TRANSFER AGENCY AGREEMENT
AGREEMENT, made as of February 24, 1998, by and between EAGLE-PICHER
HOLDINGS, INC., a Delaware corporation (hereinafter referred to as the
"Corporation"), and THE BANK OF NEW YORK, a New York banking corporation
(hereinafter referred to as the "Bank").
WITNESSETH:
That for and in consideration of the mutual promise hereinafter set
forth, the parties hereto covenant and agree as follows:
ARTICLE 1
INCORPORATION BY REFERENCE
SECTION 1.01. Certificate of Designation. The terms and provisions
contained in the Certificate of Designations, Preferences and Rights of the
Senior Preferred Stock (the "Certificate of Designation") shall constitute, and
are hereby expressly made, a part of this Transfer Agency Agreement and to the
extent applicable, the Corporation and the Transfer Agent, by their execution
and delivery of this Transfer Agency Agreement, expressly agree to such terms
and provisions and to be bound thereby.
ARTICLE 2
DEFINITIONS
SECTION 2.01. Definitions. (a) Whenever used in this Agreement, the
following words and phrases shall have the following meanings;
"Business Day" shall be deemed to be each day on which the Bank is open
for business.
"Certificate" shall mean any notice, instruction, or other instrument
in writing, authorized or required by this Agreement to be given to the Bank by
the
Corporation which is signed by any Officer, as hereinafter defined and actually
received by the Bank.
"Officer" shall be deemed to be the Corporation's Chief Executive
Officer, President, any Vice President, the Secretary, the Treasurer, the
Controller, any Assistant Treasurer, and any Assistant Secretary duly authorized
by the Board of Directors of the Corporation to execute any Certificate,
instruction, notice or other instrument on behalf of the Corporation and named
in a Certificate, as such Certificate may be amended from time to time.
"Shares" shall mean all or any part of each class of the shares of
capital stock of the Corporation which from time to time are authorized and/or
issued by the Corporation and identified in a Certificate of the Secretary of
the Corporation under corporate seal, as such Certificate may be amended from
time to time with respect to which the Bank is to act hereunder.
(b) Capitalized terms used but not otherwise defined herein or in
Schedule I have the meanings assigned to them in the Certificate of Designation.
ARTICLE 3
APPOINTMENT OF BANK
SECTION 3.01. Appointment of Bank.
(a) The Corporation hereby constitutes and appoint the Bank as its
registrar and transfer agent to perform the services described herein and as
more particularly described in Schedule I attached hereto (the "Services"), and
the Bank hereby accepts appointment as such registrar and transfer agent and
agrees to perform the Services in accordance with the terms hereinafter set
forth.
(b) In connection with such appointment, the Corporation shall deliver
the following documents to the Bank:
(i) A certified copy of the Certificate of Incorporation or other
document evidencing the Corporation's form of organization (the
"Charter") and all amendments thereto;
(ii) A certified copy of the By-Laws of the Corporation;
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(iii) A certified copy of a resolution of the Board of Directors of
the Corporation appointing the Bank to perform the Services and
authorizing the execution and delivery of this Agreement;
(iv) A certificate signed by the Secretary of the Corporation
specifying: the number of authorized Shares, the number of such
authorized Shares issued and currently outstanding, and the names and
specimen signatures of all persons duly authorized by the Board of
Directors of the Corporation to execute any Certificate on behalf of
the Corporation, as such Certificate may be amended from time to time;
(v) A Specimen Share certificate for each class of Shares in the form
approved by the Board of Directors of the Corporation, together with a
Certificate signed by the Secretary of the Corporation as to such
approval and covenanting to supply a new such Certificate and specimen
whenever such form shall change;
(vi) An opinion of counsel for the Corporation in a form satisfactory
to the Bank with respect to the validity of the authorized and
outstanding Shares, the obtaining of all necessary governmental
consents, whether such Shares are fully paid and non-amended, and any
other applicable law or regulation (i.e., if subject to registration,
that they have been registered and that the Registration Statement has
become effective or, if exempt, the specific grounds therefor);
(vii) A list of the name, address, social security or taxpayer
identification number of each Shareholder, number of Shares owned,
certificate numbers, and whether any "stops" have been placed; and
(viii) An opinion of counsel for the Corporation, in a form
satisfactory to the Bank, with respect to the due authorization by the
Corporation and the validity and effectiveness of the use of facsimile
signatures by the Bank in connection with the countersigning and
registering of Share certificates of the Corporation.
(c) In the event that the Shares are issued in certificated form, the
Corporation shall furnish the Bank with a sufficient supply of blank Share
certificates and from time to time will renew such supply upon request of the
Bank. Such blank Share certificates shall be properly signed, by facsimile or
otherwise, by Officers of the Corporation authorized by law or by the By-Laws to
sign Share certificates, and, if required, shall bear the corporate seal or a
facsimile thereof.
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ARTICLE 4
AUTHORIZATION AND ISSUANCE OF SHARES
SECTION 4.01. Authorization and Issuance of Shares.
(a) The Corporation shall deliver to the Bank the following documents
on or before the effective date of any increase, decrease or other change in the
total number of Shares authorized to be issued:
(i) A certified copy of the amendment to the Charter giving effect to
such increase, decrease or change;
(ii) An opinion of counsel for the Corporation, in a form
satisfactory to the Bank, with respect to the validity of the Shares,
the obtaining of all necessary governmental consents, whether such
Shares are fully paid and non-assessable and the status of such shares
under the Securities Act of 1933, as amended, and any other applicable
federal law or regulations (i.e. if subject to registration, that they
have been registered and that the Registration Statement has become
effective or, if exempt, the specific ground therefor); and
(iii) In the case of an increase, if the appointment of the Bank was
theretofore expressly limited, a certified copy of a resolution of the
Board of directors of the Corporation increasing the authority of the
Bank.
(b) Prior to issuance of any additional Shares pursuant to stock
dividends, stock splits or otherwise, and prior to any reduction in the number
of Shares outstanding, the Corporation shall deliver the following documents to
the Bank:
(i) A certified copy of the resolutions adopted by the Board of
Directors and/or the shareholders of the Corporation authorizing such
issuance of additional Shares of the Corporation or such reduction, as
the case may be;
(ii) A certified copy of the order or consent of each governmental or
regulatory authority required by law as a prerequisite to the issuance
or reduction of such Shares, as the case may be, and an opinion of
counsel for the Corporation that no other order or consent is
required; and
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(iii) An opinion of counsel for the Corporation, in a form
satisfactory to the Bank, with respect to the validity of the Shares,
the obtaining of all necessary governmental consents, whether such
Shares are fully paid and non-assessable and the status of such Shares
under the Securities Act of 1933, as amended, and any other applicable
law or regulation (i.e. if subject to registration, that they have
been registered and that the Registration Statement has become
effective, or, if exempt, the specific ground therefor).
ARTICLE 5
RECAPITALIZATION OR CAPITAL ADJUSTMENT
SECTION 5.01. Recapitalization or Capital Adjustment.
(a) In the case of any negative stock split, recapitalization or other
capital adjustment requiring a change in the form of Share certificates the Bank
will issue share certificates in the new form in exchange for, or upon transfer
of, outstanding Share certificates in the old form, upon receiving:
(i) A Certificate authorizing the issuance of Share certificates in
the new form;
(ii) A certified copy of any amendment to the Charter with respect to
the change;
(iii) Specimen share certificates for each class of Shares in the new
form approved by the Board of Directors of the Corporation, with a
certificate signed by the Secretary of the Corporation as to such
approval;
(iv) A certified copy of the order or consent of each governmental or
regulatory authority required by law asa prerequisite to the issuance
of the Shares in the new form, and an opinion of counsel for the
Corporation that the order or consent of no other governmental or
regulatory authority is required; and
(v) An opinion of counsel for the Corporation, in a form satisfactory
to the Bank, with respect to the validity of the Shares in the new
form, the obtaining of all necessary governmental consents, whether
such Shares are fully pain and non-assessable and the status of such
Shares under the Securities Act of 1933, as amended, and any other
applicable
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law or regulation (i.e. if subject to registration , that the Shares
have been registered and that the Registration Statement has become
effective or , if exempt, the specific grounds therefore).
(b) The Corporation shall furnish the Bank with a sufficient supply of
blank Share certificates in the new form, and from time to time will replenish
such supply upon the request of the Bank. Such bank Share certificates shall be
properly signed, by facsimile or otherwise, by Officers of the Corporation
authorized by law of by the By-Laws to sign Share certificates and, if required,
shall bear the corporate seal or a facsimile thereof.
ARTICLE 6
ISSUANCE AND TRANSFER OF SHARES
SECTION 6.01. Issuance and Transfer of Certificated Shares.
(a) The Bank will issue Share certificates upon receipt of a
Certificate from an Officer, but shall not be required to issue Share
certificates after it has received from an appropriate federal or state
authority written notification that the sale of Shares has been suspended or
discontinued, and the Bank shall be entitled to rely upon such written
notification. The Bank shall not be responsible for the payment of any original
issue or other taxes required to be paid by the Corporation in connection with
the issuance of any Shares.
(b) Shares will be transferred upon presentation to the Bank of Share
certificates in form deemed by the Bank properly endorsed for transfer,
accompanied by such documents as the Bank deems necessary to evidence the
authority of the person making such transfer, and bearing satisfactory evidence
of the payment of applicable stock transfer taxes. In the case of small estates
where no administration is contemplated, the Bank any, when furnished with an
appropriate surety bond, and without further approval of the Corporation,
transfer Shares registered in the name of the descendants where the current
market value of the Shares being transferred does not exceed such amount as may
from time to time be prescribed by the various states. The Bank reserves the
right to refuse to transfer Shares until it is satisfied that the endorsement on
Share certificates are valid and genuine, and for that purpose it may require,
unless otherwise instructed by an Officer of the Corporation, a guaranty of
signature by an "eligible guarantor institution" meeting the requirements of the
Bank, which requirements include member ship or participation in STAMP or such
other "signature guarantee program" as may be determined by the Bank in addition
to, or in substitution for,
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STAMP, all in accordance with the Securities Exchange At of 1934, as amended.
The bank also reserves the right to refuse to transfer Shares until it is
satisfied that there is no basis to any claims adverse to such transfer. The
Bank may, in effecting transfers of Shares, rely upon those provisions of the
Uniform Act for the Simplification of Fiduciary Security Transfers or the
Uniform Commercial code, as the same may be amended from time to time,
applicable to the transfer of securities, and the Corporation shall indemnify
the Bank for any act done or omitted by it in good faith in reliance upon such
laws.
(c) All certificates representing Shares that are subject to
restrictions on transfer (e.g. securities acquired pursuant to an investment
representation, securities held by controlling person, securities subject to
stockholders' agreement, etc.), shall be stamped with a legend describing the
extent and conditions of the restrictions or referring to the source of such
restrictions. The Bank assumes no responsibility with respect to the transfer of
restricted securities where counsel for the Corporation advises that such
transfer may be properly effected.
SECTION 6.02. Issuance and Transfer of Global Shares. Global Shares
shall be issued and transferred as set forth on Schedule I.
ARTICLE 7
DIVIDENDS AND DISTRIBUTIONS
SECTION 7.01. Dividends and Distributions.
(a) The Corporation shall furnish to the Bank a copy of a resolution
of its Board of Directors, certified by the Secretary or any Assistant Secretary
either (i) setting forth the date of the declaration of a dividend or
distribution, the date of accrual or payment, as the case may be, the record
date as of which shareholders entitled to payment, or accrual, as the case may
be shall be determined the amount per Share of such dividend or distribution,
the payment date on which all previously accrued and unpaid dividends are to be
paid, and the total amount, if any, payable to the Bank on such payment date, or
(ii) authorizing the declaration of dividends and distributions of a periodic
basis and authorizing the Bank to rely on a Certificate setting forth the
information described in subsection (iii) of this paragraph.
(b) Prior to the payment date specified in such certificate or
resolution, as the case may be, the Corporation shall, in the case of a cash
dividend or
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distribution, pay to the Bank an amount of cash, sufficient for the Bank to make
the payment, specified in such Certificate or resolution, to the shareholders of
record as of such payment date. The Bank will, upon receipt of any such cash,
(i) in the case of shareholders who are participants in a dividend reinvestment
and/or cash purchase plan of the Corporation, reinvest such cash dividends or
distributions in accordance with the terms of such plan, and (ii) in the case of
shareholders who are not participants in any such plan, make payment of such
cash dividends or distributions to the shareholders of record as of the record
date by mailing a check, payable to the registered shareholder, to the address
of record or dividend mailing address. The Bank shall not be liable for any
improper payment made in accordance with a Certificate or resolution described
in the preceding paragraph. If the Bank shall not receive sufficient such prior
to the payment date to make payments of any cash dividend of distribution
pursuant to subsections (i) and (ii) above to all shareholders of the
Corporation as of the record date, the Bank shall, upon notifying the
Corporation, withhold payment to all shareholders of the Corporation as of the
record date until sufficient cash is provided to the Bank.
(c) It is understood that the Bank shall in no way be responsible for
the determination of the rate or form of dividends or distributions due to the
shareholders.
(d) It is understood that the Bank shall file such appropriate
information returns concerning the payment of dividends and distributions with
the proper federal, state and local authorities as are required by law to be
filed by the Corporation but shall in no way be responsible for the collection
or withholding of taxes due on such dividends or distributions due to
shareholders, except and only to the extent required of it by applicable law.
ARTICLE 8
CONCERNING THE CORPORATION
SECTION 8.01. Concerning the Corporation.
(a) The Corporation shall promptly deliver to the Bank written notice
of any change in the Officers authorized to sign Share certificates,
Certificates, notifications or requests, together with a specimen signature of
each new Officer. in the event any Officer who shall have signed manually or
whose facsimile signature shall have been affixed to blank Share certificates
shall die, resign or be removed prior to issuance of such Share certificate, the
Bank may issue such
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Share certificates as the Share certificates of the Corporation notwithstanding
such death, resignation or removal and the Corporation shall promptly deliver to
the bank such approvals, adoptions or ratifications as may be required by law.
(b) Each copy of the Charter of the Corporation and copies of all
amendments thereto shall be certified by the Secretary of State (or other
appropriate official) of the state of incorporation, and is such Charter and/or
amendments are required by law also to be filed with a county or other officer
or official body, a certificate of such filing shall be filed with a certified
copy submitted to the Bank. Each copy of the By-Laws and copies of all
amendments thereto, and copies of resolutions of the Board of Directors of the
Corporation, shall be certified by the Secretary or an Assistant Secretary of
the Corporation under the corporate seal.
(c) Corporation hereby represents and warrants:
(i) It is a corporation duly organized and validly existing under the
laws of Delaware.
(ii) This Agreement has been duly authorized, executed and delivered
on its behalf and constitutes the legal, valid and binding obligation
of Corporation. The execution, delivery and performance of the
Agreement by Corporation do not and will not violate any applicable
law or regulation and do not require the consent of any governmental
or other regulatory body except for such consents and approvals as
have been obtained and are in full force and effect.
ARTICLE 9
CONCERNING THE BANK
SECTION 9.01. Concerning the Bank.
(a) The Bank shall not be liable and shall be fully protected in
acting upon any oral instruction, writing, or document reasonably believed by it
to be genuine and to have been given, signed or made by the proper person or
persons and shall not be held to have any notice of any change of authority of
any person until receipt of written notice thereof from an Officer of the
Corporation. It shall also be protected in processing Share certificates which
it reasonably believes to bear the proper manual of facsimile signatures of the
duly authorized Officer of Officers of the Corporation and the proper
countersignature of the Bank.
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(b) The Bank may establish such additional procedures, rules and
regulations governing the transfer or registration of Share certificates as it
may deem advisable and consistent with such rules and regulations generally
adopted by bank transfer agents.
(c) The Bank may keep such records as it deems advisable but not
inconsistent with resolutions adopted by the Board of Directors of the
Corporation. The Bank may deliver to the Corporation from time to time at its
discretion, for safekeeping or disposition by the Corporation in accordance with
law such records, papers, Share certificates which have been canceled in
transfer or exchange and other documents accumulated in the execution of its
duties hereunder as the Bank may deem expedient, other than those which the Bank
is itself required to maintain pursuant to applicable laws and regulations, and
the Corporation shall assume all responsibility for any failure thereafter to
produce any record, paper, canceled Share certificate or other document so
returned, if and when required. The records maintained by the Bank pursuant to
this paragraph which have not been previously delivered to the Corporation
pursuant to the foregoing provisions of the paragraph shall be considered to be
the property of the Corporation, shall be made available upon request for
inspection by the Officers, employees and auditors of the Corporation, and shall
be delivered to the Corporation upon request and in any event upon the date of
termination of this Agreement, as specified in Article IX of the Agreement, in
the form and manner kept by the Bank on such date of termination or such earlier
date as may be requested by the Corporation.
(d) The Bank may employ agents or attorneys-in-fact at the expense of
the Corporation, and shall not be liable for any loss or expense arising out of,
or in connection with, the actions or omissions to act of its agents or
attorneys-in-fact, so long as the Bank acts in good faith and without negligence
or willful misconduct in connection with the selection of such agents or
attorneys-in-fact.
(e) The Bank shall only be liable for any loss or damage arising out
of its own negligence or willful misconduct; provided, however, that the Bank
shall not be liable for any indirect, special, punitive or consequential
damages.
(f) The Corporation shall indemnify and hold harmless the Bank from
and against any and all claims (whether with or without basis in fact or law),
costs, demands, expenses and liabilities, including reasonable attorney's fees,
which the Bank may sustain or incur or which may be asserted against the Bank
except for any liability with the Bank has assumed pursuant to the immediately
preceding section. The Bank shall be deemed not to have acted with negligence
and not to have engaged in willful misconduct by reason of or as a result of any
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action taken or omitted to be taken by the Bank without its own negligence or
willful misconduct in reliance upon (i) any provision of this Agreement, (ii)
any instrument, order or Share certificate reasonably believed by it to be
genuine and to be signed, countersigned or executed by any duly authorized
Officer of the Corporation, (iii) any Certificate or other instructions of an
Officer, (iv) any opinion of legal counsel for the Corporation or the Bank, or
(v) any law, act, regulation or any interpretation of the same even though such
law, act, or regulation may thereafter have been altered, changed, amended or
repealed. Nothing contained herein shall limit or in any way impair the right of
the Bank to indemnification under any other provision of the Agreement.
(g) Specifically, but not by way of limitation, the Corporation shall
indemnify and hold harmless the Bank from and against any and all claims
(whether with or without basis in fact or law), costs, demands, expenses and
liabilities, including reasonable attorney's fees, of any and every nature which
the Bank may sustain or incur or which may be asserted against the Bank in
connection with the genuiness of a Share certificate, the Bank's due
authorization by the Corporation to issue Shares and the form and amount of
authorized Shares.
(h) At any time the Bank may apply to an Officer of the Corporation
for written instructions with respect to any matter arising in connection with
the Bank's duties and obligations under this Agreement, and the Bank shall not
be liable for any action taken or omitted to be taken by the Bank in good faith
in accordance with such instructions. Such application by the Bank for
instructions from an officer of the Corporation may, at the option of the Bank,
set forth in writing any action proposed to be taken or omitted to be taken by
the Bank with respect to its duties or obligations under this Agreement and the
date on and/or after which such action shall be taken, and the Bank shall not be
liable for any action taken or omitted to be taken in accordance with a proposal
included in any such application on or after the date specified therein unless,
prior to taking or omitting to take any such action, the Bank has received
written instructions in response to such application specifying the action to be
taken or omitted. The Bank may consult counsel to the Corporation or its own
counsel, at the expense of the Corporation, and shall be fully protected with
respect to anything done or omitted by it in good faith in accordance with the
advice or opinion of such counsel.
(i) When mail is used for delivery of non-negotiable Share
certificates, the value of which does not exceed the limits of the Bank's
Blanket Bond, the Bank shall send such non-negotiable Share certificates by
first class mail, and such deliveries will be covered while in transit by the
Bank's Blanket Bond. Nonnegotiable Share certificates, the value of which exceed
the limits of the Bank's
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Blanket Bond, will be sent by insured registered mail. Negotiable Shares
certificates returned as undeliverable after being mailed as herein provided
for.
(j) The Bank may issue new Share certificate in place of share
certificates represented to have been lost, stolen or destroyed upon receiving
instructions in writing from an Officer and indemnity satisfactory to the Bank.
Such instructions from the Corporation shall be in such form as approved by the
Board of Directors of the Corporation in accordance with applicable law or the
By-Laws of the Corporation governing such matters. If the Bank receives written
notification from the owner of the lost, stolen or destroyed Share certificate
within a reasonable time after he has notice of it, the Bank shall promptly
notify the Corporation and shall act pursuant to written instructions signed by
an Officer. If the Corporation receives such written notification from the owner
of the lost, stolen or destroyed Share certificate within a reasonable time
after he has notice of it, the Corporation shall promptly notify the Bank and
the Bank shall act pursuant to written instructions signed by an Officer. The
Bank shall not be liable for any act done or omitted by it pursuant to the
written instructions described herein. The Bank may issue new Share certificates
in exchange for, and upon surrender of mutilated Share certificates.
(k) The Bank will issue and mail subscription warrants for Shares,
Shares representing stock dividends, exchanges or splits, or act as conversion
agent upon receiving written instruction from an officer and such other
documents as the Bank my deem necessary.
(l) The Bank will supply shareholder lists to the Corporation from
time to time upon receiving a request therefor from an Officer of the
Corporation.
(m) In the case of any requests or demands for the inspection of the
shareholder records of the Corporation, the Bank will notify the Corporation and
endeavor to secure instructions from and Officer as to such inspection. The Bank
reserves the right, however to exhibit the shareholder record to any person
whenever it is advised by its counsel that there is a reasonable likelihood that
the Bank will be held liable for the failure to exhibit the shareholder records
to such person.
(n) At the request of an Officer, the Bank will address and mail such
appropriate notices to shareholders as the Corporation may direct.
(o) Notwithstanding any provisions of this Agreement to the contrary,
the Bank shall be under no duty or obligation to inquire into, and shall not be
liable for:
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(i) The legality of the issue, sale or transfer of any shares, the
sufficiency of the amount to be received in connection therewith, or
the authority of the Corporation to request such issuance, sale or
transfer;
(ii) The legality of the purchase of an Shares, the sufficiency of
the amount to be paid in connection therewith, or the authority of the
Corporation to request such purchase;
(iii) The legality of the declaration of any dividend by the
Corporation, or the legality of the issue of any Shares in payment of
any stock dividend; or
(iv) The legality of any recapitalization or readjustment of the
Shares.
(p) The Bank shall be entitled to receive and the Corporation hereby
agrees to pay to the Bank for its performance hereunder (i) out-of-pocket
expenses (including reasonable legal expenses and attorney's fees) incurred in
connection with this Agreement and its performance hereunder, and (ii) the
compensation for services as set forth in Schedule I.
(q) The Bank shall not be responsible for any money, whether or not
represented by any check, draft or other instrument for the payment of money,
received by it on behalf of the Corporation, until the Bank actually receives
and collects such funds.
(r) The Bank shall have no duties or responsibilities whatsoever
except such duties and responsibilities as are specifically set forth in this
Agreement, and no covenant or obligation shall be implied against the Bank in
connection with this Agreement.
ARTICLE 10
AMENDMENT AND TERMINATION
SECTION 10.01. Amendments and Supplements. This Transfer Agency
Agreement may be amended or supplemented in accordance with the provisions
relating to amendments and supplements of the Certificate of Designation set
forth in Section 17 of the Certificate of Designation.
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SECTION 10.02. Termination. Either of the parties hereto may terminate
this Agreement by giving to the other party a notice in writing specifying the
date of such termination, which shall be not less that 60 days after the date of
receipt of such notice. In the event such notice is given by the Corporation, it
shall be accompanied by a copy of a resolution of the Board of Directors of the
Corporation, certified by the Secretary, electing to terminate this Agreement
and designating a successor transfer agent or transfer agents. In the event such
notice is given by the Bank, the Corporation shall, on or before the termination
date, deliver to the Bank a dopy of a resolution of its Board of Directors
certified by the Secretary designating a successor transfer agent or transfer
agents. In the absence of such designation by the Corporation, the Bank may
designate a successor transfer agent. If the Corporation fails to designate a
successor Transfer agent and if the Bank is unable to find a successor transfer
agent, the Corporation shall, upon the date specified in the notice of
termination of this Agreement and delivery of the records maintained hereunder,
be deemed to bet its own transfer agent and the Bank shall thereafter be
relieved of all duties and responsibilities hereunder. Upon termination hereof,
the Corporation shall pay to the Bank such compensation as may be due to the
Bank for any disbursements and expenses made or incurred by the Bank and payable
or reimbursable hereunder.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Miscellaneous.
(a) The indemnities contained herein shall be continuing obligations
of the Corporation, its successors and assigns, notwithstanding the termination
of this Agreement.
(b) Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Corporation shall be sufficiently given if
addressed to the Corporation and mailed or delivered to it at The Xxxxxxxx
Center, 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, Facsimile: (513)
721-7010, Attention: President, or at such other place as the Corporation may
from time to time designate in writing.
(c) Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Bank shall be sufficiently given if
addressed to the Bank and mailed or delivered to it at its office at 000 Xxxxxxx
Xxxxxx (22W),
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Xxx Xxxx, XX 00000 or at such other place as the Bank may from time to time
designate in writing.
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IN WITNESS WHEREOF, the parties have caused this Transfer Agency
Agreement to be duly executed as of the date and year first written above.
EAGLE-PICHER HOLDINGS, INC.
By: /s/ XXXX X. XXXXX
--------------------------------
Name: Xxxx X. Xxxxx
Title: President
THE BANK OF NEW YORK
By:
--------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties have caused this Transfer Agency
Agreement to be duly executed as of the date and year first written above.
EAGLE-PICHER HOLDINGS, INC.
By:
--------------------------------
Name:
Title:
THE BANK OF NEW YORK
By: /s/ XXXXX XXXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
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SCHEDULE I
SERVICES TO BE PERFORMED BY THE BANK
The Bank agrees to comply with the following provisions:
SECTION 1. Form and Dating of Senior Preferred Stock. (a) The Senior
Preferred Stock shall be substantially in the form of Exhibit A to the
Certificate of Designation, bearing such legends as are required pursuant to
this Section. The Senior Preferred Stock may have notations, legends or
endorsements required by law, stock exchange rule or usage.
Senior Preferred Stock offered and sold to QIBs in reliance on Rule
144A ("RULE 144A SHARES") shall be issued initially in the form of one or more
Global Shares in definitive, fully registered form, substantially in the form of
Exhibit A to the Certificate of Designation, bearing such legends as are
required pursuant to this Section (the "RESTRICTED GLOBAL SHARES"), will be
deposited on the Issue Date with, or on behalf of, the Depositary and registered
in the name of Cede & Co., as nominee of the Depositary (such nominee being
referred to herein as the "GLOBAL SHARE HOLDER"), duly executed by the
Corporation.
Any person having a beneficial interest in the Global Shares may, upon
request to the Bank, exchange such beneficial interest for Senior Preferred
Stock in definitive form (each a "CERTIFICATED SHARE"). Upon any such issuance,
the Bank is required to register such Certificated Share in the name of, and
cause the same to be delivered to, such persons or persons (or the nominee of
any thereof). Such Certificated Share will be issued in fully registered form
and will be subject to transfer restrictions (a "RESTRICTED CERTIFICATE SHARE").
In addition, if (i) the Corporation notifies the Bank in writing that the
Depositary is no longer willing or able to act as a depositary and the
Corporation is unable to locate a qualified successor within 90 days or (ii) the
Corporation, at its option, notifies the Bank in writing that it elects to cause
the issuance of Certificated Shares, then, upon surrender by the relevant Global
Share Holder of its Global Share, Certificated Shares will be issued to each
person that such Global Share Holder and the Depositary identify as being the
beneficial owner of the related Senior Preferred Stock.
Unless and until a Restricted Share is exchanged for a New Share in
connection with an effective Registration pursuant to the Registration Rights
Agreement, each Restricted Global Share shall bear the "Securities Act Legend"
as set forth below on the face thereof:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE
U.S. 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
(1) BY ITS ACQUISITION HEREOF REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
AND (2) 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 (X) 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) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT OR (c) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (ii) TO THE COMPANY OR (iii) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND (Y)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (X) ABOVE."
(b) Each Global Share, whether or not a New Share, shall also bear the
following legend on the face thereof:
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UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), 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
DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), 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 THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH HEREIN.
SECTION 2. Book-entry Provisions for Global Shares. (a) The Restricted
Global Shares initially shall (i) be registered in the name of the Depositary
for such Global Shares or the nominee of such Depositary, (ii) be delivered to
the Bank, as custodian for such Depositary, and (iii) bear legends as set forth
in Section 1.
Members of, or participants in, the Depositary ("AGENT MEMBERS") shall
have no rights under this Transfer Agency Agreement with respect to any
Restricted Global Share held on their behalf by the Depositary, or the Bank, as
its custodian, or under such Restricted Global Share, and the Depositary may be
treated by the Corporation, the Bank and any other agent of the Corporation or
the Bank as the absolute owner of such Global Share for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Corporation, the
Bank or any other agent of the Corporation or the Bank, from giving effect to
any written certification, proxy or other authorization furnished by the
Depositary or shall impair, as between the Depositary and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
Holder of Preferred Stock.
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(b) Transfers of a Restricted Global Share shall be limited to
transfers of such Global Share in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a
Restricted Global Share may be transferred in accordance with the rules and
procedures of the Depositary and the provisions of Section 3. In addition,
Restricted Certificated Shares shall be transferred to all beneficial owners in
exchange for their beneficial interests in the Restricted Global Share,
respectively, if (i) the Depositary notifies the Corporation that it is
unwilling or unable to continue as Depositary for the Restricted Global Shares,
as the case may be, and a successor depositary is not appointed by the
Corporation within 90 days of such notice or (ii) a Matured Mandatory Redemption
Event of which the Bank has actual notice has occurred and is continuing and the
Bank has received a request from the Depositary to issue such Certificated
Shares.
(c) Any beneficial interest in one of the Global Shares that is
transferred to a person who takes delivery in the form of an interest in the
other Global Share will, upon transfer, cease to be an interest in such Global
Share and become an interest in the other Global Share and, accordingly, will
thereafter be subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Share for as long as it
remains such an interest.
(d) In connection with any transfer of a portion of the beneficial
interests in the Global Shares to beneficial owners pursuant to paragraph (b) of
this Section, the Bank shall reflect on its books and records the date and a
decrease in the Liquidation Preference of the Global Shares in an amount equal
to the Liquidation Preference of the beneficial interest in the Global Shares to
be transferred, and the Corporation shall execute, and the Bank shall deliver,
one or more Certificated Shares of like tenor and Liquidation Preference.
(e) In connection with the transfer of all Restricted Global Shares to
beneficial owners pursuant to paragraph (b) of this Section, the Restricted
Global Shares, as the case may be, shall be deemed to be surrendered to the Bank
for cancellation, and the Corporation shall execute, and the Bank shall deliver,
to each beneficial owner identified by the Depositary in exchange for its
beneficial interest in the Restricted Global Shares, as the case may be, an
equal aggregate Liquidation Preference of Certificated Shares or, of authorized
denominations.
(f) Any Certificated Shares delivered in exchange for an interest in a
Restricted Global Share pursuant to paragraph (b) or (d) of this Section shall,
except as otherwise provided by paragraph (b) of Section 3, bear the legend
regarding transfer restrictions applicable to the Restricted Certificated Shares
set forth in Section 1.
4
(g) The registered holder of a Global Share 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 Transfer Agency Agreement or Preferred Stock.
SECTION 3. Special Transfer Provisions. Unless and until a Restricted
Share is exchanged for a New Share in connection with an effective Registration
pursuant to the Registration Rights Agreement, the following provisions shall
apply:
(a) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Restricted
Certificated Share or an interest in a Restricted Global Share to a QIB:
(i) If the Preferred Stock to be transferred consists of (x)
Restricted Certificated Shares, the Bank shall register the transfer,
if such transfer is being made by a proposed transferor who has
advised the Corporation and the Bank in writing, that the sale has
been made in compliance with the provisions of Rule 144A to a
transferee who has advised the Corporation and the Bank in writing,
that it is purchasing the Preferred Stock 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 Corporation as it has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware
that the transferor is relying upon its foregoing representation in
order to claim the exemption from registration provided for by Rule
144A or (y) an interest in the Restricted Global Share, the transfer
of such interest may be effected only through the book-entry system
maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and the Preferred
Stock to be transferred consists of Restricted Certificated Shares,
upon receipt by the Bank of the documents referred to in clause (i)
and instructions given in accordance with the Depositary's and the
Bank's procedures, the Bank shall reflect on its books and records the
date and an increase in the Liquidation Preference of the Restricted
Global Shares in an amount equal to the Liquidation Preference of the
Restricted Certificated Shares to be transferred and the Bank shall
cancel the Restricted Certificated Shares so transferred.
5
(b) Securities Act Legend. Upon the transfer, exchange or replacement
of shares of Senior Preferred Stock not bearing the Securities Act Legend, the
Bank shall deliver shares of Senior Preferred Stock that do not bear the
Securities Act Legend. Upon the transfer, exchange or replacement of shares of
Senior Preferred Stock bearing the Securities Act Legend, the Bank shall deliver
only shares of Senior Preferred Stock that bear the Securities Act Legend unless
there is delivered to the Bank an Opinion of Counsel reasonably satisfactory to
the Corporation and the Bank to the effect that neither such legend nor the
related restrictions on transfer are required in order to maintain compliance
with the provisions of the Securities Act.
(c) General. By its acceptance of any share of Senior Preferred Stock
bearing the Securities Act Legend, each Holder of such a share of Senior
Preferred Stock acknowledges the restrictions on transfer of such share of
Senior Preferred Stock set forth in this Transfer Agency Agreement and in the
Securities Act Legend and agrees that it will transfer such share of Senior
Preferred Stock only as provided in this Transfer Agency Agreement. The Bank
shall not register a transfer of any share of Senior Preferred Stock unless such
transfer complies with the restrictions on transfer of such share of Senior
Preferred Stock set forth in this Transfer Agency Agreement. In connection with
any transfer of shares of Senior Preferred Stock, each Holder agrees by its
acceptance of the shares of Senior Preferred Stock to furnish the Bank or the
Corporation such certifications, legal opinions or other information as either
of them may reasonably require to confirm that such transfer is being made
pursuant to an exemption from, or a transaction not subject to, the registration
requirements of the Securities Act; provided that the Bank shall not be required
to determine (but may rely on a determination made by the Corporation with
respect to) the sufficiency of any such certifications, legal opinions or other
information.
The Bank shall retain copies of all letters, notices and other written
communications received pursuant to Section 2 or this Section 3. The Corporation
shall have the right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the giving of
reasonable written notice to the Bank.
SECTION 4. Treasury Senior Preferred Stock. In determining whether the
Holders of the required Liquidation Preference of Senior Preferred Stock have
concurred in any direction, waiver or consent, shares of Senior Preferred Stock
owned by the Corporation or any Affiliate of the Corporation shall be considered
as though they are not outstanding; provided, however, that for the purposes of
determining whether the Bank shall be protected in relying on any such
direction, waiver or consent, only shares of Senior Preferred Stock that the
Bank knows are so owned shall be so disregarded. Notwithstanding the foregoing,
Senior
6
Preferred Stock that the Corporation or any Affiliate of the Corporation offers
to purchase or acquires pursuant to an exchange offer, tender offer or otherwise
shall not be deemed to be owned by the Corporation or any Affiliate of the
Corporation until legal title to such Senior Preferred Stock passes to the
Corporation or such Affiliate, as the case may be.
SECTION 5. Cancellation. Holders shall surrender shares of Senior
Preferred Stock for cancellation to the Bank. The Corporation at any time may
deliver Senior Preferred Stock to the Bank for cancellation. The Bank, the
Corporation and its Subsidiaries shall forward to the Bank any shares of Senior
Preferred Stock surrendered to them for registration of transfer, exchange,
replacement, payment (including all shares of Senior Preferred Stock called for
redemption and all shares of Senior Preferred Stock accepted for payment or
exchange pursuant to an Offer) or cancellation, and the Bank shall cancel all
such shares of Senior Preferred Stock and shall return all cancelled shares of
Senior Preferred Stock to the Corporation. The Corporation may not issue new
shares of Senior Preferred Stock to replace any shares of Senior Preferred Stock
that have been cancelled by the Bank or that have been delivered to the Bank for
cancellation.
SECTION 6. Record Date. The record date for purposes of determining the
identity of Holders of Senior Preferred Stock entitled to vote or consent to any
action by vote or consent authorized or permitted under this Transfer Agency
Agreement shall be determined by the Board of Directors of the Corporation.
SECTION 7. CUSIP and CINS Numbers. A "CUSIP" or "CINS" number will be
printed on the Senior Preferred Stock and the Bank shall use CUSIP or CINS
numbers, as the case may be, in notices of redemption, purchase or exchange as a
convenience to Holders, provided that any such notice may state that no
representation is made as to the correctness or accuracy of such numbers printed
in the notice or on the Senior Preferred Stock and that reliance may be placed
only on the other identification numbers printed on the Senior Preferred Stock.
The Corporation will promptly notify the Bank of any change in the CUSIP or CINS
number, as the case may be.
7
SECTION 8. Redemptions, Exchanges and Offers to Purchase.
(a) Procedures.
(i) Upon a redemption pursuant to Sections 5, 6 or 7 of the
Certificate of Designation, the Bank shall follow the procedures for
redemption or exchange set forth in Section 8 of the Certificate of
Designation. Upon an Offer pursuant to Section 9 or 11(g) of the
Certificate of Designation, the Bank shall follow the procedures for
Offer set forth in Sections 9(b) or 11(g)(iv), respectively.
(ii) The Corporation will also provide the Bank with any additional
information that the Bank reasonably requests in connection with any
redemption, exchange or Offer.
(b) Deposit of Redemption Price. Prior to 10:00 A.M. New York Time on
any redemption date, the Corporation shall deposit with the Bank money
sufficient to pay the redemption or exchange price of, and the amount, if any,
of accrued and unpaid dividends or Special Accretion Amount, on all Senior
Preferred Stock to be redeemed in immediately available funds as of the date of
redemption. After any redemption or exchange date, the Bank shall promptly
return to the Corporation any money that the Corporation deposited with the Bank
in excess of the amounts necessary to pay the redemption price of, and any
accrued and unpaid dividends or Special Accretion Amount on all Senior Preferred
Stock to be redeemed.
SECTION 9. Compliance Certificate. The Corporation shall deliver to the
Bank, within 90 days after the end of each fiscal year of the Corporation, an
Officers' Certificate stating that (i) a review of the activities of the
Corporation and its Subsidiaries during the preceding fiscal year has been made
to determine whether the Corporation has kept, observed, performed and fulfilled
all of its obligations under this Transfer Agency Agreement, the Certificate of
Designation and the Senior Preferred Stock, (ii) such review was supervised by
the Officers of the Corporation signing such certificate, and (iii) that to the
best knowledge of each Officer signing such certificate, (a) the Corporation has
kept, observed, performed and fulfilled each and every covenant contained in the
Certificate of Designation and no Early Mandatory Redemption Event or Matured
Mandatory Redemption Event shall have occurred and be continuing. If an Early
Mandatory Redemption Event or Matured Mandatory Redemption Event shall have
occurred, the Corporation shall describe any such Early Mandatory Redemption
Event or Matured Mandatory Redemption Event of which each such Officer may have
knowledge and what action the Corporation has taken or proposes to take with
respect thereto), and (b) no event has occurred and remains in existence by
reason
8
of which payments on account of the Liquidation Preference of, or premium,
dividends or Special Accretion Amount, if any, on the Senior Preferred Stock are
prohibited or if such event has occurred, a description of the event and what
action the Corporation is taking or proposes to take with respect thereto. The
first compliance certificate to be delivered by the Corporation to the Bank
pursuant to this Section 9 shall be for the fiscal year ending on November 30,
1998.
So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the annual financial
statements delivered pursuant to Section 16 of the Certificate of Designation
shall be accompanied by a written statement of the Corporation's independent
public accountants (which shall be a firm of established national reputation)
that in making the examination necessary for certification of such financial
statements nothing has come to their attention that would lead them to believe
that the Corporation has incurred any Early Mandatory Redemption Events under
Section 11 of the Certificate of Designation or, if any such Early Mandatory
Redemption Event has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
The Corporation will, so long as any of the Senior Preferred Stock is
outstanding, deliver to the Bank, promptly after any Officer of the Corporation
becomes aware of any Early Mandatory Redemption Event or Matured Mandatory
Redemption Event, an Officers' Certificate specifying such Early Mandatory
Redemption Event or Matured Mandatory Redemption Event and what action the
Corporation is taking or proposes to take with respect thereto.
SECTION 10. Certificates Relating to Early Mandatory Redemption Events.
The Corporation shall, in connection with any proposed Restricted Payment,
Affiliate Transaction or Asset Sale, comply with the requirement to deliver an
Officers' Certificate and/or Secretary's Certificate, as the case may be, to the
Bank as required pursuant to Section 11(d), 11(f) or 11(g), respectively, to the
extent applicable.
SECTION 11. Mandatory Redemption Events. (a) Acceleration.
(i) If a Matured Mandatory Redemption Event (other than a Matured
Mandatory Redemption Event with respect to the Corporation under
Section 6(b)(vii) of the Certificate of Designation) occurs and is
continuing, the Bank by written notice to the Corporation, or the
Holders of at least 25% of the aggregate Liquidation Preference of the
Senior Preferred Stock then outstanding by written notice to the
Corporation and
9
the Bank, may require the Corporation to redeem all outstanding Senior
Preferred Stock in accordance with the terms and subject to the
conditions of Section 6 of the Certificate of Designation (a "MANDATORY
REDEMPTION DEMAND").
(ii) Notwithstanding anything to the contrary in this Transfer Agency
Agreement, if a Matured Mandatory Redemption Event arises under Section
(b)(vii) of the Certificate of Designation with respect to the
Corporation, a Matured Mandatory Redemption Demand shall be deemed to
have occurred automatically without notice to the Corporation or
declaration or other act on the part of the Bank or any Holders.
(iii) The Holders of a majority of the aggregate Liquidation
Preference of the then outstanding Senior Preferred Stock by notice to
the Bank may rescind any declaration of acceleration of such Senior
Preferred Stock and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Early
Mandatory Redemption Events or Matured Mandatory Redemption Events
(other than the nonpayment of the Liquidation Preference, premium or
dividends on, the Senior Preferred Stock which shall have become due by
such declaration) shall have been cured or waived.
(b) Waiver of Past Mandatory Redemption Events. The Holders of a
majority of the aggregate Liquidation Preference of the then outstanding Senior
Preferred Stock by notice to the Bank may on behalf of all Holders waive any
existing Early Mandatory Redemption Event or Matured Mandatory Redemption Event
and its consequences under this Transfer Agency Agreement, except a continuing
Early Mandatory Redemption Event or Matured Mandatory Redemption Event in the
payment of the Liquidation Preference of and premium or dividends, if any, on
any share of Preferred Stock (which may only be waived with the consent of each
Holder affected). Upon any such waiver, such Early Mandatory Redemption Event
shall cease to exist, and any Matured Mandatory Redemption Event arising
therefrom shall be deemed to have been cured for every purpose of this Transfer
Agency Agreement; provided that no such waiver shall extend to any subsequent or
other Early Mandatory Redemption Event or Matured Mandatory Redemption Event or
impair any right consequent thereon.
(c) Control by Majority of Holders. Subject to Section 12(e), the
Holders of a majority of the aggregate Liquidation Preference of the then
outstanding Senior Preferred Stock may direct the time, method and place of
conducting any proceeding for any remedy available to the Bank or exercising any
trust or power conferred on it by this Transfer Agency Agreement. However, the
Bank may refuse to follow any direction that conflicts with law or this Transfer
10
Agency Agreement, that the Bank determines may be unduly prejudicial to the
rights of other Holders, or would involve the Bank in personal liability. The
Bank may take any other action deemed proper by the Bank that is not
inconsistent with such direction.
SECTION 12. Duties of Bank. If a Matured Mandatory Redemption Event
occurs (and has not been cured) the Bank shall (i) exercise the rights and
powers vested in it by this Transfer Agency Agreement, and (ii) use the same
degree of care and skill in exercising such rights and powers as a prudent man
would exercise or use under the circumstances in the conduct of his own affairs.
11
