Agency............................. 22
Section 7.6. Notices, Etc................................................ 23
Section 7.7. Notices to Holders; Waiver.................................. 23
Section 7.8. Effect of Headings and Table of Contents.................... 24
Section 7.9. Successors and Assigns...................................... 24
Section 7.10. Separability Clause......................................... 24
Section 7.11. Benefits of Agreement....................................... 24
Section 7.12. Governing Law............................................... 24
Section 7.13. Counterparts................................................ 24
Section 7.14. Inspection of Agreement..................................... 24
UNIT AGREEMENT, dated as of _____________, by and among XXXXXX
XXXXXXX, XXXX XXXXXX, DISCOVER & CO., a Delaware corporation (the
"Corporation") and THE CHASE MANHATTAN BANK, a New York banking corporation
("Chase"), acting solely as unit agent under this Agreement (in its capacity
as unit agent, the "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").
WHEREAS, Xxxxxx Xxxxxxx Group Inc. (as predecessor of the
Corporation) has entered into a Senior Indenture dated as of April 15, 1989, as
supplemented by a First Supplemental Senior Indenture dated as of May 15, 1991
and a Second Supplemental Senior Indenture dated as of April 15, 1996 between
Xxxxxx Xxxxxxx Group Inc. and The Chase Manhattan Bank (formerly known as
Chemical Bank), as Trustee as further supplemented by a Third Supplemental
Senior Indenture dated as of June 1, 1997 and a Fourth Supplemental Senior
Indenture dated as of March 1, 1998 between the Corporation and the Trustee
(as so supplemented, the "Indenture");
WHEREAS, the Corporation has entered into a Warrant Agreement
(the "Warrant Agreement") dated as of ____________ between the Corporation and
Chase, as Warrant Agent;
WHEREAS, the Corporation has duly authorized the issuance,
pursuant to the Warrant Agreement, of _________ Warrants [Settling/Expiring]
________ (the "Warrants");
WHEREAS, the Corporation has duly authorized the issuance
pursuant to the Indenture, of [Pre-paid Purchase Contracts Settling
__________] that require holders to satisfy their obligations thereunder upon
issuance of such Pre-paid Purchase Contracts (the "Purchase Contracts")[Notes
due _______(the "Notes")] and
WHEREAS, the Corporation desires to provide for the issuance of
the [Separable] Units [Mandatorily] Exchangeable for ________________________
consisting of ___________________ (the "Units");
NOW, THEREFORE, in consideration of the premises and the
purchases of the Units by the holders thereof, the Corporation, the Agent, the
Warrant Agent and the Trustee and Paying Agent mutually covenant and agree as
follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
(i) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(ii) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles in the United States in effect at
the time of any computation; and
(iii) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and
not to any particular Article, Section or other subdivision.
"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.
["Automatic Separation Date" means _________________________.]
"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.
"Corporate Trust Office" means the office of the Agent 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.
"Definitive Securities" means any Security in definitive form.
"Definitive Unit" means any Unit comprised of Definitive
Securities.
"Depositary" means DTC, or any successor as the Holder of any
Global Units.
"DTC" means The Depository Trust Company or its nominee.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Global Note" means a global Note in registered form originally
issued as part of a Global Unit.
"Global Purchase Contract" means a global Purchase Contract in
registered form originally issued as part of a Global Unit.
"Global Securities" means the [Global Warrant and the Global
Purchase Contract] [Global Note].
"Global Unit" means any Unit that comprises the Global
Securities and is represented by a Global Unit Certificate.
"Global Unit Certificate" means a global Unit Certificate in
registered form.
"Global Warrant" means a global Warrant in registered form
originally issued as part of a Global Unit.
"Holder" means in the case of any Security or Unit, the Person
in whose name such Security or the Securities constituting a part of such Unit
are registered on the relevant Security Register.
"Indenture" has the meaning specified in the first recital in
this Agreement.
"Issuer Request", means a written order or request signed in
the name of the Corporation by the Chairman of the Board, the President, the
Chief Financial Officer, the Chief Strategic and Administrative Officer, the
Chief Legal Officer, the Treasurer, any Assistant Treasurer or any other person
authorized by the Board of Directors and delivered to the Agent.
"Note" has the meaning stated in the fourth recital in this
Agreement.
"Note Register" has the meaning specified in Section 2.07.
"Officer's Certificate" means a certificate signed by the
Chairman of the Board, the President, the Chief Financial Officer, the Chief
Strategic and Administrative Officer, the Chief Legal Officer, the Treasurer,
any Assistant Treasurer of the Corporation or any other person authorized by
the Board of Directors and delivered to the Agent.
"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.
"Paying Agent" means any Person authorized by the Corporation to
pay the Put Price or any other sums payable by the Corporation; 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.
"Purchase Contracts" has the meaning stated in the fourth
recital in this Agreement.
"Purchase Contract Register" has the meaning specified in
Section 2.7.
"Responsible Officer", with respect to the 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
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 either a [list constituent securities].
"Security Register" means either a [Note Register, Purchase
Contract Register or Warrant Register].
"Trustee", with respect to [Purchase Contracts] [Notes], 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 fifth recital to this
Agreement.
"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.
"Unit Register" has the meaning specified in Section 2.7.
"Warrant Agreement" has the meaning stated in the second
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 means the security register of the Corporation maintained by
the Warrant Agent pursuant to the Warrant Agreement.
"Warrants" has the meaning stated in the third recital of this
Agreement.
ARTICLE 2
UNITS
Section 2.1. Forms Generally. (a) (i) The Units shall be
substantially in the form of Exhibit A. 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 on which the Units may be listed or quoted or of any securities
depository or to conform to general usage.
(ii) 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.
(iii) The Units shall be issued initially as Global Units in fully
registered form. A beneficial interest in a Unit may not be exchanged for a
Definitive Unit, except as provided in Section 2.11. The Corporation shall
execute, and the Trustee and Warrant Agent shall, in accordance with Section
2.06, authenticate and countersign, respectively, and deliver one or more
global Unit Certificates (comprised of [list constituent Global Securities])
that (i) shall evidence all of the Units issued, shall be registered in the
name of the Depositary or its nominee, shall be delivered by the Agent to the
Depositary or pursuant to such Depositary's instructions and 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."
Section 2.2. Form of Certificate of Authentication and
Countersignature. The form of the Trustee's certificate of authentication of
the [Purchase Contracts] [Notes] and the form of the Warrant Agent's
countersignature of the Warrants, each constituting a part of the Units, shall
be substantially in such form as set forth in the Indenture or the Warrant
Agreement, as applicable.
Section 2.3. Units. (a) Each Unit will consist of
______________.
(b) The aggregate number of Units that may be authenticated,
countersigned and delivered under this Agreement is ___________________
(except for Units authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Units pursuant to Section 2.7, 2.8 or
2.11);
(c) The [list constituent securities] may be purchased,
transferred and exchanged only as Units [until the Automatic Separation Date.
On the Automatic Separation Date, the Units shall automatically separate into
their constituent [list constituent securities], and the Units will cease to
exist. Each beneficial owner of a Unit on the Automatic Separation Date shall
become the owner of [list amount of constituent securities], which may
thereafter be transferred as separate Securities.]
Section 2.4. Denominations. Units shall be issuable only in
registered form and in denominations of ___________ Units,[[Purchase
Contracts] [Notes] and Warrants], respectively, and any integral multiple
thereof.
Section 2.5. Rights and Obligations Evidenced by the Units.
Units shall evidence [(a) the number of Warrants specified on the face of the
Warrant Certificate attached to any Unit Certificate representing Definitive
Units or [on the face of] [Schedule A to] the Warrant Certificate representing
Global Warrants attached to the Unit Certificate representing Global Units and
(b) [the number of Purchase Contracts specified on the face of the Purchase
Contract attached to any Unit Certificate representing Definitive Units or [on
the face of ] [Schedule A to] the Global Purchase Contract attached to the Unit
Certificate representing Global Units] [the aggregate principal amount of Notes
specified on the face of the Note attached to any Unit Certificate representing
Definitive Units or on [the face of][Schedule A to] the Global Note attached to
the Unit Certificate representing Global Units].]
Section 2.6. Execution, Authentication, Delivery and Dating.
Upon the execution and delivery of this Agreement, and from time to time
thereafter, the Corporation may deliver, subject to the limitation on the
aggregate number of [list constituent securities] represented thereby set
forth in Section 2.03(b), Unit Certificates (including the Securities executed
by the Corporation constituting the Units evidenced by such Unit Certificates)
to the Trustee and Warrant Agent for authentication and countersignature, as
the case may be, of the Securities comprised by such Units, together with its
Issuer Requests for authentication and countersignature of such Securities,
and the Trustee in accordance with the Indenture and the Issuer Request of the
Corporation shall authenticate the [Purchase Contracts] [Notes] constituting a
part of the Units evidenced by such Unit Certificates and the Warrant Agent in
accordance with the Warrant Agreement shall countersign the Warrants
constituting a part of the Units evidenced by such Unit Certificates and each
shall deliver such Unit Certificates upon the order of the Corporation.
[Purchase Contracts] [Notes] constituting a part of the Units
shall be executed on behalf of the Corporation in accordance with the terms of
the Indenture. Warrants constituting a part of the Units shall be executed on
behalf of the Corporation in accordance with the terms of the Warrant
Agreement.
Section 2.7. Registration of Transfer and Exchange. A
register (the register being herein referred to as the ["Purchase Contract
Register"] ["Note Register"]) shall be maintained in accordance with the
Indenture to provide for the registration of [Purchase Contracts] [Notes]
constituting a part of the Units and of transfers of such [Purchase Contracts]
[Notes].
At the option of the Holder thereof, Units may be transferred or
exchanged for a Unit or Units having authorized denominations evidencing the
number of Units transferred or exchanged, upon surrender of such Units to be
so transferred or exchanged at the Corporate Trust Office of the Agent upon
payment, if the Corporation shall so require, of the charges hereinafter
provided. Whenever any Units are so surrendered for transfer or exchange, the
Corporation shall execute, and the Trustee and/or Warrant Agent, as
appropriate, shall authenticate and/or countersign, respectively, and the Agent
shall 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 canceled and disposed of in accordance with
Section 2.10.
All Unit Certificates delivered upon any registration of
transfer or exchange of a Unit Certificate shall evidence the ownership of
[list number/amount listed on the face of constituent securities] 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. Except as otherwise provided herein with respect to the Units, the
Agent shall register the transfer or exchange of any outstanding Unit
Certificate upon the records to be maintained by it for that purpose (the
"Unit Register") at its Corporate Trust Office.
No service charge shall be made for any transfer or exchange of
a Unit, but the Corporation and the Agent may require payment from the Holder
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Units,
other than any exchanges pursuant to Section 2.8 not involving any transfer.
Section 2.8. Mutilated, Destroyed, Lost and Stolen Unit
Certificates. If any mutilated Unit Certificate is surrendered to the Agent,
the Corporation shall execute and deliver to the Trustee and the Warrant
Agent, as appropriate, and the Trustee and the Warrant Agent shall
authenticate, countersign and deliver, as appropriate, in exchange therefor
new Securities comprised by Units of like tenor and evidenced by a new Unit
Certificate evidencing the same number of Units and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Corporation and the Trustee
and 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 and the Warrant Agent as appropriate, that such
Unit Certificate has been acquired by a bona fide purchaser, the Corporation
shall execute and deliver to the Trustee and the Warrant Agent and/or the
Agent, as appropriate, and the Trustee (in accordance with the provisions of
the Indenture) and the Warrant Agent (in accordance with the provisions of the
Warrant Agreement) shall authenticate and countersign and the Agent shall
deliver to the Holder, as appropriate, in lieu of any such destroyed, lost or
stolen Unit Certificate, new Securities comprised by Units of like tenor and
evidenced by a new Unit Certificate evidencing the same number of Units and
bearing a number not contemporaneously outstanding.
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, whether or not
the destroyed, lost or stolen Unit Certificate (and the Securities evidenced
thereby) shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Agreement equally and proportionately with any and
all other Unit Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Unit
Certificates.
Section 2.9. Persons Deemed Owners. Prior to due presentment
of a Unit Certificate for registration of transfer, the Corporation, the
Trustee, the Warrant Agent and the Agent, as appropriate, and any agent of the
Corporation, the Trustee, the Warrant Agent or the Agent, as appropriate, may
treat the Person in whose name any Security evidenced by such Unit Certificate
is registered as the owner of the Units evidenced thereby for all purposes
whatsoever, whether or not payment with respect to any Security constituting a
part of the Units evidenced thereby shall be overdue and notwithstanding any
notice to the contrary. None of the Corporation, the Trustee, the Warrant
Agent, the Agent or any agent of the Corporation, the Trustee, the Warrant
Agent or the Agent shall be affected by notice to the contrary.
Section 2.10. Cancellation. All Unit Certificates surrendered
for 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 canceled, [list constituent securities] evidenced by such
Units shall be promptly canceled 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 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 Request of the Corporation, be promptly canceled 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 canceled as provided in this Section, except as
permitted by this Agreement. All canceled 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 Request the Corporation shall direct that
canceled Unit Certificates be returned to it.
If the Corporation or any Affiliate of the Corporation shall
acquire any Unit Certificate, such acquisition shall not operate as a
cancellation of such Unit Certificate unless and until such Unit Certificate
is delivered to the Trustee, the Warrant Agent and/or the Agent, as
appropriate, for the purpose of cancellation.
Section 2.11. Exchange of Global Units and Definitive Units.
Holders of Global Units shall receive Definitive Units 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
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.
Definitive Units exchanged for interests in Global Units
pursuant to this Section 2.11 shall be denominated in the amounts and
registered in the name of such Person or Persons as the Depositary shall
instruct the Agent, the Warrant Agent and the Trustee, as appropriate.
Whenever Global Units are exchanged for Definitive Units, the
Global Unit Certificate or Certificates shall be canceled and disposed of in
accordance with Section 2.10.
ARTICLE 3
[AUTOMATIC SEPARATION OF UNITS; TERMINATION OF UNIT AGREEMENT
Section 3.1. Automatic Separation of Units; Termination of Unit
Agreement. Prior to the Automatic Separation Date, the [list constituent
securities] shall be purchased and transferred only as Units. On the Automatic
Separation Date, the Units shall automatically separate into their constituent
[list constituent securities] and the Units will cease to exist. Each
beneficial owner of a Unit on the Automatic Separation Date shall become the
owner of [list number/amount of constituent securities], which may thereafter
be transferred as separate securities. Immediately upon the separation of the
Units into their constituent Securities, this Agreement shall terminate.
Section 3.2. Effect of Termination. If this Agreement is
terminated as provided in Section 3.01, such termination shall be without
liability of any party to any other party to this Agreement and the
obligations of the Corporation with respect to the Units shall automatically
cease upon the Automatic Separation Date and the Holders shall not have any
claims with respect to the Units; provided that the provisions of Section 5.5
shall survive the termination hereof pursuant to Section 3.1 and provided,
further, that the provisions of this Section shall not limit the ability of a
Holder to enforce its rights in accordance with the proviso in Section 4.1.]
ARTICLE 4
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF UNITS
Section 4.1. Holder May Enforce Rights. Any Holder of a
Unit may, without the consent of the Agent, the Depositary, any participant
of the Depositary or any other Holder, in and for its own behalf, enforce,
and may institute and maintain, any suit, action or proceeding against the
Corporation suitable to enforce, or otherwise in respect of, its rights
under this Agreement; provided that a Holder of a Unit may only enforce its
rights under the Securities comprised by such Unit in accordance with the
terms of the Indenture and the Warrant Agreement, as applicable.
ARTICLE 5
THE AGENT
Section 5.1. Certain Duties and Responsibilities. (a) The
Agent undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement.
(b) No provision of this Agreement shall be construed to relieve
the Agent from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(i) the duties and obligations of the Agent with respect to
the Units shall be determined solely by the express provisions of
this Agreement and the Agent shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Agent;
and
(ii) in the absence of bad faith on its part, the Agent may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Agent and
conforming to the requirements of this Agreement, but in the case
of any such statements, certificates or opinions that by any
provision hereof are specifically required to be furnished to the
Agent, the Agent shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Agreement.
(c) The Agent shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Agent, unless it shall
be proved that the Agent was negligent in ascertaining the pertinent facts.
(d) 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.
(e) 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.
(f) 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 5.2. Certain Rights of Agent. Subject to the
provisions of Section 5.1:
(a) the Agent may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon, security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Corporation
mentioned herein shall be sufficiently evidenced by an Officer's Certificate or
Issuer 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 [constituent securities],
as the case may be, 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;
and
(f) 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.
Section 5.3. 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 and Warrant Agent's
certificates of authentication or countersignature, shall be taken as the
statements of the Corporation, and none of the Trustee, Agent or the Warrant
Agent assumes any responsibility for their correctness. The Agent makes no
representations as to the validity or sufficiency of this Agreement or of the
Units. None of the Trustee, Agent or the Warrant 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 5.4. May Hold Units. The Agent, the Trustee, the
Warrant Agent, 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 such other agent, the Trustee, the
Warrant Agent or the Agent.
Section 5.5. 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. 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 5.6. 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 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 5.7. 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 5.8.
(b) The Agent may resign by giving written notice thereof to the
Corporation and the Holders, in accordance with Section 7.6 and Section 7.7,
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 5.8 shall not have been
delivered to the Agent within 30 days after the giving of such notice of
resignation, the resigning Agent may petition any court of competent
jurisdiction for the appointment of a successor Agent.
(c) If at any time
(i) the Agent shall cease to be eligible under Section 5.6,
or shall cease to be eligible 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 by
any Holder, or
(ii) the Agent shall become incapable of acting with respect
to the Units or shall be adjudged a bankrupt or insolvent, or a
receiver or liquidator of the Agent or of its property shall be
appointed or any public officer shall take charge or control of
the Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Corporation, by Board Resolution, may
remove the Agent and appoint a successor Agent, or (B) any Holder who has
been a bona fide Holder of a Unit for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Agent and the appointment of a
successor Agent or Agents. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, remove the Agent and appoint a
successor Agent.
(d) If the Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Agent for any cause, the
Corporation, by Board Resolution, shall promptly appoint a successor Agent or
Agents (other than the Corporation) and shall comply with the applicable
requirements of Section 5.8. If no successor Agent shall have been so
appointed by the Corporation and accepted appointment in the manner required
by Section 5.8, 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 7.7. Each notice shall include the name of the successor Agent
and the address of its Corporate Trust Office.
Section 5.8. 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 5.5, 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 5.5.
(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 7.7. 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 5.7. 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 5.9. 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.
[Section 5.10. Tax Compliance. (a) The Company will allocate
__% of the issue price of the Units as premium for the Warrants, based on the
relative fair market values of the [Purchase Contracts][Notes] and the Warrants
at the time of the issuance of the Units, and will allocate __% of the issue
price of the Units to the [Purchase Contracts] [Notes].]
(b) 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 6
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 6.1. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions. The Corporation covenants that it
will not merge or consolidate with any other corporation or sell, convey or
lease all or substantially all of its assets to any Person, firm or
corporation, except that the Corporation may merge or consolidate with, or
sell, convey or lease all or substantially all of its assets to, any other
corporation, provided that (i) the Corporation shall be the continuing
corporation, or the successor corporation (if other than the Corporation)
shall be a corporation organized and existing under the laws of the United
States of America or a state thereof or the District of Columbia and such
corporation shall assume the due and punctual performance and observance of
all of the covenants and conditions of this Agreement to be performed by the
Corporation by supplemental agreement in form satisfactory to the Agent
executed and delivered to the 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 6.2. Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, sale or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Corporation with the same effect as if it
had been named herein as the Corporation. Such successor corporation thereupon
may cause to be signed, and may issue (subject to the provisions of the
Indenture and the Warrant Agreement) either in its own name or in the name of
Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co. any or all of the [list
constituent securities] 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 and
deliver, as applicable, any [list constituent securities] that previously
shall have been signed and delivered by the officers of the Corporation to the
Trustee and the Warrant Agent for authentication and countersignature, and any
[list constituent securities] evidencing Units which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee and the
Warrant Agent for such purpose.
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 thereafter to be issued as may be appropriate.
Section 6.3. Opinion of Counsel to Agent. The Agent subject to
Sections 5.1 and 5.2 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 7
MISCELLANEOUS PROVISIONS
Section 7.1. Amendments. (a) This Agreement and the terms of
the Units may be amended (by means of an agreement supplemental hereto or
otherwise) by the Corporation and the Agent, without the consent of the
Holders, (i) for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective or inconsistent provision contained herein or
therein, (ii) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent with respect to the Units or (iii) in any other
manner which the Corporation may deem necessary or desirable and which will
not adversely affect the interests of the affected Holders.
(b) The Corporation and the Agent may modify or amend this
Agreement (by means of an agreement supplemental hereto or otherwise) with the
consent of Holders holding not less than a majority in number of the then
outstanding Units for any purpose; provided, however, that no such
modification or amendment that materially and adversely affects the exercise
rights of the affected Holders or reduces the percentage of the number of
outstanding Units, the consent of the Holders of which is required for
modification or amendment of this Agreement, may be made without the consent
of each Holder affected thereby. In the case of Units evidenced by one or
more Global Unit Certificates, the Corporation and the Agent shall be entitled
to rely upon certification in form satisfactory to each of them that any
requisite consent has been obtained from holders of beneficial ownership
interests in the relevant Global Unit Certificate. Such certification may be
provided by participants of the Depositary acting on behalf of such beneficial
owners of Units, provided that any such certification is accompanied by a
certification from the Depositary as to the Unit holdings of such
participants.
(c) Upon the request of the Corporation, accompanied by a copy of a
Board Resolution (which Board Resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Officer's
Certificate) authorizing the execution of any such amendment, and upon the
filing with the Agent of evidence of the consent of Holders as aforesaid, the
Agent shall join with the Corporation in the execution of such amendment
unless such amendment affects the Agent's own rights, duties or immunities
under this Agreement or otherwise, in which case the Agent may in its
discretion, but shall not be obligated to, enter into such amendment. In
executing, or accepting the additional duties created by, any amendment
permitted by this Section, the Agent shall be entitled to receive, and shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Agreement. The
fact and date of the execution of any consent of Holders, or the authority of
the Person executing the same, may be proved in any manner which the Agent
(with the approval of the Corporation) deems sufficient.
(d) It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof.
(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. 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. The ownership of
Units shall be proved by the Unit Register.
Section 7.2. 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
Warrant Agreement or any [list constituent securities], 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 [list constituent securities] constituting a part of the Units.
Section 7.3. Compliance Certificates and Opinions. Except as
otherwise expressly provided by this Agreement, upon any application or
request by the Corporation to the Agent to take any action under any provision
of this Agreement, the Corporation, as applicable, shall furnish to the Agent
an Officer's Certificate stating that all conditions precedent, if any,
provided for in this Agreement relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Agreement relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(i) a statement that each individual signing such
certificate or opinion has reached such covenant or condition and
the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 7.4. Form of Documents Delivered to 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 7.5. Maintenance of Office or Agency. So long as
Units 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 Units may be presented or surrendered
for delivery, where 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. 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 Units 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 7.6. 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, 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 to the Holders and the Corporation, or
(b) the Corporation by the 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: Treasurer, or at any
other address previously furnished in writing to the Agent by the Corporation.
Section 7.7. Notices to Holders; Waiver. The Corporation may
cause notice to be given to the Holders by providing the Agent with a form of
notice to be distributed by (a) in the case of Definitive Units, the Agent to
the Holders by first class mail, or (b) in the case of Global Units, the
Depositary to its participants in accordance with the custom and practices of
the Depositary. 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.
Section 7.8. 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 7.9. Successors and Assigns. All covenants and
agreements in this Agreement, the Units and the Unit Certificates by the
Corporation shall bind its successors and assigns, whether so expressed or not.
Section 7.10. Separability Clause. In case any provision in
this Agreement or in the Units or Unit Certificates 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 7.11. Benefits of Agreement. Nothing in this
Agreement or in the Units, Unit Certificates, the Indenture, the Warrant
Agreement, [list constituent securities], 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 bound by all of the terms
and conditions hereof and of the Indenture, the Units, the Warrant Agreement,
[list constituent securities] evidenced by the Units, by their acceptance of
delivery of such Units.
Section 7.12. Governing Law. This Agreement and the Units
shall be governed and construed in accordance with the laws of the State of New
York.
Section 7.13. Counterparts. This Agreement may be executed in
any number of counterparts by the parties hereto on separate counterparts,
each of which, when so executed and delivered, shall be deemed an original,
but all such counterparts shall together constitute one and the same
instrument.
Section 7.14. 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 Trustee and
the Warrant Agent have duly executed this Agreement as of the day and year
first above set forth.
XXXXXX XXXXXXX, XXXX XXXXXX,
DISCOVER & CO.
By:
-----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as 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 UNIT CERTIFICATE,
INSERT--This Unit Certificate is a global Unit Certificate within the meaning
of the Unit Agreement hereinafter referred to and is registered in the name of
The Depository Trust Company (the "Depositary") or a nominee of the
Depositary. Unless and until it is exchanged in whole or in part for Units in
definitive registered form, this Unit Certificate may not be transferred except
as a whole by the Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of the Depositary or
by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary).
Unless this Unit Certificate is presented by an authorized
representative of The Depositary (55 Xxxxx Xxxxxx, Xxx Xxxx) to Xxxxxx
Xxxxxxx, Xxxx Xxxxxx, Discover & Co. or its agent for registration of
transfer, exchange or payment, and any Unit issued is registered in the name
of Cede & Co. or such other name as requested by an authorized representative
of the Depositary and any payment hereon is made to Cede & Co. or such other
entity as is requested by an authorized representative of the Depositary, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
UNIT CERTIFICATE
(issuable in integral multiples of ________ Units)
Evidencing the Ownership of and Rights
of the Holder under [Separable] Units [Mandatorily] Exchangeable
for _____________________________ Consisting of
_____________________ and
________________________
Certificate No. _____Number of Units _________
This Unit Certificate certifies that ______________________
(the "Holder"), or registered assigns, is the registered owner of [ ( )
Units].
Each Unit represents ownership by the Holder of __________.
[INSERT PURCHASE CONTRACT, NOTE AND 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.
------------------------------------------------------------------------------
[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.]
