Exhibit 4(d)(14)


 




 





 


BEAR STEARNS COMPANIES INC.,

as Unit Agent, as [                ],
Collateral Agent,

as Trustee and Paying Agent

under the Indentures referred to herein,

and as Warrant Agent

under the Warrant Agreement referred to herein

and as Deposit Agent under

Deposit Agreement referred to herein


 


 


and


 


 


THE HOLDERS FROM TIME TO TIME

OF THE UNITS DESCRIBED HEREIN


 


 






 


[FORM OF UNIT AGREEMENT]


 






 


 


Dated as of [                ]


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 1

  
	
   

  	
   

  
	
  DEFINITIONS AND OTHER PROVISIONS OF GENERAL
  APPLICATION

  
	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
  3

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
   

  	
   

  
	
  UNITS

  
	
   

  	
   

  
	
  Section 2.01

  	
  Forms Generally

  	
  11

  
	
  Section 2.02

  	
  Form of
  Certificate of Authentication and Countersignature

  	
  11

  
	
  Section 2.03

  	
  Amount
  Unlimited; Issuable in Series

  	
  11

  
	
  Section 2.04

  	
  Denominations

  	
  13

  
	
  Section 2.05

  	
  Rights and
  Obligations Evidenced by the Units

  	
  13

  
	
  Section 2.06

  	
  Execution,
  Authentication, Delivery and Dating

  	
  13

  
	
  Section 2.07

  	
  Temporary Unit
  Certificates

  	
  14

  
	
  Section 2.08

  	
  Registration of
  Transfer and Exchange; Global Units

  	
  14

  
	
  Section 2.09

  	
  Mutilated,
  Destroyed, Lost and Stolen Unit Certificates

  	
  17

  
	
  Section 2.10

  	
  Persons Deemed
  Owners

  	
  19

  
	
  Section 2.11

  	
  Cancellation

  	
  19

  
	
  Section 2.12

  	
  Exchange of
  Global Units and Definitive Units

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
   

  	
   

  	
   

  
	
  THE PURCHASE CONTRACTS; SETTLEMENT OF WARRANTS

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Form and Execution of Purchase Contracts;
  Temporary Purchase Contracts

  	
  20

  
	
  Section 3.02

  	
  Number Unlimited Issuable in Series

  	
  22

  
	
  Section 3.03

  	
  Countersignature, Execution on Behalf of Holder and
  Delivery of Purchase Contracts

  	
  23

  
	
  Section 3.04

  	
  Further Provisions Relating to Issuance of Purchase
  Contracts

  	
  26

  
	
  Section 3.05

  	
  Purchase of Purchase Contract Property; Optional
  Acceleration of Purchase Obligations; Authorization of Agent by Holder;
  Transferees Bound

  	
  26

  
	
  Section 3.06

  	
  Payment of Purchase Price

  	
  27

  
	
  Section 3.07

  	
  Delivery of Purchase Contract Property or Other
  Amounts

  	
  30

  
	
  Section 3.08

  	
  Charges and Taxes

  	
  30

  



 


i

















 


	
  ARTICLE 4

  
	
   

  	
   

  	
   

  
	
  REMEDIES

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Acceleration of Obligations

  	
  30

  
	
  Section 4.02

  	
  Unconditional Rights Under Purchase Contracts;
  Limitation on Proceedings by Holders

  	
  31

  
	
  Section 4.03

  	
  Restoration of Rights and Remedies

  	
  32

  
	
  Section 4.04

  	
  Rights and Remedies Cumulative

  	
  32

  
	
  Section 4.05

  	
  Delay or Omission Not Waiver

  	
  32

  
	
  Section 4.06

  	
  Waiver of Past Defaults

  	
  32

  
	
  Section 4.07

  	
  Undertaking for Costs

  	
  33

  
	
  Section 4.08

  	
  Waiver of Stay or Extension Laws

  	
  33

  
	
  Section 4.09

  	
  Agent May File Proofs of Claims

  	
  33

  
	
  Section 4.10

  	
  Suits for Enforcement

  	
  34

  
	
  Section 4.11

  	
  Control by Holders

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
   

  	
   

  	
   

  
	
  SECURITY INTERESTS AND COLLATERAL AGENT

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Granting of
  Security Interests; Rights and Remedies of Collateral Agent; Perfection

  	
  34

  
	
  Section 5.02

  	
  Distribution of
  Payments; Release of Collateral

  	
  35

  
	
  Section 5.03

  	
  Certain Duties
  and Responsibilities of the Collateral Agent

  	
  36

  
	
  Section 5.04

  	
  Knowledge of the
  Collateral Agent

  	
  37

  
	
  Section 5.05

  	
  Certain Rights
  of Collateral Agent

  	
  37

  
	
  Section 5.06

  	
  Compensation and
  Reimbursements

  	
  38

  
	
  Section 5.07

  	
  Corporate
  Collateral Agent Required Eligibility

  	
  38

  
	
  Section 5.08

  	
  Resignation and
  Removal; Appointment of Successor

  	
  39

  
	
  Section 5.09

  	
  Acceptance of
  Appointment by Successor

  	
  40

  
	
  Section 5.10

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
  40

  
	
  Section 5.11

  	
  Money Held in
  Trust

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
   

  	
   

  	
   

  
	
  THE AGENT

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Certain Duties
  and Responsibilities

  	
  41

  
	
  Section 6.02

  	
  Notice of
  Default

  	
  42

  
	
  Section 6.03

  	
  Certain Rights
  of Agent

  	
  42

  
	
  Section 6.04

  	
  Not Responsible
  for Recitals or Issuance of Units

  	
  43

  
	
  Section 6.05

  	
  May Hold
  Units

  	
  43

  
	
  Section 6.06

  	
  Money Held in
  Trust

  	
  43

  
	
  Section 6.07

  	
  Compensation and
  Reimbursement

  	
  44

  
	
  Section 6.08

  	
  Corporate Agent
  Required; Eligibility

  	
  44

  



 


ii

















 


	
  Section 6.09

  	
  Resignation and
  Removal; Appointment of Successor

  	
  45

  
	
  Section 6.10

  	
  Acceptance of
  Appointment by Successor

  	
  46

  
	
  Section 6.11

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
  46

  
	
  Section 6.12

  	
  Appointment of
  Authenticating Agent

  	
  46

  
	
  Section 6.13

  	
  Corporation to
  Furnish Agent Names and Addresses of Holders

  	
  48

  
	
  Section 6.14

  	
  Preservation of
  Information; Communications to Holders

  	
  49

  
	
  Section 6.15

  	
  No Obligation of
  Holder

  	
  49

  
	
  Section 6.16

  	
  Tax Compliance

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
   

  	
   

  	
   

  
	
  SUPPLEMENTAL AGREEMENTS

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Supplemental
  Agreements Without Consent of Holders

  	
  51

  
	
  Section 7.02

  	
  Supplemental
  Agreements with Consent of Holders

  	
  51

  
	
  Section 7.03

  	
  Execution of
  Supplemental Agreements

  	
  52

  
	
  Section 7.04

  	
  Effect of
  Supplemental Agreements

  	
  53

  
	
  Section 7.05

  	
  Reference to
  Supplemental Agreements

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
   

  	
   

  	
   

  
	
  CONSOLIDATION, MERGER, SALE OR CONVEYANCE

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Covenant Not to
  Merge, Consolidate, Sell or Convey Property Except Under Certain Conditions

  	
  53

  
	
  Section 8.02

  	
  Rights and
  Duties of Successor Corporation

  	
  53

  
	
  Section 8.03

  	
  Opinion of Counsel
  to Agent

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
   

  	
   

  	
   

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Performance
  Under Purchase Contracts

  	
  54

  
	
  Section 9.02

  	
  Maintenance of
  Office or Agency

  	
  54

  
	
  Section 9.03

  	
  Money for
  Payments to Be Held in Trust

  	
  55

  
	
  Section 9.04

  	
  Statements of
  Officers of the Corporation as to Default

  	
  56

  
	
  [Section 9.05

  	
  Luxembourg
  Publications

  	
  56]

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
   

  	
   

  	
   

  
	
  REDEMPTIONS

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Optional
  Redemption of Purchase Contracts; Redemption Upon Redemption of Debt
  Securities

  	
  56

  
	
  Section 10.02

  	
  Notice of
  Redemption; Partial Redemptions

  	
  57

  
	
  Section 10.03

  	
  Payment of
  Purchase Contracts Called for Redemption

  	
  58

  



 


iii

















 


	
  Section 10.04

  	
  Exclusion of
  Certain Purchase Contracts from Eligibility for Selection for Redemption

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS PROVISIONS

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Incorporators, Stockholders, Officers and Directors
  of the Corporation Immune from Liability

  	
  59

  
	
  Section 11.02

  	
  Compliance Certificates and Opinions

  	
  59

  
	
  Section 11.03

  	
  Form of Documents Delivered to Agent or
  Collateral Agent

  	
  60

  
	
  Section 11.04

  	
  Acts of Holders

  	
  60

  
	
  Section 11.05

  	
  Notices, Etc

  	
  61

  
	
  Section 11.06

  	
  Notices to Holders; Waiver

  	
  61

  
	
  Section 11.07

  	
  Effect of Headings and Table of Contents

  	
  62

  
	
  Section 11.08

  	
  Successors and Assigns

  	
  62

  
	
  Section 11.09

  	
  Separability Clause

  	
  62

  
	
  Section 11.10

  	
  Benefits of Agreement

  	
  62

  
	
  Section 11.11

  	
  Governing Law

  	
  63

  
	
  Section 11.12

  	
  Legal Holidays

  	
  63

  
	
  Section 11.13

  	
  Counterparts

  	
  63

  
	
  Section 11.14

  	
  Appointment of Certain Agents

  	
  63

  
	
  Section 11.15

  	
  Inspection of Agreement

  	
  63

  



 


iv

















 


UNIT
AGREEMENT, dated as of [                       ],
by and among the Bear Stearns Companies Inc., a Delaware corporation (the “Corporation”),
[                             ],
a                                
corporation (“Agent”), acting solely as unit agent and collateral agent
under this Agreement (in its capacity as unit agent, the “Unit Agent”,
and, in its capacity as collateral agent, the “Collateral Agent”),
except to the extent that this Agreement specifically states that Agent is
acting in another capacity, Agent, as trustee and paying agent under the
Indentures described below (in its capacity as trustee under the Indentures,
the “Trustee” and, in its capacity as paying agent under the Indentures,
the “Paying Agent”), Agent, as Warrant Agent under the Warrant Agreement
described below (in its capacity as Warrant Agent under the Warrant Agreement,
the “Warrant Agent”), and Agent, as the Deposit Agent under the Deposit
Agreement described below (in its capacity as Deposit Agent under the Deposit
Agreement, the “Deposit Agent”), and the holders from time to time of
the Units described herein.


 


WHEREAS,
the Corporation has entered into a Senior Indenture dated as of                           
with the Trustee (as may be amended and supplemented from time to time,
the “Senior Indenture”);


 


WHEREAS,
the Corporation has duly authorized the issuance, from time to time, pursuant
to the Senior Indenture of senior debt securities (“Senior Debt Securities”);


 


WHEREAS,
the Corporation has entered into a Senior Subordinated Indenture dated as of            
with the Trustee (as may be amended and supplemented from time to time,
the “Subordinated Indenture” and together with the Senior Indenture,
collectively the “Indentures”);


 


WHEREAS,
the Corporation has duly authorized the issuance, from time to time, pursuant
to the Subordinated Indenture of senior subordinated debt securities (“Subordinated
Debt Securities”, and together with the Senior Debt Securities,
collectively the “Debt Securities”);


 


WHEREAS,
the Corporation has duly authorized the issuance from time to time, pursuant to
its restated Certificate of Incorporation and any Certificate of Designations
for the relevant series, of its preferred stock, par value $1.00 per share (“Preferred
Stock”);


 


WHEREAS,
the Corporation has entered into a Deposit Agreement dated as of                           
between the Corporation and the Deposit Agent (as may be amended and
supplemented from time to time, the “Deposit Agreement”);


 


WHEREAS,
the Corporation has duly authorized the issuance, from time to time, pursuant
to the Deposit Agreement of depositary shares (“Depositary Shares”);


 

















 


WHEREAS,
the Corporation has entered into a Warrant Agreement (as may be amended
and supplemented from time to time, the “Warrant Agreement”) dated as of
                          
between the Corporation and Agent, as Warrant Agent;


 


WHEREAS,
the Corporation has duly authorized the issuance, from time to time, pursuant
to the Warrant Agreement of warrants (“Warrants”) to purchase or sell (i) debt
or equity securities issued by the Corporation or by an entity affiliated or
not affiliated with the Corporation, a basket of such securities, an index or
indices of such securities or any combination of the above, (ii) currencies,
(iii) cash amounts determined by reference to changes in the yield or
closing price of one or more specified debt instruments or in interest rates,
interest rate swap rates or other rates or any combination of the foregoing, (iv) securities
based on the performance of an issuer but excluding the performance of
particular subsidiaries or securities whose value is determined by reference to
the performance, level or value of another financial, economic or other measure
or instrument, or (v) commodities, in each case on terms to be determined
at the time of sale;


 


WHEREAS,
the Corporation has duly authorized the issuance, from time to time, of
purchase contracts governed by this Agreement (including pre-paid purchase
contracts) (as may be amended and supplemented from time to time, “Purchase
Contracts”) requiring the holder thereof to purchase or sell (i) securities
issued by the Corporation or by an entity affiliated or not affiliated with the
Corporation, a basket of such securities, an index or indices of such
securities or any combination of the above, (ii) currencies or (iii) commodities,
in each case on terms to be determined at the time of sale;


 


WHEREAS,
the Corporation desires to provide for the issuance of units (“Units”)
consisting of Purchase Contracts, Preferred Stock, Depositary Shares, Warrants
or Debt Securities, or any combination thereof;


 


WHEREAS,
the parties hereto wish to secure the performance by the holders of Units
consisting of Purchase Contracts and other securities of their obligations
under such Purchase Contracts and the observance and performance of the
covenants and agreements contained herein and in such Purchase Contracts;


 


NOW,
THEREFORE, in consideration of the premises and the purchases of the Units by
the holders thereof, the Corporation, the Agent, the Warrant Agent, the Deposit
Agent, the Collateral Agent and the Trustee and Paying Agent mutually covenant
and agree as follows:


 


2

















 


ARTICLE 1



DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


 


Section 1.01                             Definitions.           For all
purposes of this Agreement, except as otherwise expressly provided or unless
the context otherwise requires:


 


(i)                                     the
terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular;


 


(ii)                                  all
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles in the United
States in effect at the time of any computation; and


 


(iii)                               the words “herein”, “hereof”
and “hereunder” and other words of similar import refer to this Agreement as a
whole and not to any particular Article, Section or other subdivision.


 


“Accelerated
Settlement Date”, with respect to a Purchase Contract of any series, means
any date to which the Corporation accelerates the obligations of the Holder of
the Units of which such Purchase Contract constitutes a part, subject to any
limitations as may be specified pursuant to Section 3.02.


 


“Acceleration
Notice” has the meaning specified in Section 3.05(b).


 


“Act”,
with respect to any Holder, has the meaning specified in Section 11.04.


 


“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For the purposes of this definition, “control”, with
respect to any specified Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.


 


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


 


“Agreement”
means this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more agreements supplemental hereto
entered into pursuant to the applicable provisions hereof.


 


“Authenticating
Agent” means any Person authorized by the Agent to act on behalf of the
Agent to countersign and execute Purchase Contracts.


 


“Bankruptcy
Event” means any of the following events: 
(i) a court having competent jurisdiction shall enter a decree or
order for relief with respect to the Corporation in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or


 


3

















 


hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Corporation or for any substantial part of
its property or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or (ii) the Corporation shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Corporation or for any substantial part of
its property, or make any general assignment for the benefit of creditors.


 


“Board
of Directors” means the board of directors of the Corporation or any other
committee duly authorized by the board of directors to act on its behalf with
respect to this Agreement.


 


“Board
Resolution” means one or more resolutions, certified by the Secretary or an
Assistant Secretary of the Corporation to have been duly adopted or consented
to by the Board of Directors and to be in full force and effect on the date of
such certification and delivered to the Agent or the Collateral Agent, as the
case may be.


 


“Business
Day” means any day that is not a Saturday or Sunday or a legal holiday in
The City of New York or a day on which banking institutions in The City of New
York are authorized or required by law, regulation or executive order to be
closed.


 


“Cash
Settlement” has the meaning set forth in Section 3.06(a)(i).


 


“Certificate
of Incorporation” means the Corporation’s restated certificate of
incorporation, as may be amended or restated from time to time, and any
relevant certificate of designations for the applicable series of the
Preferred Stock.


 


“Closed
Purchase Contract” means any Purchase Contract with respect to which a
purchase or sale of, or other settlement with respect to, the Purchase Contract
Property has occurred pursuant to Article Three or that has been redeemed
or is otherwise not Outstanding.


 


“Collateral”
has the meaning specified in Section 5.01(a).


 


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


 


“Corporate
Trust Office” means the office of the Agent or the Collateral Agent, as
appropriate, at which at any particular time its corporate trust business shall
be principally administered, which office at the date hereof is located at [                                                       ].


 


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


 


4

















 


“Debt
Securities” has the meaning stated in the recitals of this Agreement and
more particularly means any Debt Securities originally issued as part of a
Unit of any series.


 


“Debt
Security Register” with respect to any Debt Securities constituting a part of
the Units of any series means the security register of the Corporation maintained
by the Trustee pursuant to the Indentures.


 


“Default”
means an Event of Default under the applicable Indenture or a Purchase Contract
Default.


 


“Definitive
Securities” means any Security in definitive form.


 


“Definitive
Unit” means any Unit comprised of Definitive Securities.


 


“Depositary”
means, with respect to Registered Units, DTC, or any successor, or, with
respect to any Unregistered Units, a common depositary for Euroclear Bank
S.A./N.V., as operator of the Euroclear System, or Clearstream Banking, societe
anonyme, or any other relevant depositary named in an Issuer Order, in each
case, as the Holder of any Global Units.


 


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


 


“Depositary
Share Register” with respect to any Depositary Shares constituting a part of
the Units of any series means the security register of the Corporation
maintained by the Deposit Agent pursuant to the Deposit Agreement.


 


“DTC”
means The Depository Trust Company or its nominee.


 


“Event
of Default” with respect to the Debt Securities, has the meaning set forth
in the applicable Indenture.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


“Global
Debt Security” means a global Debt Security in bearer or registered form originally
issued as part of a Global Unit of any series.


 


“Global
Depositary Shares” means a global Depositary Shares in bearer or registered
form originally issued as part of a Global Unit of any series.


 


“Global
Preferred Stock” means a global Preferred Stock in bearer or registered form originally
issued as part of a Global Unit of any series.


 


“Global
Purchase Contract” means a global Purchase Contract in bearer or registered
form originally issued as part of a Global Unit of any series.


 


5

















 


“Global
Security” means any of a Global Debt Security, Global Warrant, Global
Depositary Shares, Global Preferred Stock or Global Purchase Contract.


 


“Global
Unit” means any Unit that comprises one or more Global Securities and is
represented by a global Unit Certificate in bearer or registered form.


 


“Global
Warrant” means a global Warrant in bearer or registered form originally
issued as part of a Global Unit of any series.


 


“Holder”
means (i) in the case of any Registered Security or Registered Unit, the
Person in whose name such Registered Security or the Registered Securities
constituting a part of such Registered Unit are registered on the relevant
Security Register and (ii) in the case of any Unregistered Security or
Unregistered Unit, the bearer of such Security or Unit, provided that, in the
case of (i) above, so long as the Registered Securities constituting part of
such Units are not separable, “Holder” shall mean the Person in whose name a
Registered Security constituting a part of such Unit is registered on the
Security Register specified pursuant to Section 2.03.


 


“Indentures”
has the meaning specified in the recitals of this Agreement.


 


“Initial
Acceleration Date” means, with respect to Purchase Contracts of any series,
the initial date, if any, specified pursuant to Section 3.02 on which such
Purchase Contracts may be accelerated pursuant to Section 3.05
hereof.


 


“Interest
Payment Date”, with respect to any Debt Security, has the meaning set forth
in the applicable Indenture or in any document executed pursuant to the terms
of the applicable Indenture relating to such Debt Security.


 


“Issuer
Order” or “Issuer Request” means a written order or request signed
in the name of the Corporation by the Chairman of the Board of Directors, the
President, the Chief Financial Officer, the Chief Strategic and Administrative
Officer, the Chief Legal Officer, the Treasurer, any Assistant Treasurer or any
other person authorized by the Board of Directors and delivered to the Agent or
the Collateral Agent, as the case may be.


 


“Letter
of Representations” means, as of any date, the Letter of Representations or
Letters of Representations to DTC in effect as of such date from the Agent
relating to the Units covered by this Agreement.


 


“Minimum
Acceleration Amount” means the minimum number of Purchase Contracts of any series as
specified pursuant to Section 3.02 that may be subject to
acceleration pursuant to Section 3.05.


 


“Minimum
Remaining Amount” means the minimum number of Purchase Contracts of any series as
specified pursuant to Section 3.02 that must remain Outstanding
immediately following any acceleration pursuant to Section 3.05.


 


“Officer’s
Certificate” means a certificate signed by the Chairman of the Board of
Directors, the President, the Chief Financial Officer, the Chief Strategic and
Administrative Officer, the Chief Legal Officer, the Treasurer, any Assistant
Treasurer of the Corporation or any


 


6

















 


other person authorized
by the Board of Directors and delivered to the Agent or the Collateral Agent,
as the case may be.


 


“Opinion
of Counsel” means an opinion in writing signed by legal counsel, who may be
an employee of or counsel to the Corporation and who shall otherwise be
satisfactory to the Agent or the Collateral Agent, as the case may be.


 


“Optional
Definitive Unit Request” has the meaning set forth in Section 2.12.


 


“Outstanding”,
with respect to any Unit, Debt Security, Warrant, Purchase Contract, Depositary
Share or Preferred Stock means, as of the date of determination, all Units,
Debt Securities, Warrants, Purchase Contracts, Depositary Shares or Preferred
Stock, as the case may be, evidenced by Units theretofore authenticated,
countersigned, executed and delivered under this Agreement, except:


 


(A)                               Units,
Debt Securities, Warrants, Purchase Contracts, Depositary Shares or Preferred
Stock theretofore deemed cancelled, cancelled by the Agent, Warrant Agent,
Depository, Trustee, the Corporation or the Stock Transfer Agent, as the case may be,
or delivered to the Agent, Warrant Agent or Trustee, as the case may be,
for cancellation, in each case pursuant to the provisions of this Agreement,
the Warrant Agreement, the Deposit Agreement, the Certificate of Incorporation
or the applicable Indenture;


 


(B)                               Closed
Purchase Contracts; and


 


(C)                               Units,
Debt Securities, Warrants, Purchase Contracts, Depositary Shares or Preferred
Stock evidenced by Unit Certificates in exchange for or in lieu of which other
Unit Certificates have been authenticated, countersigned, executed and
delivered pursuant to this Agreement, other than any such Units, Debt
Securities, Warrants, Purchase Contracts, Depositary Shares or Preferred Stock,
as the case may be, evidenced by a Unit Certificate in respect of which
there shall have been presented to the Agent proof satisfactory to it that such
Unit Certificate is held by a bona fide purchaser in whose hands the Units,
Debt Securities, Warrants, Purchase Contracts, Depositary Shares or Preferred
Stock, as the case may be, evidenced by such Unit Certificate are valid
obligations of the Corporation;


 


provided,
however, that in determining whether the Holders of the requisite number
of Outstanding Units, Debt Securities, Warrants, Purchase Contracts, Depositary
Shares or Preferred Stock, as the case may be, have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Units, Debt
Securities, Warrants, Purchase Contracts, Depositary Shares or Preferred Stock
owned by the Corporation or any Affiliate of the Corporation shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Agent shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Units, Debt
Securities, Warrants, Purchase Contracts, Depositary Shares and Preferred Stock
which the Agent knows to be so owned shall be so disregarded. Units, Debt
Securities, Warrants, Purchase Contracts, Depositary Shares and Preferred Stock
that are so owned but that have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Agent the
pledgee’s right so to act


 


7

















 


with respect to such
Units, Debt Securities, Warrants, Purchase Contracts, Depositary Shares and
Preferred Stock and that the pledgee is not the Corporation or any Affiliate of
the Corporation.


 


“Paying
Agent” means any Person authorized by the Corporation to pay the Settlement
Amount, redemption price or any other sums payable by the Corporation with
respect to any Purchase Contracts; provided that such Person shall be a bank or
trust company organized and in good standing under the laws of the United
States or any state in the United States, having (together with its parent)
capital, surplus and undivided profits aggregating at least $50,000,000 or any
foreign branch or office of such a bank or trust company, and, subject to the
foregoing, may be an Affiliate of the Corporation.


 


“Person”
means any individual, corporation, partnership, limited liability company,
joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.


 


“Pledged
Items” means, as of any date, any Securities (other than Purchase
Contracts) constituting a part of the Units of any series or any and
all other securities, instruments or other property as may be specified
pursuant to Section 3.02.


 


“Preferred
Stock” has the meaning stated in the recitals of this Agreement.


 


“Preferred
Stock Register” with respect to any Preferred Stock constituting a part of
the Units of any series means the security register of the Corporation
maintained by [the Stock Transfer Agent].


 


“Purchase
Contract Default” with respect to Purchase Contracts of any series means
the occurrence of any of the following events: 
(i) failure of the Corporation to deliver the Purchase Contract
Property or the cash value thereof for such Purchase Contracts against tender
of payment therefor on any Settlement Date, in the case of Purchase Contracts that
obligate the Corporation to sell the Purchase Contract Property, (ii) failure
of the Corporation to pay the Settlement Amount for such Purchase Contracts
when the same becomes due and payable, in the case of Purchase Contracts that
obligate the Corporation to purchase the Purchase Contract Property, (iii) failure
on the part of the Corporation duly to observe or perform any other
of the covenants or agreements on its part in such Purchase Contracts or
in this Agreement with respect to such Purchase Contracts and continuance of
such failure for a period of 60 days after the date on which written notice of
such failure, requiring the Corporation to remedy the same, shall have been
given to the Corporation and the Agent by Holders of at least 25% of the affected
Purchase Contracts at the time Outstanding, (iv) a Bankruptcy Event or (v) any
other Purchase Contract Default provided in any supplemental agreement under
which such series of Purchase Contracts is issued or in the form of
such Purchase Contracts.


 


“Purchase
Contract Property” with respect to a Purchase Contract of any series has
the meaning specified pursuant to Section 3.02.


 


“Purchase
Contract Register” and “Purchase Contract Registrar” have the
respective meanings specified in Section 2.08.


 


8

















 


“Purchase
Contracts” has the meaning stated in the recitals of this Agreement and
more particularly means any Purchase Contracts constituting a part of the
Units of any series countersigned, executed and delivered in accordance
with this Agreement.


 


“Purchase
Price” of any Purchase Contract that obligates the Corporation to sell, and
the Holder to purchase, the Purchase Contract Property has the meaning
specified pursuant to Section 3.02.


 


“Registered
Debt Security” means any Debt Security registered on the Debt Security
Register.


 


“Registered
Purchase Contract” means any Purchase Contract registered on the Purchase
Contract Register.


 


“Registered
Security” means any of a Registered Debt Security, Registered Warrant,
Registered Depositary Share, Registered Preferred Stock or Registered Purchase
Contract.


 


“Registered
Unit” means any Unit consisting of Registered Securities and registered on
the Unit Register.


 


“Registered
Warrant” means any Warrant registered on the Warrant Register.


 


“Regular
Record Date” has the meaning specified pursuant to Section 2.03 or, if
no meaning is specified, Regular Record Date means the 15th day prior to the
date on which an Interest Payment Date occurs, whether or not such date is a
Business Day.


 


“Responsible
Officer”, with respect to the Agent or Collateral Agent, means the chairman
or vice chairman of the board of directors, the chairman or vice chairman of
the executive committee of the board of directors, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any senior trust officer, any
trust officer or assistant trust officer, the controller and any assistant
controller or any other officer of the Agent or Collateral Agent customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust or agency
matter, any other officer to whom such matter is referred because of his
knowledge and familiarity with the particular subject.


 


“Security”
means any of a Debt Security, Warrant, Purchase Contract, Depositary Share or
Preferred Stock.


 


“Security
Register” means any of the Debt Security Register, Purchase Contract
Register, Warrant Register, Depositary Share Register or Preferred Stock
Register.


 


“Security
Settlement” has the meaning set forth in Section 3.06(a)(ii).


 


“Senior
Indenture” has the meaning specified in the recitals of this Agreement.


 


9

















 


“Settlement
Amount” of any Purchase Contract that obligates the Corporation to
purchase, and the Holder to sell, the Purchase Contract Property has the
meaning specified pursuant to Section 3.02.


 


“Settlement
Date” means the Stated Settlement Date and any Accelerated Settlement Date.


 


“SRO”
has the meaning specified in Section 2.01.


 


“Stated
Settlement Date” of any Purchase Contract of any series has the
meaning specified pursuant to Section 3.02.


 


[“Stock
Transfer Agent” shall mean                      
until a successor stock transfer agent shall have become such, and thereafter “Stock
Transfer Agent” shall mean such successor Person.]


 


“Subordinated
Indenture” has the meaning specified in the recitals of this Agreement.


 


“Trustee”,
with respect to any Debt Securities, means the Person acting as Trustee under
each of the Indentures until a successor Trustee shall have become such
pursuant to the applicable provisions of such Indenture, and thereafter “Trustee”
shall mean such successor Trustee.


 


“Unit”
has the meaning stated in the recitals of this Agreement and more particularly
the collective rights and obligations of the Corporation and a Holder with
respect to the Securities comprising such Unit, as specified pursuant to Section 2.03.


 


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


 


“Unit
Certificate” means a certificate evidencing the rights and obligations of
the Corporation and a Holder with respect to the number of Units specified on
such certificate.


 


“Unregistered
Security” means any Security other than a Registered Security.


 


“Unregistered
Unit” means any Unit other than a Registered Unit.


 


“Unsettled
Purchase Contract” means any Purchase Contract that has not been redeemed
or with respect to which settlement has not occurred pursuant to Article Three.


 


“Warrant
Agreement” has the meaning stated in the recitals of this Agreement.


 


“Warrant
Property” has the meaning specified in the Warrant Agreement.


 


10

















 


“Warrant
Register” with respect to any Warrants constituting a part of the
Units of any series means the security register of the Corporation
maintained by the Warrant Agent pursuant to the Warrant Agreement.


 


“Warrants”
has the meaning stated in the fourth recital of this Agreement and more particularly
means any Warrants originally issued as part of a Unit of any series.


 


ARTICLE 2



UNITS


 


Section 2.01                             Forms Generally.  The Units of each series shall
be substantially in the form of Exhibit A or in such form (not
inconsistent with this Agreement) as shall be established by or pursuant to one
or more Board Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to rather than set forth in a Board Resolution, an Officer’s
Certificate detailing such establishment). The Unit Certificates may have
imprinted or otherwise reproduced thereon such letters, numbers or other marks
of identification or designation and such legends or endorsements as the
officers of the Corporation executing the Securities constituting a part thereof
may approve (execution thereof to be conclusive evidence of such approval)
and that are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made
pursuant thereto, or with any rule or regulation of any self-regulatory
organization (an “SRO”) on which the Units of such series may be
listed or quoted or of any securities depository or to conform to general
usage.


 


The
Unit Certificates shall be printed, lithographed or engraved on steel engraved
borders or may be produced in any other manner, all as determined by the
officers executing such Unit Certificates, as evidenced by their execution of
the Securities constituting a part of the Units evidenced by such Unit
Certificates.


 


Section 2.02                             Form of Certificate of Authentication
and Countersignature. The
form of the Trustee’s certificate of authentication of any Debt
Securities, the form of any Warrant Agent’s countersignature of any
Warrants, the form of any Deposit Agent’s countersignature of any
Depositary Shares, and the form of the Agent’s execution on behalf of the
Holder and countersignature of any Purchase Contracts, each constituting a part of
the Units of any series, shall be substantially in such form as set forth
in the Indentures, the Warrant Agreement, the Deposit Agreement or this
Agreement, as applicable.


 


Section 2.03                             Amount Unlimited; Issuable in Series. (a)  The aggregate number
of Units that may be authenticated, countersigned and delivered under this
Agreement is unlimited.


 


The
Units may be issued in one or more series. There shall be established,
upon the order of the Corporation (contained in an Issuer Order) or pursuant to
such procedures acceptable to the Agent as may be specified from time to
time by an Issuer Order, prior to the initial issuance of Units of any series:


 


11

















 


(i)                                     the
designation of the Units of the series, which shall distinguish the Units of
the series from the Units of all other series;


 


(ii)                                  any
limit upon the aggregate number of Units of the series that may be
authenticated and delivered under this Agreement (disregarding any Units
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Units of the series pursuant to Section 2.07,
2.08, 2.09 or 2.12);


 


(iii)                               the designation of the
Securities constituting a part of the Units of the series;


 


(iv)                              whether
and on what terms any Securities constituting a part of the Units of the series may be
separated from the Units of the series and the other Securities
constituting a part of such Units;


 


(v)                                 in
the case of Units of a series consisting in any part of Purchase
Contracts, the information specified pursuant to Section 3.02;


 


(vi)                              whether
the Units of the series will be issuable as Registered Units (and if so,
whether such Units will be issuable in global form) or Unregistered Units (and
if so, whether such Units will be issuable in global form), or any combination
of the foregoing, any restrictions applicable to the offer, sale or delivery of
Unregistered Securities and, if other than as provided in Section 2.08,
the terms upon which Unregistered Units of any series may be
exchanged for Registered Units of such series and vice versa;


 


(vii)                           in the case of Units issued
as Registered Units consisting of Registered Securities that may not be
separated from the other Registered Securities constituting a part of such
Units, the designation of the Security Register to be used to determine the
Holder of such Units;


 


(viii)                        if the Units of such series are
to be issuable in definitive form (whether upon original issue or upon
exchange of a temporary Unit of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, the form and
terms of such certificates, documents or conditions;


 


(ix)                              any
trustees, depositaries, authenticating or paying agents, transfer agents or
registrars or any other agents with respect to the Units of such series;


 


(x)                                 any
other events of default or covenants with respect to the Units of such series;
and


 


(xi)                              any
other terms of the series (which terms shall not be inconsistent with the
provisions of this Agreement).


 


(b)                                 All
Units of any one series shall be substantially identical, except as may otherwise
be provided by or pursuant to the Issuer Order or procedures referred to above.
All Units of any one series need not be issued at the same time and may be
issued from time to time,


 


12

















 


consistent with the terms of this Agreement, if so provided by or
pursuant to such Board Resolution or such Issuer Order.


 


Notwithstanding
Section 2.03(a)(ii) hereto and unless otherwise expressly provided
with respect to a series of Securities, the aggregate number of Units of a
series may be increased and additional Units of such series may be
issued up to a maximum aggregate number authorized with respect to such series as
increased.


 


Section 2.04                             Denominations.  Units of any series shall
be issuable only in denominations of a single Unit and any integral multiple
thereof.


 


Section 2.05                             Rights and Obligations Evidenced by the Units.  Units of any series shall
evidence the ownership by the Holder thereof of (a) the principal amount
of Debt Securities, if any, specified on the face of a Unit Certificate
representing Definitive Units or in Schedule A attached to any Unit
Certificate representing Global Units, (b) the number of Warrants, if any,
specified on the face of a Unit Certificate representing Definitive Units or in
Schedule A attached to any Unit Certificate representing Global
Units, (c)  the number of Depositary Shares, if any, specified on the face
of a Unit Certificate representing Definitive Units or in Schedule A
attached to any Unit Certificate representing Global Units, (d) the number
of shares of Preferred Stock, if any, specified on the face of a Unit
Certificate representing Definitive Units or in Schedule A attached
to any Unit Certificate representing Global Units, and (e) the rights and
obligations of the Corporation and the Holder under the number of Purchase
Contracts, if any, specified on the face of a Unit Certificate representing
Definitive Units or in Schedule A attached to any Unit Certificate
representing Global Units.


 


Section 2.06                             Execution, Authentication, Delivery and
Dating.  Upon
the execution and delivery of this Agreement, and at any time and from time to
time thereafter, the Corporation may deliver, subject to any limitation on
the aggregate principal amount of Debt Securities, if any, or the number of
Warrants, Purchase Contracts, Depositary Shares or shares of Preferred Stock,
if any, represented thereby, an unlimited number of Unit Certificates
(including the Securities executed by the Corporation constituting the Units
evidenced by such Unit Certificates) to the Trustee, Warrant Agent, Deposit
Agent and/or the Agent for authentication, countersignature or execution, as
the case may be, of the Securities comprised by such Units, together with
its Issuer Orders for authentication, countersignature or execution of such
Securities, and the Trustee in accordance with the applicable Indenture and the
Issuer Order of the Corporation shall authenticate the Debt Securities, if any,
constituting a part of the Units evidenced by such Unit Certificates, the
Warrant Agent in accordance with the Warrant Agreement and the Issuer Order of
the Corporation shall countersign the Warrants, if any, constituting a part of
the Units evidenced by such Unit Certificates, the Deposit Agent in accordance
with the Deposit Agreement and the Issuer Order of the Corporation shall
countersign the Depositary Shares, if any, constituting a part of the
Units evidenced by such Unit Certificates, and the Agent in accordance with
this Agreement and the Issuer Order of the Corporation shall countersign and
execute on behalf of the Holders thereof the Purchase Contracts, if any,
constituting a part of the Units evidenced by such Unit Certificates, and
each shall deliver such Unit Certificates upon the order of the Corporation.


 


13

















 


Any
Debt Securities constituting a part of the Units of any series shall
be executed on behalf of the Corporation in accordance with the terms of the
applicable Indenture. Any Warrants constituting a part of the Units of any
series shall be executed on behalf of the Corporation in accordance with
the terms of the Warrant Agreement. Any Depositary Shares constituting a part of
the Units of any series shall be executed on behalf of the Corporation in
accordance with the terms of the Deposit Agreement. Any shares of Preferred
Stock constituting a part of the Units of any series shall be
executed on behalf of the Corporation in accordance with the terms of the
Certificate of Incorporation. Any Purchase Contracts constituting a part of
the Units shall be executed on behalf of the Corporation in accordance with Section 3.01.


 


Section 2.07                             Temporary Unit Certificates.  Pending the preparation of
Unit Certificates for any series, the Corporation may execute and deliver
to the Trustee, the Warrant Agent, Deposit Agent and/or the Agent, as
appropriate, and the Trustee, the Warrant Agent, Deposit Agent and/or the
Agent, as appropriate, shall authenticate, countersign, execute on behalf of
the Holder and deliver, as appropriate, in lieu of such Unit Certificates,
temporary Unit Certificates for such series. Temporary Unit Certificates shall
be in substantially the form of the Unit Certificates of such series, but
with such omissions, insertions and variations as may be appropriate for
temporary Unit Certificates, all as may be determined by the Corporation
with the concurrence of the Trustee, Warrant Agent, Deposit Agent and/or Agent,
as appropriate, as evidenced by the execution and authentication and/or
countersignature of the Securities constituting a part of the Units
evidenced thereby, as applicable.


 


If
temporary Unit Certificates for any series are issued, the Corporation
will cause definitive Unit Certificates for such series to be prepared
without unreasonable delay. After the preparation of such definitive Unit
Certificates, the temporary Unit Certificates shall be exchangeable therefor
upon surrender of temporary Registered Units of such series at the
Corporate Trust Office, at the expense of the Corporation and without charge to
any Holder and, in the case of Unregistered Units, at any agency maintained for
such purpose as specified pursuant to Section 2.03. Upon surrender for
cancellation of any one or more temporary Unit Certificates, the Corporation
shall execute and deliver to the Trustee, the Warrant Agent, the Deposit Agent
and/or the Agent, and the Trustee, the Warrant Agent, the Deposit Agent and/or
the Agent shall authenticate, countersign, execute on behalf of the Holder and
deliver, as appropriate, in exchange therefor definitive Unit Certificates of
the same series of like tenor, of authorized denominations and evidencing
a like number of Units as the temporary Unit Certificate or Certificates so
surrendered. Until so exchanged, the temporary Unit Certificates of any series shall
in all respects evidence the same benefits and the same obligations under any
Debt Securities, Warrants, Depositary Shares, Preferred Stock and Purchase
Contracts constituting parts of such Units, the Indentures, the Warrant Agreement,
the Deposit Agreement, the Certificate of Incorporation and this Agreement as
definitive Unit Certificates of such series, unless otherwise specified
pursuant to Section 2.03.


 


Section 2.08                             Registration of Transfer and Exchange; Global
Units.  The Agent
shall keep at its Corporate Trust Office for each series of Registered
Units a register (the register maintained in such office being herein referred
to as the “Purchase Contract Register”) in which, subject to such
reasonable regulations as it may prescribe, the Agent shall provide for
the registration of Registered Purchase Contracts, if any, constituting a part of
such series and of


 


14

















 


transfers of such Purchase
Contracts (the Agent, in such capacity, the “Purchase Contract Registrar”).


 


At the
option of the Holder thereof, Registered Units of any series (other than a
global Registered Unit, except as set forth below) may be transferred or
exchanged for a Registered Unit or Registered Units of such series having
authorized denominations evidencing the number of Units transferred or
exchanged, upon surrender of such Registered Units to be so transferred or
exchanged at the Corporate Trust Office of the Agent upon payment, if the
Corporation shall so require, of the charges hereinafter provided. If the Units
of any series are issued in both registered and unregistered form, except
as otherwise specified pursuant to Section 2.03, at the option of the
Holder thereof, Unregistered Units of such series may be exchanged
for Registered Units of such series having authorized denominations and
evidencing the number of Units transferred or exchanged, upon surrender of such
Unregistered Units to be so transferred or exchanged at the Corporate Trust
Office of the Agent and upon payment, if the Corporation shall so require, of
the charges hereinafter provided. At the option of the Holder thereof, if
Unregistered Units of any series are issued in more than one authorized
denomination, except as otherwise specified pursuant to Section 2.03, such
Unregistered Units may be exchanged for Unregistered Units of such series having
authorized denominations evidencing the number of Units exchanged, upon
surrender of such Unregistered Units to be so exchanged at the Corporate Trust
Office of the Agent or as specified pursuant to Section 2.03, and upon
payment, if the Corporation shall so require, of the charges hereinafter
provided. Unless otherwise specified pursuant to Section 2.03, Registered
Units of any series may not be exchanged for Unregistered Units of
such series. Whenever any Units are so surrendered for transfer or exchange,
the Corporation shall execute, and the Trustee, Warrant Agent, Deposit Agent
and/or the Agent, as appropriate, shall authenticate, countersign or execute,
as the case may be, and deliver the Units which the Holder making the
transfer or exchange is entitled to receive. All Units (including the
Securities constituting part of such Units) surrendered upon any exchange
or transfer provided for in this Agreement shall be promptly cancelled and
disposed of by the Agent and the Agent will deliver a certificate of
disposition thereof to the Corporation and to the Trustee and the Warrant
Agent, as applicable.


 


Unregistered
Units shall be transferable by delivery.


 


Subject
to Section 2.12, if the Corporation shall establish pursuant to Section 2.03
that the Units of a series are to be evidenced by one or more Global
Units, then the Corporation shall execute and the Agent, Warrant Agent, Deposit
Agent and Trustee shall, in accordance with this Section and Section 2.06,
countersign, authenticate and execute, as appropriate, and deliver one or more
global Unit Certificates that (i) shall evidence all or a portion of the
Units of such series issued in such form and not yet cancelled, (ii) in
the case of Registered Units, shall be registered in the name of the Depositary
for such Units or the nominee of such Depositary, (iii) shall be delivered
by the Agent to the Depositary for such Units or pursuant to such Depositary’s
instructions and (iv) in the case of Registered Units, shall bear a legend
substantially to the following effect:  “Unless
and until it is exchanged in whole or in part for Units in definitive
registered form, this Unit Certificate may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.”  Whenever Global
Units of


 


15

















 


any series are
exchanged for Definitive Units of such series or whenever Definitive Units
of any series are exchanged for Global Units of such series, the Agent
shall cause, as applicable:  (i) Schedule A
of the Global Debt Security, if any, to be endorsed to reflect any increase or
decrease, as the case may be, in the principal amount of Debt Securities,
if any, that are comprised by Global Units as a result of such exchange, (ii) Schedule A
of the Global Warrant, if any, to be endorsed to reflect any increase or
decrease, as the case may be, in the number of Warrants, if any, that are
comprised by the Global Units as a result of such exchange, (iii) Schedule A
of the Global Purchase Contract, if any, to be endorsed to reflect any increase
or decrease, as the case may be, in the number of Purchase Contracts, if
any, that are comprised by Global Units as a result of such exchange, (iv) Schedule A
of the Global Depositary Shares, if any, to be endorsed to reflect any increase
or decrease, as the case may be, in the number of Depositary Shares, if
any, that are comprised by Global Units as a result of such exchange, and (v) Schedule A
of the Global Preferred Stock, if any, to be endorsed to reflect any increase
or decrease, as the case may be, in the number of shares of Preferred
Stock, if any, that are comprised by the Global Unit as a result of such
exchange, whereupon such number of Global Units shall be decreased or increased
for all purposes by the number so exchanged, as noted.


 


All
Unit Certificates authenticated, countersigned and executed upon any
registration of transfer or exchange of a Unit Certificate shall evidence the
ownership of the principal amount of Debt Securities, if any, specified on the
face thereof, the number of Warrants, if any, specified on the face thereof and
the number of Depositary Shares, if any, specified on the face thereof, the
number of shares of Preferred Stock, if any, specified on the face thereof and
the rights and obligations of the Holder and the Corporation under the number
of Purchase Contracts, if any, specified on the face thereof and shall be
entitled to the same benefits, and be subject to the same obligations, under
the Indenture, the Warrant Agreement, the Deposit Agreement, the Certificate of
Incorporation and this Agreement as the Units evidenced by the Unit Certificate
surrendered upon such registration of transfer or exchange.


 


Every
Unit Certificate presented or surrendered for registration of transfer or for
exchange shall (if so required by the Corporation or the Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form satisfactory
to the Corporation and the Agent, duly executed by the Holder thereof or his
attorney duly authorized in writing.


 


No
service charge shall be made for any transfer or exchange of a Unit, but the
Corporation and the Agent may require payment from the Holder of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Units,
other than any exchanges pursuant to Section 2.09 not involving any
transfer.


 


Notwithstanding
the foregoing, and subject to the terms of the applicable Indenture, the
Corporation shall not be obligated to execute and deliver to the Trustee, the
Warrant Agent, the Deposit Agent or the Agent, and none of the Trustee, under
the terms of the applicable Indenture, the Warrant Agent, under the terms of
the Warrant Agreement, the Deposit Agent, under the terms of the Deposit
Agreement, or the Agent hereunder shall be obligated to authenticate,
countersign or execute on behalf of the Holder any Unit Certificate presented
or surrendered for registration of transfer or for exchange of any Debt
Securities, Warrants, Depositary Shares, Preferred Stock or Purchase Contracts
evidenced thereby or any Unit


 


16

















 


Certificate evidencing a
Definitive Unit to be issued in exchange for interests in Global Units or to
reflect any increase or decrease in a Global Unit, Global Debt Security, Global
Warrant, Global Purchase Contract, Global Depositary Share or Global Preferred
Stock (i) during the period beginning any time on or after the opening of
business 15 days before the day of mailing of a notice of redemption or of any
other exercise of any right held by the Corporation with respect to the Unit
(or any Security constituting a part of the Units of such series) and
ending at the close of business on the day of the giving of such notice, (ii) that
evidences or would evidence any such Unit or Security selected or called for
redemption or with respect to which such right has been exercised or (iii) at
any given date, if such date is on or after any date that is after the
Settlement Date or the date of redemption, as applicable, with respect to the
Purchase Contracts, if any, evidenced or to be evidenced by such Unit
Certificate (or at any time on or after the last exercise date with respect to
any Warrant constituting a part of such Unit), except with respect to any
Registered Debt Securities, Registered Depositary Shares and Registered
Preferred Stock or portions thereof that remain or will remain Outstanding
following such Settlement Date or date of redemption (or such last exercise
date) or (iv) at any other date specified pursuant to Section 2.03.


 


Section 2.09                             Mutilated, Destroyed, Lost and Stolen Unit
Certificates.  If
any mutilated Unit Certificate is surrendered to the Agent, the Corporation
shall execute and deliver to the Trustee, the Warrant Agent, the Deposit Agent
and/or the Agent, as appropriate, and the Trustee, the Warrant Agent, the
Deposit Agent and/or the Agent shall authenticate, countersign, execute on
behalf of the Holder and deliver, as appropriate, in exchange therefor new
Securities comprised by Units of the same series, of like tenor, and evidenced
by a new Unit Certificate evidencing the same number of Units and bearing a
number not contemporaneously outstanding.


 


If
there shall be delivered to the Corporation and the Trustee, the Warrant Agent,
the Deposit Agent and/or the Agent, as appropriate, (i) evidence to their
satisfaction of the destruction, loss or theft of any Unit Certificate and (ii) such
security or indemnity as may be required by any of them to hold each of
them and any agent of any of them harmless, then, in the absence of notice to
the Corporation and the Trustee, the Warrant Agent, the Deposit Agent and/or
the Agent, as appropriate, that such Unit Certificate has been acquired by a
bona fide purchaser, the Corporation shall execute and deliver to the Trustee,
the Warrant Agent, the Deposit Agent and/or the Agent, as appropriate, and the
Trustee (in accordance with the provisions of the Indenture), the Warrant Agent
(in accordance with the provisions of the Warrant Agreement), the Deposit Agent
in accordance with the provisions of the Deposit Agreement) and/or the Agent
(in accordance with the provisions hereof) shall authenticate, countersign,
execute on behalf of the Holder and deliver to the Holder, as appropriate, in
lieu of any such destroyed, lost or stolen Unit Certificate, new Securities
comprised by Units of the same series, of like tenor, and evidenced by a new
Unit Certificate evidencing the same number of Units and bearing a number not
contemporaneously outstanding.


 


Unless
otherwise specified pursuant to Section 2.03, notwithstanding the
foregoing, the Corporation shall not be obligated to execute and deliver to the
Trustee, the Warrant Agent, the Deposit Agent or the Agent, and none of the
Trustee (under the applicable Indenture), the Warrant Agent (under the Warrant
Agreement), the Deposit Agent (under the Deposit Agreement) or the Agent
(hereunder) shall be obligated to authenticate, countersign or execute on
behalf of the Holder, or deliver to the Holder, a new Unit Certificate (or any
Security


 


17

















 


constituting a part of
such Unit) (i) during the period beginning any time on or after the opening
of business 15 days before the day of mailing of a notice of redemption or of
any other exercise of any right held by the Corporation with respect to the
Unit (or any Security constituting a part of such Unit) and ending at the
close of business on the day of the giving of such notice, (ii) that
evidences any Unit or Security selected or called for redemption or with
respect to which such right has been exercised, (iii) at any given date,
if such date is on or after the Settlement Date or date of redemption, as
applicable, with respect to any Purchase Contracts evidenced by such Unit
Certificate (or at any time on or after the last exercise date with respect to
any Warrant constituting a part of such Unit), except with respect to any
Registered Debt Security or portion thereof evidenced by such Unit Certificate
that remains or will remain Outstanding following such Settlement Date or date
of redemption (or such last exercise date) or (iv)  at any other date
specified pursuant to Section 2.03. In lieu of delivery of a new Unit
Certificate, upon satisfaction of the applicable conditions specified in
clauses (i) and (ii) of the preceding paragraph, the Agent shall
deliver or cause to be delivered on the applicable Settlement Date, redemption
date or exercise date (i) in respect of Purchase Contracts, Warrants, Debt
Securities, Depositary Shares or Preferred Stock constituting a part of
the Units evidenced by such Unit Certificate that are selected or called for
redemption, the redemption price of such Purchase Contracts, Warrants, Debt
Securities, Depositary Shares or Preferred Stock or (ii) in respect of
Purchase Contracts or Warrants constituting a part of the Units evidenced
by such Unit Certificate with respect to which a Cash Settlement or Debt
Security Settlement (or any equivalent manner of settlement) has taken place,
(x) the Purchase Contract Property or Warrant Property (or cash value
thereof), purchase price, cash settlement value, Settlement Amount or other
amount, as the case may be, deliverable with respect to such Purchase
Contracts or Warrants (and, in the case of an effective Cash Settlement (or any
equivalent manner of settlement), the related Debt Securities) or (y) if a
Purchase Contract Default or any default under the Warrant Agreement or Warrant
has occurred by virtue of the Corporation’s having failed to deliver the
Purchase Contract Property or Warrant Property (or cash value thereof),
purchase price, cash settlement value, Settlement Amount or other amount, as
the case may be, deliverable against tender by the Agent of the purchase
price, Purchase Contract Property (or the cash value thereof) or other
Settlement Amount, exercise price or other amount, as the case may be,
such purchase price, Purchase Contract Property (or cash value thereof) or
Settlement Amount or other amount, if any, received by the Agent from the
Holder in respect of the Settlement of such Purchase Contracts or exercise of
such Warrants or in respect of principal with respect to the related Debt
Securities received by the Agent.


 


Upon
the issuance of any new Unit Certificate under this Section, the Corporation
and the Agent may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Agent) connected
therewith.


 


Every
new Unit Certificate executed pursuant to this Section in lieu of any
destroyed, lost or stolen Unit Certificate shall constitute an original
additional contractual obligation of the Corporation and of the Holder (with
respect to any Purchase Contracts constituting a part of the Units
evidenced thereby), whether or not the destroyed, lost or stolen Unit
Certificate (and the Securities evidenced thereby) shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Agreement equally
and proportionately with any and all other Unit Certificates delivered
hereunder.


 


18

















 


The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Unit Certificates.


 


Section 2.10                             Persons Deemed Owners. Prior to due presentment of a Unit Certificate
of any series for registration of transfer, the Corporation, the Trustee,
the Warrant Agent, the Deposit Agent, the Collateral Agent and the Agent, as
appropriate, and any agent of the Corporation, the Trustee, the Warrant Agent,
the Deposit Agent, the Collateral Agent or the Agent, as appropriate, may treat
the Person in whose name any Registered Security evidenced by such Unit
Certificate is registered and, with respect to any Unregistered Security
constituting a part of the Units evidenced by such Unit Certificate, the
bearer thereof, as the owner of the Units evidenced thereby for all purposes
whatsoever, whether or not payment with respect to any Security constituting a part of
the Units evidenced thereby shall be overdue and notwithstanding any notice to
the contrary. None of the Corporation, the Trustee, the Warrant Agent, the
Agent, the Deposit Agent, the Collateral Agent or any agent of the Corporation,
the Trustee, the Warrant Agent, the Deposit Agent, the Collateral Agent or the
Agent shall be affected by notice to the contrary.


 


Section 2.11                             Cancellation. Subject to Section 3.07, all
Unit Certificates surrendered for payment, and all Unit Certificates
surrendered for redemption of any Debt Securities, Depositary Shares or
Preferred Stock or the exercise of any Warrants evidenced thereby, termination
or settlement of any Purchase Contracts evidenced thereby, delivery of Purchase
Contract Property or registration of transfer or exchange shall, if surrendered
to any Person other than the Corporation, the Registrar, the Trustee, the
Warrant Agent, the Deposit Agent or the Agent, as appropriate, be delivered to
the Corporation, the Registrar, the Trustee, the Warrant Agent, the Deposit
Agent, and/or the Agent, as appropriate, and, if not already cancelled, any
Debt Securities, Warrants, Depositary Shares, Preferred Stock or Purchase
Contracts evidenced by such Units shall be promptly cancelled by the
Corporation, the Registrar, the Trustee, the Warrant Agent, the Deposit Agent,
and/or the Agent, as appropriate. The Corporation may at any time deliver
to the Corporation, the Registrar, the Trustee, the Warrant Agent, the Deposit
Agent, and/or the Agent, as appropriate, for cancellation any Unit Certificates
previously authenticated, countersigned, executed and delivered hereunder,
under the Warrant Agreement, which the Corporation may have acquired in
any manner whatsoever, and all Unit Certificates so delivered shall, upon
Issuer Order of the Corporation, be promptly cancelled by the Warrant Agent
and/or the Agent, as appropriate. No Unit Certificates shall be authenticated,
countersigned and executed in lieu of or in exchange for any Unit Certificates
cancelled as provided in this Section, except as permitted by this Agreement. All
cancelled Unit Certificates held by the Agent shall be disposed of in
accordance with its customary procedures and a certificate of their disposition
shall be delivered by the Agent to the Corporation, unless by Issuer Order the
Corporation shall direct that cancelled Unit Certificates be returned to it.


 


If the
Corporation or any Affiliate of the Corporation shall acquire any Unit
Certificate, such acquisition shall not operate as a cancellation of such Unit
Certificate unless and until such Unit Certificate is delivered to the
Corporation, the Registrar, the Trustee, the Warrant Agent, the Deposit Agent
and/or the Agent, as appropriate, for the purpose of cancellation.


 


19

















 


Section 2.12                             Exchange of Global Units and Definitive Units. In the case of Registered Units,
Holders of Global Units of any series shall receive Definitive Units of
such series in exchange for interests in such Global Units if DTC notifies
the Corporation that it is unwilling or unable to continue as Depositary with
respect to the Global Units of such series or if at any time it ceases to
be a clearing agency under the Exchange Act, and a successor Depositary
registered as a clearing agency under the Exchange Act is not appointed by the
Corporation within 90 days after receipt of such notice or after it becomes
aware that DTC has ceased to be such a clearing agency.


 


If so
provided pursuant to Section 2.03, interests in such Global Units may also
be transferred or exchanged for Definitive Units upon the request of the
Depositary to the Trustee, the Warrant Agent, the Deposit Agent, the
Corporation and/or the Agent, as appropriate, to authenticate, countersign and
execute, as the case may be, Unit Certificates representing Definitive
Units (such request being referred to herein as an “Optional Definitive Unit
Request”).


 


Definitive
Units exchanged for interests in Global Units pursuant to this Section 2.12
shall be denominated in the amounts and registered in the name of such Person
or Persons as the Depositary shall instruct the Agent, the Warrant Agent, the
Deposit Agent, the [Corporation] [Stock Transfer Agent] and the Trustee, as
appropriate.


 


Whenever
Global Units are exchanged for Definitive Units, the Agent shall cause Schedule A
of the Global Unit to be endorsed to reflect any decrease in the Global Units
as a result of such exchange, whereupon the Global Unit Certificate or
Certificates shall be canceled and disposed of in accordance with Section 2.11.


 


If so
specified pursuant to Section 2.03, Holders of Definitive Units may transfer
or exchange such Definitive Units for interests in Global Units by depositing
the Unit Certificates evidencing such Definitive Units with the Agent and
requesting the Agent, the Warrant Agent, the Deposit Agent and the Trustee, as
appropriate, to effect such exchange. The Agent shall notify the Depositary of
any such exchange and, upon delivery to the Agent, the Warrant Agent, the
Deposit Agent and the Trustee, as appropriate, of the Unit Certificates
evidencing the Definitive Units to be so transferred or exchanged, the Agent
shall take all actions required with respect to any Global Securities evidenced
by such Global Units and Unit Certificates evidencing the remaining Definitive
Units, if any, will be issued in accordance with Section 2.08.


 


ARTICLE 3



THE PURCHASE CONTRACTS; SETTLEMENT OF WARRANTS


 


Section 3.01                             Form and Execution of Purchase
Contracts; Temporary Purchase Contracts.  (a)  Purchase Contracts of each series shall
be substantially in the forms attached as Exhibit A, as
appropriate, or in such form (not inconsistent with this Agreement) as
shall be established by or pursuant to one or more Board Resolutions (as set
forth in a Board Resolution or, to the extent established pursuant to rather
than set forth in a Board Resolution, an Officer’s Certificate detailing such
establishment, in each case, which may be included in any Board Resolution
or Officer’s Certificate made pursuant to this Agreement) or in one or more


 


20

















 


agreements supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Agreement. The Purchase
Contracts may have imprinted or otherwise reproduced thereon such letters,
numbers or other marks of identification or designation and such legends or
endorsements as the officers of the Corporation executing the same may approve
(execution thereof to be conclusive evidence of such approval) and that are not
inconsistent with the provisions of this Agreement, or as may be required
to comply with any law or with any rule or regulation made pursuant
thereto, or with any rule or regulation of any SRO on which the Purchase
Contracts of such series may be listed or quoted, or of any
securities depository, or to conform to general usage. Purchase Contracts
shall be signed on behalf of the Corporation by the chairman of the Board of
Directors, the president, the chief financial officer, the chief legal officer,
the treasurer or any assistant treasurer of the Corporation or any other person
authorized by the Board of Directors to execute Purchase Contracts, which
signature may or may not be attested by the secretary or an assistant
secretary of the Corporation. The signature of any of such officers may be
either manual or facsimile. Typographical and other minor errors or defects in
any such signature shall not affect the validity or enforceability of any
Purchase Contract that has been duly countersigned and delivered by the Agent.


 


(b)                                 In
case any officer of the Corporation who shall have signed a Purchase Contract,
either manually or by facsimile signature, shall cease to be such officer
before such Purchase Contract shall have been countersigned and delivered by
the Agent to the Corporation or delivered by the Corporation, such Purchase
Contract nevertheless may be countersigned and delivered as though the
person who signed such Purchase Contract had not ceased to be such officer of
the Corporation; and a Purchase Contract may be signed on behalf of the
Corporation by any person who, at the actual date of the execution of such
Purchase Contract, shall be a proper officer of the Corporation to sign such
Purchase Contract, although at the date of the execution of this Agreement any
such person was not such officer.


 


(c)                                  Pending
the preparation of final Purchase Contracts of any series, the Corporation may execute
and the Agent shall countersign and deliver temporary Purchase Contracts
(printed, lithographed, typewritten or otherwise produced, in each case in form satisfactory
to the Agent). Such temporary Purchase Contracts shall be issuable
substantially in the form of the final Purchase Contracts but with such
omissions, insertions and variations as may be appropriate for temporary
Purchase Contracts, all as may be determined by the Corporation with the
concurrence of the Agent. Such temporary Purchase Contracts may contain
such reference to any provisions of this Agreement as may be appropriate. Every
such temporary Purchase Contract shall be executed by the Corporation and shall
be countersigned by the Agent upon the same conditions and in substantially the
same manner, and with like effect, as the final Purchase Contracts. Without
unreasonable delay, the Corporation shall execute and shall furnish final
Purchase Contracts and thereupon such temporary Purchase Contracts may be
surrendered in exchange therefor without charge, and the Agent shall
countersign and deliver in exchange for such temporary Purchase Contracts final
Purchase Contracts evidencing a like aggregate number of Purchase Contracts of
the same series and of like tenor as those evidenced by such temporary
Purchase Contracts. Until so exchanged, such temporary Purchase Contracts shall
be entitled to the same benefits under this Agreement as final Purchase
Contracts.


 


21

















 


Section 3.02                             Number Unlimited Issuable in Series.  (a)  The aggregate
number of Purchase Contracts that may be delivered under this Agreement is
unlimited.


 


(b)                                 The
Purchase Contracts may be issued in one or more series. There shall be
established in or pursuant to one or more Board Resolutions (and to the extent
established pursuant to rather than set forth in a Board Resolution, in an
Officer’s Certificate detailing such establishment) or established in one or
more agreements supplemental hereto, prior to the initial issuance of Purchase
Contracts of such series:


 


(i)                                     the
designation of the Purchase Contracts of the series, which shall distinguish
the Purchase Contracts of the series from the Purchase Contracts of all
other series;


 


(ii)                                  any
limit upon the aggregate number of the Purchase Contracts of the series that
may be countersigned and delivered under this Agreement (disregarding any
Purchase Contracts countersigned and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Purchase Contracts of the series);


 


(iii)                               the specific property
(the “Purchase Contract Property”) used to determine the amount payable
upon settlement of the Purchase Contracts of the series, and the amount of such
property (or the method for determining the same);


 


(iv)                              whether
the Purchase Contracts of the series provide for the purchase by the
Corporation and the sale by the Holder or the sale by the Corporation and the
purchase by the Holder of the Purchase Contract Property;


 


(v)                                 in
the case of Purchase Contracts that obligate the Corporation to sell, and the
Holder to purchase, Purchase Contract Property, the Purchase Price at which
and, if other than U.S. dollars, the coin or currency with which the Purchase
Contract Property is to be purchased by the Holder upon settlement of the
Purchase Contracts of the series (or the method for determining the same)
and whether the Purchase Price for such Purchase Contracts may be paid in
cash or by the exchange of any other security of the Corporation, or both, or
otherwise, and the time at which such Purchase Price shall be paid (if
different from the settlement date);


 


(vi)                              in
the case of Purchase Contracts that obligate the Corporation to purchase, and
the Holders to sell, Purchase Contract Property, the Settlement Amount for the
Purchase Contracts of the series (or the method for determining the same)
and, if other than U.S. dollars, the coin or currency in which such Settlement
Amount is to be paid;


 


(vii)                           whether the settlement of
the Purchase Contracts of the series is to be in cash or by delivery of
the Purchase Contract Property, or otherwise, and the method of settlement of
the Purchase Contracts of the series;


 


(viii)                        the specific date or dates on
which the Purchase Contracts will be settled, whether the settlement may be
accelerated by the Corporation or the Holders thereof and, if so, the initial
accelerated settlement date, the minimum number of Purchase Contracts


 


22

















 


that may be accelerated and the minimum number of Purchase
Contracts greater than zero that must remain Outstanding immediately following
such acceleration;


 


(ix)                              whether
the Purchase Contracts of the series will be in registered form (“Registered
Purchase Contracts”) or bearer form (“Bearer Purchase Contracts”)
or both;


 


(x)                                 whether
any Purchase Contracts of the series will be issued in global form or
definitive form or both, and whether and on what terms (if different from
those set forth herein) Purchase Contracts in one form may be
converted into or exchanged for Purchase Contracts in the other form;


 


(xi)                              any
agents, depositaries, authenticating or paying agents, transfer agents or registrars
or any determination or calculation agents or other agents with respect to
Purchase Contracts of the series;


 


(xii)                           whether and on what terms
the Purchase Contracts of the series may be separated from the other
components of the Units of which the Purchase Contracts are a component;


 


(xiii)                        whether the Purchase Contracts
of such series will be subject to redemption by the Corporation and, if
so, the initial redemption date, the minimum number of Purchase Contracts that may be
redeemed and the minimum number of Purchase Contracts greater than zero that
must remain Outstanding immediately following such redemption; and


 


(xiv)                       any other terms of the Purchase
Contracts of the series (which terms shall not be inconsistent with the
provisions of this Agreement).


 


(c)                                  All
Purchase Contracts of any one series shall be substantially identical,
except as may otherwise be provided by or pursuant to the Board Resolution
or Officer’s Certificate referred to above or as set forth in any such
agreement supplemental hereto. All Purchase Contracts of any one series need
not be issued at the same time and may be issued from time to time,
consistent with the terms of this Agreement, if so provided by or pursuant to
such Board Resolution, such Officer’s Certificate or in any such agreement
supplemental hereto.


 


Section 3.03                             Countersignature, Execution on Behalf of
Holder and Delivery of Purchase Contracts.  (a)  The Corporation may deliver Purchase
Contracts of any series executed by the Corporation to the Agent for
countersignature and execution on behalf of the Holders, together with the
applicable documents referred to below in this Section, and the Agent shall
thereupon countersign, execute on behalf of the Holders and deliver such
Purchase Contracts to or upon the order of the Corporation (contained in the
Issuer Order referred to below in this Section) or pursuant to such procedures
acceptable to the Agent as may be specified from time to time by an Issuer
Order. If provided for in such procedures, such Issuer Order may authorize
countersignature, execution on behalf of the Holders and delivery pursuant to
oral instructions from the Corporation or its duly authorized agent, which
instructions shall be promptly confirmed in writing. In countersigning such
Purchase Contracts, executing such Purchase Contracts on behalf of the Holders
and accepting the responsibilities under this Agreement in relation to the
Purchase Contracts, the Agent shall be entitled to receive (in the case of


 


23

















 


subparagraphs (ii), (iii) and
(iv) below only at or before the time of the first request of the
Corporation to the Agent to countersign and execute on behalf of the Holders
Purchase Contracts in a particular form) and shall be fully protected in relying
upon, unless and until such documents have been superseded or revoked:


 


(i)                                     an
Issuer Order requesting such countersignature and execution and setting forth
delivery instructions if the Purchase Contracts are not to be delivered to the
Corporation;


 


(ii)                                  any
Board Resolution, Officer’s Certificate and/or executed supplemental agreement
pursuant to which the forms and terms of the Purchase Contracts were
established;


 


(iii)                               an Officer’s Certificate
setting forth the forms and terms of the Purchase Contracts, stating that the form or
forms and terms of such Purchase Contracts have been established pursuant to
Sections 3.01 and 3.02 and comply with this Agreement, and covering such
other matters as the Agent may reasonably request; and


 


(iv)                              At
the option of the Corporation, either an Opinion of Counsel or a letter
addressed to the Agent permitting it to rely on an Opinion of Counsel,
substantially to the effect that:


 


(A)                               the
forms of the Purchase Contracts have been duly authorized and established in conformity
with the provisions of this Agreement;


 


(B)                               the
terms of the Purchase Contracts have been duly authorized and established in
conformity with the provisions of this Agreement and certain terms of the
Purchase Contracts have been established pursuant to a Board Resolution, an
Officer’s Certificate or a supplemental agreement in accordance with this
Agreement, and when such other terms as are to be established pursuant to
procedures set forth in an Issuer Order shall have been established, all terms will
have been duly authorized by the Corporation and will have been established in
conformity with the provisions of this Agreement; and


 


(C)                               when
the Purchase Contracts have been executed by the Corporation and by the Agent
on behalf of the Holders and countersigned by the Agent in accordance with the
provisions of this Agreement and delivered to and duly paid for by the
purchasers thereof, subject to such other conditions as may be set forth
in such opinion of counsel, they will have been duly issued under this
Agreement and will be valid and legally binding obligations of the Corporation,
enforceable in accordance with their respective terms, and will be entitled to
the benefits of this Agreement.


 


In
rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely, as
to all


 


24

















 


matters governed by the
laws of jurisdictions other than the State of New York and the federal law of
the United States, upon opinions of other counsel (copies of which shall be
delivered to the Agent), who shall be counsel reasonably satisfactory to the
Agent, in which case the opinion shall state that such counsel believes such
counsel and the Agent are entitled so to rely. Such counsel may also state
that, insofar as such opinion involves factual matters, such counsel has
relied, to the extent such counsel deems proper, upon certificates of officers
of the Corporation and its subsidiaries and certificates of public officials.


 


(b)                                 The
Agent shall have the right to decline to countersign, execute on behalf of the
Holders and deliver any Purchase Contract under this Section if the Agent,
being advised by counsel, determines that such action may not lawfully be
taken by the Corporation or if the Agent in good faith by its board of
directors or board of trustees determines that such action would expose the
Agent to personal liability to existing registered or beneficial holders of
Purchase Contracts or would affect the Agent’s own rights, duties or immunities
under the Purchase Contracts, this Agreement or otherwise.


 


(c)                                  If
the Corporation shall establish pursuant to Section 3.02 that the Purchase
Contracts of a series are to be evidenced by one or more Global Purchase
Contracts, then unless otherwise agreed between the Corporation and the Agent
the Corporation shall execute and the Agent shall, in accordance with this Section and
the Issuer Order with respect to such series, countersign, execute on behalf of
the Holders and deliver one or more Global Purchase Contracts that (i) shall
evidence all or a portion of the Purchase Contracts of such series issued
in such form and not yet cancelled, (ii) in the case of Registered Purchase
Contracts, shall be registered in the name of the Depositary for such Purchase
Contracts or the nominee of such Depositary, (iii) shall be delivered by
the Agent to such Depositary or pursuant to such Depositary’s instructions and (iv) in
the case of Registered Purchase Contracts, shall bear a legend substantially to
the following effect:  “Unless and until
it is exchanged in whole or in part for Purchase Contracts in definitive
registered form, this Purchase Contract may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.”


 


(d)                                 If
so required by applicable law, each Depositary for a series of Registered
Purchase Contracts must, at the time of its designation and at all times while
it serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and any other applicable statute or
regulation.


 


(e)                                  Each
Purchase Contract shall be dated the date of its countersignature. A Purchase
Contract shall not be valid for any purpose, unless and until such Purchase
Contract has been executed by the Agent on behalf of the Holder and
countersigned by the manual or facsimile signature of an authorized officer of
the Agent. Such countersignature by an authorized officer of the Agent upon any
Purchase Contract executed by the Corporation in accordance with this Agreement
shall be conclusive evidence that the Purchase Contract so countersigned has
been duly delivered and issued hereunder.


 


25

















 


Section 3.04                             Further Provisions Relating to Issuance of Purchase
Contracts.  Purchase
Contracts may be executed by the Corporation and delivered to the Agent
upon the execution of this Agreement or from time to time thereafter and in
connection with exchanges, substitutions and transfers of Units of any series. Subsequent
to the original issuance of the Purchase Contracts, the Agent shall, subject to
the conditions set forth in this Article and Article Two, countersign
and execute on behalf of the Holder Purchase Contracts issued in exchange or
substitution for or upon transfer of Unit Certificates evidencing one or more
previously countersigned and executed Unsettled Purchase Contracts evidenced by
the Unit Certificates to be exchanged, substituted for or transferred.


 


Section 3.05                             Purchase
of Purchase Contract Property; Optional Acceleration of Purchase Obligations;
Authorization of Agent by Holder; Transferees Bound.  (a)  Unless
otherwise specified pursuant to Section 3.02, the Unsettled Purchase
Contracts of any series will either (i) obligate the Holders thereof
to purchase, and the Corporation to sell or deliver the cash value of, Purchase
Contract Property or (ii) obligate the Corporation to purchase, and the
Holders thereof to sell or deliver the cash value of, Purchase Contract
Property, in each case specified pursuant to Section 3.02 (or a quantity
calculated by a method specified pursuant to Section 3.02) on the Stated
Settlement Date at the Purchase Price specified pursuant to Section 3.02.


 


(b)                                 If
this Section is specified as applicable pursuant to Section 3.02, the
Corporation may, subject to paragraph (c) of this Section, at its
sole option and in its sole discretion at any time or from time to time (unless
otherwise specified pursuant to Section 3.02) on not less than 30 nor more
than 60 days’ written notice (an “Acceleration Notice”) to the Agent and
the Holders, in the manner provided in Section 11.05 and Section 11.06,
respectively, accelerate the obligations of the Holders of at least the Minimum
Acceleration Amount of Unsettled Purchase Contracts to purchase or sell, as the
case may be, and of the Corporation to sell or purchase, as the case may be,
on any Accelerated Settlement Date (provided that such Accelerated Settlement
Date may not be prior to the Initial Acceleration Date), the quantity of
Purchase Contract Property specified pursuant to Section 3.02 for each
Unsettled Purchase Contract subject to such acceleration; provided that no such
acceleration with respect to fewer than all Unsettled Purchase Contracts shall
(unless otherwise specified pursuant to Section 3.02) result in fewer than
the Minimum Remaining Amount of Unsettled Purchase Contracts remaining
Outstanding after such Accelerated Settlement Date; and provided further that
the Corporation shall have the right, in its sole discretion, on or before the
10th day prior to such Accelerated Settlement Date, to rescind any Acceleration
Notice by written notice to the Agent and written notice to the Holders
pursuant to Section 11.05 and 11.06 (whereupon all rights and obligations
of the Corporation and the Holders that would have arisen as a result of such
Acceleration Notice shall be of no force and effect), without prejudice to the
rights of the Corporation, including, without limitation, its rights to deliver
an Acceleration Notice in the future. If fewer than all Unsettled Purchase
Contracts of such series are to be accelerated to a particular Accelerated
Settlement Date, the Agent shall select from among the Unsettled Purchase
Contracts such number thereof as are being accelerated on a pro rata basis, by
lot or by such other means reasonably acceptable to the Agent, with appropriate
adjustment being made to prevent the fractional acceleration of the settlement
of Purchase Contracts, such that the settlement of Purchase Contracts are accelerated
only in whole and not in part.


 


26

















 


(c)                                  Each
Holder of a Unit, by his acceptance thereof, authorizes and directs the Agent
to enter into, deliver and perform any Purchase Contracts that are part of
such Unit on his behalf, agrees to be bound by the terms and provisions
thereof, covenants and agrees to perform its obligations under the
Purchase Contracts evidenced by such Unit, and consents and agrees to the
provisions hereof. If the provisions of Section 3.06 are applicable to the
Units of any series, each Holder of a Unit of such series, by his acceptance
thereof, further covenants and agrees that, to the extent such Holder is deemed
to have elected to satisfy its obligations under any Purchase Contracts that
are part of such Unit or to pay the exercise price of any Warrants that
are part of such Unit, in either case by effecting a Security Settlement
as provided in Section 3.06, and subject to the terms thereof, redemption
payments with respect to any Securities that are part of such Unit shall
be applied by the Agent in satisfaction of such Holder’s obligations under such
Purchase Contract on the applicable Settlement Date or in payment of such
exercise price on the applicable exercise date.


 


(d)                                 Upon
registration of transfer of a Purchase Contract of any series, the transferee
shall be bound (without the necessity of any other action on the part of
such transferee, except as may be required by the Agent pursuant to this Article Three)
under the terms of this Agreement and such Purchase Contract, and the
transferor shall be released from the obligations under the Purchase Contract
so transferred.


 


(e)                                  Each
Holder of a Unit of any series, by his acceptance thereof, authorizes the Agent
to execute on his behalf any Purchase Contracts that are part of such
Unit, authorizes and directs the Agent on his behalf to take such other action
(including without limitation any actions required under Article Five),
and covenants and agrees to take such other action as may be necessary or
appropriate, or as may be required by the Agent, to effect the provisions
of this Agreement, the Units and the Purchase Contracts and appoints the Agent
as his attorney in fact for any and all such purposes.


 


Section 3.06                             Payment of Purchase Price.  (a)  Unless
otherwise specified pursuant to Section 3.02 (in the case of a Unit of any
series consisting of Securities including a Purchase Contract that
obligates the Corporation to sell, and the Holder to purchase, Purchase
Contract Property) or the Warrant Agreement (in the case of a Unit of any series consisting
of Securities including a Warrant that is a “call warrant” (as defined in the
Warrant Agreement)), the Purchase Price for any Purchase Contract Property
purchased by a Holder pursuant to such Purchase Contract shall be payable at
the Corporate Trust Office of the Agent and the exercise price for any Warrant
Property purchased by a Holder pursuant to such Warrant shall be payable at the
place or places specified in or pursuant to the Warrant Agreement:


 


(i)                                     at
the option of the Holder of the Unit of which such Purchase Contract or Warrant
is part, after receipt by the Agent, in the case of the Purchase Contract, of
written notice from the Holder not less than 10 days nor more than 20 days
prior to the applicable Settlement Date or, in the case of the Warrant, after
receipt by the Warrant Agent of the written exercise notice on the exercise
date indicating the Holder’s choice of cash settlement, by delivery by such
Holder not later than 11:00 a.m., New York City time, on the Business Day
immediately preceding the Settlement Date, in the case of the Purchase
Contract, or on the exercise date, in the case of the Warrant, of the Purchase
Price or exercise price, as the case may be (a “Cash Settlement”),
to the Agent, in the case of the


 


27

















 


Purchase Contract, or the Warrant Agent, in the case of Warrant, in
immediately available funds payable to or upon the order of the Corporation; or


 


(ii)                                  by
application of any payment received by the Agent (whether in its capacity as
Agent, Collateral Agent, Trustee or Paying Agent) with respect to the
Securities included in the Unit of which such Purchase Contract or Warrant
constitutes a part, as provided in paragraph (f) of this Section (a
“Security Settlement”).


 


A
Holder of such Units who fails to provide notice to the Agent or the Warrant
Agent, as the case may be, as provided above that it will make a Cash
Settlement with respect to the settlement of a Purchase Contract or Warrants,
or a Holder of such Units who provides such notice but does not effect a Cash
Settlement in accordance with the terms of this Section 3.06, will be
deemed to have elected to have the Purchase Price for the Purchase Contract Property,
or the exercise price for the Warrant, paid pursuant to a Security Settlement.


 


(b)                                 Notwithstanding
paragraph (a) of this Section, in the case of Purchase Contracts of
any series that obligate the Corporation to sell, and the Holders to
purchase, Purchase Contract Property or in the case of Warrants that are “call
warrants”, the Corporation shall not be entitled to sell any Purchase Contract
Property or Warrant Property, or receive any payment of the Purchase Price or
exercise price therefor, if the Corporation fails to deliver such Purchase
Contract Property or Warrant Property or the cash value thereof (if specified
pursuant to Section 3.02 or the Warrant Agreement or the applicable
Warrants) against tender by the Agent of payment therefor.


 


(c)                                  Unless
otherwise specified pursuant to Section 3.02, to be effective, payment
with respect to a Purchase Contract or Warrant pursuant to a Cash Settlement
must be deposited with the Agent or the Warrant Agent by 11:00 a.m., New
York City time, in the case of the Purchase Contract, on the Business Day
immediately preceding the Settlement Date or, in the case of a Warrant, on the
exercise date and must be made with respect to all (and not fewer than all) of
the Purchase Contracts or Warrants to be settled on such Settlement Date or
exercise date (i) included in the Definitive Units that are registered in
the name of the Person effecting Cash Settlement in the Purchase Contract
Register or Warrant Register, as the case may be, (ii) included in
the Global Units that are beneficially owned by the Person effecting Cash
Settlement as specified in the records of the direct and indirect participants
of the Depositary or (iii) in the case of Purchase Contracts or Warrants
included in Unregistered Definitive Units, owned by the Person effecting Cash
Settlement, and, in the case of (ii) and (iii) above, as certified in
writing by such Person, which certification shall be collected, in the case of (ii) above,
on behalf of such Person by the direct and indirect participants in the
Depositary through which such Person holds interests in the Global Units, and
which will be provided to the Agent or the Warrant Agent, in the case of (iii) above,
by such Person or, in the case of (i) above, by the Depositary or any
direct participant of such Depositary, at the time payment pursuant to a Cash
Settlement is deposited with the Agent or the Warrant Agent. Any attempted Cash
Settlement other than in accordance with this Section 3.06 shall be deemed
to have not been made and any payments made to the Agent or the Warrant Agent
by a Holder not complying with this Section 3.06 shall be returned by the
Agent or the Warrant Agent to such Holder.


 


28

















 


(d)                                 The
Corporation shall not be obligated to deliver any Purchase Contract Property
(or the cash value thereof) with respect to a Purchase Contract of any series that
obligates the Corporation to sell, and the Holder to purchase, Purchase
Contract Property unless it shall have received payment in full of the
applicable Purchase Price for any Purchase Contract Property to be purchased
thereunder in the manner set forth herein or in any Issuer Order relating to
the issuance of the Purchase Contracts of such series. The Corporation shall
not be obligated to pay the Purchase Price or any other Settlement Amount for
any Purchase Contract Property to be purchased by the Corporation pursuant to
any Purchase Contract that obligates the Corporation to purchase, and the
Holder to sell, Purchase Contract Property unless it shall have received such
Purchase Contract Property (or the cash value thereof) or any other Settlement
Amount in the manner set forth herein or as specified pursuant to Section 3.02.


 


(e)                                  In
the case of Purchase Contracts that obligate the Corporation to sell, and the
Holders to purchase, Purchase Contract Property or Warrants that are call
warrants evidencing the Holder’s right to purchase Warrant Property, in each
case consisting of securities in registered form, the Agent shall cause such securities
deliverable in respect of such Purchase Contracts or Warrants, as the case may be,
to be registered, in the case of Registered Units, in the name of the Holder of
such Units as set forth in the appropriate Securities Register.


 


(f)                                   Unless
a Holder of a Unit of any series has pre-paid his obligations or has
effected a Cash Settlement in satisfaction of his obligations under any
Purchase Contracts or Warrants constituting a part of such Unit that
obligate the Holder, or represent the Holder’s right, to purchase Purchase
Contract Property or Warrant Property, respectively, any payment with respect
to any Securities evidenced by such Unit that is received by the Agent (whether
in its capacity as Agent, Collateral Agent, Deposit Agent, Trustee or Paying Agent)
in connection with any Security Settlement shall be paid by the Agent to the
Collateral Agent for delivery to the Corporation in satisfaction of the Holder’s
obligations under the Global Purchase Contract or Purchase Contracts or Global
Warrant or Warrants constituting a part of such Units. Any payment that is
received by the Agent (whether in its capacity as Agent, Collateral Agent,
Deposit Agent, Trustee or Paying Agent) with respect to a Security related to a
Purchase Contract or Warrant that has been settled in accordance with Section 3.06(a)(ii) shall
be distributed to the Holders of Units upon surrender of the appropriate Unit
Certificate.


 


(g)                                  Except
as otherwise specified pursuant to Section 3.02, all payments to be made
by the Holders or by the Agent (whether in its capacity as Agent, Collateral
Agent, Trustee, Deposit Agent or Paying Agent) shall be made in lawful money of
the United States of America, by certified check or wire transfer in
immediately available funds in accordance with such regulations as the Agent may reasonably
establish consistent with the provisions of this Agreement.


 


(h)                                 Any
payment of the applicable Purchase Price or exercise price deposited by a
Holder hereunder with respect to a Purchase Contract or Warrant shall be held
by the Agent or Warrant Agent, as the case may be, in custody for the
benefit of the Holder and applied in satisfaction of such Holder’s obligations
under such Purchase Contract or Warrant, or released and delivered to the
Holder upon the failure of the Corporation to satisfy its settlement
obligations against tender by the Agent or Warrant Agent, as the case may be,
of such payment of the applicable Purchase Price or the exercise price.


 


29

















 


Section 3.07                             Delivery of Purchase Contract Property or
Other Amounts.  Unless
otherwise specified pursuant to Section 3.02, (i) in the case of
Purchase Contracts obligating the Corporation to sell, and the Holders to
purchase, Purchase Contract Property or Warrants that are call warrants, upon
its receipt of payment in full of the Purchase Price or exercise price for the
Purchase Contract Property or Warrant Property purchased by any Holder pursuant
to the foregoing provisions of this Article or the Warrant Agreement, the
Corporation shall cause such Purchase Contract Property or Warrant Property to
be delivered to the Holders; and (ii) in the case of Purchase Contracts
obligating the Corporation to purchase, and the Holders to sell, Purchase
Contract Property or Warrants that are “put warrants” (as defined in the
Warrant Agreement), upon its receipt of the Purchase Contract Property, Warrant
Property, Settlement Amount or other amount, the Corporation shall cause the
Purchase Price, exercise price, Settlement Amount or other amount, as
applicable, to be delivered to the Holders, provided that in each case such
delivery shall be made only upon delivery to the Agent of the related Unit
Certificate.


 


Upon
receipt of any Unit Certificate, the Agent shall cancel such Unit Certificate
in accordance with Section 2.11 as a result of the delivery referred to in
the preceding paragraph. If any Securities relating to Closed Purchase
Contracts or exercised Warrants constituting a part of Units evidenced by
such Unit Certificate remain Outstanding as a result of Cash Settlement, the
Corporation shall execute and the Trustee Corporation, Warrant Agent or Deposit
Agent, as the case may be, shall authenticate and deliver (i) in the
case of Definitive Units, to the Holder thereof, in accordance with the terms
of the applicable Indenture, Warrant Agreement, Certificate of Incorporation,
or Deposit Agreement, as applicable, a new certificate or certificates
representing solely the Securities still Outstanding (ii) in the case of
Global Units, if a Global Security not constituting part of a Global Unit
has not previously been issued by the Corporation, a second Global Security
representing Securities still Outstanding that are not part of Units. If a
second Global Security referred to in clause (ii) of the immediately
preceding sentence has already been issued, the Agent shall note thereon an
appropriate increase in the number of Securities represented by such Global
Security.


 


Section 3.08                             Charges and Taxes.  The Corporation shall not be
required to pay any tax or taxes that may be payable with respect to any
exchange of or substitution for a Unit Certificate or Security and the
Corporation shall not be required to issue or deliver such Unit Certificate or
such Security unless or until the Person or Persons requesting the transfer or
issuance thereof shall have paid to the Corporation the amount of such tax or
shall have established to the satisfaction of the Corporation that such tax has
been paid. The Agent shall be under no obligation to pay any such tax.


 


ARTICLE 4



REMEDIES


 


Section 4.01                             Acceleration of Obligations.  If at any time there shall
have occurred an Event of Default with respect to any Debt Securities
constituting a part of any Units that has resulted in the principal of any
Debt Securities being declared due and payable immediately pursuant to Section 5.1
of the applicable Indenture, then the Holders of not less than 25% of all
Unsettled Purchase Contracts constituting a part of any Units including
Debt


 


30

















 


Securities subject to such
declaration may on behalf of all Holders of such Unsettled Purchase
Contracts by notice in writing to the Corporation and Agent declare the
obligations of such Holders to purchase or sell, as the case may be, and
of the Corporation to sell or purchase, as the case may be, the quantity
of Purchase Contract Property specified pursuant to Section 3.02 under
each such Unsettled Purchase Contract to be accelerated to the date of such
declaration and, upon any such declaration, such obligations shall be so
accelerated. The foregoing provision is subject to the condition that if, at
any time prior to settlement of such Purchase Contracts, the declaration with
respect to Debt Securities referred to in the immediately preceding sentence
and its consequences are rescinded and annulled in accordance with Section 5.1
of the applicable Indenture, the acceleration of the obligations with respect
to Unsettled Purchase Contracts referred to in the immediately preceding sentence
and its consequences may be annulled and rescinded by vote of the Holders
of not less than 25% of all affected Unsettled Purchase Contracts Outstanding.


 


Section 4.02                             Unconditional Rights Under Purchase
Contracts; Limitation on Proceedings by Holders.  (a)  The Holder of
any Unit shall have the right, which is absolute and unconditional, to purchase
or sell, as the case may be, Purchase Contract Property pursuant to such
Purchase Contract and to institute suit for the enforcement of such right, and
such right shall not be impaired without the consent of such Holder.


 


(b)                                 No
Holder of any Unit shall have any right by virtue of or by availing itself of
any provision of this Agreement to institute any action or proceeding at law or
in equity or in bankruptcy or otherwise upon or under or with respect to this
Agreement, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given written notice to the Agent and the Corporation of
a Default and of the continuance thereof and, (i) in the case of an Event
of Default under Debt Securities or the applicable Indenture, the procedures
(including notice to the Trustee and the Corporation) described in Article Five
of the applicable Indenture have been complied with and (i) in the case of
a Purchase Contract Default specified in clause (ii) of the
definition thereof, unless the Holders of not less than 25% of all affected
Purchase Contracts comprised by all Units then Outstanding shall have made
written request upon the Agent to institute such action or proceedings in its
own name as Agent hereunder and shall have offered to the Agent such reasonable
indemnity as it may require pursuant to Article Six, and the Agent
for 60 days after its receipt of such notice, request and offer of indemnity
shall have failed to institute such action or proceedings and no direction
inconsistent with such request shall have been given to the Agent in writing by
holders of a majority of all affected Purchase Contracts constituting parts of
Units then Outstanding. Any Holder of a Unit may then (but only then) seek
to enforce the performance of the covenant or agreement with respect to which
such Purchase Contract Default exists; it being intended and expressly
covenanted by the Holder of each Unit with every other Holder and the Agent
that no Holder shall have any right by virtue of or by availing itself of any
provision of this Agreement to affect, disturb or prejudice the rights of any
other Holder, or to obtain or seek to obtain priority over or preference to any
other Holder, or to enforce any right under this Agreement, except in
accordance with this Section or the Indenture and for the equal, ratable
and common benefit of all Holders. For the protection and enforcement of the
provisions of this Section, each and every Holder of a Unit and the Agent shall
be entitled to such relief as can be given either at law or in equity.


 


31

















 


Section 4.03                             Restoration of Rights and Remedies.  If any Holder of Units has
instituted any proceeding to enforce any right or remedy under this Agreement
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to such Holder, then and in every such case, subject
to any determination in such proceeding the Corporation, the Agent, the Trustee
and such Holder shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies the Corporation, the
Agent, the Trustee and such Holder shall continue as though no such proceeding
had been instituted.


 


Section 4.04                             Rights and Remedies Cumulative.  Subject to Section 4.02,
and except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Unit Certificates, no right or remedy
herein conferred upon or reserved to the Holders of Units is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.


 


Section 4.05                             Delay or Omission Not Waiver.  No delay or omission of any
Holder to exercise any right or remedy accruing upon any Default shall impair
any such right or remedy or constitute a waiver of any such Default or an
acquiescence therein. Every right and remedy given by this Article or by
law to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by such Holders.


 


Section 4.06                             Waiver of Past Defaults.  The Holders of not less than a
majority of all affected Purchase Contracts at the time Outstanding may on
behalf of the Holders of all affected Units waive any past Purchase Contract
Default hereunder and its consequences, except, unless theretofore cured (i) a
Purchase Contract Default resulting from the failure of the Corporation to
deliver (A) in the case of Purchase Contracts obligating the Corporation
to sell, and the Holders to purchase, Purchase Contract Property (or the cash
value specified pursuant to Section 3.02), Purchase Contract Property (or
the cash value thereof) against tender of payment therefor or (B) in the
case of Purchase Contracts obligating the Corporation to purchase, and the
Holders to sell, Purchase Contract Property (or the cash value specified
pursuant to Section 3.02), the applicable Purchase Price or other
Settlement Amount specified pursuant to Section 3.02 against tender of
Purchase Contract Property or other amount specified pursuant to Section 3.02
therefor or (ii) a Purchase Contract Default with respect to a covenant or
provision hereof which under Article Seven cannot be modified or amended
without approval of the Holder of each affected Purchase Contract that is a part of
an Outstanding Unit of any series. In the case of any such waiver, the Holders,
the Agent and the Corporation shall be restored to their former positions and
rights hereunder, respectively.


 


Upon
any such waiver, such Purchase Contract Default shall cease to exist, for every
purpose of this Agreement, but no such waiver shall extend to any subsequent or
other Purchase Contract Default or impair any right consequent thereon unless
so expressly therein provided.


 


32

















 


Section 4.07                             Undertaking for Costs.  All parties to this Agreement
agree, and each Holder of any Unit by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Agreement, or in any suit
against the Agent for any action taken, suffered or omitted by it as Agent, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys’ fees, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; provided that the provisions of this Section shall
not apply to any suit instituted by the Agent, to any suit instituted by any
Holder of Units, or group of Holders, holding in the aggregate more than 10% of
the Outstanding Units, or to any suit instituted by any Holder for enforcement
of the right to purchase or sell Purchase Contract Property under the Purchase
Contracts constituting a part of the Units held by such Holder or to
receive payment of the applicable Purchase Price (or other Settlement Amount
that may be specified pursuant to Section 3.02) with respect thereto.


 


Section 4.08                             Waiver of Stay or Extension Laws.  The Corporation covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of
this Agreement; and the Corporation (to the extent that it may lawfully do
so) each hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Agent, or the Holders, but will suffer and permit the
execution of every such power as though no such law had been enacted.


 


Section 4.09                             Agent May File Proofs of Claims.  In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy or other judicial proceeding
relating to the Corporation or the property of the Corporation or its
creditors, the Agent shall be entitled and empowered, by intervention in such
proceeding or otherwise,


 


(i)                                     to
file and prove a claim and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Agent, its agents and counsel) and of the Holders allowed in such judicial
proceeding; and


 


(ii)                                  to
collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same; and any receiver, assignee, trustee,
liquidator or other similar official in any such proceeding is hereby
authorized by each Holder to make such payments to the Agent, and in the event
that the Agent shall consent to the making of such payments directly to the
Holders, to pay to the Agent any amount due to it hereunder; provided, however,
that nothing herein shall be deemed to authorize the Agent to authorize or
consent to or vote for or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Units or
the rights of any Holder thereof, or to authorize the Agent to vote in respect
of the claim of any Holder of Units in any such proceeding.


 


33

















 


Section 4.10                             Suits for Enforcement.  In case a Purchase Contract
Default has occurred, has not been waived and is continuing, and subject to
receipt by the Agent of the request referred to in Section 4.02 or the
direction referred to in Section 4.11 and the security or indemnity
referred to in Section 6.03(f), the Agent shall have the right to enforce,
on behalf of the Holders, the Purchase Contracts and the covenants and
agreements of the Corporation contained in the Purchase Contracts and in this
Agreement with respect to the Purchase Contracts and to proceed to protect and
enforce such rights by appropriate judicial proceedings to protect and enforce
any of such rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any such covenant or agreement
contained in this Agreement or in the Purchase Contracts or in aid of the
exercise of any power granted in this Agreement or to enforce any other legal
or equitable right vested in the Agent by this Agreement or by law.


 


All
rights of action and of asserting claims under this Agreement, or under the
Units or any Securities comprised by the Units, may be enforced by the
Agent without the possession of the Units or any of the Securities comprised by
the Units or the production thereof on any trial or other proceedings relative
thereto, and any such actions or proceedings instituted by the Agent shall be
brought in its own name as agent and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Agent, each
predecessor Agent and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Units or Securities in respect of which
such action was taken.


 


Section 4.11                             Control by Holders.  The Holders of a majority of
affected Outstanding Purchase Contracts constituting a part of any
Outstanding Units shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Agent, or exercising
any power conferred on the Agent with respect to such Purchase Contracts by
this Agreement; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this Agreement and provided further
that (subject to the provisions of Section 6.01) the Agent shall have the
right to decline to follow any such direction if the Agent, being advised by
counsel, shall determine that the action or proceeding so directed may not
lawfully be taken or if the Agent in good faith by its board of directors or
board of trustees or a committee of its Responsible Officers, shall determine
that the action or proceedings so directed could involve the Agent in personal
liability or if the Agent in good faith shall so determine that the actions or
forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of Units not joining in the giving of
said direction, it being understood that (subject to Section 6.01) the
Agent shall have no duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders.


 


Nothing
in this Agreement shall impair the right of the Agent in its discretion (but
subject to Section 4.10) to take any action deemed proper by the Agent and
which is not inconsistent with such direction or directions by Holders.


 


ARTICLE 5



SECURITY INTERESTS AND COLLATERAL AGENT


 


Section 5.01                             Granting of Security Interests; Rights and
Remedies of Collateral Agent; Perfection.  In order to secure the observance and performance of the
covenants and


 


34

















 


agreements of the Holders of
Purchase Contracts contained herein and in such Purchase Contracts, unless
otherwise specified pursuant to Section 2.03:


 


(a)                                 Effective
upon issuance of Units of any series consisting of Securities including
Purchase Contracts, and in order to secure the performance when due by the
Holders thereof of their respective obligations hereunder and under the
Purchase Contracts constituting a part of such Units, the Holders thereof
acting through the Agent, as their attorney-in-fact, shall be deemed to assign
and pledge unto the Collateral Agent, as agent of and for the benefit of the
Corporation, and grant to the Collateral Agent, as agent of and for the benefit
of the Corporation, a security interest in and to, and a lien upon (the “Pledge”),
all of their right, title and interest in and to (i) the Pledged Items now
or hereafter owned by such Holder; (ii) all additions to and substitutions
for such Pledged Items as may be permissible, if so specified pursuant to Section 3.02;
(iii) all income, proceeds and collections received or to be received, or
derived or to be derived, now or any time hereafter from or in connection with (i) and
(ii) above, and (iv) all powers and rights now owned or hereafter
acquired under or with respect to the Pledged Items (such Pledged Items,
additions, substitutions, proceeds, collections, powers and rights being herein
collectively called the “Collateral”). The Pledge is granted as security
only and shall not subject the Collateral Agent or the Corporation to, or
transfer or in any way modify, any obligation or liability of any Holder with
respect to any Pledged Item.


 


(b)                                 Prior
to or concurrently with the issuance of Global Units of any series of
which Securities including Purchase Contracts constitute a part, the initial
Holders and the Agent shall cause the Securities (other than the Purchase
Contracts) constituting a part of such Global Units to be delivered to the
Collateral Agent, and accompanied by an instrument of transfer executed in
blank.


 


(c)                                  The
Collateral Agent shall have all of the rights, remedies and recourse with
respect to the Collateral afforded a secured party by the Uniform Commercial
Code as in effect in the State of New York (whether or not said Code is in
effect in the jurisdiction where the rights and remedies are asserted), in
addition to, and not in limitation of, the other rights, remedies and recourse
(including rights of set off) afforded to the Collateral Agent by this
Agreement.


 


(d)                                 Each
Holder, to the extent permitted by applicable law, by accepting Units of any series issued
hereunder authorizes the Collateral Agent to file Uniform Commercial Code
financing or continuation statements naming such Holder as “debtor” (which may be
carbon, photographic, photostatic or other reproductions of this Agreement or
of a financing statement relating to this Agreement) which the Collateral Agent
in its sole discretion (but subject to Section 5.03(f)) may deem
necessary or appropriate to further perfect, or maintain the perfection of the
security interests granted hereby.


 


Section 5.02                             Distribution
of Payments; Release of Collateral.  Unless otherwise specified
pursuant to Section 2.03:


 


(a)                                 All
payments, including of principal, interest or dividends, on any Pledged Items
received by the Collateral Agent pursuant to Section 3.06(f) shall be
paid by the Collateral Agent in same day funds no later than 2:00 p.m.,
New York City time, on the Business Day such


 


35

















 


payments are received by the Collateral Agent or, if received on a day
that is not a Business Day or after 12:00 noon, New York City time, on a
Business Day, then such payment shall be made no later than 9:00 a.m., New
York City time, on the next succeeding Business Day to the Corporation, in full
satisfaction of the respective obligations of the Holders of the Units of which
such Pledged Items are a part under the Purchase Contracts forming a part of
such Units. Any such payments in excess of such obligations of the Holders
shall be promptly paid to the Agent to the account designated by it for such
purpose. All such payments received by the Agent as provided herein shall be
applied by the Agent pursuant to the provisions hereof.


 


(b)                                 Upon
notice to the Collateral Agent by the Agent that one or more Holders of Units
have elected to effect Cash Settlement of their respective obligations under
the Purchase Contracts forming a part of such Units in accordance with the
terms hereof, and that either the Agent has received from such Holders, and
paid to the Corporation, the related amounts pursuant to the terms of the
Purchase Contracts and this Agreement or no such payment is required, and that
all other conditions to such Cash Settlement have been satisfied, then the
Collateral Agent shall release from the Pledge the Pledged Items relating to
such Purchase Contracts.


 


Section 5.03                             Certain Duties and Responsibilities of the
Collateral Agent.  The
Collateral Agent accepts its duties and responsibilities hereunder as agent for
the Corporation, on and subject to the following terms and conditions:


 


(a)                                 The
Collateral Agent undertakes to perform such duties and only such duties as
are specifically set forth in this Agreement. No provision of this Agreement
shall be construed to relieve the Collateral Agent from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:


 


(i)                                     the
duties and obligations of the Collateral Agent with respect to the Units shall
be determined solely by the express provisions of this Agreement and the
Collateral Agent shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement against the
Collateral Agent; and


 


(ii)                                  in
the absence of bad faith on its part, the Collateral Agent may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any statements, certificates or opinions furnished to
the Collateral Agent and conforming to the requirements of this Agreement, but
in the case of any such statements, certificates or opinions that by any
provision hereof are specifically required to be furnished to the Collateral
Agent, the Collateral Agent shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Agreement.


 


(b)                                 The
Collateral Agent shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Collateral Agent, unless it shall be
proved that the Collateral Agent was negligent in ascertaining the pertinent
facts.


 


(c)                                  No
provision of this Agreement shall require the Collateral Agent to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any


 


36

















 


of its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it.


 


(d)                                 Whether
or not therein expressly so provided, every provision of this Agreement relating
to the conduct or affecting the liability of or affording protection to the
Collateral Agent shall be subject to the provisions of this Section.


 


(e)                                  The
Collateral Agent is acting solely as agent for the Corporation hereunder and
owes no fiduciary duties to any Person by virtue of this Agreement.


 


(f)                                   Except
as specifically provided herein, the Collateral Agent shall not be responsible
for the validity, sufficiency, collectibility or marketability of any
Collateral given to or held by it hereunder or for the validity or sufficiency
of the lien on the Collateral purported to be created hereby and shall have no
obligation to file any financing or continuation statement with respect to the
Collateral in any public office at any time or time.


 


Section 5.04                             Knowledge of the Collateral Agent.  The Collateral Agent shall not
be deemed to have knowledge of any default by any person under any Purchase
Contract, unless and until a Responsible Officer of the Collateral Agent
assigned to its Corporate Trustee Administration Department shall have actual
knowledge thereof or shall have received written notice thereof from the
Corporation or any Holder.


 


Section 5.05                             Certain
Rights of Collateral Agent.  Subject to the provisions of Section 5.03:


 


(a)                                 the
Collateral Agent may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
coupon, security or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;


 


(b)                                 any
request, direction, order or demand of the Corporation mentioned herein shall
be sufficiently evidenced by an Officer’s Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of the Corporation, as
the case may be, may be sufficiently evidenced by a Board Resolution;


 


(c)                                  the
Collateral Agent may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection with respect to any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon in accordance with such advice
or Opinion of Counsel;


 


(d)                                 the
Collateral Agent shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond, debenture,
note, coupon, security or other paper or document;


 


37

















 


(e)                                  the
Collateral Agent may execute any of the powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and the
Collateral Agent shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care by it
hereunder; and


 


(f)                                   the
Collateral Agent shall not be liable for any action taken or omitted by it in
good faith and believed by it to be authorized or within the discretion, rights
or powers conferred upon it by this Agreement.


 


Section 5.06                             Compensation
and Reimbursements.  The Corporation agrees:


 


(a)                                 to
pay to the Collateral Agent from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law with regard to the compensation of a trustee of an express
trust);


 


(b)                                 except
as otherwise expressly provided herein, to reimburse the Collateral Agent and any
predecessor Collateral Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Collateral Agent in
accordance with any provision of this Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and


 


(c)                                  to
indemnify the Collateral Agent and any predecessor Collateral Agent for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Agreement and its duties hereunder,
including the costs and expenses of defending itself against or investigating
any claim of liability in connection with the exercise or performance of any of
its powers or duties hereunder.


 


The
obligations of the Corporation under this Section to compensate and
indemnify the Collateral Agent and any predecessor Collateral Agent and to pay
or reimburse the Collateral Agent and any predecessor Collateral Agent for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the resignation or removal of such Collateral Agent
or predecessor Collateral Agent or the termination hereof or of any Purchase
Contract. Such additional indebtedness shall be a senior claim to that of the
Units upon all property and funds held or collected by the Collateral Agent as
such, except funds held in trust for the benefit of the Holders of Units, and
the Units are hereby subordinated to such senior claim.


 


Section 5.07                             Corporate Collateral Agent Required
Eligibility.  There
shall at all times be a Collateral Agent hereunder which shall be a corporation
organized and doing business under the laws of the United States of America,
any State thereof or the District of Columbia, having, together with its
parent, a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal, State or District of Columbia authority
and willing to act on reasonable terms. If such corporation, or its parent,
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such


 


38

















 


corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. The Collateral Agent hereunder shall at all times be
the Agent hereunder, the Trustee and a Paying Agent under the applicable
Indenture, the Warrant Agent under the Warrant Agreement, and the Deposit Agent
under the Deposit Agreement, subject to receipt of an Opinion of Counsel that
the same Person is not precluded by law from acting in such capacities. If at
any time the Collateral Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. The Collateral Agent may appoint
one or more sub collateral agents with offices or agencies in a city or cities
outside the United States.


 


Section 5.08                             Resignation and Removal; Appointment of
Successor.  (a)  No
resignation or removal of the Collateral Agent and no appointment of a
successor Collateral Agent pursuant to this Article shall become effective
until the acceptance of appointment by the successor Collateral Agent in
accordance with the applicable requirements of Section 5.09.


 


(b)                                 The
Collateral Agent may resign by giving written notice thereof to the
Corporation and the Holders, in accordance with Section 11.05 and Section 11.06,
60 days prior to the effective date of such resignation. The Collateral Agent may be
removed at any time upon 60 days’ notice by the filing with it of an instrument
in writing signed on behalf of the Corporation and specifying such removal and
the date when it is intended to become effective. If the instrument of
acceptance by a successor Collateral Agent required by Section 5.09 shall
not have been delivered to the Collateral Agent within 30 days after the giving
of such notice of resignation, the resigning Collateral Agent may petition
any court of competent jurisdiction for the appointment of a successor
Collateral Agent.


 


(c)                                  If
at any time:


 


(i)                                     the
Collateral Agent shall cease to be eligible under Section 5.07, or shall
cease to be eligible as Agent hereunder, as Trustee under the applicable
Indenture, Warrant Agent under the Warrant Agreement or as Deposit Agent under
the Deposit Agreement, and shall fail to resign after written request therefor
by the Corporation, or


 


(ii)                                  the
Collateral Agent shall become incapable of acting with respect to the
Collateral or shall be adjudged a bankrupt or insolvent, or a receiver or
liquidator of the Collateral Agent or of its property shall be appointed or any
public officer shall take charge or control of the Collateral Agent or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, the Corporation, by Board Resolution or
Officer’s Certificate, may remove the Collateral Agent and appoint a
successor Collateral Agent.


 


(d)                                 If
the Collateral Agent shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Collateral Agent for any cause, the
Corporation, by Board Resolution or Officer’s Certificate, shall promptly
appoint a successor Collateral Agent or Collateral Agents (other than the
Corporation) and shall comply with the applicable requirements of Section 5.09.


 


39






 










 


(e)                                  The
Corporation shall give, or shall cause such successor Collateral Agent to give,
notice of each resignation and each removal of the Collateral Agent and each
appointment of a successor Collateral Agent to all Holders of Units in
accordance with Section 11.06. Each notice shall include the name of the
successor Collateral Agent and the address of its Corporate Trust Office.


 


Section 5.09                             Acceptance of Appointment by Successor.  (a)  In case of the
appointment hereunder of a successor Collateral Agent, every such successor
Collateral Agent so appointed shall execute, acknowledge and deliver to the
Corporation and to the retiring Collateral Agent an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Collateral
Agent shall become effective and such successor Collateral Agent, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, agencies and duties of the retiring Collateral Agent, with like effect
as if originally named as Collateral Agent hereunder; but, on the request of
the Corporation or the successor Collateral Agent, such retiring Collateral
Agent shall, upon payment of all amounts due and payable to it pursuant to Section 5.06,
execute and deliver an instrument transferring to such successor Collateral
Agent all the rights and powers of the retiring Collateral Agent and shall duly
assign, transfer and deliver to such successor Collateral Agent all property
and money held by such retiring Collateral Agent hereunder. Any retiring
Collateral Agent shall, nonetheless, retain a prior claim upon all property or
funds held or collected by such Collateral Agent to secure any amounts then due
it pursuant to Section 5.06.


 


(b)                                 Upon
request of any such successor Collateral Agent, the Corporation shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Collateral Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.


 


(c)                                  No
successor Collateral Agent shall accept its appointment unless at the time of
such acceptance such successor Collateral Agent shall be eligible under this
Article.


 


(d)                                 Upon
acceptance of appointment by any successor Collateral Agent as provided in this
Section, the Corporation shall give notice thereof to the Holders of Units in
accordance with Section 11.06. If the acceptance of appointment is
substantially contemporaneous with the resignation of the Collateral Agent,
then the notice called for by the preceding sentence may be combined with
the notice called for by Section 5.08. If the Corporation fails to give
such notice within ten days after acceptance of appointment by the successor
Collateral Agent, the successor Collateral Agent shall cause such notice to be
given at the expense of the Corporation.


 


Section 5.10                             Merger, Conversion, Consolidation or
Succession to Business.  Any
corporation into which the Collateral Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Collateral Agent shall be a
party, or any corporation succeeding to all or substantially all the agency
business of the Collateral Agent, shall be the successor of the Collateral
Agent hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided that such
corporation shall be otherwise eligible under this Article.


 


40

















 


Section 5.11                             Money Held in Trust.  Money held by the Collateral
Agent in trust hereunder need not be segregated from other funds held by the
Collateral Agent, except to the extent required by law. The Collateral Agent
shall be under no obligation to invest or pay interest on any money received by
it hereunder, except as otherwise agreed with the Corporation. Any interest
accrued on funds deposited with the Collateral Agent or any Paying Agent under
this Agreement shall be paid to the Corporation from time to time and the
Holders of Units (whether or not any Purchase Contracts are to be redeemed with
such funds) shall have no claim to any such interest.


 


ARTICLE 6



THE AGENT


 


Section 6.01                             Certain Duties and Responsibilities.  (a)  The Agent
undertakes to perform such duties and only such duties as are specifically
set forth in this Agreement.


 


(b)                                 No
provision of this Agreement shall be construed to relieve the Agent from
liability for its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:


 


(i)                                     the
duties and obligations of the Agent with respect to the Units shall be
determined solely by the express provisions of this Agreement and the Agent
shall not be liable except for the performance of such duties and obligations
as are specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Agent; and


 


(ii)                                  In
the absence of bad faith on its part, the Agent may conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions furnished to the Agent
and conforming to the requirements of this Agreement, but in the case of any
such statements, certificates or opinions that by any provision hereof are
specifically required to be furnished to the Agent, the Agent shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Agreement.


 


(c)                                  The
Agent shall not be liable for any error of judgment made in good faith by a
Responsible Officer of the Agent, unless it shall be proved that the Agent was
negligent in ascertaining the pertinent facts.


 


(d)                                 The
Agent shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Holders of a
majority in number of affected Outstanding Purchase Contracts relating to the
time, method and place of conducting any proceeding for any remedy available to
the Agent, or exercising any power conferred upon the Agent, under this
Agreement.


 


(e)                                  No
provision of this Agreement shall require the Agent to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for


 


41

















 


believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.


 


(f)                                   Whether
or not therein expressly so provided, every provision of this Agreement
relating to the conduct or affecting the liability of or affording protection
to the Agent shall be subject to the provisions of this Section.


 


(g)                                  The
Agent is acting solely as agent for the Corporation hereunder and owes no
fiduciary duties to any person by virtue of this Agreement.


 


Section 6.02                             Notice of Default.  Within 90 days after the
occurrence of any Purchase Contract Default of which a Responsible Officer of
the Agent assigned to its Corporate Trustee Administration Department has
actual knowledge (and except with respect to a Purchase Contract Default under
the Purchase Contracts existing on the Settlement Date, in which event, as
promptly as practicable thereafter), the Agent shall provide to all Holders of
Units, in the manner provided in Section 11.06, notice of such Purchase
Contract Default hereunder, unless such Purchase Contract Default shall have
been cured or waived.


 


Section 6.03                             Certain Rights of Agent.  Subject to the provisions of Section 6.01:


 


(a)                                 the
Agent may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, coupon,
security or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;


 


(b)                                 any
request, direction, order or demand of the Corporation mentioned herein shall
be sufficiently evidenced by an Officer’s Certificate or Issuer Order or Issuer
Request and any resolution of the Board of Directors of the Corporation, as the
case may be, may be sufficiently evidenced by a Board Resolution;


 


(c)                                  the
Agent may consult with counsel and the written advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
with respect to any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon in accordance with such advice or Opinion of Counsel;


 


(d)                                 the
Agent shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, appraisal, bond, debenture, note,
coupon, security or other paper or document, but the Agent, in its discretion, may make
reasonable further inquiry or investigation into such facts or matters related
to the issuance of the Debt Securities, Preferred Stock, Depositary Shares,
Preferred Stock or Warrants, as the case may be, and the execution,
delivery and performance of the Purchase Contracts as it may see fit, and,
if the Agent shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Corporation, at reasonable times during normal business hours, personally or by
agent or attorney;


 


(e)                                  the
Agent may execute any of the powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Agent
shall not be


 


42

















 


responsible for any misconduct or negligence on the part of any
such agent or attorney appointed with due care by it hereunder;


 


(f)                                   the
Agent shall be under no obligation to exercise any of the rights or powers
vested in it by this Agreement at the request, order or direction of any of the
Holders pursuant to this Agreement, unless such Holders shall have offered to
the Agent reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction;


 


(g)                                  the
Agent shall not be liable for any action taken or omitted by it in good faith
and believed by it to be authorized or within the discretion, rights or powers
conferred upon it by this Agreement; and


 


(h)                                 the
Agent shall not be charged with notice or knowledge of a Purchase Contract
Default unless a Responsible Officer of the Agent assigned to its Corporate
Trustee Administration Department shall have actual knowledge thereof.


 


Section 6.04                             Not Responsible for Recitals or Issuance of
Units.  The
recitals contained herein, in each of the Indentures, in the Warrant Agreement,
the Deposit Agreement and in the Units, except the Trustee’s, Warrant Agent’s,
the Deposit Agent’s and Agent’s certificates of authentication or
countersignature, shall be taken as the statements of the Corporation, and none
of the Trustee, Agent, the Warrant Agent, the Deposit Agent or any
Authenticating Agent assumes any responsibility for their correctness. The
Agent makes no representations as to the validity or sufficiency of this
Agreement or of the Units. None of the Trustee, Agent, the Warrant Agent, the
Deposit Agent or any Authenticating Agent shall be accountable for the use or
application by the Corporation of the proceeds with respect to Units or be
responsible for exercising any remedy hereunder on behalf of the Holders,
except as expressly provided in this Agreement.


 


Section 6.05                             May Hold Units.  The Agent, the Collateral Agent,
the Trustee, the Warrant Agent, the Deposit Agent, any Authenticating Agent,
any Purchase Contract Registrar or any other agent of the Corporation, the
Trustee, the Warrant Agent, the Deposit Agent or the Agent, in its individual
or any other capacity, may become the owner or pledgee of Units and may otherwise
deal with the Corporation and receive, collect, hold and retain collections
from the Corporation with the same rights it would have if it were not
Authenticating Agent, Purchase Contract Registrar or such other agent, the
Trustee, the Warrant Agent, the Deposit Agent, the Collateral Agent or the
Agent.


 


Section 6.06                             Money Held in Trust.  Money held by the Agent in
trust hereunder need not be segregated from other funds held by the Agent,
except to the extent required by law. The Agent shall be under no obligation to
invest or pay interest on any money received by it hereunder, except as
otherwise agreed with the Corporation. Any interest accrued on funds deposited
with the Agent or any Paying Agent under this Agreement shall be paid to the
Corporation from time to time and the Holders of Units (whether or not any
Purchase Contracts are to be redeemed with such funds) shall have no claim to
any such interest.


 


43

















 


Section 6.07                             Compensation
and Reimbursement.  The Corporation agrees:


 


(a)                                 to
pay to the Agent from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law with regard to the compensation of a trustee of an express
trust);


 


(b)                                 except
as otherwise expressly provided herein, to reimburse the Agent and any
predecessor Agent upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Agent in accordance with any provision of
this Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and


 


(c)                                  to
indemnify the Agent and any predecessor Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or administration
of this Agreement and its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim of liability in connection
with the exercise or performance of any of its powers or duties hereunder.


 


The
obligations of the Corporation under this Section to compensate and
indemnify the Agent and any predecessor Agent and to pay or reimburse the Agent
and any predecessor Agent for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the resignation
or removal of such Agent or predecessor Agent or the termination hereof or any
Purchase Contract. Such additional indebtedness shall be a senior claim to that
of the Units upon all property and funds held or collected by the Agent as
such, except funds held in trust for the benefit of the Holders of particular
Units, and the Units are hereby subordinated to such senior claim.


 


Section 6.08                             Corporate Agent Required; Eligibility.  There shall at all times be an
Agent hereunder which shall be a corporation organized and doing business under
the laws of the United States of America, any State thereof or the District of
Columbia, having, together with its parent, a combined capital and surplus of
at least $50,000,000, subject to supervision or examination by Federal, State
or District of Columbia authority and willing to act on reasonable terms. If
such corporation, or its parent, publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. The Agent hereunder shall at all times be the Collateral Agent
hereunder, the Trustee under the Indentures and the Warrant Agent under the
Warrant Agreement, subject to receipt of an Opinion of Counsel that the same
Person is precluded by law from acting in such capacities. If at any time the
Agent shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article. The Agent may appoint one or more
sub-agents with offices or agencies in a city or cities outside the United
States.


 


44

















 


Section 6.09                             Resignation and Removal; Appointment of
Successor.  (a)  No
resignation or removal of the Agent and no appointment of a successor Agent
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Agent in accordance with the applicable
requirements of Section 6.10.


 


(b)                                 The
Agent may resign by giving written notice thereof to the Corporation and
the Holders, in accordance with Section 11.05 and Section 11.06, 60
days prior to the effective date of such resignation. The Agent may be
removed at any time upon 60 days’ notice by the filing with it of an instrument
in writing signed on behalf of the Corporation and specifying such removal and
the date when it is intended to become effective. If the instrument of
acceptance by a successor Agent required by Section 6.10 shall not have
been delivered to the Agent within 30 days after the giving of such notice of
resignation, the resigning Agent may petition any court of competent
jurisdiction for the appointment of a successor Agent.


 


(c)                                  If
at any time:


 


(i)                                     the
Agent shall cease to be eligible under Section 6.08, or shall cease to be
eligible as Collateral Agent hereunder, Trustee under the applicable Indenture,
Warrant Agent under the Warrant Agreement or Deposit Agent under the Deposit
Agreement, and shall fail to resign after written request therefor by the
Corporation or by any Holder, or


 


(ii)                                  the
Agent shall become incapable of acting with respect to the Units or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator of the Agent or
of its property shall be appointed or any public officer shall take charge or
control of the Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,


 


then, in any such case, (A) the
Corporation, by Board Resolution or Officer’s Certificate, may remove the
Agent and appoint a successor Agent, or (B) any Holder who has been a bona
fide Holder of a Unit for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Agent and the appointment of a successor Agent or Agents. Such
court may thereupon, after such notice, if any, as it may deem proper
and prescribe, remove the Agent and appoint a successor Agent.


 


(d)                                 If
the Agent shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Agent for any cause, the Corporation, by
Board Resolution, shall promptly appoint a successor Agent or Agents (other
than the Corporation) and shall comply with the applicable requirements of Section 6.10.
If no successor Agent shall have been so appointed by the Corporation and
accepted appointment in the manner required by Section 6.10, any Holder
who has been a bona fide Holder of a Unit for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Agent.


 


(e)                                  The
Corporation shall give, or shall cause such successor Agent to give, notice of
each resignation and each removal of the Agent and each appointment of a
successor Agent to all Holders of Units in accordance with Section 11.06. Each
notice shall include the name of the successor Agent and the address of its
Corporate Trust Office.


 


45

















 


Section 6.10                             Acceptance of Appointment by Successor.  (a)  In case of the
appointment hereunder of a successor Agent, every such successor Agent so
appointed shall execute, acknowledge and deliver to the Corporation and to the
retiring Agent an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Agent shall become effective and such
successor Agent, without any further act, deed or conveyance, shall become
vested with all the rights, powers, agencies and duties of the retiring Agent,
with like effect as if originally named as Agent hereunder; but, on the request
of the Corporation or the successor Agent, such retiring Agent shall, upon
payment of all amounts due and payable to it pursuant to Section 6.07,
execute and deliver an instrument transferring to such successor Agent all the
rights and powers of the retiring Agent and shall duly assign, transfer and
deliver to such successor Agent all property and money held by such retiring
Agent hereunder. Any retiring Agent shall, nonetheless, retain a prior claim
upon all property or funds held or collected by such Agent to secure any
amounts then due it pursuant to Section 6.07.


 


(b)                                 Upon
request of any such successor Agent, the Corporation shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Agent all such rights, powers and agencies referred to in
paragraph (a) of this Section.


 


(c)                                  No
successor Agent shall accept its appointment unless at the time of such
acceptance such successor Agent shall be eligible under this Article.


 


(d)                                 Upon
acceptance of appointment by any successor Agent as provided in this Section,
the Corporation shall give notice thereof to the Holders of Units in accordance
with Section 11.06. If the acceptance of appointment is substantially
contemporaneous with the resignation of the Agent, then the notice called for
by the preceding sentence may be combined with the notice called for by Section 6.09.
If the Corporation fails to give such notice within ten days after acceptance
of appointment by the successor Agent, the successor Agent shall cause such
notice to be given at the expense of the Corporation.


 


Section 6.11                             Merger, Conversion, Consolidation or
Succession to Business.  Any
corporation into which the Agent may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Agent shall be a party, or any
corporation succeeding to all or substantially all the agency business of the
Agent, shall be the successor of the Agent hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, provided that such corporation shall be otherwise eligible under this
Article. In case any Purchase Contracts shall have been countersigned and
executed, but not delivered, by the Agent then in office, any successor by
merger, conversion or consolidation to such Agent may adopt such
countersignature and execution and deliver the Purchase Contracts so
countersigned and executed with the same effect as if such successor Agent had
itself countersigned and executed such Purchase Contracts.


 


Section 6.12                             Appointment of Authenticating Agent.  At any time when any of the
Units remain Outstanding the Agent may, by an instrument in writing, appoint an
Authenticating Agent or Agents with respect to the Purchase Contracts to be
authorized to act on behalf of the Agent to countersign, execute and deliver
the Purchase Contracts issued upon exchange, registration of transfer or pursuant
to Section 2.09 and Purchase Contracts so


 


46

















 


countersigned, executed and
delivered shall be entitled to the benefits of this Agreement and shall be
valid and obligatory for all purposes as if countersigned by the Agent
hereunder. Wherever reference is made in this Agreement to the
countersignature, execution and delivery of Purchase Contracts by the Agent or
the Agent’s countersignature or execution, such references shall be deemed to
include countersignature, execution and delivery on behalf of the Agent by an
Authenticating Agent and a countersignature and execution executed on behalf of
the Agent by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Corporation and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, subject to supervision or examination by Federal or State
or District of Columbia authority and having, together with its parent, a
combined capital and surplus of not less than $50,000,000. If such
Authenticating Agent, or its parent, publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section. The Agent may also appoint one or more
Authenticating Agents with offices or agencies in a city or cities outside the
United States.


 


Any
corporation into which an Authenticating Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all the
agency business of an Authenticating Agent, shall continue to be an
Authenticating Agent, without the execution or filing of any paper or any
further act on the part of the Agent or the Authenticating Agent, provided
that such corporation shall be otherwise eligible under this Section.


 


An
Authenticating Agent may resign at any time by giving written notice
thereof to the Agent and to the Corporation. The Agent may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Corporation. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Agent may appoint a successor
Authenticating Agent which shall be acceptable to the Corporation and shall
provide written notice of such appointment to all Holders of Units in the
manner and to the extent provided in Section 11.06. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section. No Authenticating Agent shall have any
responsibility or liability for any action taken by it as such at the direction
of the Agent.


 


The
provisions of Sections 2.10, 6.04 and 6.05 shall be applicable to each
Authenticating Agent.


 


47

















 


Pursuant
to each appointment made under this Section, the Purchase Contracts covered by
such appointment may have endorsed thereon, in addition to the form of
Agent’s countersignature and execution of the Purchase Contracts evidenced
thereby, an alternative countersignature and execution of the Purchase
Contracts contained therein in the following forms:


 


	
   

  	
  [                                        ],
  as Agent,

  
	
   

  	
   

  	
  as attorney in
  fact of the Holder hereof

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  [NAME OF AUTHENTICATING
  

  
	
   

  	
   

  	
  AGENT], as
  Authenticating Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  [Authorized
  Officer]

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Countersigned

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [                                        ],
  as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  [NAME OF
  AUTHENTICATING 

  
	
   

  	
   

  	
  AGENT], as
  Authenticating Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  [Authorized
  Officer]

  
	
   

  	
   

  	
  Title:

  



 


Section 6.13                             Corporation
to Furnish Agent Names and Addresses of Holders.  The Corporation will
furnish or cause to be furnished to the Agent:


 


(a)                                 not
later than 15 days after each Regular Record Date in each year, a list, in such
form as the Agent may reasonably require, of the names and addresses
of the Holders of Registered Units as of such Regular Record Date, and


 


(b)                                 at
such other times as the Agent may request in writing, within 30 days after
the receipt by the Corporation of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is
furnished; provided that no such list need be furnished if the Agent
shall be the Purchase Contract Registrar, the registrar under the Warrant
Agreement and the registrar under the Indenture.


 


48

















 


Section 6.14                             Preservation of Information; Communications
to Holders.  (a)  The
Agent shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders of Registered Units contained in the most
recent list furnished to the Agent as provided in Section 6.13 and the
names and addresses of Holders of Registered Units received by the Agent in its
capacity as Purchase Contract Registrar, the registrar under the Warrant
Agreement and the registrar under the Indenture. The Agent may destroy any
list furnished to it as provided in Section 6.13 upon receipt of a new
list so furnished.


 


(b)                                 If
three or more Holders (herein referred to as “applicants”) apply in
writing to the Agent, and furnish to the Agent reasonable proof that each such
applicant has owned a Unit for a period of at least six months preceding the
date of such application, and such application states that the applicants
desire to communicate with other Holders with respect to their rights under
this Agreement or under the Units and is accompanied by a copy of the form of
proxy or other communication that such applicants propose to transmit, then the
Agent shall, within five Business Days after the receipt of such application,
at its election either (i) afford such applicants access to the
information preserved at the time by the Agent in accordance with Section 6.14(a) or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time by
the Agent, and as to the approximate cost of mailing to such Holders the form of
proxy or other communication, if any, specified in such application.


 


If the
Agent shall elect not to afford such applicants access to such information, the
Agent shall, upon the written request of such applicants, mail to each Holder
whose name and address appears in the information preserved at the time by the
Agent, a copy of the form of proxy or other communication that is
specified in such application, with reasonable promptness after a tender to the
Agent of the material to be mailed and of payment, or provision for payment, of
the reasonable expenses of mailing, unless within five days after such tender,
the Agent shall mail to such applicants a written statement to the effect that
in the opinion of the Agent, such mailing would be contrary to the best
interests of the Holders or would be in violation of applicable law. Thereafter,
the Agent shall be relieved of any obligation or duty to such applicants with
respect to their application.


 


(c)                                  Every
Holder of Units, by his acceptance thereof, agrees with the Corporation and the
Agent that neither the Corporation nor the Agent nor any agent of any of them
shall be held accountable by reason of the disclosure of any such information
as to the names and addresses of the Holders in accordance with Section 6.14(b),
regardless of the source from which such information was derived, and that the
Agent shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 6.14(b).


 


Section 6.15                             No Obligation of Holder.  Except to the extent
otherwise provided in this Agreement, the Agent assumes no obligations and
shall not be subject to any liability under this Agreement or any Purchase
Contract with respect to the obligations of the Holder of a Unit thereunder. The
Corporation agrees, and each Holder of a Unit Certificate, by his acceptance
thereof, shall be deemed to have agreed, that the Agent’s execution of the
Purchase Contracts evidenced by the Unit Certificates shall be solely as agent
and attorney in fact for the Holders, and that the Agent shall have no
obligation to perform such Purchase Contracts on behalf of the Holders,
except to the extent provided in this Article.


 


49

















 


Section 6.16                             Tax Compliance.  (a)  The Agent, on
its own behalf and on behalf of the Corporation, will comply with all
applicable certification, information reporting and withholding (including “backup”
withholding) requirements imposed by applicable United States, federal and
state tax laws, regulations or administrative practice (i) with respect to
payments on, or transfer or redemption of the Debt Securities, the Warrants,
the Depositary Shares, the Preferred Stock or the Purchase Contracts or (ii) if
specifically instructed by the Corporation, with respect to the issuance,
delivery, holding, or exercise of rights (other than by payment, transfer or
redemption) under the Debt Securities, the Warrants, the Depositary Shares, the
Preferred Stock or the Purchase Contracts. Such compliance shall include,
without limitation, the preparation and timely filing of required returns with
respect to, and the timely payment of, all amounts required to be withheld to
the appropriate taxing authority or its designated agent. The Corporation will
provide to the Agent such information as it may reasonably request in
order to comply with this Section.


 


(b)                                 The
Agent shall comply with any direction received from the Corporation with
respect to the application of such requirements to particular payments or
holders or in other particular circumstances, and may for purposes of this
Agreement rely on any such direction in accordance with the provisions of Section 6.01(b)(ii) hereof.


 


(c)                                  The
Agent shall maintain all appropriate records documenting compliance with such
requirements, and shall make such records available on request at reasonable
times during normal business hours to the Corporation or to their authorized
representatives duly authorized in writing.


 


(d)                                 Unless
otherwise specified pursuant to Section 2.03, the portion of the issue
price of any Units of any series consisting of Debt Securities and
Purchase Contracts allocable to such Debt Securities shall equal the principal
amount payable at maturity of such Debt Securities. Unless otherwise specified
pursuant to Section 2.03, the portion of the issue price of any Units of
any series consisting of Debt Securities and Warrants allocable to such
Debt Securities shall equal the portion of the issue price that is in the same
proportion to such issue price as the fair market value of such Debt Securities
bears to the aggregate fair market value of such Debt Securities and Warrants,
taken as a whole. The Corporation and the Holders agree not to file any tax
returns, or take a position with any tax authority, that is inconsistent with
the characterization of the Debt Securities as debt.


 


(e)                                  Unless
otherwise specified pursuant to Section 2.03, the Corporation by the
issuance and sale of any Unit and any Holder of a Unit by his acceptance
thereof agree to (in the absence of any applicable administrative ruling or
judicial determination to the contrary) treat the Securities that constitute
any Unit as separate securities and to file all United States federal, state
and local tax returns consistent with the treatment of such Unit as constituted
by separate securities.


 


50

















 


ARTICLE 7



SUPPLEMENTAL AGREEMENTS


 


Section 7.01                             Supplemental Agreements Without Consent of
Holders.  Without
the consent of any Holders, the Corporation, when authorized by a Board
Resolution or Officer’s Certificate, the Agent and the Collateral Agent, at any
time and from time to time, may enter into one or more agreements
supplemental hereto, in form satisfactory to the Agent, for any of the
following purposes:


 


(i)                                     to
evidence the succession of another Person to the Corporation and the assumption
by any such successor of the covenants of the Corporation herein and in the
Purchase Contracts; or


 


(ii)                                  to
evidence and provide for the acceptance of appointment hereunder by a successor
Agent or Collateral Agent with respect to the Units; or


 


(iii)                               to add to the covenants
of the Corporation, Collateral Agent or Agent such further covenants,
restrictions, conditions or provisions as the Corporation, Collateral Agent and
Agent shall consider to be for the protection of the Holders, and to make the
occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions of the Corporation
a Purchase Contract Default permitting the enforcement of all or any of the
several remedies provided in this Agreement as herein set forth; provided that
in respect of any such additional covenant, restriction, condition or provision
such supplemental agreement may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement
upon such a Purchase Contract Default or may limit the remedies available
to the Holders upon such a Purchase Contract Default or may limit the
right of the Holders to waive such Purchase Default; or


 


(iv)                              to
comply with the Securities Act of 1933, as amended, the Exchange Act or the
Investment Company Act of 1940, as amended; or


 


(v)                                 to
cure any ambiguity, to correct or supplement any provision herein or in the
Purchase Contracts of any series that may be inconsistent with any
other provision herein or therein, or to modify, alter, amend or supplement any
other provisions with respect to matters or questions arising under this
Agreement or under such Purchase Contracts; provided that such action shall not
adversely affect the interests of the Holders in any material respect.


 


Section 7.02                             Supplemental Agreements with Consent of
Holders.  With
the consent of the Holders of not less than a majority of affected Unsettled
Purchase Contracts Outstanding, in the case of clause (A) below, and
with the consent of the Holders of not less than a majority of affected Units
Outstanding, in the case of clause (B) below, by Act of said Holders
delivered to the Corporation and the Agent, the Corporation, when authorized by
a Board


 


51

















 


Resolution or Officer’s
Certificate, the Agent and the Collateral Agent may enter into an
agreement or agreements supplemental hereto for the purpose of


 


(A)                               modifying
in any manner the terms of the Purchase Contracts or this Agreement with
respect to the Purchase Contracts or the rights of the Holders of Units with
respect to the Purchase Contracts, or


 


(B)                               modifying
in any manner the other terms of this Agreement or the other rights of Holders
of Units; provided, however, that no such supplemental agreement
shall (i) without the consent of the Holder of each Outstanding Purchase
Contract affected thereby in the case of clauses (1), (2) and (3) below
and (ii) without the consent of the Holder of each Unit affected thereby,
in the case of clauses (4) and (5) below:


 


(1)                                 impair
the right to institute suit for the enforcement of any Purchase Contract, or


 


(2)                                 reduce
the percentage of the Purchase Contracts Outstanding, the consent of whose
Holders is required for any modification or amendment of the provisions of this
Agreement relating to the Purchase Contracts or for any waiver of any Purchase
Contract Defaults hereunder and their consequences provided for in this
Agreement relating to the Purchase Contracts, or


 


(3)                                 modify
or affect (in any manner materially adverse to the Holders) the Holders’ rights
and obligations under the Purchase Contracts; or


 


(4)                                 modify
or affect (in any manner materially adverse to the Holders) the terms of this
Agreement or such Holder’s Units (other than the terms referred to in
clause (1), (2) or (3) above); or


 


(5)                                 reduce
the percentage of Holders of Units whose consent is required for any
modification or amendment of the provisions of this Agreement (other than the
terms referred to in clause (1), (2) or (3) above).


 


It
shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it
shall be sufficient if such Act shall approve the substance thereof.


 


Section 7.03                             Execution of Supplemental Agreements.  In exchange for accepting the
additional agencies or duties created by, any supplemental agreement permitted
by this Article or the modifications thereby of the agencies or duties
created by this Agreement, each of the Agent and the Collateral Agent shall be
entitled to receive and (subject to Sections 6.01 and 5.03, respectively)
shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental agreement is authorized or permitted by this
Agreement. Each of the Agent and the Collateral Agent may, but shall not be
obligated to,


 


52

















 


enter into any such
supplemental agreement that affects the Agent’s or the Collateral Agent’s
rights, duties or immunities under this Agreement or otherwise.


 


Section 7.04                             Effect of Supplemental Agreements.  Upon the execution of any
supplemental agreement under this Article, this Agreement shall be modified in
accordance therewith, and such supplemental agreement shall form a part of
this Agreement for all purposes; and every Holder of Units, theretofore or
thereafter authenticated, countersigned, executed and delivered hereunder,
under the Warrant Agreement, the Deposit Agreement, the Certificate of
Incorporation and/or under the applicable Indenture shall be bound thereby.


 


Section 7.05                             Reference to Supplemental Agreements.  Unit Certificates, Debt
Securities, Warrants, Purchase Contracts, the Depositary Shares and Preferred
Stock authenticated, countersigned, executed and delivered after the execution
of any supplemental agreement pursuant to this Article may, and shall if
required by the Agent, bear a notation in form approved by the Agent as to
any matter provided for in such supplemental agreement. If the Corporation
shall so determine, new Unit Certificates, Debt Securities, Warrants, Purchase
Contracts, Depositary Shares and Preferred Stock so modified as to conform, in
the opinion of the Agent, and the Corporation, to any such supplemental
agreement may be prepared and executed by the Corporation and
authenticated, executed, countersigned and delivered by the Trustee, the
Warrant Agent, the Deposit Agent, the Corporation and the Agent, as applicable,
in exchange for Outstanding Unit Certificates, Debt Securities, Warrants,
Purchase Contracts, Depositary Shares and Preferred Stock.


 


ARTICLE 8



CONSOLIDATION, MERGER, SALE OR CONVEYANCE


 


Section 8.01                             Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions.  The Corporation covenants that
it will not merge or consolidate with any other corporation or sell, convey or
lease all or substantially all of its assets to any Person, firm or
corporation, except that the Corporation may merge or consolidate with, or
sell, convey or lease all or substantially all of its assets to, any other
corporation, provided that (i) the Corporation shall be the continuing
corporation, or the successor corporation (if other than the Corporation) shall
be a corporation organized and existing under the laws of the United States of
America or a state thereof or the District of Columbia and such corporation
shall assume the due and punctual performance and observance of all of the
covenants and conditions of this Agreement to be performed by the Corporation
by supplemental agreement in form satisfactory to the Agent and the
Collateral Agent, executed and delivered to the Agent and the Collateral Agent
by such corporation, and (ii) neither the Corporation nor such successor
corporation immediately after such merger or consolidation, or such sale,
conveyance or lease shall be in default in the performance of any such covenant
or condition.


 


Section 8.02                             Rights and Duties of Successor Corporation.  In case of any such
consolidation, merger, sale or conveyance and upon any such assumption by the
successor corporation, such successor corporation shall succeed to and be
substituted for the Corporation with the same effect as if it had been named
herein as the Corporation. Such successor corporation thereupon may cause
to be signed, and may issue (subject to the provisions of the


 


53

















 


Indenture and the Warrant
Agreement) in its own name any or all of the Unit Certificates, Debt
Securities, Warrants, Depositary Shares, Preferred Stock and Purchase Contracts
issuable hereunder which theretofore shall not have been signed by the
Corporation and delivered to the Agent; and, upon the order of such successor
corporation, instead of the Corporation, and subject to all the terms,
conditions and limitations in this Agreement prescribed, the Trustee, the
Warrant Agent, the Deposit Agent and the Agent shall authenticate, countersign,
execute and deliver, as applicable, any Unit Certificates, Debt Securities,
Warrants, Depositary Shares, Preferred Stock and Purchase Contracts that
previously shall have been signed and delivered by the officers of the
Corporation to the Trustee, the Warrant Agent, the Deposit Agent and the Agent
for authentication, execution and countersignature, and any Unit Certificate,
Debt Securities, Warrants, Depositary Shares, Preferred Stock and Purchase
Contracts evidencing Units which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee, the Warrant Agent, the Deposit
Agent and the Agent for such purpose. All the Purchase Contracts so issued
shall in all respects have the same legal rank and benefit under this Agreement
as the Purchase Contracts theretofore or thereafter issued in accordance with
the terms of this Agreement as though all of such Purchase Contracts had been
issued at the date of the execution hereof.


 


In
case of any such consolidation, merger, sale, conveyance or lease such change
in phraseology and form (but not in substance) may be made in the
Unit Certificates and Purchase Contracts thereafter to be issued as may be
appropriate.


 


Section 8.03                             Opinion of Counsel to Agent.  The Agent and the Collateral
Agent, subject to Sections 6.01 and 6.03 and Sections 5.03 and 5.05,
respectively, may receive an Opinion of Counsel as conclusive evidence
that any such consolidation, merger, sale, conveyance or lease, and any such
assumption, complies with the provisions of this Article.


 


ARTICLE 9



COVENANTS


 


Section 9.01                             Performance Under Purchase Contracts.  The Corporation covenants and
agrees for the benefit of the Holders of the Units that it will duly and
punctually perform its obligations under the Purchase Contracts in accordance
with the terms of the Purchase Contracts and this Agreement.


 


Section 9.02                             Maintenance of Office or Agency.  So long as Units or Purchase
Contracts are authorized for issuance pursuant to this Agreement or are
Outstanding hereunder, the Corporation will maintain in the Borough of
Manhattan, The City of New York, an office or agency where Registered Units may be
presented or surrendered for payment or acquisition of Purchase Contract
Property or where Purchase Contract Property or other property may be
tendered for delivery, where Registered Units may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Corporation in respect of Units and this Agreement may be served. The
Corporation hereby initially designates the Agent as its office or agency in
the Borough of Manhattan, The City of New York, for each of said purposes. The
Corporation will give prompt written notice to the Agent of the location, and
any change in the location, of such office or agency. The Corporation will
maintain one or more offices or


 


54

















 


agencies in a city or cities
located outside the United States (including any city in which such an agency
is required to be maintained under the rules of any stock exchange on
which the Units of such series, or the Securities constituting such Units, are
listed) where the Unregistered Units, if any, of each series may be
presented or surrendered for payment or acquisition of Purchase Contract
Property or where Purchase Contract Property or other property may be
tendered for delivery. No payment or delivery of Purchase Contract Property on
any Unregistered Unit will be made upon presentation of such Unregistered Unit
at an agency of the Corporation within the United States nor will any payment
or delivery of Purchase Contract Property be made by transfer to an account in,
or by mail to an address in, the United States unless pursuant to applicable
United States laws and regulations then in effect such payment can be made
without adverse tax consequences to the Corporation. Notwithstanding the
foregoing, payments in U.S. dollars of Unregistered Units of any series appertaining
thereto which are payable in U.S. dollars may be made at an agency of the
Corporation maintained in the Borough of Manhattan, The City of New York if
such payment in U.S. dollars at each agency maintained by the Corporation
outside the United States for payment on such Unregistered Units is illegal or
effectively precluded by exchange controls or other similar restrictions. If at
any time the Corporation shall fail to maintain any such required office or
agency or shall fail to furnish the Agent with the name and address thereof,
such presentations, surrenders, notices and demands may be made or served
at the Corporate Trust Office of the Agent, and the Corporation hereby appoints
the Agent as its agent to receive all such presentations, surrenders, notices
and demands.


 


The
Corporation may also from time to time designate one or more other offices
or agencies where Debt Securities, Warrants, Depositary Shares, Preferred
Stock, Purchase Contracts and Unit Certificates may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Corporation of its obligations to
maintain offices or agencies provided for in this Section. The Corporation will
give prompt written notice to the Agent of any such designation or rescission
and of any change in the location of any such other office or agency.


 


Section 9.03                             Money for Payments to Be Held in Trust.  Any money or other property
deposited with the Agent, in trust for payment with respect to any Unit,
remaining unclaimed for two years after such payment has become due and payable
shall be paid to the Corporation on request of the Corporation pursuant to an
Officer’s Certificate; and the Holder of such Unit shall thereafter, as an
unsecured general creditor, look only to the Corporation for payment thereof,
and all liability of the Agent with respect to such trust money or other
property shall thereupon cease; provided that the Agent, before making any such
repayment, may (but shall not be obligated to) at the expense of the
Company notify (i) in the case of Registered Units evidenced by Unit
Certificates, the Holders, (ii) in the case of Units evidenced by one or
more global Unit Certificates, the participants of the Depositary, and (iii) in
the case of Bearer Units evidenced by Unit Certificates, the holders thereof,
in each case pursuant to Section 11.06, that said money has not been so
applied and remains unclaimed and that after a date named in the notification
any unclaimed balance of said money then remaining will be returned to the
Company.


 


In the
event that (i) the Corporation has delivered Purchase Contract Property
(or the cash value thereof) to the Agent against tender of payment for such
Purchase Contract


 


55

















 


Property or Warrant
Property (or the cash value thereof) to the Warrant Agent against tender of
payment for such Warrant Property (or, in the case of Purchase Contracts or
Warrants calling for the purchase of Purchase Contract Property or Warrant
Property, as the case may be, by the Corporation, the Corporation has
tendered payment) and (ii) a Holder of a Unit Certificate fails to present
and surrender the appropriate Unit Certificate to the Agent or Warrant Agent,
as appropriate, the Purchase Contract Property, the Warrant Property or the
cash value thereof or the Corporation’s payment for Purchase Contract Property
or Warrant Property, as the case may be, deliverable upon settlement of
the Purchase Contracts or Warrants, as the case may be, evidenced by such
Unit Certificate, together with any distributions thereon (and, if an effective
Cash Settlement with respect to the obligations under such Purchase Contracts
or Warrants has been made, payments in respect of principal of any Debt
Securities that are part of such Units), shall be held by the Agent, in
trust, for the benefit of such Holder, until such Unit Certificate is presented
and surrendered or such Holder delivers to the Agent, the Warrant Agent, the
Trustee, and the Corporation (A) evidence to their satisfaction that such
certificate has been destroyed, lost or stolen and (B) such security or
indemnity as may be required by them to hold each of them and any agent of
any of them harmless. In the event such Unit Certificate is not presented and
surrendered or such Holder does not satisfy the applicable conditions specified
in the preceding sentence on or prior to the date two years after the date of
settlement of the related Purchase Contract or Warrant, as the case may be,
any distributions received by the Agent with respect to the Purchase Contract
Property delivered in respect of the Unit Certificates shall be paid to the
Corporation, on the request of the Corporation pursuant to an Officer’s
Certificate, and the Holders of such Unit shall thereafter, as unsecured
general creditors, look only to the Corporation for payment thereof and all
liability of the Agent with respect to such trust assets shall thereafter
cease.


 


Section 9.04                             Statements of Officers of the Corporation as
to Default.  The
Corporation will deliver to the Agent, on or before [date] in each year, an
Officer’s Certificate stating whether or not to the best knowledge of the
signers thereof the Corporation is in default in the performance and observance
of any of the terms, provisions and conditions hereof or of any Purchase
Contracts, and, if the Corporation shall be in default, specifying all such
defaults and the nature and status thereof of which they may have
knowledge.


 


[Section 9.05                         Luxembourg Publications.  In the event of the publication
of any notice pursuant to this Agreement, the party shall make such publication
in the Borough of Manhattan, The City of New York, and London and shall also,
to the extent that notice is required to be given to Holders of Units of any series or
Securities constituting such Units by applicable Luxembourg law or stock
exchange regulation, as evidenced by an Officer’s Certificate delivered to such
party, make a similar publication in Luxembourg.]


 


ARTICLE 10



REDEMPTIONS


 


Section 10.01                      Optional Redemption of Purchase Contracts;
Redemption Upon Redemption of Debt Securities.  If this Article is specified as applicable pursuant
to Section 3.02 in connection with the issuance of the Purchase Contracts
of a series, any or all of such Purchase Contracts may be redeemed at the
option of the Corporation, or from time to time in part, on


 


56

















 


such date or dates and at a
redemption price per Purchase Contract as shall be specified pursuant to Section 3.02;
provided that no redemption shall result in there being more than zero
but fewer than the minimum amount of Unsettled Purchase Contracts that may remain
Outstanding after such redemption, as specified pursuant to Section 3.02.


 


Unless
otherwise specified pursuant to Section 2.03, in the event that the
Corporation shall redeem any Debt Security, Preferred Stock or Depositary
Shares constituting part of a Unit of any series pursuant to the
provisions of the applicable Indenture, such Debt Security, the Certificate of
Incorporation or the Deposit Agreement, the Corporation shall redeem any
Purchase Contract or, to the extent permitted under or pursuant to the Warrant
Agreement, Warrant constituting part of the same Unit on the redemption
date of such related Security.


 


Section 10.02                      Notice of Redemption; Partial Redemptions.  Unless otherwise specified
pursuant to Section 3.02, the Corporation or, upon Issuer Order of the
Corporation, the Agent in the name and at the expense of the Corporation, shall
give notice of redemption to the Holders of Purchase Contracts in the manner
and to the extent provided in Section 11.06, at least 30 days and not more
than 60 days prior to the date fixed for redemption. Any notice which is given
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice. Failure to give notice by
mail, or any defect in the notice to the Holder of any Purchase Contract, shall
not affect the validity of the proceedings for the redemption of any other
Purchase Contract.


 


The
notice of redemption to each Holder of Registered Purchase Contracts shall
specify the number of Registered Purchase Contracts held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment and that payment will be made upon presentation and surrender
of Unit Certificates with respect to such Registered Purchase Contracts
evidenced by Unit Certificates.


 


The
Corporation’s obligation to provide funds for redemption shall be deemed
fulfilled if, on or before 12:00 noon, local time in the place of payment, on
the redemption date specified in the notice of redemption given as provided in
this Section, the Corporation shall deposit with the Agent or with one or more
paying agents an amount of money sufficient to redeem on the redemption date
all the Purchase Contracts called for redemption at the appropriate redemption
price, together with irrevocable instructions and authorization that such funds
be applied to the redemption of the Purchase Contracts called for redemption
upon surrender of Unit Certificates representing such Purchase Contracts,
properly endorsed and assigned for transfer, in accordance with this Article.


 


The
Corporation will deliver to the Agent at least 15 days prior to the mailing of
the notice of redemption an Officer’s Certificate stating the aggregate number
of Purchase Contracts to be redeemed on such date and that the Corporation has
complied with the provisions of Section 10.01 and of said Purchase
Contracts subject to said redemption.


 


If
fewer than all the Purchase Contracts are to be redeemed, the Agent, prior to
the mailing of the redemption notice, shall select the Purchase Contracts to be
redeemed on a pro rata basis, by lot or by such other means as shall be
acceptable to the Agent. Appropriate


 


57

















 


adjustment shall be made
to prevent the fractional redemption of Purchase Contracts, such that Purchase
Contracts are redeemed only in whole and not in part.


 


The
Agent shall promptly notify the Corporation in writing of the Purchase
Contracts so selected for redemption.


 


Section 10.03                      Payment of Purchase Contracts Called for
Redemption.  If
notice of redemption has been given as above provided, (i) the Purchase
Contracts specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, and (ii) on
and after the date fixed for redemption (unless the Corporation shall default in
the payment of such Purchase Contracts at the redemption price) such Purchase
Contracts shall cease from and after the date fixed for redemption to be
entitled to any benefit under this Agreement, the Holders thereof shall have no
right or obligation in respect of such Purchase Contracts except the right to
receive the redemption price thereof and the Purchase Contracts shall terminate
and shall no longer be deemed to be Outstanding.


 


If so
specified pursuant to Section 3.02, on presentation and surrender of Unit
Certificates representing such Purchase Contracts, properly endorsed and
assigned for transfer, at a place of payment specified in such notice, such
Purchase Contracts shall be paid and redeemed by the Corporation at the
applicable redemption price. Following such redemption, the Unit Certificates
evidencing such Closed Purchase Contracts shall be cancelled in accordance with
Section 2.11. In the case of (i) Definitive Units, certificates
evidencing any Outstanding Debt Securities relating to such redeemed Purchase
Contracts shall be executed, authenticated and delivered in accordance with the
terms of the applicable Indenture and (ii) Global Units, if a Global Debt
Security not constituting part of a Global Unit has not previously been
issued by the Corporation, a second Global Debenture evidencing any Outstanding
Debt Security relating to such redeemed Purchase Contracts shall be executed,
authenticated and delivered in accordance with the Indenture. If a second
Global Debt Security referred to in clause (ii) of the immediately
preceding sentence has already been issued, the Agent shall note thereon an
appropriate increase in the number of Debt Securities represented by such
Global Debt Security.


 


Any
interest accrued on funds deposited with the Agent or any Paying Agent in
connection with this Article 10 shall be paid to the Corporation from time
to time and the Holders of Purchase Contracts (whether or not such Purchase
Contracts are to be redeemed with such funds) shall have no claim to any such interest.
Any funds deposited and unclaimed at the end of two years from any redemption
date shall be repaid or released to the Corporation, on the request of the
Corporation pursuant to an Officer’s Certificate, after which the Holder(s) of
Purchase Contracts so called for redemption shall look only to the Corporation
for payment of the redemption price, without any interest thereon and all
liability of the Agent with respect to the redemption price shall cease.


 


Section 10.04                      Exclusion of Certain Purchase Contracts from
Eligibility for Selection for Redemption.  Purchase Contracts shall be excluded from eligibility
for selection for a partial redemption if they are identified by registration
and certificate number in an Officer’s Certificate delivered by the Corporation
to the Agent at least 10 days prior to the date of the mailing of a notice of
redemption as being owned of record and beneficially by, and not pledged or
hypothecated by (a) the Corporation or (b) an Affiliate of the
Corporation. Purchase Contracts


 


58

















 


shall also be excluded from
eligibility for selection for a partial redemption if they are the subject of
an Acceleration Notice.


 


ARTICLE 11



MISCELLANEOUS PROVISIONS


 


Section 11.01                      Incorporators, Stockholders, Officers and
Directors of the Corporation Immune from Liability.  No recourse under or upon any
obligation, covenant or agreement contained in this Agreement, or in any Debt
Security, Warrant, Depositary Share, Preferred Stock or Purchase Contract, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, or against any past, present or future stockholder, officer,
attorney-in-fact or director, as such, of the Corporation or of any successor
corporation, either directly or through the Corporation or any successor
corporation, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or penalty or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of the Units by the Holders thereof and as part of the
consideration for the issue thereof, provided that nothing in this Article shall
impair the obligations, covenants and agreements of the Corporation contained
in this Agreement and in any Debt Securities, Warrants, Depositary Shares,
Preferred Stock or Purchase Contracts constituting a part of the Units of
any series.


 


Section 11.02                      Compliance Certificates and Opinions.  Except as otherwise expressly
provided by this Agreement, upon any application or request by the Corporation
to the Agent or Collateral Agent to take any action under any provision of this
Agreement, the Corporation, as applicable, shall furnish to the Agent or
Collateral Agent an Officer’s Certificate stating that all conditions
precedent, if any, provided for in this Agreement relating to the proposed
action have been complied with and an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Agreement relating to such particular application or request,
no additional certificate or opinion need be furnished.


 


Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Agreement shall include:


 


(i)                                     a
statement that each individual signing such certificate or opinion has read
such covenant or condition and the definitions herein relating thereto;


 


(ii)                                  a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based;


 


(iii)                               a statement that, in the
opinion of each such individual, he has made such examination or investigation
as is necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and


 


59

















 


(iv)                              a
statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.


 


Section 11.03                      Form of Documents Delivered to Agent or
Collateral Agent.  In
any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.


 


Any
certificate, statement or opinion of an officer or counsel of or for the
Corporation may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion is based are erroneous. Any such certificate,
statement or opinion may be based, insofar as it relates to factual
matters, upon a certificate, statement or opinion of, or representations by, an
officer or officers of the Corporation, as applicable, stating that the
information with respect to such factual matters is in the possession of the
Corporation, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.


 


Where
any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Agreement, they may, but need not, be consolidated and form one
instrument.


 


Section 11.04                      Acts of Holders.  (a)  Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Agreement to be given or taken by Holders may be embodied
in and evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by an agent duly appointed in writing and,
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Agent and,
where it is hereby expressly required, to the Corporation. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “Act” of the Holders signing such
instrument or instruments.


 


Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Agreement and (subject to Section 6.01)
conclusive in favor of the Agent and the Corporation, if made in the manner
provided in this Section.


 


(b)                                 The
fact and date of the execution by any Person of any such instrument or writing may be
proved in any manner that the Agent deems sufficient.


 


(c)                                  Subject
to Section 2.03(a)(vii), the ownership (i) of Registered Units of any
series shall be proved by the Purchase Contract Register for such series,
with respect to any Purchase Contracts constituting a part of such Units,
the Warrant Register for such series with


 


60

















 


respect to any Warrants constituting a part of such Units, the
Debt Security Register for such series, with respect to any Debt Securities
constituting a part of such Units, the Depositary Share Register for such
series, with respect to any Depositary Shares constituting a part of such
Units and the Preferred Stock Register for such series, with respect to any
Preferred Stock constituting a part of such Units, and (ii) of
Unregistered Units shall be proved by possession of the Unit Certificates
evidencing such Units or by the appropriate records of the depositary for such
Units.


 


(d)                                 Any
request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Unit Certificate shall bind every future Holder of the
same Unit Certificate and the Holder of every Unit Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
with respect to anything done, omitted or suffered to be done by the Agent or
the Corporation in reliance thereon, whether or not notation of such action is
made upon such Unit Certificate.


 


(e)                                  The
Corporation may set a record date for purposes of determining the identity
of Holders of Units entitled to consent to any action by consent authorized or
permitted hereby. Unless otherwise specified pursuant to Section 2.03,
such record date shall be the later of 30 days prior to the first solicitation
of such consent or the date of the most recent list of Holders of Units
furnished to the Agent, pursuant hereto.


 


Section 11.05                      Notices, Etc.  Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Agreement to be made upon, given or
furnished to, or filed with,


 


(a)                                 the
Agent or the Collateral Agent, as the case may be, by any Holder or by the
Corporation shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if made, given, furnished or filed in writing and
personally delivered or mailed, first class postage prepaid, to the Agent
at [                                ],
or at any other address previously furnished in writing by the Agent or the Collateral
Agent, as the case may be, to the Holders and the Corporation, or


 


(b)                                 the
Corporation by the Agent, the Collateral Agent or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed in writing and personally
delivered or mailed, first class postage prepaid, addressed to the
Corporation at 383 Madison Avenue, New York, New York 10179, Attention:  Treasurer, or at any other address previously
furnished in writing to the Agent and the Collateral Agent by the Corporation.


 


Section 11.06                      Notices to Holders; Waiver.  Where this Agreement provides
for notice to Holders of Registered Securities or Registered Units of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided or as provided in the Letter of Representations) if in
writing and mailed, first-class postage prepaid, to each such Holder
affected by such event, at such Holder’s address as it appears in the relevant
Security Registers, with respect to the Securities constituting such Unit, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed to any particular Holder shall affect the sufficiency of such notice
with respect to other


 


61

















 


Holders. Where this Agreement
provides for notice in any manner, such notice may be waived in writing by
the Person entitled to receive such notice, either before or after the event,
and such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Agent, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.


 


In
case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Agent shall constitute a
sufficient notification for every purpose hereunder.


 


Where
this Agreement provides for notice to Holders of Unregistered Securities or
Unregistered Units of any event, such notice shall be sufficiently given
(unless otherwise specified herein or pursuant to Section 2.03 or 3.02)
either (i) through the customary notice provisions of the clearing system
or systems through which beneficial interests in such Unregistered Securities
or Unregistered Units are owned or (ii) by publication in a newspaper in
the English language of general circulation in the Borough of Manhattan, The
City of New York, and in The City of London or, if publication in London is not
practical, in an English language newspaper with general circulation in
European Union.


 


Such
notices will be deemed to have been given on the date of such publication, or
if published in such newspapers on different dates, on the date of the first
such publication.


 


Section 11.07                      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 11.08                      Successors and Assigns.  All covenants and agreements
in this Agreement, the Units, the Purchase Contracts and the Unit Certificates
by the Corporation shall bind its successors and assigns, whether so expressed
or not.


 


Section 11.09                      Separability Clause.  In case any provision in this
Agreement or in the Units, Unit Certificates or the Purchase Contracts shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.


 


Section 11.10                      Benefits of Agreement.  Nothing in this Agreement or
in the Units, Unit Certificates, the applicable Indenture, the Debt Securities,
the Warrants, the Purchase Contracts, the Preferred Stock or the Depositary
Shares, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, any benefits or any legal or equitable
right, remedy or claim under this Agreement. The Holders from time to time
shall be parties to this Agreement and shall be bound by all of the terms and
conditions hereof and of the applicable Indenture, the Warrant Agreement, the
Units, the Debt Securities, the Warrants, the Purchase Contracts, the Preferred
Stock and the Depositary Shares evidenced by the Units, as applicable, by their
acceptance of delivery of such Units.


 


62

















 


Section 11.11                      Governing Law.  This Agreement, the Units, the
Unit Certificates and the Purchase Contracts shall be governed and construed in
accordance with the laws of the State of New York.


 


Section 11.12                      Legal Holidays.  Unless otherwise specified
pursuant to Section 3.02, in any case where any Settlement Date shall not
be a Business Day, then (notwithstanding any other provisions of this Agreement
or the Purchase Contracts) the Purchase Contracts shall not be performed on
such date, but shall be performed on the next succeeding Business Day with the
same force and effect as if performed on such Settlement Date; provided that no
interest or other amounts shall accrue or be payable by the Corporation or any
Holder for the period from and after any such Settlement Date.


 


Section 11.13                      Counterparts.  This Agreement may be
executed in any number of counterparts by the parties hereto on separate
counterparts, each of which, when so executed and delivered (including by
facsimile), shall be deemed an original, but all such counterparts shall
together constitute one and the same instrument.


 


Section 11.14                      Appointment of Certain Agents.  (a)  Pursuant to Section 2.03
hereof, the Corporation may, in connection with any series of Purchase
Contracts appoint                                              
or any other Person as Calculation Agent to make any calculations as may be
required pursuant to the terms of any such series of Purchase Contracts. Any
such Calculation Agent shall act as an independent expert and, unless otherwise
provided by this Agreement, its calculations and determinations under this
Agreement shall, absent manifest error, be final and binding on the
Corporation, the Agent and the Holders. Any such calculations will be made
available to the Holders for inspection at the Agent’s Office.


 


(b)                                 Unless
otherwise specified pursuant to Section 2.03, the Corporation hereby
appoints Agent as the Paying Agent under the applicable Indenture with respect
to each Debt Security comprised by any Unit issued hereunder.


 


Section 11.15                      Inspection of Agreement.  A copy of this Agreement shall
be available at all reasonable times during normal business hours at the
Corporate Trust Office of the Agent for inspection by any Holder.


 


63

















 


IN
WITNESS WHEREOF, the Corporation, the Agent, the Collateral Agent, the Trustee,
the Warrant Agent and the Deposit Agent have duly executed this Agreement as of
the day and year first above set forth, and all Holders of Units shall become
parties hereto by and upon acceptance by them of delivery of Units issued in
accordance with the terms hereof.


 


	
   

  	
  THE BEAR STEARNS
  COMPANIES INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [                                            ],
  as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [                                            ],
  as Collateral

  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [                                            ],
  as Trustee and

  
	
   

  	
   

  	
  Paying Agent under each Indenture

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 

















 


	
   

  	
  [                                            ],
  as Warrant

  
	
   

  	
   

  	
  Agent under the
  Warrant Agreement

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [                                            ],
  as Deposit 

  
	
   

  	
   

  	
  Agent under the
  Deposit Agreement

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


EXHIBIT A


 


[FORM OF UNIT CERTIFICATE]


 


[FACE]


 


[IF
THE UNIT CERTIFICATE IS TO BE A GLOBAL REGISTERED UNIT CERTIFICATE, INSERT—This
Unit Certificate is a global Unit Certificate within the meaning of the Unit
Agreement hereinafter referred to and is registered in the name of the
Depository Trust Company (the “Depositary”) or a nominee of the
Depositary.


 


Unless
and until it is exchanged in whole or in part for Units in definitive
registered form, this Unit Certificate may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary).


 


Unless
this Unit Certificate is presented by an authorized representative of The
Depositary ([address]) to The Bear Stearns Companies Inc. or its agent for
registration of transfer, exchange or payment, and any Unit issued is
registered in the name of [                          ]
or such other name as requested by an authorized representative of the
Depositary and any payment hereon is made to [                          ]
or such other entity as is requested by an authorized representative of the
Depositary, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
A PERSON IS WRONGFUL inasmuch as the registered owner hereof, [                          ],
has an interest herein.]


 


A-1

















 


UNIT CERTIFICATE


 


(issuable in integral multiples of whole Units)


 


Evidencing the Ownership of, or Rights and Obligations

of the Holder Under, the Securities Specified Below


 


[Specify Securities Constituting Part of these Units]


 


CUSIP No.            


 


Certificate No.:             

Number of Units:  [Up To](1)


 


This
Unit Certificate certifies that                                       
(the “Holder”), or [registered assigns](2), is the [registered](2) owner
of [( ) Units](3) [the number of Units specified in Schedule A
hereto.](1)


 


Each
Unit represents ownership by the Holder of [specify Securities constituting
parts of the Unit] [, subject to the pledge of such Securities (other than
Purchase Contracts) by such Holder pursuant to the Unit Agreement (the “Unit
Agreement”) dated as of                           
among the Corporation, [                          ],
as Agent and Collateral Agent, as Trustee and Paying Agent under the applicable
Indenture referred to therein, as Warrant Agent under the Warrant Agreement
referred to therein and as Deposit Agent under the Deposit Agreement referred
to therein, and the Holders from time to time of the Units described therein. Pursuant
to the Unit Agreement, the Securities (other than Purchase Contracts)
constituting part of the Units evidenced hereby have been pledged to the
Collateral Agent to secure the obligations of the Holder under the Purchase
Contracts constituting part of such Units.](4)


 


[For
so long as the Purchase Contract underlying each Unit represented hereby
remains in effect, such Unit shall not be separable into its constituent parts
and the rights and obligations of the Holder of such Unit in respect of such
constituent parts may be transferred and exchanged only as a Unit.](5)


 


[Designated
Security Register:](6)


 


[Other
Terms of Units:]


 






(1)                                 Insert
in Global Unit Certificates.


 


(2)                                 Insert
in Registered Units.


 


(3)                                 Insert
in Definitive Unit Certificates.


 


(4)                                 Insert
in Registered Units consisting of Non-Separable Securities and Purchase
Contracts.


 


(5)                                 Insert
in non-separable Units.


 


(6)                                 Insert
in non-separable Registered Units.


 


A-2

















 


[INSERT APPROPRIATE SECURITY CERTIFICATE]


 


A-3

















 


[FORM OF PURCHASE CONTRACT

CONTEMPLATING SALE BY                ]


 


THE BEAR STEARNS COMPANIES INC.


 


[Insert Designation of Purchase Contracts]


 


PURCHASE CONTRACT(S)


 


Purchase Contracts


 


between


 


THE BEAR STEARNS COMPANIES INC.


 


and


 


[                               ]

or registered assigns,

as holder hereunder (the “Holder”)


 


All
capitalized terms used but not defined herein that are defined in the Unit
Agreement (described below) have the meanings set forth therein, and if not
defined therein, have the meaning set forth below.


 




	
  Purchase
  Contract Property:

  	
   

  
	
  Quantity:

  	
   

  
	
  Purchase Price:

  	
   

  
	
  Settlement Date:

  	
   

  
	
  Date of Payment of Purchase Price, if different from
  Settlement Date:

  	
   

  
	
  Payment
  Location:

  	
   

  
	
  Method of
  Settlement:

  	
   

  
	
  Currency of
  Settlement Payment:

  	
   

  
	
  Authorized
  Number of Purchase

  	
   

  
	
  Contracts:

  	
   

  
	
  Aggregate
  Purchase Price:

  	
   

  
	
  Aggregate
  Quantity of Purchase Contract Property:

  	
   

  
	
  Contract Fees:

  	
   

  
	
  Corporation
  Acceleration:

  	
   

  
	
  Holders’
  Acceleration:

  	
   

  
	
  Redemption
  Provisions:

  	
   

  
	
  Other Terms:

  	
   

  






 


A-4

















 


Subject
to the conditions hereinafter set forth, the Holder agrees to purchase and The
Bear Stearns Companies Inc., a corporation duly incorporated and existing under
the laws of the State of Delaware (the “Corporation”), agrees to sell,
subject to the terms of the Unit Agreement referred to below and as set forth
herein, on the Settlement Date, the Aggregate Quantity of Purchase Contract
Property, for the Purchase Price. The Purchase Contract(s) evidenced hereby
shall not entitle the Holder to purchase the Purchase Contract Property prior
to the Settlement Date.


 


The
Purchase Price for the Purchase Contract Property purchased pursuant to the
Purchase Contracts evidenced hereby shall be payable at the Payment Location on
the Settlement Date pursuant to the Method of Settlement in the Currency of
Settlement Payment.


 


Each
Purchase Contract evidenced hereby is one of a duly authorized issue of not
more than the Authorized Number of Purchase Contracts of the Corporation
relating to the purchase by holders of not more than the Aggregate Quantity of
Purchase Contract Property issued under the Unit Agreement, dated as of                               
(the “Unit Agreement”), among the Corporation, [                                  ],
as Agent (the “Agent”) and as Collateral Agent thereunder, as Warrant
Agent (the “Warrant Agent”) under the Warrant Agreement referred to
therein, as Deposit Agent (the “Deposit Agent”) under the Deposit
Agreement referred to therein, as Trustee (the “Trustee”) and Paying
Agent under each of the Indentures referred to therein, and the holders from
time to time of Units, to which Unit Agreement and supplemental agreements
thereto reference is hereby made for a description of the respective rights,
limitations of rights, obligations, duties and immunities thereunder of the
Agent, the Collateral Agent, the Corporation and the Holders and of the terms
upon which the Purchase Contracts are, and are to be, executed, countersigned,
executed on behalf of the Holder and delivered.


 


The
Agent may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents in connection with any transfer or exchange
of each Purchase Contract evidenced hereby. No service charge shall be required
for any such registration of transfer or exchange, but the Corporation and the
Agent may require payment of a sum sufficient to cover any tax or other
governmental charge imposed in connection with any registration of transfer or
exchange of Units.


 


Upon
registration of transfer of this Purchase Contract, the transferee shall be
bound (without the necessity of any other action on the part of such
transferee, except as may be required by the Agent pursuant to the Unit
Agreement), under the terms of the Unit Agreement and the Purchase Contracts
evidenced hereby and the transferor shall be released from the obligations
under the Purchase Contracts hereby. The Corporation covenants and agrees, and
the Holder, by his acceptance hereof, likewise covenants and agrees, to be
bound by the provisions of this paragraph.


 


The
extent to which, and the terms upon which, any cash or other property (other
than the Purchase Contract Property) is payable or deliverable with respect to
the Purchase Contracts evidenced hereby is described above under “Contract Fees”.
The extent to which, and the terms upon which, the Corporation may accelerate
the obligations of the Corporation and the Holders of the Purchase Contracts
evidenced hereby is described above under “Corporation Acceleration”. The
extent to which, and the terms upon which, the Holders of such Purchase


 


A-5

















 


Contracts may accelerate
the obligations of the Corporation and the Holders of the Purchase Contracts is
described above under “Holders’ Acceleration”. The extent to which, and the
terms upon which, the Corporation may redeem the Purchase Contracts
evidenced hereby is described above under “Redemption Provisions”.


 


Subject
to certain exceptions, the terms of the Purchase Contracts and the provisions
of the Unit Agreement may be amended with the consent of the Holders of
not less than a majority of the affected Outstanding Purchase Contracts and
certain Purchase Contract Defaults may be waived with the consent of the
Holders of a majority of the affected Outstanding Purchase Contracts.


 


Without
the consent of any Holder of Units, the terms of the Unit Agreement and the
Purchase Contracts may be amended to, among other things, cure any
ambiguity, to correct or supplement any provision in the Unit Agreement or
Purchase Contract, to add to covenants of the Corporation, Collateral Agent or
Agent or to make any other provisions with respect to matters or questions
arising under the Unit Agreement or the Purchase Contracts that do not
adversely affect the interests of the Holders in any material respect.


 


Holders
of the Purchase Contracts may not enforce the Unit Agreement or such
Purchase Contracts except as provided in the Unit Agreement.


 


Any
incorporator, or past, present or future stockholder, officer, attorney-in-fact
or director, as such, of the Corporation or of any successor corporation shall
not have any liability for any obligations of the Corporation under the
Purchase Contracts or the Unit Agreement or for any claim based on, with
respect to or by reason of such obligations or their creation. The Holder by
his acceptance hereof waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Purchase
Contracts.


 


The
Purchase Contracts shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.


 


Prior
to due presentment of a Unit Certificate or Purchase Contract for registration
of transfer, the Corporation, the Trustee, the Agent, the Warrant Agent, the
Deposit Agent and the Collateral Agent, and any agent of the Corporation, the
Trustee, the Agent, the Warrant Agent, the Deposit Agent and the Collateral
Agent may treat the Person in whose name this Purchase Contract is
registered as a party to the Purchase Contracts evidenced hereby for the
purpose of performance of such Purchase Contracts and for all other purposes
whatsoever, and neither the Corporation, the Trustee, the Agent, the Warrant
Agent, the Deposit Agent and the Collateral Agent nor any such agent shall be
affected by notice to the contrary.


 


The
Holder, by his acceptance hereof, authorizes the Agent to execute the Purchase
Contracts evidenced hereby on his behalf, authorizes and directs the Agent on
his behalf to take such other action, and covenants and agrees to take such
other action, as may be necessary or appropriate, or as may be
required by the Agent, to effectuate the provisions of the Unit Agreement
relating to the purchase of the Purchase Contract Property [and the pledge of
the Securities (other than the Purchase Contracts) constituting part of
the Unit of which this Purchase


 


A-6

















 


Contract forms a part to
the Collateral Agent on the Holder’s behalf,(7)] appoints the agent as his
attorney-in-fact for any and all such purposes, and agrees to be bound by the
terms thereof.


 


The
Purchase Contracts shall not, prior to the performance thereof, entitle the
Holder to any of the rights of a holder of the Purchase Contract Property.


 


No
Purchase Contract evidenced hereby shall be valid or obligatory for any purpose
until countersigned and executed on behalf of the Holder by the Agent, pursuant
to the Unit Agreement.


 






(7)                                 Insert
in Registered Units consisting of Non-Separable Securities.


 


A-7

















 


IN
WITNESS WHEREOF, The Bear Stearns Companies Inc. has caused this instrument to
be duly executed.


 


	
   

  	
  THE BEAR STEARNS
  COMPANIES INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [                                                ],
  as Agent, and 

  
	
   

  	
   

  	
  as
  attorney-in-fact of the Holder hereof

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Countersigned

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [                                                ],
  as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer

  



 


A-8

















 


[FORM OF PURCHASE CONTRACT CONTEMPLATING

PURCHASE BY                    ]


 


THE BEAR STEARNS COMPANIES INC.


 


[Insert Designation of Purchase Contracts]


 


PURCHASE CONTRACT(S)


 


Purchase Contracts


 


between


 


THE BEAR STEARNS COMPANIES INC.


 


and


 


[                                   ]

or registered assigns,

as holder hereunder (the “Holder”)


 


All
capitalized terms used but not defined herein that are defined in the Unit
Agreement (described below) have the meanings set forth therein, and if not
defined therein, have the meaning set forth below.


 




	
  Purchase
  Contract Property:

  
	
  Quantity:

  
	
  Purchase Price:

  
	
  Settlement Date:

  
	
  Payment
  Location:

  
	
  Method of Settlement:

  
	
  Method of
  Computing Settlement Amount:

  
	
  Currency of
  Settlement Payment:

  
	
  Authorized
  Number of Purchase Contracts:

  
	
  Aggregate
  Purchase Price:

  
	
  Aggregate
  Quantity of Purchase Contract Property

  
	
  Contract Fees:

  
	
  Corporation
  Acceleration:

  
	
  Holders’ Acceleration:

  
	
  Redemption
  Provisions:

  
	
  Other Terms:

  






 


A-9

















 


Subject
to the conditions hereinafter set forth, the Holder agrees to sell and The Bear
Stearns Companies Inc., a corporation duly incorporated and existing under the
laws of the State of Delaware (the “Corporation”), agrees to purchase,
subject to the terms of the Unit Agreement referred to below and as set forth
herein, on the Settlement Date, the Aggregate Quantity of Purchase Contract
Property, for the Purchase Price. The Purchase Contract(s) evidenced hereby
shall not entitle the Corporation to purchase the Purchase Contract Property,
or the Holder to receive the Purchase Price, prior to the Settlement Date.


 


If so
indicated under Method of Settlement above, the parties’ obligations under the
Purchase Contracts evidenced hereby may be settled by payment of the
Settlement Amount by the Corporation or the Holder, as the case may be. The
Settlement Amount payable pursuant to the Purchase Contracts evidenced hereby,
as determined in accordance with the Method of Computing Settlement Amount,
shall be payable on the Settlement Date in the Currency of Settlement Payment
pursuant to the Method of Settlement at the Payment Location; provided that any
Settlement Amount payable by Holders pursuant to the Purchase Contracts
evidenced hereby may be deducted from the principal payment that may be
payable by the Corporation with respect to any Debt Securities comprised by the
Units of which such Purchase Contacts are a part. If the Corporation instead
elects to pay the Purchase Price, the Purchase Price for the Purchase Contract
Property purchased pursuant to the Purchase Contracts evidenced hereby shall be
payable at the Payment Location on the Settlement Date pursuant to the Method
of Settlement in the Currency of Settlement Payment.


 


Each
Purchase Contract evidenced hereby is one of a duly authorized issue of not
more than the Authorized Number of Purchase Contracts of the Corporation issued
under the Unit Agreement, dated as of                        
(the “Unit Agreement”), among the Corporation, [                                  ],
as Agent (the “Agent”) and as Collateral Agent thereunder, as Warrant
Agent (the “Warrant Agent”) under the Warrant Agreement referred to
therein, as Deposit Agent (the “Deposit Agent”) under the Deposit
Agreement referred to therein, as Trustee (the “Trustee”) and Paying
Agent under each of the Indenture referred to therein, and the holders from
time to time of Units, to which Unit Agreement and supplemental agreements
thereto reference is hereby made for a description of the respective rights,
limitations of rights, obligations, duties and immunities thereunder of the
Agent, the Corporation and the Holders and of the terms upon which the Purchase
Contracts are, and are to be, executed, countersigned, executed on behalf of
the Holder and delivered.


 


The
Agent may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents in connection with any transfer or exchange
of each Purchase Contract evidenced hereby. No service charge shall be required
for any such registration of transfer or exchange, but the Corporation and the
Agent may require payment of a sum sufficient to cover any tax or other
governmental charge imposed in connection with any registration of transfer or
exchange of Units.


 


Upon
registration of transfer of this Purchase Contract, the transferee shall be
bound (without the necessity of any other action on the part of such
transferee, except as may be required by the Agent pursuant to the Unit
Agreement), under the terms of the Unit Agreement and the Purchase Contracts
evidenced hereby and the transferor shall be released from the obligations
under the Purchase Contracts hereby. The Corporation covenants and agrees, and
the


 


A-10

















 


Holder, by his acceptance
hereof, likewise covenants and agrees, to be bound by the provisions of this
paragraph.


 


The
extent to which, and the terms upon which, any cash or other property (other
than the Purchase Contract Property) is payable or deliverable with respect to
the Purchase Contracts evidenced hereby is described above under “Contract Fees”.
The extent to which, and the terms upon which, the Corporation may accelerate
the obligations of the Corporation and the Holders of the Purchase Contracts
evidenced hereby is described above under “Corporation Acceleration”. The
extent to which, and the terms upon which, the Holders of such Purchase
Contracts may accelerate the obligations of the Corporation and the
Holders of the Purchase Contracts is described above under “Holders’
Acceleration”. The extent to which, and the terms upon which, the Corporation may redeem
the Purchase Contracts evidenced hereby is described above under “Redemption
Provisions”.


 


Subject
to certain exceptions, the terms of the Purchase Contracts and the provisions
of the Unit Agreement may be amended with the consent of the Holders of
not less than a majority of the affected Outstanding Purchase Contracts and
certain Purchase Contract Defaults may be waived with the consent of the
Holders of a majority of the affected Outstanding Purchase Contracts.


 


Without
the consent of any Holder of Units, the terms of the Unit Agreement or the
Purchase Contracts may be amended to, among other things, cure any
ambiguity, to correct or supplement any provision in the Unit Agreement or
Purchase Contract, to add to the covenants of the Corporation, Collateral Agent
or Agent or to make any other provisions with respect to matters or questions
arising under the Unit Agreement or the Purchase Contracts that do not
adversely affect the interests of the Holders in any material respect.


 


Holders
of the Purchase Contracts may not enforce the Unit Agreement or such
Purchase Contracts except as provided in the Unit Agreement.


 


Any
incorporator, or past, present or future stockholder, officer, attorney-in-fact
or director, as such, of the Corporation or any successor corporation shall not
have any liability for any obligations of the Corporation under the Purchase
Contracts or the Unit Agreement or for any claim based on, with respect to or
by reason of such obligations or their creation. The Holder by his acceptance
hereof waives and releases all such liability. The waiver and release are part of
the consideration for the issue of the Purchase Contracts.


 


The
Purchase Contracts shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.


 


Prior
to due presentment of a Unit Certificate or Purchase Contract for registration
of transfer, the Corporation, the Agent, the Trustee, the Warrant Agent, the
Deposit Agent and the Collateral Agent, and any agent of the Corporation, the
Agent, the Trustee, the Warrant Agent, the Deposit Agent and the Collateral
Agent may treat the Person in whose name this Purchase Contract is
registered as a party to the Purchase Contracts evidenced hereby for the
purpose of performance of such Purchase Contracts and for all other purposes
whatsoever, and


 


A-11

















 


neither the Corporation,
the Agent, the Trustee, the Warrant Agent, the Deposit Agent and the Collateral
Agent nor any such agent shall be affected by notice to the contrary.


 


The
Holder, by his acceptance hereof, authorizes the Agent to execute the Purchase
Contracts evidenced hereby on his behalf, authorizes and directs the Agent on
his behalf to take such other action, and covenants and agrees to take such
other action, as may be necessary or appropriate, or as may be
required by the Agent, to effectuate the provisions of the Unit Agreement
relating to the purchase of the Purchase Contract Property [and the pledge of
the Securities (other than the Purchase Contracts) constituting part of
the Unit of which this Purchase Contract forms a part to the Collateral
Agent on the Holder’s behalf,(8)] appoints the agent as his attorney-in-fact
for any and all such purposes, and agrees to be bound by the terms thereof.


 


No
Purchase Contract evidenced hereby shall be valid or obligatory for any purpose
until countersigned and executed on behalf of the Holder by the Agent, pursuant
to the Unit Agreement.


 






(8)                                 Insert
in Registered Units consisting of Securities.


 


A-12

















 


IN
WITNESS WHEREOF, The Bear Stearns Companies Inc. has caused this instrument to
be duly executed.


 


	
   

  	
  THE BEAR STEARNS
  COMPANIES INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [                                                  ],
  as Agent, and 

  
	
   

  	
   

  	
  as attorney-in-fact
  of the Holder hereof

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Countersigned

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [                                                  ],
  as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer

  



 


A-13

















 


[IF PURCHASE CONTRACT IS A GLOBAL PURCHASE CONTRACT, INSERT]


 


SCHEDULE A


 


GLOBAL PURCHASE CONTRACT SCHEDULE OF EXCHANGES


 


The
initial number of Purchase Contracts represented by this Global Purchase
Contract is                  .
In accordance with the Unit Agreement pursuant to which this Global Purchase
Contract has been issued, the following (A) exchanges of [the number of
Purchase Contracts indicated below for a like number of Purchase Contracts
represented by a Global Purchase Contract that has been separated from a Unit
(a “Separated Purchase Contract”)(1)] [the number of Purchase Contracts
that had been represented by a Global Purchase Contract that is part of a
Unit (an “Attached Unit Purchase Contract”) for a like number of
Purchase Contracts represented by this Purchase Contract](2)) and (B) settlements
of the number of Purchase Contracts indicated below have been made:


 


	
  Date of

  Exchange

  or Settlement

  	
   

  	
  Number

  Exchanged for

  Separate

  Purchase

  Contract (1)

  	
   

  	
  Reduced

  Number

  Outstanding

  Following Such

  Exchange(1)

  	
   

  	
  Number

  of

  Attached

  Unit

  	
   

  	
  Purchase

  Contracts

  Exchanged for

  Purchase

  	
   

  	
  Contracts

  represented by

  this Separated

  Purchase

  Contract(2)

  	
   

  	
  Increased

  Number

  Outstanding

  Following such

  Exchange(2)

  	
   

  	
  Number of

  Purchase

  Contracts

  Settled

  	
   

  	
  Reduced

  Number

  Outstanding

  Following such

  Settlement

  	
   

  	
  Notation

  Made by or

  on Behalf of

  Agent

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






(1)         Applies
only if this Purchase Contract is part of a Unit.


 


(2)         Applies
only if this Purchase Contract has been separated from a Unit


 


A-14

















 


[IF PURCHASE CONTRACT IS SEPARATED FROM UNIT, INSERT]


 


[FORM OF ASSIGNMENT]


 


FOR VALUE RECEIVED, the
undersigned assigns and transfers the Purchase Contract(s) represented by this
Certificate to:


 


	
   

  	
  (Insert assignee’s
  social security or tax identification number)

  
	
   

  
	
   

  	
  (Insert address
  and zip code of assignee)

  
	
   

  
	
  and irrevocably
  appoints

  	
   

  	
   

  
				



 


agent to transfer this
Certificate on the books of the Corporation. The agent may substitute
another to act for him or her.


 


Date:


 


Signature(s):


	
   

  
	
   

  	
   

  
	
   

  
	
   

  	
   

  
			



 


(Sign exactly as your
name appears on the other side of this Certificate)


 


NOTICE:  The signature(s) should be guaranteed by an
eligible guarantor institution (banks, stockbrokers, savings and loan
associations and credit unions with membership in an approved signature
guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.]


 


A-15

















 


[IF UNIT CERTIFICATE IS A GLOBAL UNIT CERTIFICATE, INSERT]


 


SCHEDULE A


 


GLOBAL UNIT CERTIFICATE SCHEDULE OF EXCHANGES


 


The
initial number of Units represented by this Global Unit Certificate is                      .
In accordance with the Unit Agreement pursuant to which this Global Unit
Certificate has been issued, the following reductions of the number of Units
represented by this Global Unit Certificate have occurred:


 


	
  Number Reduced by Separation of the

  Component Parts of this Date of Reduction Unit

  	
   

  	
  Number Reduced by

  Exercise of Warrants

  	
   

  	
  Number Reduced by

  Settlement of Purchase Contracts

  	
   

  	
  Number of Units Outstanding

  Following any such Reduction

  	
   

  	
  Notation Made by or on

  Behalf of Paying Agent

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-16

















 


[IF UNIT IS A DEFINITIVE UNIT, INSERT –


 


[FORM OF ASSIGNMENT]


 


FOR VALUE RECEIVED, the
undersigned assigns and transfers the Unit(s) represented by this Certificate
to:


 


	
   

  	
  (Insert assignee’s
  social security or tax identification number)

  
	
   

  	
   

  
	
   

  	
  (Insert address
  and zip code of assignee)

  
	
   

  
	
  and irrevocably
  appoints

  	
   

  	
   

  
				



 


agent to transfer this
Unit Certificate on the books of the Corporation. The agent may substitute
another to act for him or her.


 


Date:


 


Signature(s):


 


	
   

  	
   

  
	
   

  
	
   

  	
   

  
	
   

  



 


(Sign exactly as your
name appears on the other side of this Certificate)


 


NOTICE:  The signature(s) should be guaranteed by an
eligible guarantor institution (banks, stockbrokers, savings and loan
associations and credit unions with membership in an approved signature
guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.]


 


A-17