EX-4.3



 






Exhibit 4.3



 









Stock Purchase Contract Agreement




between




WACHOVIA CORPORATION




and




WACHOVIA CAPITAL TRUST III,

acting through U.S. Bank National Association,

as Property Trustee




Dated as of February 1, 2006




 






 









 












TABLE
OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I
	 	 	 	 
	DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	 	 
	 
	 	 	 	 
	Section 1.1 Definitions
	 	 	1	 
	Section 1.2 Form of Documents Delivered to Property Trustee
	 	 	6	 
	Section 1.3 Notices
	 	 	6	 
	Section 1.4 Effect of Headings and Table of Contents
	 	 	7	 
	Section 1.5 Successors and Assigns
	 	 	7	 
	Section 1.6 Separability Clause
	 	 	7	 
	Section 1.7 Benefits of Agreement
	 	 	7	 
	Section 1.8 Governing Law; Submission to Jurisdiction
	 	 	7	 
	Section 1.9 Legal Holidays
	 	 	7	 
	Section 1.10 No Waiver
	 	 	8	 
	Section 1.11 No Consent to Assumption
	 	 	8	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	THE STOCK PURCHASE CONTRACTS
	 	 	 	 
	 
	 	 	 	 
	Section 2.1 Issuance of Stock Purchase Contracts; Transferability; Assignment; Amendment
	 	 	8	 
	Section 2.2 Purchase of Preferred Stock; Payment of Purchase Price
	 	 	9	 
	Section 2.3 Issuance of Preferred Stock
	 	 	9	 
	Section 2.4 Termination Event; Notice
	 	 	9	 
	Section 2.5 Charges and Taxes
	 	 	10	 
	Section 2.6 Contract Payments
	 	 	10	 
	Section 2.7 Deferral of Contract Payments
	 	 	13	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	REMEDIES
	 	 	 	 
	 
	 	 	 	 
	Section 3.1 Unconditional Right of the Property Trustee to Receive Contract Payments and
to Purchase Shares of Preferred Stock; Direct Action by Holders of Normal WITS or
Stripped WITS
	 	 	15	 
	Section 3.2 Restoration of Rights and Remedies
	 	 	15	 
	Section 3.3 Rights and Remedies Cumulative
	 	 	15	 
	Section 3.4 Delay or Omission Not Waiver
	 	 	15	 
	Section 3.5 Waiver of Stay or Extension Laws
	 	 	16	 
	 
	 	 	 	 
	ARTICLE IV 
	 	 	 	 
	CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE 
	 	 	 	 
	 
	 	 	 	 
	Section 4.1 Covenant Not to Consolidate, Merge, Convey, Transfer or Lease Property Except
under Certain Conditions
	 	 	16	 
	Section 4.2 Rights and Duties of Successor Corporation
	 	 	16	 
	Section 4.3 Officers’ Certificate and Opinion of Counsel Given to Property Trustee
	 	 	17	 






Stock Purchase Contract Agreement




 









 








	 	 	 	 	 
	 	 	Page
	ARTICLE V 
	 	 	 	 
	COVENANTS 
	 	 	 	 
	 
	 	 	 	 
	Section 5.1 Performance under Stock Purchase Contracts
	 	 	17	 
	Section 5.2 Company to Reserve Preferred Stock
	 	 	17	 
	Section 5.3 Covenants as to Preferred Stock
	 	 	17	 
	Section 5.4 Statements of Officers of the Company as to Default
	 	 	17	 






Stock Purchase Contract Agreement




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          Stock Purchase Contract Agreement, dated as of February 1, 2006, between
Wachovia Corporation, a North Carolina corporation (the “Company”), having its principal
office at 301 South College Street, Charlotte, North Carolina 28288, and Wachovia Capital Trust
III, a Delaware statutory trust (the “Trust”), acting through U.S. Bank National
Association, a national banking association, not in its individual capacity but solely as
Property Trustee of the Trust (the “Property Trustee”).




Recitals of the Company




          The Company has duly authorized the execution and delivery of this Agreement.




          All things necessary to make the Stock Purchase Contracts (as defined herein) the valid
obligations of the Company, and to constitute these presents a valid agreement of the Company, in
accordance with its terms, have been done.




          Now therefore, this Stock Purchase Contract Agreement witnesseth:  For and in
consideration of the agreements and obligations set forth herein and for other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, it is mutually agreed as
follows:




ARTICLE I




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:





     (a) The terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular.




     (b) All accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles, and the term “generally
accepted accounting principles” with respect to any computation required or permitted
hereunder shall mean such accounting principles that are generally accepted at the date or
time of such computation; provided that when two or more principles are so generally
accepted, it shall mean that set of principles consistent with those in use by the Company.




     (c) 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.




     (d) Unless the context otherwise requires, any references to an “Article,” a “Section”
or another subdivision refers to an Article, a Section or another subdivision, as the case
may be, of this Stock Purchase Contract Agreement.



          “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.




Stock Purchase Contract Agreement




 









 








          “Bankruptcy Code” means Title 11 of the United States Code, or any other law of the United
States that from time to time provides a uniform system of bankruptcy laws.




          “Base Indenture” means the Indenture, dated as of February 1, 2006, between the Company and
the Trustee.




          “Board of Directors” means the board of directors of the Company or any committee of that
board duly authorized to act hereunder.




          “Business Day” means any day other than a Saturday, Sunday or any other day on which banking
institutions and trust companies in New York, New York, Charlotte, North Carolina or Wilmington,
Delaware are permitted or required by law or executive order to close.




          “Code” means the Internal Revenue Code of 1986, as amended.




          “Collateral” has the meaning specified in the Collateral Agreement.




          “Collateral Agent” means JPMorgan Chase Bank, National Association, as Collateral Agent under
the Collateral Agreement until a successor Collateral Agent shall have become such pursuant to the
applicable provisions of the Collateral Agreement, and thereafter “Collateral Agent” shall mean the
Person who is then the Collateral Agent thereunder.




          “Collateral Agreement” means the Collateral Agreement, dated as of the date hereof, among the
Company, the Trust (acting through the Property Trustee), the Collateral Agent, the Custodial
Agent, the Securities Intermediary and the Securities Registrar, as amended from time to time.




          “Company” means the Person named as the “Company” in the first paragraph of this Agreement
until a successor shall have become such pursuant to the applicable provision of this Agreement,
and thereafter “Company” shall mean such successor.




          “Contract Payments” means the payments payable by the Company on the Payment Dates in respect
of each Stock Purchase Contract, at the rate of 0.60% per annum of the Stated Amount of each Stock
Purchase Contract.




          “Custodial Agent” means JPMorgan Chase Bank, National Association, as Custodial Agent under
the Collateral Agreement until a successor Custodial Agent shall have become such pursuant to the
applicable provisions of the Collateral Agreement, and thereafter “Custodial Agent” shall mean the
Person who is then the Custodial Agent thereunder.




          “Deferred Contract Payments” has the meaning specified in Section 2.7(a).




          “Early Settlement Event” has the meaning specified in the First Supplemental Indenture.




          “Failed Remarketing” has the meaning specified in the First Supplemental Indenture.




          “Federal Reserve” means the Board of Governors of the Federal Reserve System, as from time to
time constituted, or if at any time after the execution of this Agreement the Federal Reserve is
not existing and performing the duties now assigned to it, then the bodies performing such duties
at such time, or the Federal Reserve Bank of Richmond, or any successor Federal Reserve Bank having
primary jurisdiction over the Company.




Stock Purchase Contract Agreement




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          “First Supplemental Indenture” means the First Supplemental Indenture to the Indenture, dated
as of the date hereof, between the Company and the Trustee, as amended or supplemented from time to
time.




          “Guarantee Agreement” means the Guarantee Agreement between the Company, as Guarantor and U.S.
Bank National Association, as Guarantee Trustee named thereunder, dated as of the date hereof.




          “Holder” means a Holder (as such term is defined in the Trust Agreement) of Normal WITS or
Stripped WITS.




          “Indenture” means the Base Indenture and the First Supplemental Indenture, taken together, as
amended or supplemented from time to time with respect to the Notes.




          “Normal WITS” has the meaning specified in the Trust Agreement.




          “Notes” has the meaning specified in the Trust Agreement.




          “Officers’ Certificate” means a certificate signed by the Chairman of the Board of Directors,
a Vice Chairman of the Board of Directors, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered to
the Property Trustee.




          “Opinion of Counsel” means a written opinion of counsel, who may be counsel to the Company
(and who may be an employee of the Company), and who shall be reasonably acceptable to the Property
Trustee. An Opinion of Counsel may rely on certificates as to matters of fact.




          “Paying Agent” has the meaning specified in the Trust Agreement.




          “Payment Date” means (i) each March 15 and September 15 of each year occurring prior to the
Stock Purchase Date, commencing on March 15, 2006 and (ii) the Stock Purchase Date.




          “Person” means a legal person, including any individual, corporation, estate, partnership,
joint venture, association, joint-stock company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof or any other entity of
whatever nature.




          “Pledged Notes” has the meaning specified in the Collateral Agreement.




          “Pledged Securities” means the Pledged Notes and the Pledged Treasury Securities.




          “Pledged Treasury Securities” has the meaning specified in the Collateral Agreement.




          “Preferred Stock” means the Non-Cumulative Perpetual Class A Preferred Stock, Series I,
$100,000 liquidation preference per share, of the Company.




          “Proceeds” has the meaning specified in the Collateral Agreement.




          “Property Trustee” means U.S. Bank National Association, not in its individual capacity but
solely as Property Trustee under the Trust Agreement until a successor Property Trustee shall have
become such pursuant to the applicable provisions of the Trust Agreement, and thereafter “Property
Trustee” shall mean the Person who is then Property Trustee thereunder.




Stock Purchase Contract Agreement





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          “Qualifying Treasury Securities” has the meaning specified in the Trust Agreement.




          “Remarketing” means a remarketing of Notes pursuant to Article III of the First Supplemental
Indenture.




          “Remarketing Agent” has the meaning specified in the Trust Agreement.




          “Remarketing Agreement” means the Remarketing Agreement, dated as of the date hereof, between
the Company and Wachovia Securities, LLC, as Remarketing Agent.




          “Remarketing Dates” mean the third Business Day prior to each of February 15, 2011, May 15,
2011, August 15, 2011, November 15, 2011 and February 15, 2012, until the settlement of a
Successful Remarketing; provided that following the occurrence of an Early Settlement Event,
Remarketing Dates mean such earlier dates as determined pursuant to Section 3.4 of the First
Supplemental Indenture.




          “Remarketing Settlement Date” means the third Business Day after the Remarketing Date of a
Successful Remarketing.




          “Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each
case as amended from time to time, and the rules and regulations promulgated thereunder.




          “Securities Intermediary” means JPMorgan Chase Bank, National Association, as Securities
Intermediary under the Collateral Agreement until a successor Securities Intermediary shall have
become such pursuant to the applicable provisions of the Collateral Agreement, and thereafter
“Securities Intermediary” shall mean such successor or any subsequent successor who is appointed
pursuant to the Collateral Agreement.




          “Securities Registrar” means JPMorgan Chase Bank, National Association, as Securities
Registrar under the Collateral Agreement until a successor Securities Registrar shall have become
such pursuant to the applicable provisions of the Collateral Agreement, and thereafter “Securities
Registrar” shall mean such successor or any subsequent successor who is appointed pursuant to the
Collateral Agreement.




          “Senior Debt” has the meaning specified in the Base Indenture.




          “Stated Amount” means, with respect to any one Stock Purchase Contract, $100,000.




          “Stock Purchase Contract” means a contract having a Stated Amount of $100,000 obligating (i)
the Company to sell, and the Trust (acting through the Property Trustee) to purchase, one share of
Preferred Stock for $100,000 on the Stock Purchase Date and (ii) the Company to pay Contract
Payments to the Trust, in each case on the terms and subject to the conditions set forth in Article
II and Article V.




          “Stock Purchase Date” means the first to occur of any March 15, June 15, September 15 or
December 15, or if any such day is not a Business Day, the next Business Day, after (i) the
Remarketing Settlement Date or (ii) the Remarketing Date of a Failed Remarketing.




          “Stripped WITS” has the meaning specified in the Trust Agreement.




Stock Purchase Contract Agreement




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          “Subordinated Notes” means the subordinated notes of the Company that may be issued to the
Property Trustee as provided in Section 2.7(c).




          “Successful” has the meaning specified in the First Supplemental Indenture.




          “Termination Date” means the date, if any, on which a Termination Event occurs.




          “Termination Event” means the occurrence of any of the following events at any time on or
prior to the Stock Purchase Date:




          (i) a judgment, decree or court order shall have been entered granting relief under the
Bankruptcy Code, adjudicating the Company to be insolvent, or approving as properly filed a
petition seeking reorganization or liquidation of the Company or any other similar applicable
federal or state law and if such judgment, decree or order shall have been entered more than 60
days prior to the Stock Purchase Date, such decree or order shall have continued undischarged and
unstayed for a period of 60 days;




          (ii) a judgment, decree or court order for the appointment of a receiver or liquidator or
trustee or assignee in bankruptcy or insolvency of the Company or of its property, or for the
termination or liquidation of its affairs, shall have been entered and if such judgment, decree or
order shall have been entered more than 60 days prior to the Stock Purchase Date, such judgment,
decree or order shall have continued undischarged and unstayed for a period of 60 days; or




          (iii) the Company shall file a petition for relief under the Bankruptcy Code, or shall consent
to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent
seeking reorganization or liquidation under the Bankruptcy Code or any other similar applicable
federal or state law, or shall consent to the filing of any such petition, or shall consent to the
appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or
of its property, or shall make an assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become due.




          “Trust” means the Person named as the “Trust” in the first paragraph of this Agreement.




          “Trust Agreement” means the Amended and Restated Trust Agreement, dated as of the date hereof,
among the Company, as depositor, the Property Trustee, the Delaware Trustee and the Administrative
Trustees (each as named therein) and the several Holders (as defined therein).




          “Trustee” means U.S. Bank National Association, a national banking association, solely in its
capacity as trustee pursuant to the Indenture and not in its individual capacity, or its successor
in interest in such capacity, or any successor trustee appointed as provided in the Indenture.




          “Vice President” means any vice president, whether or not designated by a number or a word or
words added before or after the title “Vice President.”




          “Wachovia Deposit” means a deposit with Wachovia Bank, N.A. to be made on the Remarketing
Settlement Date and payable on the Stock Purchase Date, with interest at the rate of 4.90% per
annum from and including the date of deposit to but excluding the date of payment, calculated on
the basis of the actual number of days elapsed and a year of 365 days, established in the name of
the Collateral Agent pursuant to an agreement naming the Collateral Agent as customer and providing
that the bank’s jurisdiction for purposes of Article 9 of the Uniform Commercial Code is New York.




Stock Purchase Contract Agreement




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          “WITS” has the meaning specified in the Trust Agreement.




Section 1.2 Form of Documents Delivered to Property Trustee.




          (a) 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 or opinion of an officer
of the Company 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 its certificate or opinion is based are erroneous. Any such certificate or Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of,
or representations by, an officer or officers of the Company 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.




          (b) 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 1.3 Notices.




          Any notice or communication is duly given if in writing and delivered in Person or mailed by
first-class mail (registered or certified, return receipt requested), telecopier (with receipt
confirmed) or overnight air courier guaranteeing next day delivery, to the others’ address;
provided that notice shall be deemed given to the Property Trustee only upon receipt thereof:




	 	 	 	 	 
	 	 	If to the Trust or the Property Trustee:
	 
	 	 	 	 
	 

	 	 	 	U.S. Bank National Association,
	 

	 	 	 	          as Property Trustee of
	 

	 	 	 	          Wachovia Capital Trust III
	 

	 	 	 	300 Delaware Avenue, 9th Floor
	 

	 	 	 	Wilmington, DE 19801
	 

	 	 	 	Attention: Corporate Trust Services Division
	 

	 	 	 	Facsimile: 617-603-6683
	 
	 	 	 	 
	 	 	If to the Company:
	 
	 	 	 	 
	 

	 	 	 	Wachovia Corporation
	 

	 	 	 	301 South College Street
	 

	 	 	 	Charlotte, North Carolina 28288
	 

	 	 	 	Attention: General Counsel
	 

	 	 	 	Facsimile: 704-374-3425
	 
	 	 	 	 
	 	 	If to the Collateral Agent:
	 
	 	 	 	 
	 	 	JPMorgan Chase Bank, National Association,






Stock Purchase Contract Agreement




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	 	 	 	          as Collateral Agent
	 

	 	 	 	4 New York Plaza, Floor 15
	 

	 	 	 	New York, New York 10004
	 

	 	 	 	Attention: Worldwide Securities Services
	 

	 	 	 	Facsimile: (212) 623-6167






Section 1.4 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 1.5 Successors and Assigns.




          All covenants and agreements in this Agreement by the Company and the Trust shall bind their
respective successors and assigns, whether so expressed or not.




Section 1.6 Separability Clause.




          In case any provision in this Agreement 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 1.7 Benefits of Agreement.




          Nothing contained in this Agreement, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder and, to the extent provided hereby, the holders
of Senior Debt and any Paying Agent, any benefits or any legal or equitable right, remedy or claim
under this Agreement.




Section 1.8 Governing Law; Submission to Jurisdiction.




          This Agreement shall be governed by and construed in accordance with the laws of the State of
New York. The Company and the Trust hereby submit to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New York state court sitting
in New York County for the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The Company and the Trust irrevocably waive, to
the fullest extent permitted by applicable law, any objection that they may now or hereafter have
to the laying of the venue of any such proceeding brought in such a court and any claim that any
such proceeding brought in such a court has been brought in an inconvenient forum.




Section 1.9 Legal Holidays.




          (a) In any case where any Payment Date shall not be a Business Day (notwithstanding any other
provision of this Agreement), Contract Payments or other distributions shall not be paid on such
date, but Contract Payments or such other distributions shall be paid on the next succeeding
Business Day with the same force and effect as if made on such Payment Date. No interest shall
accrue or be payable by the Company or to the Property Trustee (on behalf of the Trust) for the
period from and after any such Payment Date.




          (b) In any case where the Stock Purchase Date shall not be a Business Day (notwithstanding any
other provision of this Agreement), the Stock Purchase Contracts shall not be




Stock Purchase Contract Agreement





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performed and shall not be effected on such date, but the Stock Purchase Contracts shall be
performed on the next succeeding Business Day with the same force and effect as if made on such
Stock Purchase Date.



Section 1.10 No Waiver.




          No failure on the part of the Company, the Property Trustee, the Collateral Agent, the
Securities Intermediary or any of their respective agents to exercise, and no course of dealing
with respect to, and no delay in exercising, any right, power or remedy hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise by the Company, the Property Trustee,
the Collateral Agent, the Securities Intermediary or any of their respective agents of any right,
power or remedy hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies herein are cumulative and are not exclusive of any
remedies provided by law.




Section 1.11 No Consent to Assumption.




          The Property Trustee for and on behalf of the Trust hereby expressly withholds any consent to
the assumption under Section 365 of the Bankruptcy Code or otherwise, of the Stock Purchase
Contract by the Company or its trustee, receiver, liquidator or a Person performing similar
functions in the event that the Company becomes the debtor under the Bankruptcy Code or subject to
other similar state or Federal law providing for reorganization or liquidation.




ARTICLE II




THE STOCK PURCHASE CONTRACTS




Section 2.1 Issuance of Stock Purchase Contracts; Transferability; Assignment; Amendment.




          (a) Contemporaneously with the execution and delivery of this Agreement, the Company hereby
issues 25,010 Stock Purchase Contracts having the terms and conditions set forth herein to the
Trust (acting through the Property Trustee), which by its execution and delivery of this Agreement
is entering into and agreeing to be bound by the Stock Purchase Contracts. No certificates will be
issued to evidence the Stock Purchase Contracts.




          (b) To the fullest extent permitted by law, other than a transfer in connection with a merger,
consolidation, amalgamation or replacement of the Trust or any conveyance, transfer or lease by the
Trust of its properties and assets substantially as an entirety to, and the assumption by, a
successor entity pursuant to Section 9.5 of the Trust Agreement, any attempted transfer of the
Stock Purchase Contracts shall be void.




          (c) To the fullest extent permitted by law, any assignment by the Trust of its rights
hereunder, other than an assignment of this Agreement in connection with a merger, consolidation,
amalgamation or replacement of the Trust or any conveyance, transfer or lease by the Trust of its
properties and assets substantially as an entirety to, and the assumption by, a successor entity
pursuant to Section 9.5 of the Trust Agreement, shall be void.




          (d) No amendment, modification or waiver of any provision of this Agreement shall be effective
against either party hereto unless it is duly authorized by resolution of the Board of Directors of
the Company and permitted under Section 6.1 of the Trust Agreement.




Stock Purchase Contract Agreement




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Section 2.2 Purchase of Preferred Stock; Payment of Purchase Price.




          (a) Each Stock Purchase Contract shall obligate the Trust (acting through the Property
Trustee) to purchase, and the Company to sell, on the Stock Purchase Date at a price equal to
$100,000, one share of Preferred Stock, unless a Termination Event shall have occurred.




          (b) If there has been a Successful Remarketing, the Trust will satisfy its obligations under
Section 2.2(a) to pay the purchase price in respect of the Stock Purchase Contracts out of (i) the
Proceeds at maturity of the Pledged Treasury Securities and (ii) to the extent of the excess of the
Purchase Price over the amount of the Proceeds at maturity of the Pledged Treasury Securities, the
Wachovia Deposit; provided that in the event that a receiver has been appointed for the purpose of
liquidating or winding up the affairs of Wachovia Bank, National Association while Wachovia Bank,
National Association is holding the Wachovia Deposit, in lieu of payment of such amount of the
Wachovia Deposit the Trust shall cause the Collateral Agent to assign its rights in the Wachovia
Deposit to the Company on the Stock Purchase Date to the extent of such amount in full satisfaction
of the Trust’s obligation to pay such amount pursuant to this clause (ii).




          (c) If there is a Failed Remarketing, the Collateral Agent for the benefit of the Company
reserves all of its rights as a secured party with respect to the Notes and, subject to applicable
law and Section 2.2(d), may, among other things, (i) retain such Notes or their Proceeds in full
satisfaction of the Trust’s obligations under the Stock Purchase Contracts or (ii) sell such Notes
in one or more public or private sales or otherwise, in order to satisfy the Trust’s obligations
under Section 2.2(a) to pay the purchase price in respect of the Stock Purchase Contracts to the
extent not satisfied out of the Proceeds at maturity of the Pledged Treasury Securities.




          (d) The obligations of the Trust to pay the purchase price in respect of the Stock Purchase
Contracts are non-recourse obligations and are payable solely out of the Proceeds of any Collateral
pledged to secure the obligations of the Trust or assignment of the Wachovia Deposit as set forth
in this Section 2.2, and in no event will the Property Trustee be liable for any deficiency between
the Proceeds of the disposition of Collateral and the purchase price in respect of the Stock
Purchase Contracts.




          (e) The Company shall not be obligated to cause the issuance of any share of Preferred Stock
in respect of a Stock Purchase Contract or deliver any certificates therefor to the Property
Trustee unless the Company shall have received payment for the share of Preferred Stock to be
purchased thereunder in the manner herein set forth.




Section 2.3 Issuance of Preferred Stock.




          Unless a Termination Event shall have occurred, on the Stock Purchase Date upon receipt of the
aggregate purchase price payable on all Stock Purchase Contracts, the Company shall cause to be
issued and deposited with the Property Trustee (or its nominee), one or more certificates
representing newly issued shares of Preferred Stock registered in the name of the Property Trustee
(or its nominee) as custodian for the Trust to which the Trust is entitled hereunder.




Section 2.4 Termination Event; Notice.




          (a) The Stock Purchase Contracts and all obligations and rights of the Company and the Trust
(including the Property Trustee on behalf of the Trust) thereunder, including, without limitation,
the right of the Trust to receive and the obligation of the Company to pay any Contract Payments
(including any accrued and unpaid Contract Payments), and the rights and obligations of the Trust
to




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purchase shares of Preferred Stock, shall immediately and automatically terminate, without the
necessity of any notice or action by the Trust, the Property Trustee or the Company, if a
Termination Event shall have occurred on or prior to the Stock Purchase Date.



          (b) Upon the occurrence of a Termination Event, the Company shall promptly but in no event
later than two Business Days thereafter give written notice to the Property Trustee and the
Collateral Agent of such event.




Section 2.5 Charges and Taxes.




          The Company will pay all stock transfer and similar taxes attributable to the initial issuance
and delivery of the shares of Preferred Stock pursuant to the Stock Purchase Contracts; provided
that the Company shall not be required to pay any such tax or taxes that may be payable in respect
of any issuance of a share of Preferred Stock in a name other than in the name of the Property
Trustee or its nominee, as custodian for the Trust, and the Company shall not be required to issue
or deliver such share certificates unless or until the Person or Persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.




Section 2.6 Contract Payments.




          (a) Subject to Section 2.7, the Company shall pay, in arrears on each Payment Date, the
Contract Payments payable in respect of each Stock Purchase Contract
to the Payment Account (as defined in the Trust Agreement). The Contract Payments will be payable by wire transfer to the account designated
by the Property Trustee by a prior written notice to the Company. The Contract Payments will
accrue from and including February 1, 2006 or from and including the most recent Payment Date on
which Contract Payments have been paid or duly provided for (subject to deferral as set forth in
Section 2.7) to but excluding the next succeeding Payment Date. Contract Payments will be
calculated on the basis of a 360-day year consisting of twelve 30-day months.




          (b) The Company’s obligations with respect to Contract Payments, if any, will be subordinated
and junior in right of payment to the Company’s obligations under any Senior Debt to the extent and
in the manner set forth in Sections 2.6(b) through (l).




          (c) In the event of (A) any insolvency, bankruptcy, receivership, liquidation, reorganization,
readjustment, composition or other similar proceeding relating to the Company, its creditors or its
property, (B) any proceeding for the liquidation, dissolution or other winding up of the Company,
voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings, (C) any
assignment by the Company for the benefit of creditors, or (D) any other marshalling of the assets
of the Company:





     (i) all Senior Debt (including any interest thereon accruing after the commencement of
any such proceedings) shall first be paid in full before any payment or distribution,
whether in cash, securities or other property, shall be made to the Property Trustee in
respect of Contract Payments;




     (ii) any payment or distribution, whether in cash, securities or other property that
would otherwise (but for these subordination provisions) be payable or deliverable in
respect of Contract Payments shall be paid or delivered directly to the holders of Senior
Debt in accordance with the priorities then existing among such holders until all Senior
Debt (including any interest thereon accruing after the commencement of any such
proceedings) shall have been paid in full;



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     (iii) after payment in full of all sums owing with respect to Senior Debt, the Property
Trustee, together with the holders of any obligations of the Company ranking on a parity
with the Contract Payments, shall be entitled to be paid from the remaining assets of the
Company the amounts at the time due and owing on account of unpaid Contract Payments and
interest thereon and such other obligations before any payment or other distribution,
whether in cash, securities or other property, shall be made on account of any capital stock
or any obligations of the Company ranking junior to the Company’s obligations to make
Contract Payments under the Stock Purchase Contracts and such other obligations; and




     (iv) in the event that, notwithstanding the foregoing, any payment or distribution of
any character or any security, whether in cash, securities or other property, shall be
received by the Property Trustee or the Trust in contravention of any of the terms hereof
such payment or distribution or security shall be received in trust for the benefit of, and
shall be paid over or delivered and transferred to, the holders of the Senior Debt at the
time outstanding in accordance with the priorities then existing among such holders for
application to the payment of all Senior Debt remaining unpaid, to the extent necessary to
pay all such Senior Debt in full. In the event of the failure of the Property Trustee or
the Trust to endorse or assign any such payment, distribution or security, each holder of
Senior Debt is hereby irrevocably authorized to endorse or assign the same.



          (d) For purposes of Sections 2.6(b) through (l), the words “cash, securities or other
property” shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other Person provided for by a plan of
reorganization or readjustment, the payment of which is subordinated at least to the extent
provided in Sections 2.6(b) through (l) with respect to such Contract Payments on the Stock
Purchase Contracts to the payment of all Senior Debt that may at the time be outstanding; provided
that (i) the indebtedness or guarantee of indebtedness, as the case may be, that constitutes Senior
Debt is assumed by the Person, if any, resulting from any such reorganization or readjustment, and
(ii) the rights of the holders of the Senior Debt are not, without the consent of each such holder
adversely affected thereby, altered by such reorganization or readjustment.




          (e) Any failure by the Company to make any payment on or perform any other obligation under
Senior Debt, other than any indebtedness incurred by the Company or assumed or guaranteed, directly
or indirectly, by the Company for money borrowed (or any deferral, renewal, extension or refunding
thereof) or any indebtedness or obligation as to which the provisions of Sections 2.6(b) through
(l) shall have been waived by the Company in the instrument or instruments by which the Company
incurred, assumed, guaranteed or otherwise created such indebtedness or obligation, shall not be
deemed a default or event of default if (i) the Company shall be disputing its obligation to make
such payment or perform such obligation and (ii) either (A) no final judgment relating to such
dispute shall have been issued against the Company that is in full force and effect and is not
subject to further review, including a judgment that has become final by reason of the expiration
of the time within which a party may seek further appeal or review, and (B) in the event a judgment
that is subject to further review or appeal has been issued, the Company shall in good faith be
prosecuting an appeal or other proceeding for review and a stay of execution shall have been
obtained pending such appeal or review.




          (f) Subject to the irrevocable payment in full of all Senior Debt, the Property Trustee on
behalf of the Trust shall be subrogated (equally and ratably with the holders of all obligations of
the Company that by their express terms are subordinated to Senior Debt of the Company to the same
extent as payment of the Contract Payments in respect of the Stock Purchase Contracts is
subordinated and that are entitled to like rights of subrogation) to the rights of the holders of
Senior Debt to receive payments or distributions of cash, securities or other property of the
Company applicable to the Senior Debt until all such Contract Payments owing on the Stock Purchase
Contracts shall be paid in full, and as between the




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Company, its creditors other than holders of such Senior Debt and the Property Trustee, no
such payment or distribution made to the holders of Senior Debt by virtue of Sections 2.6(b)
through (l) that otherwise would have been made to the Property Trustee shall be deemed to be a
payment by the Company on account of such Senior Debt, it being understood that the provisions of
Sections 2.6(b) through (l) are and are intended solely for the purpose of defining the relative
rights of the Property Trustee, on the one hand, and the holders of Senior Debt, on the other hand.



          (g) Nothing contained in Sections 2.6(b) through (l) or elsewhere in this Agreement is
intended to or shall impair, as among the Company, its creditors other than the holders of Senior
Debt and the Property Trustee, the obligation of the Company, which is absolute and unconditional,
to pay to the Property Trustee such Contract Payments on the Stock Purchase Contracts as and when
the same shall become due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the Property Trustee and creditors of the Company other than the
holders of Senior Debt, nor shall anything herein or therein prevent the Property Trustee from
exercising all remedies otherwise permitted by applicable law upon default under this Agreement,
subject to the rights, if any, under Sections 2.6(b) through (l), of the holders of Senior Debt in
respect of cash, securities or other property of the Company received upon the exercise of any such
remedy.




          (h) Upon payment or distribution of assets of the Company referred to in Sections 2.6(b)
through (l), the Property Trustee shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which any such dissolution, winding up, liquidation or
reorganization proceeding affecting the affairs of the Company is pending or upon a certificate of
the trustee in bankruptcy, receiver, conservator, assignee for the benefit of creditors,
liquidating trustee or other Person making any payment or distribution, delivered to the Property
Trustee, for the purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to Sections 2.6(b) through (l).




          (i) The Property Trustee shall be entitled to rely on the delivery to it of a written notice
by a Person representing himself to be a holder of Senior Debt (or a trustee or representative on
behalf of such holder) to establish that such notice has been given by a holder of Senior Debt or a
trustee or representative on behalf of any such holder or holders. In the event that the Property
Trustee determines in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Debt to participate in any payment or distribution pursuant to Section
2.6(b) through (l), the Property Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Property Trustee as to the amount of Senior Debt held by such
Person, the extent to which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under Sections 2.6(b) through (l), and,
if such evidence is not furnished, the Property Trustee may defer payment to such Person pending
judicial determination as to the right of such Person to receive such payment.




          (j) Nothing contained in Sections 2.6(b) through (l) shall affect the obligations of the
Company to make, or prevent the Company from making, payment of the Contract Payments, except as
otherwise provided in Sections 2.6(b) through (l).




          (k) U.S. Bank National Association, or any successor Property Trustee, in its individual
capacity shall be entitled to all the rights set forth in this Section with respect to any Senior
Debt at the time held by it, to the same extent as any other holder of Senior Debt and nothing in
this Agreement shall deprive U.S. Bank National Association, or any successor Property Trustee of
any of its rights as such holder.




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          (l) No right of any present or future holder of any Senior Debt to enforce the subordination
herein shall at any time or in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or by any noncompliance by the Company with the terms, provisions and
covenants of this Agreement, regardless of any knowledge thereof that any such holder may have or
be otherwise charged with.




          (m) Nothing in this Section 2.6 shall apply to claims of, or payments to, the Property Trustee
under or pursuant to Section 2.6.




          (n) With respect to the holders of Senior Debt, (i) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions of this Agreement; (ii) the Property
Trustee shall not be liable to any such holders if it shall, acting in good faith, mistakenly pay
over or distribute to the Holders or to the Company or any other Person cash, securities or other
property to which any holders of Senior Debt shall be entitled by virtue of this Section 2.6 or
otherwise; (iii) no implied covenants or obligations shall be read into this Agreement against the
Property Trustee; and (iv) the Property Trustee shall not be deemed to be a fiduciary as to such
holders.




          (o) Nothing in this Section 2.6 shall apply to any payment or distribution, whether in cash,
securities or other property, made to, or paid over or distributed by, any Paying Agent in respect
of Contract Payments or otherwise. The Paying Agent shall owe no duty, fiduciary or otherwise, to
any holder of Senior Debt and shall not be liable to any holders of Senior Debt if it shall pay
over or distribute to the Holders or to the Company or any other Person cash, securities or other
property to which any holders of Senior Debt shall otherwise be entitled by virtue of this Section
2.6 or otherwise; and no implied covenants or obligations shall be read into this Agreement against
the Paying Agent.




Section 2.7 Deferral of Contract Payments.




          (a) The Company shall have the right (which will be exercised if so directed by the Federal
Reserve), at any time prior to the Stock Purchase Date, to defer the payment of any or all of the
Contract Payments otherwise payable on any Payment Date, but only if the Company shall give the
Property Trustee and the administrative trustees (with a copy to the Paying Agent) written notice
of its election to defer each such deferred Contract Payment (specifying the amount to be deferred)
at least ten Business Days prior to the earlier of (i) the next succeeding Payment Date or (ii) the
date the Property Trustee and the administrative trustees are required to give notice of any record
date or Payment Date with respect to any class of WITS to the New York Stock Exchange or other
applicable self regulatory organization or to the Holders, but in any event not less than one
Business Day prior to such record date. Any Contract Payments so deferred shall, to the extent
permitted by law, accrue interest thereon at the rate originally applicable to the Notes
(calculated on the same basis as originally applicable to the Notes), compounding on each
succeeding Payment Date, until paid in full (such deferred installments of Contract Payments, if
any, together with the additional Contract Payments, if any, accrued thereon, being referred to
herein as the “Deferred Contract Payments”). Deferred Contract Payments, if any, shall be due on
the next succeeding Payment Date except to the extent that payment is deferred pursuant to this
Section 2.7. No Contract Payments may be deferred to a date that is after the Stock Purchase Date
and no such deferral period may end other than on a Payment Date. If the Stock Purchase Contracts
are terminated upon the occurrence of a Termination Event, the Trust’s right to receive Contract
Payments, if any, and any Deferred Contract Payments, will terminate.




          (b) In the event that the Company elects to defer the payment of Contract Payments on the
Stock Purchase Contracts until a Payment Date prior to the Stock Purchase Date, then all Deferred
Contract Payments, if any, shall be payable to the Property Trustee on behalf of the Trust on such
Payment Date.




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          (c) In the event that the Company elects to defer the payment of Contract Payments on the
Stock Purchase Contracts and such deferral is continuing on the Stock Purchase Date, the Property
Trustee will receive on the Stock Purchase Date in lieu of a cash payment, in addition to the
shares of Preferred Stock to be issued pursuant to Section 2.3, Subordinated Notes that will (i)
have a principal amount equal to the aggregate amount of Deferred Contract Payments at the Stock
Purchase Date, (ii) mature on March 15, 2014, (iii) bear interest at the rate per annum equal to
the originally applicable rate of interest on the Notes (subject to deferral on the same basis as
the Contract Payments; provided that the reference in clause (i)(2) of Section 2.7(d) to the
beginning of the deferral period shall be deemed to refer to the beginning of the deferral period
with respect to the Contract Payments), (iv) be subordinate and rank junior in right of payment to
all of the Company’s Senior Debt on the same basis as the Contract Payments, and (v) be redeemable
at the option of the Company at any time or from time to time prior to their stated maturity at a
redemption price equal to the principal amount thereof plus any accrued and unpaid interest to the
date of redemption; provided that the Company shall register such Subordinated Notes under the
Securities Act prior to the delivery thereof to the Property Trustee unless they may be so
delivered pursuant to an exemption from registration thereunder.




          (d) In the event the Company exercises its option to defer the payment of Contract Payments
then, until the earlier of (x) the Termination Date or (y) the date on which the Company shall have
either paid all Deferred Contract Payments to the Property Trustee in cash or repaid all amounts
outstanding on the Subordinated Notes, the Company shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any
shares of its capital stock; (ii) make any payment of principal of or interest or premium, if any,
on or repay, repurchase or redeem any debt security of the Company that ranks pari passu in all
respects with or junior in interest to the Notes (except for partial payments of interest with
respect to the Notes) or (iii) make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any subsidiary of the Company that by its terms ranks pari passu
in all respects with or junior in interest to the Company’s guarantee related to the WITS other
than, in each case:





     (i) any repurchase, redemption or other acquisition of shares of the Company’s capital
stock in connection with (1) any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more employees, officers, directors,
consultants or independent contractors, (2) the satisfaction of the Company’s obligations
pursuant to any contract entered into in the ordinary course prior to the beginning of the
deferral period, (3) a dividend reinvestment or stockholder purchase plan, or (4) the
issuance of the Company’s capital stock, or securities convertible into or exercisable for
such capital stock, as consideration in an acquisition transaction entered into prior to the
applicable event of default, default or extension period, as the case may be;




     (ii) any exchange, redemption or conversion of any class or series of the Company’s
capital stock, or the capital stock of one of its subsidiaries, for any other class or
series of the Company’s capital stock, or any class or series of the Company’s indebtedness
for any class or series of its capital stock;




     (iii) any purchase of fractional interests of the Company’s capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security being converted
or exchanged;




     (iv) any declaration of a dividend in connection with any rights plan, or the issuance
of rights, stock or other property under any rights plan, or the redemption or repurchase of
rights pursuant thereto;



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     (v) payments in respect of the Company’s guarantee related to the WITS executed for the
benefit of the Holders of the WITS; or




     (vi) any dividend in the form of stock, warrants, options or other rights where the
dividend stock or stock issuable upon exercise of such warrants, options or other rights is
the same stock as that on which the dividend is being paid or ranks equally with or junior
to such stock.



ARTICLE III




REMEDIES




Section 3.1 Unconditional Right of the Property Trustee to Receive Contract Payments and to
Purchase Shares of Preferred Stock; Direct Action by Holders of Normal WITS or Stripped WITS.



          The Property Trustee on behalf of the Trust shall have the right, which is absolute and
unconditional, (i) subject to Article II, to receive each Contract Payment with respect to each
Stock Purchase Contract on the respective Payment Date and (ii) except upon and following a
Termination Event, to purchase one share of Preferred Stock pursuant to such Stock Purchase
Contract and, in each such case, to institute suit for the enforcement of any such right to receive
Contract Payments and the right to purchase such share of Preferred Stock, and such rights shall
not be impaired without its consent. Up to and including the Stock Purchase Date, or the earlier
termination of the Stock Purchase Contracts, any Holder shall have the right, upon default in the
payment of any Contract Payment with respect to any Stock Purchase Contract on the respective
Payment Date (subject to Article II), to institute a suit directly against the Company for
enforcement of payment to such Holder of Contract Payments on Stock Purchase Contracts (or
interests therein) having a stated amount equal to the aggregate Liquidation Amount (as defined in
the Trust Agreement) of the WITS held by such Holder.




Section 3.2 Restoration of Rights and Remedies.




          If the Property Trustee has instituted any proceeding to enforce any right or remedy under
this Agreement and such proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Property Trustee, then and in every such case, subject to any
determination in such proceeding, the Company and the Property Trustee shall be restored severally
and respectively to their former positions hereunder, and thereafter all rights and remedies of the
Property Trustee shall continue as though no such proceeding had been instituted.




Section 3.3 Rights and Remedies Cumulative.




          No right or remedy herein conferred upon or reserved to the Property Trustee is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.




Section 3.4 Delay or Omission Not Waiver.




          No delay or omission of the Property Trustee to exercise any right upon a default or remedy
upon a default shall impair any such right or remedy or constitute a waiver of any such right.




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Every right and remedy given by this Article III or by law to the Property Trustee may be
exercised from time to time, and as often as may be deemed expedient, by the Property Trustee.



Section 3.5 Waiver of Stay or Extension Laws.




          The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Agreement; and the Company (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will
not hinder, delay or impede the execution of any power herein granted to the Property Trustee, but
will suffer and permit the execution of every such power as though no such law had been enacted.




ARTICLE IV




CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE




Section 4.1 Covenant Not to Consolidate, Merge, Convey, Transfer or Lease Property Except under
Certain Conditions.



          The Company covenants that it will not consolidate with, convert into, or merge with and into,
any other entity or sell, assign, transfer, lease or convey all or substantially all of its
properties and assets to any Person or entity, unless:




          (a) the successor 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
expressly assume all the obligations of the Company under the Stock Purchase Contracts, this
Agreement, the Collateral Agreement, the Trust Agreement, the Indenture (including any supplement
thereto), the Guarantee Agreement and the Remarketing Agreement by one or more supplemental
agreements in form reasonably satisfactory to the Property Trustee, executed and delivered to the
Property Trustee by such corporation;




          (b) such successor corporation shall not, immediately after such consolidation, conversion,
merger, sale, assignment, transfer, lease or conveyance, be in default of payment obligations under
the Stock Purchase Contracts, this Agreement, the Collateral Agreement, the Trust Agreement or the
Remarketing Agreement or in material default in the performance of any other covenants under any of
the foregoing agreements; and




          (c) the successor entity shall have reserved sufficient authorized and unissued shares of
preferred stock having substantially the same terms and conditions as the Preferred Stock such that
the Trust will receive, on the Stock Purchase Date, shares of preferred stock having substantially
the same rights as the Preferred Stock that the Trust would have received had such merger,
consolidation or other transaction not occurred.




Section 4.2 Rights and Duties of Successor Corporation.




          In case of any such merger, consolidation, share exchange, sale, assignment, transfer, lease
or conveyance and upon any such assumption by a successor corporation in accordance with Section
4.1, such successor entity shall succeed to and be substituted for the Company with the same effect
as if it had been named herein as the Company.




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Section 4.3 Officers’ Certificate and Opinion of Counsel Given to Property Trustee.




          The Property Trustee, subject to Section 4.1 and Section 4.2, shall receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any such merger, consolidation,
share exchange, sale, assignment, transfer, lease or conveyance, and any such assumption, complies
with the provisions of this Article IV and that all conditions precedent to the consummation of any
such merger, consolidation, share exchange, sale, assignment, transfer, lease or conveyance have
been met.




ARTICLE V




COVENANTS




Section 5.1 Performance under Stock Purchase Contracts.




          The Company covenants and agrees for the benefit of the Trust that it will duly and punctually
perform its obligations under the Stock Purchase Contracts in accordance with the terms of the
Stock Purchase Contracts and this Agreement.




Section 5.2 Company to Reserve Preferred Stock.




          The Company shall at all times prior to the Stock Purchase Date reserve and keep available,
free from preemptive rights, out of its authorized but unissued Preferred Stock the full number of
shares of Preferred Stock issuable against tender of payment for such shares of Preferred Stock in
respect of all Stock Purchase Contracts.




Section 5.3 Covenants as to Preferred Stock.




          The Company covenants that all shares of Preferred Stock that may be issued against tender of
payment for such shares of Preferred Stock in respect of any Stock Purchase Contract will, upon
issuance, be duly authorized, validly issued, fully paid and nonassessable.




Section 5.4 Statements of Officers of the Company as to Default.




          The Company will deliver to the Property Trustee, within 120 days after the end of each fiscal
year of the Company ending after the date hereof, an Officers’ Certificate, stating whether or not
to the knowledge of the signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions hereof, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may have knowledge.




* * * *




          This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.




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          In Witness Whereof, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.




	 	 	 	 	 	 	 
	 	 	Wachovia Corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ James F. Burr	 	 
	 

	 	 	 	 

Name: James F. Burr
	 	 
	 

	 	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Wachovia Capital Trust III	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	U.S. Bank National Association, not	 	 
	 	 	in its individual capacity but solely as Property Trustee	 	 






	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Paul D. Allen	 	 
	 

	 	 	 	 

Name: Paul D. Allen
	 	 
	 

	 	 	 	Title: Vice President	 	 






Stock Purchase Contract Agreement