EXHIBIT 5
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THE XXXXXXXX COMPANIES, INC.
and
JPMORGAN CHASE BANK,
as Purchase Contract Agent
PURCHASE CONTRACT AGREEMENT
Dated as of ___________, 2002
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TABLE OF CONTENTS
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Page
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATIONS
SECTION 1.01. Definitions..........................................1
SECTION 1.03. Form of Documents Delivered to Purchase
Contract Agent......................................13
SECTION 1.04. Acts of Holders; Record Dates.......................14
SECTION 1.05. Notices.............................................15
SECTION 1.06. Notice to Holders; Waiver...........................16
SECTION 1.07. Effect of Headings and Table of Contents............17
SECTION 1.08. Successors and Assigns..............................17
SECTION 1.09. Separability Clause.................................17
SECTION 1.10. Benefits of Agreement...............................17
SECTION 1.11. Governing Law.......................................17
SECTION 1.12. Legal Holidays......................................17
SECTION 1.13. Counterparts........................................18
SECTION 1.14. Inspection of Agreement.............................18
SECTION 1.15. Appointment of Financial Institution as Agent
for the Company.....................................18
ARTICLE 2
CERTIFICATE FORMS
SECTION 2.01. Forms of Certificates Generally.....................18
SECTION 2.02. Form of Purchase Contract Agent's Certificate
of Authentication...................................19
ARTICLE 3
THE SECURITIES
SECTION 3.01. Amount; Form and Denominations......................20
SECTION 3.02. Rights and Obligations Evidenced by the
Certificates........................................20
SECTION 3.03. Execution, Authentication, Delivery and Dating......21
SECTION 3.04. Temporary Certificates..............................21
SECTION 3.05. Registration; Registration of Transfer and
Exchange............................................22
SECTION 3.06. Book-Entry Interests................................23
SECTION 3.07. Notices to Holders..................................24
SECTION 3.08. Appointment of Successor Depositary.................24
SECTION 3.09. Definitive Certificates.............................24
SECTION 3.10. Mutilated, Destroyed, Lost and Stolen
Certificates........................................25
SECTION 3.11. Persons Deemed Owners...............................26
SECTION 3.12. Cancellation........................................26
SECTION 3.13. Creation of Growth PACS by Substitution of
Treasury Securities.................................27
SECTION 3.14. Reestablishment of Income PACS......................28
SECTION 3.15. Transfer of Collateral upon Occurrence of
Termination Event...................................30
SECTION 3.16. No Consent to Assumption............................30
ARTICLE 4
THE NOTES AND APPLICABLE OWNERSHIP INTEREST OF THE TREASURY
PORTFOLIO
SECTION 4.01. Interest Payments; Rights to Interest
Payments Preserved..................................31
SECTION 4.02. Notice and Voting...................................32
SECTION 4.03. Tax Event Redemption................................32
ARTICLE 5
THE PURCHASE CONTRACTS
SECTION 5.01. Purchase of Shares of Common Stock..................33
SECTION 5.02. Initial Remarketing; Payment of Purchase Price......35
SECTION 5.03. Issuance of Shares of Common Stock..................41
SECTION 5.04. Adjustment of Settlement Rate.......................42
SECTION 5.05. Notice of Adjustments and Certain Other Events......49
SECTION 5.06. Termination Event; Notice...........................50
SECTION 5.07. Intentionally Omitted...............................50
SECTION 5.08. Intentionally Omitted...............................50
SECTION 5.09. No Fractional Shares................................50
SECTION 5.10. Charges and Taxes...................................50
SECTION 5.11. Purchase Contract Payments..........................51
SECTION 5.12. Deferral of Purchase Contract Payments..............56
ARTICLE 6
REMEDIES
SECTION 6.01. Unconditional Right of Holders to Receive
Purchase Contract Payments and to Purchase Shares
of Common Stock.....................................57
SECTION 6.02. Restoration of Rights and Remedies..................57
SECTION 6.03. Rights and Remedies Cumulative......................58
SECTION 6.04. Delay or Omission Not Waiver........................58
SECTION 6.05. Undertaking for Costs...............................58
SECTION 6.06. Waiver of Stay or Extension Laws....................58
ARTICLE 7
THE PURCHASE CONTRACT AGENT
SECTION 7.01. Certain Duties and Responsibilities.................59
SECTION 7.02. Notice of Default...................................60
SECTION 7.03. Certain Rights of Purchase Contract Agent...........60
SECTION 7.04. Not Responsible for Recitals or Issuance of
Securities..........................................62
SECTION 7.05. May Hold Securities.................................62
SECTION 7.06. Money Held in Custody...............................62
SECTION 7.07. Compensation and Reimbursement......................62
SECTION 7.08. Corporate Purchase Contract Agent Required;
Eligibility.........................................63
SECTION 7.09. Resignation and Removal; Appointment of Successor...63
SECTION 7.10. Acceptance of Appointment by Successor..............65
SECTION 7.11. Merger, Conversion, Consolidation or Succession
to Business.........................................65
SECTION 7.12. Preservation of Information; Communications to
Holders.............................................66
SECTION 7.13. No Obligations of Purchase Contract Agent...........66
SECTION 7.14. Tax Compliance......................................66
ARTICLE 8
SUPPLEMENTAL AGREEMENTS
SECTION 8.01. Supplemental Agreements Without Consent of Holders..67
SECTION 8.02. Supplemental Agreements with Consent of Holders.....68
SECTION 8.03. Execution of Supplemental Agreements................69
SECTION 8.04. Effect of Supplemental Agreements...................69
SECTION 8.05. Reference to Supplemental Agreements................69
ARTICLE 9
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 9.01. Covenant Not to Consolidate, Merge, Convey,
Transfer or Lease Property Except under Certain
Conditions..........................................70
SECTION 9.02. Rights and Duties of Successor Corporation..........70
SECTION 9.03. Officers' Certificate and Opinion of Counsel
Given to Purchase Contract Agent....................71
ARTICLE 10
COVENANTS
SECTION 10.01. Performance under Purchase Contracts...............71
SECTION 10.02. Maintenance of Office or Agency....................71
SECTION 10.03. Company to Reserve Common Stock....................72
SECTION 10.04. Covenants as to Common Stock.......................72
SECTION 10.05. Statements of Officers of the Company as
to Default.........................................72
SECTION 10.06. ERISA..............................................72
PURCHASE CONTRACT AGREEMENT, dated as of __________, 2002, between
THE XXXXXXXX COMPANIES, INC., a Delaware corporation (the "Company"), and
JPMorgan Chase Bank, an __________ banking corporation, acting as purchase
contract agent for the Holders of Securities (as defined herein) from time
to time (the "Purchase Contract Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Certificates evidencing the Securities.
All things necessary to make the Purchase Contracts, when the
Certificates are executed by the Company and authenticated, executed on
behalf of the Holders and delivered by the Purchase Contract Agent, as
provided in this Agreement, the valid obligations of the Company, and to
constitute these presents a valid agreement of the Company, in accordance
with its terms, have been done. For and in consideration of the premises
and the purchase of the Securities by the Holders thereof, it is mutually
agreed as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATIONS
SECTION 1.01. Definitions.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular, and
nouns and pronouns of the masculine gender include the feminine and neuter
genders;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States;
(c) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any
particular Article, Section, Exhibit or other subdivision; and
(d) the following terms have the meanings given to them in this
Section 1.01(d):
"Act" has the meaning, with respect to any Holder, set forth in
Section 1.04.
"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" when used 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.
"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.
"Applicable Market Value" has the meaning set forth in Section
5.01.
"Applicable Ownership Interest" shall mean, with respect to an
Income PACS that includes the Treasury Portfolio, (A) a [2.5]% undivided
beneficial ownership interest in a $1,000 face amount of a principal or
interest strip in a U.S. treasury security included in such Treasury
Portfolio that matures on or prior to February [15], 2005 and (B) for each
scheduled interest payment date on the Senior Deferrable Notes after the
Tax Event Redemption Date, a _____%, undivided beneficial ownership
interest in a $1,000 face amount of a principal or interest strip in a U.S.
treasury security included in such Treasury Portfolio that matures on or
prior to such date.
"Applicable Principal Amount" means the aggregate principal amount
of the Notes which are components of Income PACS on the Initial Remarketing
Date.
"Applicants" has the meaning set forth in Section 7.12(b).
"Appreciation Cap Price" has the meaning set forth in Section
5.01.
"Bankruptcy Code" means title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform
system of bankruptcy laws.
"Beneficial Owner" means, with respect to a Book-Entry Interest, a
Person who is the beneficial owner of such Book-Entry Interest as reflected
on the books of the Depositary or on the books of a Person maintaining an
account with such Depositary (directly as a Depositary Participant or as an
indirect participant, in each case in accordance with the rules of such
Depositary).
"Board of Directors" means the board of directors of the Company
or a duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of
Directors, a copy of which has been certified by the Secretary or an
Assistant Secretary of the Company, to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification and delivered to the Purchase Contract Agent.
"Book-Entry Interest" means a beneficial interest in a Global
Certificate, registered in the name of a Depositary or a nominee thereof,
ownership and transfers of which shall be maintained and made through book
entries by such Depositary as described in Section 3.06.
"Business Day" means any day other than a Saturday or Sunday or a
day on which banking institutions in New York City, New York, or Chicago,
Illinois are authorized or required by law or executive order to remain
closed or a day on which the Indenture Trustee or the Property Trustee is
closed for business; provided that for purposes of the second paragraph of
Section 1.12 only, the term "Business Day" shall also be deemed to exclude
any day on which trading on the New York Stock Exchange, Inc. is closed or
suspended.
"Cash Merger" has the meaning set forth in Section 5.04(b)(2).
"Cash Settlement" has the meaning set forth in Section 5.02(b)(i).
"Certificate" means a Income PACS Certificate or a Growth PACS
Certificate.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as a
depositary for the Securities and in whose name, or in the name of a
nominee of that organization, shall be registered a Global Certificate and
which shall undertake to effect book-entry transfers and pledges of the
Securities.
"Closing Price" has the meaning set forth in Section 5.01.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning set forth in Section 1.01(f) of the
Pledge Agreement.
"Collateral Account" has the meaning set forth in Section 1.01(f)
of the Pledge Agreement.
"Collateral Agent" means [ ], as Collateral Agent under the Pledge
Agreement until a successor Collateral Agent shall have become such
pursuant to the applicable provisions of the Pledge Agreement, and
thereafter "Collateral Agent" shall mean the Person who is then the
Collateral Agent thereunder.
"Collateral Substitution" has the meaning set forth in Section
3.13.
"Common Stock" means the common stock, par value $1.00 of The
Xxxxxxxx Companies, Inc.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such
pursuant to the applicable provision of this Agreement, and thereafter
"Company" shall mean such successor.
"Constituent Person" has the meaning set forth in Section 5.04(b).
"Corporate Trust Office" means the principal corporate trust
office of the Purchase Contract Agent at which, at any particular time, its
corporate trust business shall be administered, which office at the date
hereof is located at [ ], Attention: Corporate Trust Department.
"Coupon Rate" means the percentage rate per annum at which each
Note will bear interest initially.
"Current Market Price" has the meaning set forth in Section
5.04(a)(8).
"Depositary" means a clearing agency registered under the Exchange
Act that is designated to act as Depositary for the Securities as
contemplated by Sections 3.06, 3.07, 3.08 and 3.09.
"Depositary Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the
Depositary effects book entry transfers and pledges of securities deposited
with the Depositary.
"DTC" means The Depository Trust Company.
"Early Settlement" means an early settlement of a Purchase
Contract pursuant to Section 5.04(b)(2).
"Early Settlement Date" has the meaning set forth in Section
5.04(b)(2).
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and
the rules and regulations promulgated thereunder.
"Exchange Property" has the meaning set forth in Section
5.04(b)(1).
"Expiration Date" has the meaning set forth in Section 1.04(e).
"Expiration Time" has the meaning set forth in Section 5.04(a)(6).
"Failed Initial Remarketing" has the meaning set forth in Section
5.02(a).
"Failed Secondary Remarketing" has the meaning set forth in
Section 5.02(c).
"Global Certificate" means a Certificate that evidences all or
part of the Securities and is registered in the name of a Clearing Agency
or a nominee thereof.
"Growth PACS" means, following the substitution of Treasury
Securities for Notes as collateral to secure a Holder's obligations under
the Purchase Contract, the collective rights and obligations of a Holder of
a Growth PACS Certificate in respect of such Treasury Securities, subject
to the Pledge thereof, and the related Purchase Contract.
"Growth PACS Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Growth PACS
specified on such certificate.
"Holder" means, with respect to a Security, the Person in whose
name the Security evidenced by a Certificate is registered in the Security
Register; provided, however, that in determining whether the Holders of the
requisite number of Securities have voted on any matter, then for the
purpose of such determination only (and not for any other purpose
hereunder), if the Security remains in the form of one or more Global
Certificates and if the Depositary which is the registered holder of such
Global Certificate has sent an omnibus proxy assigning voting rights to the
Depositary Participants to whose accounts the Securities are credited on
the record date, the term "Holder" shall mean such Depositary Participant
acting at the direction of the Beneficial Owners.
"Income PACS" means the collective rights and obligations of a
Holder of a Income PACS Certificate in respect of the Notes or an
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, subject in each case to the Pledge thereof, and the related
Purchase Contract; provided that the appropriate Applicable Ownership
Interest (as specified in clause (B) of the definition of such term) of the
Treasury Portfolio shall not be subject to the Pledge.
"Income PACS Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Income PACS
specified on such certificate.
"Indenture" means the Indenture, dated as of November 10, 1997,
between the Company and the Indenture Trustee (including any provisions of
the TIA that are deemed incorporated therein), as amended and supplemented
as of the date hereof, pursuant to which the Notes will be issued.
"Indenture Trustee" means Bank One Trust Company, N.A., as trustee
under the Indenture, or any successor thereto.
"Initial Remarketing" has the meaning set forth in Section
5.02(a).
"Initial Remarketing Date" means the third business day
immediately preceding November 16, 2004.
"Issuer Order" or "Issuer Request" means a written order or
request signed in the name of the Company by its Chairman of the Board, its
President or one of its Vice Presidents, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Purchase Contract Agent.
"non-electing share" has the meaning set forth in Section 5.04(b).
"Notes" means the series of Notes designated the senior notes due
February 16, 2007 to be issued by the Company under the Indenture as of the
date hereof.
"NYSE" has the meaning set forth in Section 5.01.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, its President or one of its Vice Presidents, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Company, and delivered to the Purchase Contract Agent. Any Officers'
Certificate delivered with respect to compliance with a condition or
covenant provided for in this Agreement shall include:
(i) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(ii) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(iii) a statement that, in the opinion of each such
officer, each such officer has made such examination or
investigation as is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition
has been complied with; and
(iv) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel to the Company (and who may be an employee of the Company), and
who shall be reasonably acceptable to the Purchase Contract Agent. An
opinion of counsel may rely on certificates as to matters of fact.
"Outstanding Securities" means, with respect to any Security and
as of the date of determination, all Securities evidenced by Certificates
theretofore authenticated, executed and delivered under this Agreement,
except:
(i) If a Termination Event has occurred, (i) Growth PACS
and (ii) Income PACS for which the underlying Notes have been
theretofore deposited with the Purchase Contract Agent in trust
for the Holders of such Income PACS;
(ii) Securities evidenced by Certificates theretofore
cancelled by the Purchase Contract Agent or delivered to the
Purchase Contract Agent for cancellation or deemed cancelled
pursuant to the provisions of this Agreement; and
(iii) Securities evidenced by Certificates in exchange
for or in lieu of which other Certificates have been
authenticated, executed on behalf of the Holder and delivered
pursuant to this Agreement, other than any such Certificate in
respect of which there shall have been presented to the Purchase
Contract Agent proof satisfactory to it that such Certificate is
held by a protected purchaser in whose hands the Securities
evidenced by such Certificate are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
number of the Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the
Company or any Affiliate of the Company shall be disregarded and deemed not
to be Outstanding Securities, except that, in determining whether the
Purchase Contract Agent shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities that a Responsible Officer of the Purchase Contract Agent
actually knows to be so owned shall be so disregarded. Securities so owned
that have been pledged in good faith may be regarded as Outstanding
Securities if the pledgee establishes to the satisfaction of the Purchase
Contract Agent the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any Affiliate of the
Company.
"Payment Date" means each February 16, May 16, August 16 and
November 16, commencing February 16, 2002.
"Permitted Investments" has the meaning set forth in the Pledge
Agreement.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof or any other
entity of whatever nature.
"Plan" means an employee benefit plan that is subject to ERISA, a
plan or individual retirement account that is subject to Section 4975 of
the Code or any entity whose assets are considered assets of any such plan.
"Pledge" means the pledge under the Pledge Agreement of the Notes,
the Treasury Securities or the appropriate Applicable Ownership Interest
(as specified in clause (A) of the definition of such term) of the Treasury
Portfolio, in each case constituting a part of the Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of
__________, 2002, among the Company, the Collateral Agent, the Securities
Intermediary and the Purchase Contract Agent, on its own behalf and as
attorney-in-fact for the Holders from time to time of the Securities.
"Pledged Notes" has the meaning set forth in Section 1.01(f) of
the Pledge Agreement.
"Predecessor Certificate" means a Predecessor Income PACS
Certificate or a Predecessor Growth PACS Certificate.
"Predecessor Income PACS Certificate" of any particular Income
PACS Certificate means every previous Income PACS Certificate evidencing
all or a portion of the rights and obligations of the Company and the
Holder under the Income PACS evidenced thereby; and, for the purposes of
this definition, any Income PACS Certificate authenticated and delivered
under Section 3.10 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Income PACS Certificate shall be deemed to evidence the same
rights and obligations of the Company and the Holder as the mutilated,
destroyed, lost or stolen Income PACS Certificate.
"Predecessor Growth PACS Certificate" of any particular Growth
PACS Certificate means every previous Growth PACS Certificate evidencing
all or a portion of the rights and obligations of the Company and the
Holder under the Growth PACS evidenced thereby; and, for the purposes of
this definition, any Growth PACS Certificate authenticated and delivered
under Section 3.10 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Growth PACS Certificate shall be deemed to evidence the same
rights and obligations of the Company and the Holder as the mutilated,
destroyed, lost or stolen Growth PACS Certificate.
"Primary Treasury Dealer" shall mean a primary U.S. government
securities dealer in New York City.
"Proceeds" has the meaning set forth in Section 1.01(f) of the
Pledge Agreement.
"Pro Rata" shall mean pro rata to each Holder according to the
aggregate principal amount of the Securities held by such Holder in
relation to the aggregate principal amount of all Securities outstanding.
"Prospectus" means the prospectus relating to the delivery of
shares of Common Stock in connection with an Early Settlement of Purchase
Contracts pursuant to Section 5.04(b)(2), in the form in which first filed,
or transmitted for filing, with the Commission after the effective date of
the Registration Statement pursuant to Rule 424(b) under the Securities
Act, including the documents incorporated by reference therein as of the
date of such Prospectus.
"Purchase Contract" means, with respect to any Security, the
contract forming a part of such Security and obligating the Company to (i)
sell, and the Holder of such Security to purchase, shares of Common Stock
and (ii) pay the Holder thereof Purchase Contract Payments, in each case on
the terms and subject to the conditions set forth in Article Five hereof.
"Purchase Contract Agent" means the Person named as the "Purchase
Contract Agent" in the first paragraph of this Agreement until a successor
Purchase Contract Agent shall have become such pursuant to the applicable
provisions of this Agreement, and thereafter
"Purchase Contract Agent" shall mean such Person.
"Purchase Contract Payments" means the payments payable by the
Company on the Payment Dates in respect of each Purchase Contract, at a
rate per year of____% of the Stated Amount per Purchase Contract.
"Purchase Contract Settlement Date" means February 16, 2005.
"Purchase Contract Settlement Fund" has the meaning set forth in
Section 5.03.
"Purchase Price" has the meaning set forth in Section 5.01.
"Purchased Shares" has the meaning set forth in Section
5.04(a)(6).
"Quotation Agent" means (i) Xxxxxxx Xxxxx Government Securities
Inc. and its respective successors or any other Primary Treasury Dealer
selected by the Company.
"Record Date" for any distribution and Purchase Contract Payment
payable on any Payment Date means, as to any Global Certificate, the
Business Day next preceding such Payment Date, and as to any other
Certificate, the date selected by the Company, which shall be more than one
Business Day but less than sixty Business Days prior to such Payment Date.
"Redemption Amount" shall mean, for each Note, the product of the
principal amount of such Note and a fraction, the numerator of which shall
be the Treasury Portfolio Purchase Price and the denominator of which shall
be the principal amount of such Note.
"Reference Dealer" means a dealer engaged in trading of
convertible securities.
"Reference Price" has the meaning set forth in Section 5.01.
"Registration Statement" means a registration statement under the
Securities Act prepared by the Company covering, inter alia, the delivery
by the Company of the shares of Common Stock in connection with an Early
Settlement under Section 5.07 or an early settlement of Purchase Contracts
during the Early Settlement Week under Section 5.04(b)(2), including all
exhibits thereto and the documents incorporated by reference in the
prospectus contained in such registration statement, and any post-effective
amendments thereto.
"Remarketing" means the remarketing of the Notes by the
Remarketing pursuant to the Remarketing Agreement.
"Remarketing Agent" has the meaning set forth in Section 5.02(c).
"Remarketing Agreement" means the Remarketing Agreement, dated as
of _____________ __, 2002, between the Company and the Remarketing Agent.
"Reorganization Event" has the meaning set forth in Section
5.04(b).
"Reset Rate" means the interest rate per year determined by the
Remarketing Agent as necessary for a successful completion of the
Remarketing.
"Responsible Officer" means, with respect to the Purchase Contract
Agent, any officer of the Purchase Contract Agent assigned by the Purchase
Contract Agent to administer this Purchase Contract Agreement.
"Secondary Remarketing" has the meaning set forth in Section
5.02(c).
"Secondary Remarketing Date" means the third business day
immediately preceding the Purchase Contract Settlement Date.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time, and the rules
and regulations promulgated thereunder.
"Securities Intermediary" means [ ], as Securities Intermediary
under the Pledge Agreement until a successor Securities Intermediary shall
have become such pursuant to the applicable provisions of the Pledge
Agreement, and thereafter "Securities Intermediary" shall mean such
successor.
"Security" means an Income PACS or a Growth PACS, as the case may
be.
"Security Register" and "Securities Registrar" have the respective
meanings set forth in Section 3.05.
["Senior Indebtedness" means indebtedness of any kind of the
Company unless the instrument under which such indebtedness is incurred
expressly provides that it is on a parity in right of payment with or
subordinate in right of payment to the Purchase Contract Payments.]
"Settlement Rate" has the meaning set forth in Section 5.01.
"Sixth Supplemental Indenture" means the Sixth Supplemental
Indenture to the Indenture, entered into between the Company and the
Indenture Trustee on the date hereof.
"Stated Amount" means $[25].
"Successful Initial Remarketing" has the meaning set forth in
Section 5.02(a).
"Successful Secondary Remarketing" has the meaning set forth in
Section 5.02(c).
"Tax Event" shall mean the receipt by the Company of an opinion of
independent counsel, rendered by a law firm having a recognized national
tax practice, to the effect that, as a result of any amendment to, or
change, including any announced prospective change in, the laws or any
regulations of the United States or any political subdivision or taxing
authority or which affects taxation, any amendment to or change in an
interpretation or application of these laws or regulations by any
legislative body, court, governmental agency or regulatory authority or any
interpretation or pronouncement that provides for a position with respect
to these laws or regulations that differs from the generally accepted
position on the Closing Date, which amendment or change is effective or
which interpretation or pronouncement is announced on or after the Closing
Date, there is more than an insubstantial increase in the risk that
interest payable by the Company on the Notes is not, or within 90 days of
the date of such opinion will not be, deductible by the Company, in whole
or in part, for United States federal income tax purposes.
"Tax Event Redemption" shall mean that a Tax Event has occurred
and is continuing and the Notes have been called for redemption pursuant to
the Indenture.
"Tax Event Redemption Principal Amount" means either (i) if the
Tax Event Redemption Date occurs prior to November 16, 2004 or, in the
event of a Failed Initial Remarketing, prior to the Purchase Contract
Settlement Date, the aggregate principal amount of the Notes which are
components of Income PACS on the Tax Event Redemption Date or (ii) if the
Tax Event Redemption Date occurs on or after November 16, 2004 or, in the
event of a Failed Initial Remarketing, on or after the Purchase Contract
Settlement Date, the aggregate principal amount of the Notes outstanding on
such Tax Event Redemption Date.
"Termination Date" means the date, if any, on which a Termination
Event occurs.
"Termination Event" means the occurrence of any of the following
events:
(i) at any time on or prior to the Purchase Contract
Settlement Date, a judgment, decree or court order shall have been
entered granting relief under the Bankruptcy Code, adjudicating
the Company to be insolvent, or approving as properly filed a
petition seeking reorganization or liquidation of the Company or
any other similar applicable Federal or State law, and, unless
such judgment, decree or order shall have been entered within 60
days prior to the Purchase Contract Settlement Date, such decree
or order shall have continued undischarged and unstayed for a
period of 60 days;
(ii) a judgment, decree or court order for the
appointment of a receiver or liquidator or trustee or assignee in
bankruptcy or insolvency of the Company or of its property, or for
the termination or liquidation of its affairs, shall have been
entered, and, unless such judgment, decree or order shall have
been entered within 60 days prior to the Purchase Contract
Settlement Date, such judgment, decree or order shall have
continued undischarged and unstayed for a period of 60 days; or
(iii) at any time on or prior to the Purchase Contract
Settlement Date, the Company shall file a petition for relief
under the Bankruptcy Code, or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or
answer or consent seeking reorganization or liquidation under the
Bankruptcy Code or any other similar applicable Federal or State
law, or shall consent to the filing of any such petition, or shall
consent to the appointment of a receiver or liquidator or trustee
or assignee in bankruptcy or insolvency of it or of its property,
or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they
become due.
"TIA" means the Trust Indenture Act of 1939, as amended from time
to time, or any successor legislation.
"Trading Day" has the meaning set forth in Section 5.01.
"Treasury Portfolio" means (1) in connection with the Initial
Remarketing, a portfolio of zero-coupon U.S. Treasury Securities consisting
of (a) principal or interest strips of U.S. Treasury Securities that mature
on or prior to November 16, 2004 in an aggregate amount equal to the
Applicable Principal Amount and (b) with respect to the scheduled interest
payment date on the Notes that occurs on the Purchase Contract Settlement
Date, principal or interest strips of U.S. Treasury Securities that mature
on or prior to such date in an aggregate amount equal to the aggregate
interest payment that would be due on the Applicable Principal Amount on
such date if the applicable Coupon Rate on the Notes were not reset to the
Reset Rate as described in Section 5.02 and (2) in connection with a Tax
Event Redemption, (a) if the Tax Event Redemption Date occurs prior to
November 16, 2004 or, in the event of a Failed Initial Remarketing, prior
to the Purchase Contract Settlement Date, a portfolio of zero-coupon U.S.
Treasury Securities consisting of (i) principal or interest strips of U.S.
Treasury Securities which mature on or prior to February [15], 2005 in an
aggregate amount equal to the applicable Tax Event Redemption Principal
Amount and (ii) with respect to each scheduled interest payment date on the
Notes that occurs after the Tax Event Redemption Date and on or before the
Purchase Contract Settlement Date, principal or interest strips of U.S.
Treasury Securities that mature on or prior to such date in an aggregate
amount equal to the aggregate interest payment that would be due on the
applicable Tax Event Redemption Principal Amount of the Notes on such date,
and (b) if the Tax Event Redemption Date occurs on or after November 16,
2004 or, in the event of a Failed Initial Remarketing, on or after the
Purchase Contract Settlement Date, a portfolio of zero-coupon U.S. Treasury
Securities consisting of (i) principal or interest strips of U.S. Treasury
Securities which mature on or prior to February 16, 2007 in an aggregate
amount equal to the applicable Tax Event Redemption Principal Amount and
(ii) with respect to each scheduled interest payment date on the Notes that
occurs after the Tax Event Redemption Date, principal or interest strips of
such U.S. Treasury Securities that mature on or prior to such date in an
aggregate amount equal to the aggregate interest payment that would be due
on the applicable Tax Event Redemption Principal Amount of the Notes on
such date.
"Treasury Portfolio Purchase Price" means the lowest aggregate
price quoted by the Primary Treasury Dealer to the Quotation Agent (a) in
the case of a Tax Event Redemption, on the third Business Day immediately
preceding the Tax Event Redemption Date for the purchase of the applicable
Treasury Portfolio for settlement on the Tax Event Redemption Date and (b)
in the case of the Initial Remarketing, on the Initial Remarketing Date for
the purchase of the applicable Treasury Portfolio for settlement on
November 16, 2004.
"Treasury Securities" means zero-coupon U.S. Treasury Securities
(CUSIP No. ______________) which mature on February 15, 2005.
"Underwriting Agreement" means the Underwriting Agreement, dated
as of __________, 2002, between the Company and the Underwriters identified
in Schedule A thereto.
"Vice President" means any vice president, whether or not
designated by a number or a word or words added before or after the title
"vice president."
SECTION 1.02. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the Purchase Contract Agent to
take any action in accordance with any provision of this Agreement, the
Company shall furnish to the Purchase Contract Agent an Officers'
Certificate stating that all conditions precedent, if any, provided for in
this Agreement relating to the proposed action have been complied with and,
if requested by the Purchase Contract Agent, 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 or she has made such examination or investigation
as is necessary to enable such individual to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied
with.
SECTION 1.03. Form of Documents Delivered to Purchase Contract 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 or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement, they may, but need not, be
consolidated and form one instrument.
SECTION 1.04. Acts of Holders; Record Dates.
(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 Purchase Contract Agent and, where it
is hereby expressly required, to the Company. 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 7.01) conclusive in favor of the
Purchase Contract Agent and the Company, 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 which the Purchase
Contract Agent deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Certificate
evidencing such Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Purchase Contract Agent or the
Company in reliance thereon, whether or not notation of such action is made
upon such Certificate.
(e) The Company may set any date as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to give, make
or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Agreement to be given,
made or taken by Holders of Securities. If any record date is set pursuant
to this paragraph, the Holders of the Outstanding Income PACS and the
Outstanding Growth PACS, as the case may be, on such record date, and no
other Holders, shall be entitled to take the relevant action with respect
to the Income PACS or the Growth PACS, as the case may be, whether or not
such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken prior to or on the
applicable Expiration Date by Holders of the requisite number of
Outstanding Securities on such record date. Nothing contained in this
paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and be of no
effect), and nothing contained in this paragraph shall be construed to
render ineffective any action taken by Holders of the requisite number of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Purchase
Contract Agent in writing and to each Holder of Securities in the manner
set forth in Section 1.06.
With respect to any record date set pursuant to this Section, the
Company may designate any date as the "Expiration Date" and from time to
time may change the Expiration Date to any earlier or later day; provided
that no such change shall be effective unless notice of the proposed new
Expiration Date is given to the Purchase Contract Agent in writing, and to
each Holder of Securities in the manner set forth in Section 1.06, prior to
or on the existing Expiration Date. If an Expiration Date is not designated
with respect to any record date set pursuant to this Section, the Company
shall be deemed to have initially designated the 180th day after such
record date as the Expiration Date with respect thereto, subject to its
right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the
180th day after the applicable record date.
SECTION 1.05. Notices.
Any notice or communication is duly given if in writing and
delivered in Person or mailed by first-class mail (registered or certified,
return receipt requested), telecopier (with receipt confirmed) or overnight
air courier guaranteeing next day delivery, to the others' address;
provided that notice shall be deemed given to the Purchase Contract Agent
only upon receipt thereof:
If to the Purchase Contract Agent:
[ ]
[ ]
[ ]
Telecopier No.:
Attention:
If to the Company:
The Xxxxxxxx Companies, Inc.
Telecopier No.:
Attention:
with a copy to:
[ ]
[ ]
If to the Collateral Agent:
[ ]
[ ]
[ ]
[ ]
[ ]
Telecopier No.:
Attention:
If to the Property Trustee:
[ ]
[ ]
[ ]
Telecopier No.:
Attention:
If to the Indenture Trustee:
[ ]
[ ]
[ ]
[ ]
[ ]
Telecopier No.:
Attention:
SECTION 1.06. Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at its address as it appears in the Security
Register, 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 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 Purchase Contract
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
Purchase Contract Agent shall constitute a sufficient notification for
every purpose hereunder.
SECTION 1.07. 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 1.08. Successors and Assigns.
All covenants and agreements in this Agreement by the Company and
the Purchase Contract Agent shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 1.09. Separability Clause.
In case any provision in this Agreement or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof and thereof shall not in
any way be affected or impaired thereby.
SECTION 1.10. Benefits of Agreement.
Nothing contained in this Agreement or in the Securities, express
or implied, shall give to any Person, other than the parties hereto and
their successors hereunder and, to the extent provided hereby, the Holders,
any benefits or any legal or equitable right, remedy or claim under this
Agreement. The Holders from time to time shall be beneficiaries of this
Agreement and shall be bound by all of the terms and conditions hereof and
of the Securities evidenced by their Certificates by their acceptance of
delivery of such Certificates.
SECTION 1.11. Governing Law.
This Agreement and the Securities shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 1.12. Legal Holidays.
In any case where any Payment Date shall not be a Business Day
(notwithstanding any other provision of this Agreement or the Securities),
Purchase Contract Payments or other distributions shall not be paid on such
date, but Purchase Contract Payments or such other distributions shall be
paid on the next succeeding Business Day with the same force and effect as
if made on such Payment Date, provided that no interest shall accrue or be
payable by the Company or to any Holder for the period from and after any
such Payment Date.
In any case where any Purchase Contract Settlement Date or Early
Settlement Date shall not be a Business Day (notwithstanding any other
provision of this Agreement or the Securities) Purchase Contracts shall not
be performed and Early Settlement shall not be effected on such date, but
Purchase Contracts shall be performed or Early Settlement effected, as
applicable, on the next succeeding Business Day with the same force and
effect as if made on such Purchase Contract Settlement Date or Early
Settlement Date, as applicable.
SECTION 1.13. Counterparts.
This Agreement may be executed in any number of counterparts by
the parties hereto on separate counterparts, each of which, when so
executed and delivered, shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
SECTION 1.14. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable
times during normal business hours at the Corporate Trust Office for
inspection by any Holder or Beneficial Owner.
SECTION 1.15. Appointment of Financial Institution as Agent for
the Company.
The Company may appoint a financial institution (which may be the
Collateral Agent) to act as its agent in performing its obligations and in
accepting and enforcing performance of the obligations of the Purchase
Contract Agent and the Holders, under this Agreement and the Purchase
Contracts, by giving notice of such appointment in the manner provided in
Section 1.05 hereof. Any such appointment shall not relieve the Company in
any way from its obligations hereunder.
ARTICLE 2
CERTIFICATE FORMS
SECTION 2.01. Forms of Certificates Generally.
The Certificates (including the form of Purchase Contract forming
part of each Security evidenced thereby) shall be in substantially the form
set forth in Exhibit A hereto (in the case of Certificates evidencing
Income PACS) or Exhibit B hereto (in the case of Certificates evidencing
Growth PACS), with such letters, numbers or other marks of identification
or designation and such legends or endorsements printed, lithographed or
engraved thereon as may be required by the rules of any securities exchange
on which the Securities are listed or any depositary therefor, or as may,
consistently herewith, be determined by the officers of the Company
executing such Certificates, as evidenced by their execution of the
Certificates.
The definitive 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 of the Company executing the Securities
evidenced by such Certificates, consistent with the provisions of this
Agreement, as evidenced by their execution thereof.
Every Global Certificate authenticated, executed on behalf of the
Holders and delivered hereunder shall bear a legend in substantially the
following form:
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF
THE PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF CEDE & CO., AS NOMINEE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE
IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT
AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS
CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REQUESTED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN."
SECTION 2.02. Form of Purchase Contract Agent's Certificate of
Authentication.
The form of the Purchase Contract Agent's certificate of
authentication of the Securities shall be in substantially the form set
forth on the form of the applicable Certificates.
ARTICLE 3
THE SECURITIES
SECTION 3.01. Amount; Form and Denominations.
The aggregate number of Securities evidenced by Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to ______________ (_____________ if the over-allotment option
granted in the Underwriting Agreement is exercised in full), except for
Certificates authenticated, executed and delivered upon registration of
transfer of, in exchange for, or in lieu of, other Certificates pursuant to
Sections 3.04, 3.05, 3.10, 3.13, 3.14 or 8.05.
The Certificates shall be issuable only in registered form and
only in denominations of a single Income PACS or Growth PACS and any
integral multiple thereof.
SECTION 3.02. Rights and Obligations Evidenced by the Certificates.
Each Income PACS Certificate shall evidence the number of Income
PACS specified therein, with each such Income PACS representing (1) the
ownership by the Holder thereof of a beneficial interest in a Note or the
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be, subject to the Pledge of such Note or the Applicable Ownership Interest
(as specified in clause (A) of the definition of such term) of the Treasury
Portfolio, as the case may be, by such Holder pursuant to the Pledge
Agreement, and (2) the rights and obligations of the Holder thereof and the
Company under one Purchase Contract. The Purchase Contract Agent, as
attorney-in-fact for, and on behalf of, the Holder of each Income PACS
shall pledge, pursuant to the Pledge Agreement, the Note or the Applicable
Ownership Interest (as specified in clause (A) of the definition of such
term) of the Treasury Portfolio, as the case may be, forming a part of such
Income PACS, to the Collateral Agent and grant to the Collateral Agent a
security interest in the right, title and interest of such Holder in such
Note or the Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio, as the case may be,
for the benefit of the Company, to secure the obligation of the Holder
under each Purchase Contract to purchase shares of Common Stock.
Upon the formation of a Growth PACS pursuant to Section 3.13, each
Growth PACS Certificate shall evidence the number of Growth PACS specified
therein, with each such Growth PACS representing (1) the ownership by the
Holder thereof of a [1/40] undivided beneficial interest in a Treasury
Security with a principal amount equal to $1,000, subject to the Pledge of
such Treasury Security by such Holder pursuant to the Pledge Agreement, and
(2) the rights and obligations of the Holder thereof and the Company under
one Purchase Contract.
Prior to the purchase of shares of Common Stock under each
Purchase Contract, such Purchase Contracts shall not entitle the Holder of
a Security to any of the rights of a holder of shares of Common Stock,
including, without limitation, the right to vote or receive any dividends
or other payments or to consent or to receive notice as a shareholder in
respect of the meetings of shareholders or for the election of directors of
the Company or for any other matter, or any other rights whatsoever as a
shareholder of the Company.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
Subject to the provisions of Sections 3.13 and 3.14 hereof, upon
the execution and delivery of this Agreement, and at any time and from time
to time thereafter, the Company may deliver Certificates executed by the
Company to the Purchase Contract Agent for authentication, execution on
behalf of the Holders and delivery, together with its Issuer Order for
authentication of such Certificates, and the Purchase Contract Agent in
accordance with such Issuer Order shall authenticate, execute on behalf of
the Holders and deliver such Certificates.
The Certificates shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents. The
signature of any of these officers on the Certificates may be manual or
facsimile.
Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Certificates or did not hold such offices at the date of such
Certificates.
No Purchase Contract evidenced by a Certificate shall be valid
until such Certificate has been executed on behalf of the Holder by the
manual signature of an authorized signatory of the Purchase Contract Agent,
as such Holder's attorney-in-fact. Such signature by an authorized
signatory of the Purchase Contract Agent shall be conclusive evidence that
the Holder of such Certificate has entered into the Purchase Contracts
evidenced by such Certificate.
Each Certificate shall be dated the date of its authentication.
No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on
such Certificate a certificate of authentication substantially in the form
provided for herein executed by an authorized signatory of the Purchase
Contract Agent by manual signature, and such certificate upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder.
SECTION 3.04. Temporary Certificates.
Pending the preparation of definitive Certificates, the Company
shall execute and deliver to the Purchase Contract Agent, and the Purchase
Contract Agent shall authenticate, execute on behalf of the Holders, and
deliver, in lieu of such definitive Certificates, temporary Certificates
which are in substantially the form set forth in Exhibit A or Exhibit B
hereto, as the case may be, with such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Income PACS or Growth PACS, as the case
may be, are listed, or as may, consistently herewith, be determined by the
officers of the Company executing such Certificates, as evidenced by their
execution of the Certificates.
If temporary Certificates are issued, the Company will cause
definitive Certificates to be prepared without unreasonable delay. After
the preparation of definitive Certificates, the temporary Certificates
shall be exchangeable for definitive Certificates upon surrender of the
temporary Certificates at the Corporate Trust Office, at the expense of the
Company and without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Certificates, the Company shall execute and
deliver to the Purchase Contract Agent, and the Purchase Contract Agent
shall authenticate, execute on behalf of the Holder, and deliver in
exchange therefor, one or more definitive Certificates of like tenor and
denominations and evidencing a like number of Securities as the temporary
Certificate or Certificates so surrendered. Until so exchanged, the
temporary Certificates shall in all respects evidence the same benefits and
the same obligations with respect to the Securities, evidenced thereby as
definitive Certificates.
SECTION 3.05. Registration; Registration of Transfer and Exchange.
The Purchase Contract Agent shall keep at the Corporate Trust
Office a register (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Purchase Contract Agent
shall provide for the registration of Certificates and of transfers of
Certificates (the Purchase Contract Agent, in such capacity, the "Security
Registrar"). The Security Registrar shall record separately the
registration and transfer of the Certificates evidencing Income PACS and
Growth PACS.
Upon surrender for registration of transfer of any Certificate at
the Corporate Trust Office, the Company shall execute and deliver to the
Purchase Contract Agent, and the Purchase Contract Agent shall
authenticate, execute on behalf of the designated transferee or
transferees, and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of any authorized denominations,
like tenor, and evidencing a like number of Income PACS or Growth PACS, as
the case may be.
At the option of the Holder, Certificates may be exchanged for
other Certificates, of any authorized denominations and evidencing a like
number of Income PACS or Growth PACS, as the case may be, upon surrender of
the Certificates to be exchanged at the Corporate Trust Office. Whenever
any Certificates are so surrendered for exchange, the Company shall execute
and deliver to the Purchase Contract Agent, and the Purchase Contract Agent
shall authenticate, execute on behalf of the Holder, and deliver the
Certificates which the Holder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or
exchange of a Certificate shall evidence the ownership of the same number
of Income PACS or Growth PACS, as the case may be, and be entitled to the
same benefits and subject to the same obligations, under this Agreement as
the Income PACS or Growth PACS, as the case may be, evidenced by the
Certificate surrendered upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of
transfer or exchange shall (if so required by the Purchase Contract Agent)
be duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Purchase Contract Agent duly
executed, by the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of a Certificate, but the Company and the Purchase Contract
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 Certificates, other than any
exchanges pursuant to Sections 3.06 and 8.05 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated
to execute and deliver to the Purchase Contract Agent, and the Purchase
Contract Agent shall not be obligated to authenticate, execute on behalf of
the Holder and deliver any Certificate in exchange for any other
Certificate presented or surrendered for registration of transfer or for
exchange on or after the Business Day immediately preceding the earliest of
any Early Settlement Date for such Certificate, the Purchase Contract
Settlement Date or the Termination Date. In lieu of delivery of a new
Certificate, upon satisfaction of the applicable conditions specified above
in this Section and receipt of appropriate registration or transfer
instructions from such Holder, the Purchase Contract Agent shall:
(i) if the Purchase Contract Settlement Date or an Early
Settlement Date with respect to such other Certificate has
occurred, deliver the shares of Common Stock issuable in respect
of the Purchase Contracts forming a part of the Securities
evidenced by such other Certificate; or
(ii) if a Cash Settlement or an Early Settlement Date
with respect to such other Certificate shall have occurred, or if
a Termination Event shall have occurred prior to the Purchase
Contract Settlement Date, transfer the Notes, the Treasury
Securities, or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be, evidenced thereby, in
each case subject to the applicable conditions and in accordance
with the applicable provisions of Section 3.15 and Article Five
hereof.
SECTION 3.06. Book-Entry Interests.
The Certificates, on original issuance, will be issued in the form
of one or more fully registered Global Certificates, to be delivered to the
Depositary or its custodian by, or on behalf of, the Company. The Company
hereby designates DTC as the initial Depositary. Such Global Certificates
shall initially be registered on the books and records of the Company in
the name of Cede & Co., the nominee of the Depositary, and no Beneficial
Owner will receive a definitive Certificate representing such Beneficial
Owner's interest in such Global Certificate, except as provided in Section
3.09. The Purchase Contract Agent shall enter into an agreement with the
Depositary if so requested by the Company. Unless and until definitive,
fully registered Certificates have been issued to Beneficial Owners
pursuant to Section 3.09:
(i) the provisions of this Section 3.06 shall be in full
force and effect;
(ii) the Company shall be entitled to deal with the
Depositary for all purposes of this Agreement (including making
Purchase Contract Payments and receiving approvals, votes or
consents hereunder) as the Holder of the Securities and the sole
holder of the Global Certificates and shall have no obligation to
the Beneficial Owners;
(iii) to the extent that the provisions of this Section
3.06 conflict with any other provisions of this Agreement, the
provisions of this Section 3.06 shall control; and
(iv) the rights of the Beneficial Owners shall be
exercised only through the Depositary and shall be limited to
those established by law and agreements between such Beneficial
Owners and the Depositary or the Depositary Participants.
SECTION 3.07. Notices to Holders.
Whenever a notice or other communication to the Holders is
required to be given under this Agreement, the Company or the Company's
agent shall give such notices and communications to the Holders and, with
respect to any Securities registered in the name of the Depositary or the
nominee of the Depositary, the Company or the Company's agent shall, except
as set forth herein, have no obligations to the Beneficial Owners.
SECTION 3.08. Appointment of Successor Depositary.
If the Depositary elects to discontinue its services as securities
depositary with respect to the Securities, the Company may, in its sole
discretion, appoint a successor Depositary with respect to the Securities.
SECTION 3.09. Definitive Certificates.
If:
(i) the Depositary elects to discontinue its services as
securities depositary with respect to the Securities and a
successor Depositary is not appointed pursuant to Section 3.08
within 90 days after such discontinuance; or
(ii) the Company elects, after consultation with the
Purchase Contract Agent, to terminate the book-entry system for
the Securities, then (x) definitive Certificates shall be prepared
by the Company with respect to such Securities and delivered to
the Purchase Contract Agent and (y) upon surrender of the Global
Certificates representing the Securities by the Depositary,
accompanied by registration instructions, the Company shall cause
definitive Certificates to be delivered to Beneficial Owners in
accordance with the instructions of the Depositary. The Company
shall not be liable for any delay in delivery of such instructions
and may conclusively rely on and shall be protected in relying on,
such instructions. Each definitive Certificate so delivered shall
evidence Securities of the same kind and tenor as the Global
Certificate so surrendered in respect thereof.
SECTION 3.10. Mutilated, Destroyed, Lost and Stolen Certificates.
If any mutilated Certificate is surrendered to the Purchase
Contract Agent, the Company shall execute and deliver to the Purchase
Contract Agent, and the Purchase Contract Agent shall authenticate, execute
on behalf of the Holder, and deliver in exchange therefor, a new
Certificate, evidencing the same number of Income PACS or Growth PACS, as
the case may be, and bearing a Certificate number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Purchase
Contract Agent (i) evidence to their satisfaction of the destruction, loss
or theft of any Certificate, and (ii) such security or indemnity as may be
required by them to hold each of them and any agent of any of them
harmless, then, in the absence of notice to the Company or the Purchase
Contract Agent that such Certificate has been acquired by a protected
purchaser, the Company shall execute and deliver to the Purchase Contract
Agent, and the Purchase Contract Agent shall authenticate, execute on
behalf of the Holder, and deliver to the Holder, in lieu of any such
destroyed, lost or stolen Certificate, a new Certificate, evidencing the
same number of Income PACS or Growth PACS, as the case may be, and bearing
a Certificate number not contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated
to execute and deliver to the Purchase Contract Agent, and the Purchase
Contract Agent shall not be obligated to authenticate, execute on behalf of
the Holder, and deliver to the Holder, a Certificate on or after the
Business Day immediately preceding the earliest of any Early Settlement
Date for such lost or mutilated Certificate, the Purchase Contract
Settlement Date or the Termination Date. In lieu of delivery of a new
Certificate, upon satisfaction of the applicable conditions specified above
in this Section and receipt of appropriate registration or transfer
instructions from such Holder, the Purchase Contract Agent shall:
(i) if the Purchase Contract Settlement Date or an Early
Settlement Date with respect to such lost or mutilated Certificate
has occurred, deliver the shares of Common Stock issuable in
respect of the Purchase Contracts forming a part of the Securities
evidenced by such Certificate; or
(ii) if a Cash Settlement with respect to such lost or
mutilated Certificate shall have occurred or if a Termination
Event shall have occurred prior to the Purchase Contract
Settlement Date, transfer the Notes, the Treasury Securities or
the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury
Portfolio, as the case may be, evidenced thereby, in each case
subject to the applicable conditions and in accordance with the
applicable provisions of Section 3.15 and Article Five hereof.
Upon the issuance of any new Certificate under this Section, the
Company and the Purchase Contract Agent may require the payment by the
Holder 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 Purchase Contract Agent) connected therewith.
Every new Certificate issued pursuant to this Section in lieu of
any destroyed, lost or stolen Certificate shall constitute an original
additional contractual obligation of the Company and of the Holder in
respect of the Security evidenced thereby, whether or not the destroyed,
lost or stolen Certificate (and the Securities evidenced thereby) shall be
at any time enforceable by anyone, and shall be entitled to all the
benefits and be subject to all the obligations of this Agreement equally
and proportionately with any and all other Certificates delivered
hereunder.
The provisions of this Section are exclusive and shall preclude,
to the extent lawful, all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Certificates.
SECTION 3.11. Persons Deemed Owners.
Prior to due presentment of a Certificate for registration of
transfer, the Company and the Purchase Contract Agent, and any agent of the
Company or the Purchase Contract Agent, may treat the Person in whose name
such Certificate is registered as the owner of the Security evidenced
thereby, for the purpose of receiving distributions on the Treasury
Securities, the Notes, or on the maturing quarterly interest strips of the
Treasury Portfolio, as applicable, receiving Purchase Contract Payments,
performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not any distributions on the Treasury Securities,
the Notes, or Treasury Portfolio, as applicable, or Purchase Contract
Payments payable on the Purchase Contracts, each constituting a part of the
Security evidenced thereby shall be overdue and notwithstanding any notice
to the contrary, and neither the Company nor the Purchase Contract Agent,
nor any agent of the Company or the Purchase Contract Agent, shall be
affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global
Certificate, nothing contained herein shall prevent the Company, the
Purchase Contract Agent or any agent of the Company or the Purchase
Contract Agent, from giving effect to any written certification, proxy or
other authorization furnished by the Depositary (or its nominee), as a
Holder, with respect to such Global Certificate or impair, as between such
Depositary and the related Beneficial Owner, the operation of customary
practices governing the exercise of rights of the Depositary (or its
nominee) as Holder of such Global Certificate.
SECTION 3.12. Cancellation.
All Certificates surrendered for delivery of shares of Common
Stock on or after the Purchase Contract Settlement Date, upon the transfer
of Notes, the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of that term) of the Treasury Portfolio or
Treasury Securities, as the case may be, after the occurrence of a
Termination Event or pursuant to an Early Settlement, or upon the
registration of transfer or exchange of a Security, or a Collateral
Substitution or the reestablishment of Income PACS shall, if surrendered to
any Person other than the Purchase Contract Agent, be delivered to the
Purchase Contract Agent and, if not already cancelled, shall be promptly
cancelled by it. The Company may at any time deliver to the Purchase
Contract Agent for cancellation any Certificates previously authenticated,
executed and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Certificates so delivered shall, upon Issuer
Order, be promptly cancelled by the Purchase Contract Agent. No
Certificates shall be authenticated, executed on behalf of the Holder and
delivered in lieu of or in exchange for any Certificates cancelled as
provided in this Section, except as expressly permitted by this Agreement.
All cancelled Certificates held by the Purchase Contract Agent shall be
disposed of in accordance with its customary practices.
If the Company or any Affiliate of the Company shall acquire any
Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Purchase
Contract Agent cancelled or for cancellation.
SECTION 3.13. Creation of Growth PACS by Substitution of Treasury
Securities.
Subject to the conditions set forth in this Agreement, a Holder
may separate the Notes or Applicable Ownership Interests (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio, as
applicable, from the related Purchase Contracts in respect of such Holder's
Income PACS by substituting for such Notes or Applicable Ownership
Interests (as specified in clause (A) of the definition of such term) of
the Treasury Portfolio, as applicable, Treasury Securities in an aggregate
principal amount equal to the aggregate principal amount of such Notes or
the principal amount of such Applicable Ownership Interests (as specified
in clause (A) of the definition of such term) of the Treasury Portfolio, as
applicable (a "Collateral Substitution"), at any time from and after the
date of this Agreement and prior to or on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date. To effect such
substitution, the Holder must:
(1) deposit with the Securities Intermediary Treasury
Securities having an aggregate principal amount equal to
the aggregate principal amount of the Notes comprising part
of such Income PACS, as the case may be; and
(2) transfer the related Income PACS to the Purchase Contract
Agent accompanied by a notice to the Purchase Contract
Agent, substantially in the form of Exhibit C hereto, (i)
stating that the Holder has transferred the relevant amount
of Treasury Securities to the Securities Intermediary and
(ii) requesting that the Purchase Contract Agent instruct
the Collateral Agent to release the Notes, as the case may
be, underlying such Income PACS, whereupon the Purchase
Contract Agent shall promptly provide an instruction to
such effect to the Collateral Agent, substantially in the
form of Exhibit A to the Pledge Agreement.
Upon receipt of the Treasury Securities described in clause (1)
above and the instruction described in clause (2) above, in accordance with
the terms of the Pledge Agreement, the Collateral Agent will cause the
Securities Intermediary to effect the release of such Notes or Applicable
Ownership Interests (as specified in clause (A) of the definition of such
term) of the Treasury Portfolio, as the case may be, from the Pledge, free
and clear of the Company's security interest therein, and the transfer of
such Notes or Applicable Ownership Interests (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio, as
the case may be, to the Purchase Contract Agent on behalf of the Holder.
Upon receipt thereof, the Purchase Contract Agent shall promptly:
(i) cancel the related Income PACS;
(ii) transfer the Notes or Applicable Ownership Interests
(as specified in clause (A) of the definition of such term) of the
Treasury Portfolio, as the case may be, to the Holder; and
(iii) authenticate, execute on behalf of such Holder and
deliver a Growth PACS Certificate executed by the Company in
accordance with Section 3.03 evidencing the same number of
Purchase Contracts as were evidenced by the cancelled Income PACS.
Holders who elect to separate the Notes or Applicable Ownership
Interests (as specified in clause (A) of the definition of such term) of
the Treasury Portfolio, as the case may be, from the related Purchase
Contracts and to substitute Treasury Securities for such Notes or
Applicable Ownership Interests (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio, as the case may be,
shall be responsible for any fees or expenses payable to the Collateral
Agent for its services as Collateral Agent in respect of the substitution,
and the Company shall not be responsible for any such fees or expenses.
Holders may make Collateral Substitutions only in integral
multiples of 40 Income PACS; provided that if the Treasury Portfolio has
replaced the Notes as a component of the Income PACS as a result of a
Successful Initial Remarketing or a Tax Event Redemption, Holders may make
Collateral Substitutions at any time on or prior to the second Business Day
immediately preceding the Purchase Contract Settlement Date, but only in
integral multiples of ______ Income PACS.
In the event a Holder making a Collateral Substitution pursuant to
this Section 3.13 fails to effect a book-entry transfer of the Income PACS
or fails to deliver Income PACS Certificates to the Purchase Contract Agent
after depositing Treasury Securities with the Collateral Agent, any
distributions on the Notes or Applicable Ownership Interests (as specified
in clause (A) of the definition of such term) of the Treasury Portfolio, as
the case may be, constituting a part of such Income PACS shall be held in
the name of the Purchase Contract Agent or its nominee in trust for the
benefit of such Holder, until such Income PACS are so transferred or the
Income PACS Certificate is so delivered, as the case may be, or, such
Holder provides evidence satisfactory to the Company and the Purchase
Contract Agent that such Income PACS Certificate has been destroyed, lost
or stolen, together with any indemnity that may be required by the Purchase
Contract Agent and the Company.
Except as described in this Section 3.13 or in connection with a
Cash Settlement, for so long as the Purchase Contract underlying an Income
PACS remains in effect, such Income PACS shall not be separable into its
constituent parts, and the rights and obligations of the Holder in respect
of the Notes or Applicable Ownership Interests (as specified in clause (A)
of the definition of such term) of the Treasury Portfolio, as the case may
be, and the Purchase Contract comprising such Income PACS may be acquired,
and may be transferred and exchanged, only as an Income PACS.
SECTION 3.14. Reestablishment of Income PACS.
Subject to the conditions set forth in this Agreement, a Holder of
Growth PACS may reestablish Income PACS at any time (i) prior to or on the
fifth Business Day immediately preceding the Purchase Contract Settlement
Date, by:
(1) depositing with the Securities Intermediary Notes or
Applicable Ownership Interests (as specified in clause (A)
of the definition of such term) of the Treasury Portfolio,
as the case may be, having an aggregate principal amount
equal to the aggregate principal amount at maturity of the
Treasury Securities comprising part of the Growth PACS; and
(2) transferring the related Growth PACS to the Purchase
Contract Agent accompanied by a notice to the Purchase
Contract Agent, substantially in the form of Exhibit C
hereto, (i) stating that the Holder has transferred the
relevant amount of Notes or Applicable Ownership Interests
(as specified in clause (A) of the definition of such term)
of the Treasury Portfolio, as the case may be, to the
Securities Intermediary and (ii) requesting that the
Purchase Contract Agent instruct the Collateral Agent to
release the Treasury Securities underlying such Growth
PACS, whereupon the Purchase Contract Agent shall promptly
provide an instruction to such effect to the Collateral
Agent, substantially in the form of Exhibit C to the Pledge
Agreement.
Upon receipt of the Notes or Applicable Ownership Interests (as specified
in clause (A) of the definition of such term) of the Treasury Portfolio, as
the case may be, described in clause (1) above and the instruction
described in clause (2) above, in accordance with the terms of the Pledge
Agreement, the Collateral Agent will cause the Securities Intermediary to
effect the release of the Treasury Securities having a corresponding
aggregate principal amount at maturity from the Pledge, free and clear of
the Company's security interest therein, and the transfer to the Purchase
Contract Agent on behalf of the Holder. Upon receipt thereof, the Purchase
Contract Agent shall promptly:
(i) cancel the related Growth PACS;
(ii) transfer the Treasury Securities to the Holder; and
(iii) authenticate, execute on behalf of such Holder and
deliver an Income PACS Certificate executed by the Company in
accordance with Section 3.03 evidencing the same number of
Purchase Contracts as were evidenced by the cancelled Growth PACS.
Holders who elect to reestablish Income PACS shall be responsible
for any fees or expenses payable to the Collateral Agent for its services
as Collateral Agent in respect of the reestablishment, and the Company
shall not be responsible for any such fees or expenses.
Holders of Growth PACS may only reestablish Income PACS in
integral multiples of 40 Growth PACS; provided that if the Treasury
Portfolio has replaced the Notes as a component of the Income PACS as a
result of a Successful Remarketing or a Tax Event Redemption, Holders may
convert their Growth PACS into Income PACS by substituting Applicable
Ownership Interests (as specified in clause (A) of the definition of such
term) of the Treasury Portfolio for Treasury Securities at any time on or
prior to the second Business Day immediately preceding the Purchase
Contract Settlement Date, but only in integral multiples of ______ Growth
PACS.
Except as provided in this Section 3.14 or in connection with a
Cash Settlement, for so long as the Purchase Contract underlying a Growth
PACS remains in effect, such Growth PACS shall not be separable into its
constituent parts and the rights and obligations of the Holder of such
Growth PACS in respect of the [1/40] of a Treasury Security and the
Purchase Contract comprising such Growth PACS may be acquired, and may be
transferred and exchanged, only as a Growth PACS.
SECTION 3.15. Transfer of Collateral upon Occurrence of
Termination Event.
Upon the occurrence of a Termination Event and the transfer to the
Purchase Contract Agent of the Notes, the appropriate Applicable Ownership
Interest of the Treasury Portfolio or the Treasury Securities, as the case
may be, underlying the Income PACS and the Growth PACS, as the case may be,
pursuant to the terms of the Pledge Agreement, the Purchase Contract Agent
shall request transfer instructions with respect to such Notes, the
appropriate Applicable Ownership Interest of the Treasury Portfolio or
Treasury Securities, as the case may be, from each Holder by written
request, substantially in the form of Exhibit D hereto, mailed to such
Holder at its address as it appears in the Security Register.
Upon book-entry transfer of the Income PACS or the Growth PACS or
delivery of an Income PACS Certificate or Growth PACS Certificate to the
Purchase Contract Agent with such transfer instructions, the Purchase
Contract Agent shall transfer the Notes, the appropriate Applicable
Ownership Interest of the Treasury Portfolio or Treasury Securities, as the
case may be, underlying such Income PACS or Growth PACS, as the case may
be, to such Holder by book-entry transfer, or other appropriate procedures,
in accordance with such instructions. In the event a Holder of Income PACS
or Growth PACS fails to effect such transfer or delivery, the Notes, the
appropriate Applicable Ownership Interest of the Treasury Portfolio or
Treasury Securities, as the case may be, underlying such Income PACS or
Growth PACS, as the case may be, and any distributions thereon, shall be
held in the name of the Purchase Contract Agent or its nominee in trust for
the benefit of such Holder, until the earlier to occur of:
(i) the transfer of such Income PACS or Growth PACS or
surrender of the Income PACS Certificate or Growth PACS
Certificate or receipt by the Company and the Purchase Contract
Agent from such Holder of satisfactory evidence that such Income
PACS Certificate or Growth PACS Certificate has been destroyed,
lost or stolen, together with any indemnity that may be required
by the Purchase Contract Agent and the Company; and
(ii) the expiration of the time period specified in the
abandoned property laws of the relevant State in which the
Purchase Contract Agent holds such property.
SECTION 3.16. No Consent to Assumption.
Each Holder of a Security, by acceptance thereof, shall be deemed
expressly to have withheld any consent to the assumption under Section 365
of the Bankruptcy Code or otherwise, of the Purchase Contract by the
Company or its trustee, receiver, liquidator or a person or entity
performing similar functions in the event that the Company becomes the
debtor under the Bankruptcy Code or subject to other similar state or
Federal law providing for reorganization or liquidation.
ARTICLE 4
THE NOTES AND APPLICABLE OWNERSHIP INTEREST OF THE TREASURY PORTFOLIO
SECTION 4.01. Interest Payments; Rights to Interest Payments
Preserved.
Any distribution on any Note or on the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, which is
paid on any Payment Date shall, subject to receipt thereof by the Purchase
Contract Agent from the Collateral Agent as provided by the terms of the
Pledge Agreement, be paid to the Person in whose name the Income PACS
Certificate (or one or more Predecessor Income PACS Certificates) of which
such Note or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, is registered at the close of business on
the Record Date for such Payment Date. Any such distribution shall be
subject to deferral at the option of the Company in accordance with the
Indenture and the Declaration.
Each Income PACS Certificate evidencing Notes or the appropriate
Applicable Ownership Interest of the Treasury Portfolio delivered under
this Agreement upon registration of transfer of or in exchange for or in
lieu of any other Income PACS Certificate shall carry the right to accrued
and unpaid interest or distributions, and to accrue interest or
distributions, which were carried by the Notes or the appropriate
Applicable Ownership Interest of the Treasury Portfolio underlying such
other Income PACS Certificate.
In the case of any Income PACS with respect to which Cash
Settlement of the underlying Purchase Contract is properly effected
pursuant to Section 5.02 hereof, or with respect to which Early Settlement
of the underlying Purchase Contract is properly effected pursuant to
Section 5.04(b)(2) hereof, or with respect to which a Collateral
Substitution is effected, in each case on a date that is after any Record
Date and prior to or on the next succeeding Payment Date, interest on the
Notes or distributions on the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be, underlying such Income PACS
otherwise payable on such Payment Date shall be payable on such Payment
Date notwithstanding such Cash Settlement or Early Settlement or Collateral
Substitution, and such distributions shall, subject to receipt thereof by
the Purchase Contract Agent, be payable to the Person in whose name the
Income PACS Certificate (or one or more Predecessor Income PACS
Certificates) was registered at the close of business on the Record Date.
Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Income PACS with respect to which Cash
Settlement or Early Settlement of the underlying Purchase Contract is
properly effected, or with respect to which a Collateral Substitution has
been effected, distributions on the related Notes or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be, that would otherwise be payable after the Purchase Contract Settlement
Date, Early Settlement Date or the date of the Collateral Substitution, as
the case may be, shall not be payable hereunder to the Holder of such
Income PACS; provided, however, that to the extent that such Holder
continues to hold separated Notes that formerly comprised a part of such
Holder's Income PACS, such Holder shall be entitled to receive interest on
such separated Notes.
SECTION 4.02. Notice and Voting.
Under the terms of the Pledge Agreement, the Purchase Contract
Agent will be entitled to exercise the voting and any other consensual
rights pertaining to the Pledged Notes, but only to the extent instructed
in writing by the Holders as described below. Upon receipt of notice of any
meeting at which holders of Notes are entitled to vote or upon any
solicitation of consents, waivers or proxies of holders of Notes, the
Purchase Contract Agent shall, as soon as practicable thereafter, mail,
first class, postage pre-paid, to the Holders of Income PACS a notice:
(i) containing such information as is contained in the
notice or solicitation;
(ii) stating that each Holder on the record date set by
the Purchase Contract Agent therefor (which, to the extent
possible, shall be the same date as the record date for
determining the holders of Notes, as the case may be, entitled to
vote) shall be entitled to instruct the Purchase Contract Agent as
to the exercise of the voting rights pertaining to such Notes
underlying their Income PACS; and
(iii) stating the manner in which such instructions may
be given.
Upon the written request of the Holders of Income PACS on such record date
received by the Purchase Contract Agent at least six days prior to such
meeting, the Purchase Contract Agent shall endeavor insofar as practicable
to vote or cause to be voted, in accordance with the instructions set forth
in such requests, the maximum number of Notes, as the case may be, as to
which any particular voting instructions are received. In the absence of
specific instructions from the Holder of an Income PACS, the Purchase
Contract Agent shall abstain from voting the Notes underlying such Income
PACS. The Company hereby agrees, if applicable, to solicit Holders of
Income PACS to timely instruct the Purchase Contract Agent in order to
enable the Purchase Contract Agent to vote such Notes.
SECTION 4.03. Tax Event Redemption.
(a) Upon the occurrence of a Tax Event Redemption prior to
November 16, 2004, or in the event of a Failed Initial Remarketing, prior
to the Purchase Contract Settlement Date, an amount equal to the Redemption
Amount, plus any accrued and unpaid interest, payable on the Tax Event
Redemption Date with respect to the principal amount of the Notes shall be
deposited in the Collateral Account in exchange for the Pledged Notes.
Thereafter, pursuant to the terms of the Pledge Agreement, the Collateral
Agent shall cause the Securities Intermediary to apply an amount equal to
the Redemption Amount of such funds to purchase on behalf of the Holders of
Income PACS the Treasury Portfolio and promptly remit the remaining portion
of such funds to the Purchase Contract Agent for payment to the Holders of
such Income PACS.
(b) The Applicable Ownership Interest (as specified in clause (A)
of the definition of such term) of the Treasury Portfolio will be
substituted as Collateral for the Pledged Notes and will be held by the
Collateral Agent in accordance with the terms of the Pledge Agreement to
secure the obligation of each Holder of an Income PACS to purchase the
Common Stock of the Company under the Purchase Contract constituting a part
of such Income PACS. Following the occurrence of a Tax Event Redemption
prior to the Purchase Contract Settlement Date, the Holders of Income PACS
and the Collateral Agent shall have such security interest rights and
obligations with respect to the Applicable Ownership Interest (as specified
in clause (A) of the definition of such term) of the Treasury Portfolio as
the Holders of Income PACS and the Collateral Agent had in respect of the
Notes, as the case may be, subject to the Pledge thereof as provided in the
Pledge Agreement, and any reference herein to the Notes shall be deemed to
be reference to such Treasury Portfolio. The Company may cause to be made
in any Income PACS Certificates thereafter to be issued such change in
phraseology and form (but not in substance) as may be appropriate to
reflect the substitution of the Applicable Ownership Interest (as specified
in clause (A) of the definition of such term) of the Treasury Portfolio for
Notes as Collateral.
ARTICLE 5
THE PURCHASE CONTRACTS
SECTION 5.01. Purchase of Shares of Common Stock.
(a) Each Purchase Contract shall obligate the Holder of the
related Security to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the
"Purchase Price"), a number of shares of Common Stock (subject to Section
5.09) equal to the Settlement Rate unless an Early Settlement has occurred
in accordance with Section 5.04(b)(2) hereof or, prior to or on the
Purchase Contract Settlement Date, there shall have occurred a Termination
Event with respect to the Security of which such Purchase Contract is a
part. The "Settlement Rate" is equal to:
(i) if the Applicable Market Value (as defined below) is
greater than $______ (the "Appreciation Cap Price"), the number of
shares of Common Stock per Purchase Contract having a value, based
on the Applicable Market Value, equal to ____ multiplied by the
Appreciation Cap Price divided by the Applicable Market Value; and
(ii) if the Applicable Market Value is less than or equal
to the Appreciation Cap Price, ______ shares of Common Stock per
Purchase Contract;
in each case subject to adjustment as provided in Section 5.04 (and in each
case rounded upward or downward to the nearest 1/10,000th of a share).
The "Applicable Market Value" means the average of the Closing
Price per share of Common Stock on each of the 20 consecutive Trading Days
ending on the third Trading Day immediately preceding the Purchase Contract
Settlement Date.
The "Closing Price" per share of Common Stock on any date of
determination means:
(i) the closing sale price as of the 4:15 p.m. close of
the principal trading session (or, if no closing price is
reported, the last reported sale price) per share on the New York
Stock Exchange, Inc. (the "NYSE") on such date;
(ii) if the Common Stock is not listed for trading on the
NYSE on any such date, the closing sale price per share as
reported in the composite transactions for the principal United
States securities exchange on which the Common Stock is so listed;
(iii) if the Common Stock is not so listed on a United
States
national or regional securities exchange, the closing sale price
per share as reported by The Nasdaq Stock Market;
(iv) if the Common Stock is not so reported, the last
quoted bid price for the Common Stock in the over-the-counter
market as reported by the National Quotation Bureau or similar
organization; or
(v) the market value of Common Stock on such date as
determined by a nationally recognized independent investment
banking firm retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (1) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (2) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
(b) Each Holder of an Income PACS or a Growth PACS, by its
acceptance thereof:
(i) irrevocably authorizes the Purchase Contract Agent to
enter into and perform the related Purchase Contract on its behalf
as its attorney-in- fact (including the execution of Certificates
on behalf of such Holder);
(ii) agrees to be bound by the terms and provisions
thereof;
(iii) covenants and agrees to perform its obligations
under such Purchase Contract;
(iv) consents to the provisions hereof;
(v) irrevocably authorizes the Purchase Contract Agent to
enter into and perform this Agreement and the Pledge Agreement on
its behalf as its attorney-in-fact; and
(vi) consents to, and agrees to be bound by, the Pledge
of such Holder's right, title and interest in and to the
Collateral Account, including the Notes, the Applicable Ownership
Interest (as specified in clause (A) of the definition of such
term) of the Treasury Portfolio or the Treasury Securities
pursuant to the Pledge Agreement,
provided that upon a Termination Event, the rights of the Holder of such
Security under the Purchase Contract may be enforced without regard to any
other rights or obligations.
(c) Each Holder of an Income PACS or a Growth PACS, by its
acceptance thereof, further covenants and agrees, that to the extent and in
the manner provided in Section 5.02 and the Pledge Agreement, but subject
to the terms thereof, Proceeds of the Notes, the Treasury Securities or the
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio, as applicable, on the Purchase
Contract Settlement Date, shall be paid by the Collateral Agent to the
Company in satisfaction of such Holder's obligations under such Purchase
Contract and such Holder shall acquire no right, title or interest in such
Proceeds.
(d) Upon registration of transfer of a Certificate, the
transferee shall be bound (without the necessity of any other action on the
part of such transferee) by the terms of this Agreement, the Purchase
Contracts underlying such Certificate and the Pledge Agreement and the
transferor shall be released from the obligations under this Agreement, the
Purchase Contracts underlying the Certificate so transferred and the Pledge
Agreement. The Company covenants and agrees, and each Holder of a
Certificate, by its acceptance thereof, likewise covenants and agrees, to
be bound by the provisions of this paragraph.
SECTION 5.02. Initial Remarketing; Payment of Purchase Price.
(a) (i) Unless a Tax Event Redemption has occurred, the Company
shall engage Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as
Remarketing Agent (the "Remarketing Agent") pursuant to the Remarketing
Agreement (and subject to removal as provided in the Remarketing Agreement)
to sell the Notes (the "Initial Remarketing") on the third Business Day
immediately preceding November 16, 2004 (the "Initial Remarketing Date").
In order to facilitate the Initial Remarketing, the Purchase Contract Agent
shall notify, by 11:00 a.m. (New York City time), on the Business Day
immediately preceding the Initial Remarketing Date, the Remarketing Agent
of the aggregate principal amount of Notes to be remarketed. Concurrently,
the Collateral Agent, pursuant to the terms of the Pledge Agreement, will
present for Remarketing such Notes to the Remarketing Agent. Upon receipt
of such notice form the Purchase Contract Agent and such Notes from the
Collateral Agent, the Remarketing Agent will, on the Initial Remarketing
Date, use its reasonable efforts to remarket such Notes on such date at a
price of approximately 100.5% (but not less than 100%) of the Treasury
Portfolio Purchase Price. If the Remarketing Agent is able to remarket the
Notes at a price equal to or greater than 100% of the Treasury Portfolio
Purchase Price (a "Successful Initial Remarketing"), the portion of the
proceeds from such Successful Initial Remarketing equal to the Treasury
Portfolio Purchase Price will be applied to purchase the Treasury
Portfolio. In addition, the Remarketing Agent may deduct as a remarketing
fee (the "Remarketing Fee") an amount equal to 25 basis points (0.25%) of
the Treasury Portfolio Purchase Price from any amount of such proceeds in
excess of the Treasury Portfolio Purchase Price. Any proceeds in excess of
those required to pay the Treasury Portfolio Purchase Price and the
Remarketing Fee will be remitted to the Purchase Contract Agent for payment
to the Holders of the related Income PACS. Income PACS Holders whose Notes
are so remarketed will not otherwise be responsible for the payment of any
Remarketing Fee in connection therewith. The Treasury Portfolio will be
substituted for the Notes of Holders of Income PACS and will be pledged to
the Collateral Agent to secure the Income PACS Holders' obligation to pay
the Purchase Price for the Common Stock under the related Purchase
Contracts on the Purchase Contract Settlement Date. Following the
occurrence of a Successful Initial Remarketing, the Holders of Income PACS
and the Collateral Agent shall have such security interests, rights and
obligations with respect to the Treasury Portfolio as the Holder of Income
PACS and the Collateral Agent had in respect of the Notes, subject to the
Pledge thereof as provided in the Pledge Agreement, and any reference
herein or in the Certificates to the Notes shall be deemed to be a
reference to such Treasury Portfolio and any reference herein or in the
Certificates to interest on the Notes shall be deemed to be a reference to
corresponding distributions on the Treasury Portfolio. The Company may
cause to be made in any Income PACS Certificates thereafter to be issued
such change in phraseology and form (but not in substance) as may be
appropriate to reflect the substitution of the Treasury Portfolio for Notes
as Collateral.
If, in spite of using its reasonable efforts, the Remarketing
Agent cannot remarket the related Notes (other than to the Company) of such
Holders of Income PACS at a price not less than 100% of the Treasury
Portfolio Purchase Price or a condition precedent set forth in the
Remarketing Agreement is not fulfilled, the remarketing will be deemed to
have failed (a "Failed Initial Remarketing"). The Company will cause a
notice of a Failed Initial Remarketing to be published on the second
Business Day immediately preceding November 16, 2004 in a daily newspaper
in the English language of general circulation in The City of New York,
which is expected to be the Wall Street Journal.
(ii) A holder of a Note that is no longer part of an
Income PACS may elect to have such Note remarketed in the Initial
Remarketing. A holder making such an election must notify the
Indenture Trustee prior to 11:00 a.m. (New York City time) on the
second Business Day immediately preceding the Initial Remarketing
Date, of the aggregate number of Notes that are not part of Income
PACS to be remarketed. Any such notice will be irrevocable and may
not be conditioned upon the level at which the Reset Rate is
established in the Remarketing. Concurrently, the Indenture
Trustee shall cause such Notes to be presented to the Remarketing
Agent for Remarketing.
(iii) Not later than 7 calendar days nor more than 15
calendar days prior to the Initial Remarketing Date, the Company
shall request the Depositary to notify the Beneficial Owners or
Depositary Participants holding Securities of the procedures to be
followed in the Initial Remarketing.
(b) (i) Unless a Tax Event Redemption, Successful Initial
Remarketing, Termination Event or Early Settlement has occurred, each
Holder who intends to pay in cash to satisfy such Holder's obligations
under the Purchase Contract on the Purchase Contract Settlement Date shall
notify the Purchase Contract Agent by use of a notice in substantially the
form of Exhibit E hereto of his intention to pay in cash ("Cash
Settlement") the Purchase Price for the shares of Common Stock to be
purchased pursuant to the related Purchase Contract. Such notice shall be
given prior to 5:00 p.m. (New York City time) on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date. Prior to 11:00
a.m. (New York City time) on the next succeeding Business Day, the Purchase
Contract Agent shall notify the Collateral Agent and the Indenture Trustee
of the receipt of such notices from Holders intending to make a Cash
Settlement.
(ii) A Holder of an Income PACS who has so notified the
Purchase Contract Agent of his intention to effect a Cash
Settlement in accordance with paragraph 5.02(b)(i) above shall pay
the Purchase Price to the Securities Intermediary for deposit in
the Collateral Account prior to 11:00 a.m. (New York City time) on
the fourth Business Day immediately preceding the Purchase
Contract Settlement Date, in lawful money of the United States by
certified or cashiers' check or wire transfer, in each case in
immediately available funds payable to or upon the order of the
Securities Intermediary. Any cash received by the Collateral Agent
shall be invested promptly by the Securities Intermediary in
Permitted Investments and paid to the Company on the Purchase
Contract Settlement Date in settlement of the Purchase Contracts
in accordance with the terms of this Agreement and the Pledge
Agreement. Any funds received by the Securities Intermediary in
respect of the investment earnings from such Permitted Investments
in excess of the Purchase Price for the shares of Common Stock to
be purchased by such Holder shall be distributed to the Purchase
Contract Agent when received for payment to the Holder.
(iii) If a Holder of an Income PACS fails to notify the
Purchase Contract Agent of his intention to make a Cash Settlement
in accordance with paragraph 5.02(b)(i) above, or does notify the
Purchase Contract Agent as provided in paragraph 5.02(b)(i) above
of his intention to pay the Purchase Price in cash, but fails to
make such payment as required by paragraph 5.02(b)(ii) above, such
Holder shall be deemed to have consented to the disposition of the
Pledged Notes pursuant to the Secondary Remarketing as described
in paragraph 5.02(c) below.
(iv) Promptly after 11:00 a.m. (New York City time) on
the fourth Business Day preceding the Purchase Contract Settlement
Date, the Purchase Contract Agent, based on notices received by
the Purchase Contract Agent pursuant to Section 5.02(b) hereof and
notice from the Securities Intermediary regarding cash received by
it prior to such time, shall notify the Collateral Agent and the
Property Trustee or the Indenture Trustee, as applicable of the
aggregate number of Notes to be tendered for purchase in the
Remarketing in a notice substantially in the form of Exhibit F
hereto.
(v) Not later than 7 calendar days nor more than 15
calendar days prior to the Secondary Remarketing Date, the Company
shall request the Depositary to notify the Beneficial Owners or
Depositary Participants holding Securities of the procedures to be
followed in the Secondary Remarketing.
(c) (i) Unless a Tax Event Redemption or a Successful Initial
Remarketing has occurred, the Notes of Income PACS Holders electing to have
their Notes remarketed or of Income PACS Holders who have not notified the
Purchase Contract Agent of their intention to effect a Cash Settlement as
provided in paragraph 5.02(b)(i) above, or who have so notified the
Purchase Contract Agent but failed to make such payment as required by
paragraph 5.02(b)(ii) above will be sold by the Remarketing Agent (the
"Secondary Remarketing") on the third Business Day immediately preceding
the Purchase Contract Settlement Date (the "Secondary Remarketing Date").
In order to facilitate the Secondary Remarketing, the Purchase Contract
Agent, based on the notices specified in Section 5.02(b)(iv), shall notify
the Remarketing Agent, promptly after 11:00 a.m. (New York City time) on
the Business Day immediately preceding the Secondary Remarketing Date, of
the aggregate number of Notes to be remarketed. Concurrently, the
Collateral Agent, pursuant to the terms of the Pledge Agreement, shall
cause such Notes to be presented to the Remarketing Agent for Remarketing.
(ii) A holder of a Note that is no longer part of an
Income PACS may elect to have such Note remarketed. A holder
making such an election must notify the Indenture Trustee prior to
11:00 a.m. (New York City time) on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date, of
the aggregate number of Notes that are not part of Income PACS to
be remarketed. Any such notice will be irrevocable and may not be
conditioned upon the level at which the Reset Rate is established
in the Remarketing. Concurrently, the Indenture Trustee shall
cause such Notes to be presented to the Remarketing Agent for
Remarketing.
(iii) Upon receipt of such notice from the Purchase
Contract Agent and such Notes, as set forth in clauses (i) and
(ii) above, the Remarketing Agent shall, on the Secondary
Remarketing Date, use reasonable efforts to remarket such Notes on
such date at a price equal to 100.5% (but not less than 100%) of
the aggregate principal amount of such Notes, as provided in the
Remarketing Agreement. If the Remarketing Agent is able to
remarket the Notes at a price equal to or greater than 100% of the
aggregate principal amount of Notes (a "Successful Secondary
Remarketing"), the Remarketing Agent will remit the proceeds from
such Successful Secondary Remarketing to the Collateral Agent;
provided that the Remarketing Agent may deduct as the Remarketing
Fee an amount equal to 25 basis points (0.25%) of the aggregate
principal amount of the remarketed Notes from any amount of the
proceeds of a Successful Secondary Remarketing in excess of the
aggregate principal amount of the remarketed Notes. The proceeds
from the Remarketing remitted to the Collateral Agent shall be
invested by the Collateral Agent in Permitted Investments, in
accordance with the Pledge Agreement, and then applied to satisfy
in full such Income PACS Holders' obligations to pay the Purchase
Price for the shares of Common Stock under the related Purchase
Contracts on the Purchase Contract Settlement Date. Any proceeds
in excess of those required to pay the Purchase Price and the
Remarketing Fee will be remitted to the Purchase Contract Agent
for payment to the Holders of the related Income PACS. Income PACS
Holders whose Notes are so remarketed will not otherwise be
responsible for the payment of any Remarketing Fee in connection
therewith.
(iv) If, in spite of using its reasonable efforts, the
Remarketing Agent cannot remarket the related Notes of such
Holders of Income PACS at a price not less than 100.0% of the
Stated Amount or a condition precedent set forth in the
Remarketing Agreement is not fulfilled, the remarketing will be
deemed to have failed (a "Failed Secondary Remarketing"), an event
of default shall be deemed to have occurred under this Agreement
and the Pledge Agreement and in accordance with the terms of the
Pledge Agreement, the Collateral Agent, for the benefit of the
Company, shall exercise its rights as a secured party with respect
to such Notes, including those actions specified in paragraph
5.02(d) below; provided, that if upon a Failed Remarketing the
Collateral Agent exercises such rights for the benefit of the
Company with respect to such Notes, any accrued and unpaid
interest on such Notes shall become payable by the Company to the
Purchase Contract Agent for payment to the Beneficial Owner of the
Income PACS to which such Notes relate. The Company shall cause a
notice of such Failed Remarketing to be published on the second
Business Day immediately preceding the Purchase Contract
Settlement Date in a daily newspaper in the English language of
general circulation in the City of New York, which is expected to
be The Wall Street Journal and such notice shall include the
procedures that must be followed if a Holder of Notes (whether or
not as a component of Income PACS) wishes to exercise its right to
put the Notes to the Company following a Failed Secondary
Remarketing, as set forth in the Sixth Supplemental Indenture.
(d) With respect to any Notes which are subject to a Failed
Secondary Remarketing, the Collateral Agent for the benefit of the Company
reserves all of its rights as a secured party with respect thereto and,
subject to applicable law and paragraph 5.02(h) below, shall, in full
satisfaction of the Holders' obligations under the Purchase Contracts among
other things, (i) retain the Notes, (ii) sell the Notes in one or more
public or private sales or (iii) take, or choose not to take, any other
action with respect to the Notes, which in every case specified in (i),
(ii) and (iii) shall constitute payment in full for the aggregate Purchase
Price for the shares of Common Stock to be purchased under the Purchase
Contracts.
(e) (i) Unless a Holder of a Growth PACS or Income PACS (if a Tax
Event Redemption or a Successful Initial Remarketing has occurred) effects
an Early Settlement of the underlying Purchase Contract through the early
delivery of cash to the Purchase Contract Agent in the manner described in
Section 5.04(b)(2), each Holder of a Growth PACS or Income PACS (if a Tax
Event Redemption or a Successful Initial Remarketing has occurred) who
intends to pay in cash shall notify the Purchase Contract Agent by use of a
notice in substantially the form of Exhibit E hereto of his intention to
pay in cash the Purchase Price for the shares of Common Stock to be
purchased pursuant to the related Purchase Contract. Such notice shall be
given prior to 5:00 p.m. (New York City time) on the second Business Day
immediately preceding the Purchase Contract Settlement Date. Prior to 11:00
a.m. (New York City time) on the next succeeding Business Day, the Purchase
Contract Agent shall notify the Collateral Agent of the receipt of such
notices from such Holders intending to make a Cash Settlement. Growth PACS
holders may make Cash Settlements only in integral multiples of 40 Growth
PACS.
(ii) A Holder of a Growth PACS or Income PACS (if a Tax
Event Redemption or a Successful Initial Remarketing has occurred)
who has so notified the Purchase Contract Agent of his intention
to make a Cash Settlement in accordance with paragraph 5.02(e)(i)
above shall pay the Purchase Price to the Securities Intermediary
for deposit in the Collateral Account prior to 11:00 a.m. (New
York City time) on the Business Day immediately preceding the
Purchase Contract Settlement Date, in lawful money of the United
States by certified or cashiers' check or wire transfer, in each
case in immediately available funds payable to or upon the order
of the Securities Intermediary. Any cash received by the
Collateral Agent shall be invested promptly by the Securities
Intermediary in Permitted Investments and paid to the Company on
the Purchase Contract Settlement Date in settlement of the
Purchase Contract in accordance with the terms of this Agreement
and the Pledge Agreement. Any funds received by the Securities
Intermediary in respect of the investment earnings from the
investment in such Permitted Investments in excess of the Purchase
Price for the shares of Common Stock to be purchased by such
Holder shall be distributed to the Purchase Contract Agent when
received for payment to the Holder.
(iii) If a Holder of a Growth PACS or Holder of an Income
PACS (if a Tax Event Redemption or a Successful Initial
Remarketing has occurred) fails to notify the Purchase Contract
Agent of his intention to make a Cash Settlement in accordance
with paragraph 5.02(e)(i) above, or does notify the Purchase
Contract Agent as provided in paragraph 5.02(e)(i) above of his
intention to pay the Purchase Price in cash, but fails to make
such payment as required by paragraph 5.02(e)(ii) above, then upon
the maturity of the Pledged Treasury Securities or the appropriate
Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio held by the
Securities Intermediary on the Business Day immediately preceding
the Purchase Contract Settlement Date, the principal amount of the
Treasury Securities or the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such
term) of the Treasury Portfolio received by the Securities
Intermediary shall be invested promptly in Permitted Investments.
On the Purchase Contract Settlement Date, an amount equal to the
Purchase Price shall be remitted to the Company as payment thereof
without receiving any instructions from the Holder. In the event
the sum of the proceeds from the related Pledged Treasury
Securities or the appropriate Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the
Treasury Portfolio and the investment earnings earned from such
investments is in excess of the aggregate Purchase Price of the
Purchase Contracts being settled thereby, the Collateral Agent
shall cause the Securities Intermediary to distribute such excess
to the Purchase Contract Agent for the benefit of the Holder of
the related Growth PACS or Income PACS when received.
(f) Any distribution to Holders of any payments described above
shall be payable at the office of the Purchase Contract Agent in New York
City maintained for that purpose or, at the option of the Holder, by check
mailed to the address of the Person entitled thereto at such address as it
appears on the Security Register.
(g) Upon Cash Settlement of any Purchase Contract:
(i) the Collateral Agent will in accordance with the
terms of the Pledge Agreement cause the Pledged Notes, the
appropriate Applicable Ownership Interest (as specified in clause
(A) of the definition of such term) of the Treasury Portfolio or
the Pledged Treasury Securities, as the case may be, underlying
the relevant Security to be released from the Pledge, free and
clear of any security interest of the Company, and transferred to
the Purchase Contract Agent for delivery to the Holder thereof or
its designee as soon as practicable; and
(ii) subject to the receipt thereof, the Purchase
Contract Agent shall, by book-entry transfer or other appropriate
procedures, in accordance with written instructions provided by
the Holder thereof, transfer such Notes, or the appropriate
Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio or such
Treasury Securities, as the case may be (or, if no such
instructions are given to the Purchase Contract Agent by the
Holder, the Purchase Contract Agent shall hold such Notes, or the
appropriate Applicable Ownership Interest (as specified in clause
(A) of the definition of such term) of the Treasury Portfolio or
such Treasury Securities, as the case may be, and any interest
payment thereon, in the name of the Purchase Contract Agent or its
nominee in trust for the benefit of such Holder until the
expiration of the time period specified in the abandoned property
laws of the relevant state where such property is held).
(h) The obligations of the Holders to pay the Purchase Price are
non-recourse obligations and, except to the extent satisfied by Early
Settlement or Cash Settlement, are payable solely out of the proceeds of
any Collateral pledged to secure the obligations of the Holders and in no
event will Holders be liable for any deficiency between the proceeds of the
disposition of Collateral and the Purchase Price.
(i) The Company shall not be obligated to issue any shares of
Common Stock in respect of a Purchase Contract or deliver any certificates
thereof to the Holder of the related Security unless the Company shall have
received payment in full for the aggregate Purchase Price for the Common
Stock to be purchased thereunder in the manner herein set forth.
SECTION 5.03. Issuance of Shares of Common Stock.
Unless a Termination Event or an Early Settlement shall have
occurred, subject to Section 5.04(b), on the Purchase Contract Settlement
Date upon receipt of the aggregate Purchase Price payable on all
Outstanding Securities, the Company shall issue and deposit with the
Purchase Contract Agent, for the benefit of the Holders of the Outstanding
Securities, one or more certificates representing newly issued shares of
Common Stock registered in the name of the Purchase Contract Agent (or its
nominee) as custodian for the Holders (such certificates for shares of
Common Stock, together with any dividends or distributions for which a
record date and payment date for such dividend or distribution has occurred
after the Purchase Contract Settlement Date, being hereinafter referred to
as the "Purchase Contract Settlement Fund") to which the Holders are
entitled hereunder.
Subject to the foregoing, upon surrender of a Certificate to the
Purchase Contract Agent on or after the Purchase Contract Settlement Date
or Early Settlement Date, as the case may be, together with settlement
instructions thereon duly completed and executed, the Holder of such
Certificate shall be entitled to receive forthwith in exchange therefor a
certificate representing that number of newly issued whole shares of Common
Stock which such Holder is entitled to receive pursuant to the provisions
of this Article Five (after taking into account all Securities then held by
such Holder), together with cash in lieu of fractional shares as provided
in Section 5.09 and any dividends or distributions with respect to such
shares constituting part of the Purchase Contract Settlement Fund, but
without any interest thereon, and the Certificate so surrendered shall
forthwith be cancelled. Such shares shall be registered in the name of the
Holder or the Holder's designee as specified in the settlement instructions
provided by the Holder to the Purchase Contract Agent. If any shares of
Common Stock issued in respect of a Purchase Contract are to be registered
to a Person other than the Person in whose name the Certificate evidencing
such Purchase Contract is registered, no such registration shall be made
unless the Person requesting such registration has paid any transfer and
other taxes required by reason of such registration in a name other than
that of the registered Holder of the Certificate evidencing such Purchase
Contract or has established to the satisfaction of the Company that such
tax either has been paid or is not payable.
SECTION 5.04. Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other
distribution on Common Stock in Common Stock, the Settlement Rate in effect
at the opening of business on the day following the date fixed for the
determination of shareholders entitled to receive such dividend or other
distribution shall be increased by dividing such Settlement Rate by a
fraction of which:
(i) the numerator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for
such determination; and
(ii) the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend
or other distribution,
such increase to become effective immediately after the opening of business
on the day following the date fixed for such determination. For the
purposes of this paragraph (1), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the
Company but shall include any shares issuable in respect of any scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company agrees that it shall not pay any dividend or make any distribution
on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, warrants or options
to all holders of its Common Stock (not being available on an equivalent
basis to Holders of the Securities upon settlement of the Purchase
Contracts underlying such Securities) entitling them, for a period expiring
within 45 days after the record date for the determination of shareholders
entitled to receive such rights, warrants or options, to subscribe for or
purchase shares of Common Stock at a price per share less than the Current
Market Price per share of Common Stock on the date of announcement of such
issuance, the Settlement Rate in effect at the opening of business on the
day following the date of such announcement shall be increased by dividing
such Settlement Rate by a fraction of which:
(i) the numerator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for
such determination plus the number of shares of Common Stock which
the aggregate of the offering price of the total number of shares
of Common Stock so offered for subscription or purchase would
purchase at such Current Market Price; and
(ii) the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the date
fixed for such determination plus the number of shares of Common
Stock so offered for subscription or purchase,
such increase to become effective immediately after the opening of business
on the day following the date of such announcement. For the purposes of
this paragraph (2), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company
but shall include any shares issuable in respect of any scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company agrees
that it shall not issue any such rights, warrants or options in respect of
shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be
subdivided or split into a greater number of shares of Common Stock, the
Settlement Rate in effect at the opening of business on the day following
the day upon which such subdivision or split becomes effective shall be
proportionately increased, and, conversely, in case outstanding shares of
Common Stock shall each be combined into a smaller number of shares of
Common Stock, the Settlement Rate in effect at the opening of business on
the day following the day upon which such combination becomes effective
shall be proportionately reduced, such increase or reduction, as the case
may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision, split or combination
becomes effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its indebtedness
or assets (including securities, but excluding any rights, warrants or
options referred to in paragraph (2) of this Section 5.04(a), any dividend
or distribution paid exclusively in cash and any dividend or distribution
referred to in paragraph (1) of this Section 5.04(a)), the Settlement Rate
shall be adjusted so that the same shall equal the rate determined by
dividing the Settlement Rate in effect immediately prior to the close of
business on the date fixed for the determination of shareholders entitled
to receive such distribution by a fraction of which:
(i) the numerator shall be the Current Market Price per
share of Common Stock on the date fixed for such determination
less the then fair market value (as reasonably determined by the
Board of Directors, whose determination shall be conclusive and
the basis for which shall be described in a Board Resolution) of
the portion of the assets or evidences of indebtedness so
distributed applicable to one share of Common Stock; and
(ii) the denominator shall be such Current Market Price
per share of Common Stock,
such adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of
shareholders entitled to receive such distribution. In any case in which
this paragraph (4) is applicable, paragraph (2) of this Section 5.04(a)
shall not be applicable. In the event that such dividend or distribution is
not so paid or made, the Settlement Rate shall again be adjusted to be the
Settlement Rate which would then be in effect if such dividend or
distribution had not been declared.
(5) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash that
is distributed in a Reorganization Event to which Section 5.6(b) applies or
as part of a distribution referred to in paragraph (4) of this Section) in
an aggregate amount that, combined together with (II) the aggregate amount
of any other distributions to all holders of its Common Stock made
exclusively in cash within the 12 months preceding the date of payment of
such distribution and in respect of which no adjustment pursuant to this
paragraph (5) or paragraph (6) of this Section has been made and (III) the
aggregate of any cash plus the fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and described
in a Board Resolution) of consideration payable in respect of any tender or
exchange offer by the Company or any of its subsidiaries for all or any
portion of the Common Stock concluded within the 12 months preceding the
date of payment of the distribution described in clause (I) above and in
respect of which no adjustment pursuant to this paragraph (5) or paragraph
(6) of this Section has been made, exceeds 15% of the product of the
Current Market Price per share of the Common Stock on the date for the
determination of holders of shares of Common Stock entitled to receive such
distribution multiplied by the number of shares of Common Stock outstanding
on such date, then, in such case, the Settlement Rate shall be increased so
that the same shall equal the rate determined by dividing the Settlement
Rate in effect immediately prior to the close of business on such record
date by a fraction of which:
(i) the numerator shall be the Current Market Price of
Common Stock on the record date less the amount of cash so
distributed (and not excluded as provided above) applicable to one
share of Common Stock; and
(ii) the denominator shall be the Current Market Price of
Common Stock,
such increase to be effective immediately prior to the opening of business
on the day following the record date; provided, however, that in the event
the portion of cash so distributed applicable to one share of Common Stock
is equal to or greater than the Current Market Price per share of Common
Stock on the record date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each holder of a Security shall have the
right to receive upon settlement of the Securities the amount of cash such
Holder would have received had such Holder settled each Security on the
record date. In the event that such dividend or distribution is not so paid
or made, the Settlement Rate shall again be adjusted to be the Settlement
Rate which would then be in effect if such dividend or distribution had not
been declared.
(6) In case a tender or exchange offer made by the Company or
any subsidiary of the Company for all or any portion of Common Stock shall
expire and such tender or exchange offer (as amended upon the expiration
thereof) shall require the payment to shareholders (based on the acceptance
(up to any maximum specified in the terms of the tender or exchange offer)
of Purchased Shares as herein defined) of (I) an aggregate consideration
having a fair market value (as reasonably determined by the Board of
Directors, whose determination shall be conclusive and the basis for which
shall be described in a Board Resolution) that combined together with the
aggregate of the cash plus the fair market value (as reasonably determined
by the Board of Directors, whose determination shall be conclusive and the
basis for which shall be described in a Board Resolution), as of the
expiration of such tender or exchange offer, of consideration payable in
respect of any other tender or exchange offer, by the Company or any
subsidiary of the Company for all or any portion of Common Stock expiring
within the 12 months preceding the expiration of such tender or exchange
offer and in respect of which no adjustment pursuant to this paragraph (6)
has been made, and (II) the aggregate amount of any distributions to all
holders of Common Stock made exclusively in cash within the 12 months
preceding the expiration of such tender or exchange offer and in respect of
which no adjustment pursuant to paragraph (6) has been made, exceeds 15% of
the product of the Current Market Price per share of Common Stock as of the
last time (the "Expiration Time") tenders could have been made pursuant to
such tender or exchange offer (as it may be amended) times the number of
shares of Common Stock outstanding (including any tendered shares) on the
Expiration Time, then, and in each such case, immediately prior to the
opening of business on the day after the date of the Expiration Time, the
Settlement Rate shall be adjusted so that the same shall equal the rate
determined by dividing the Settlement Rate immediately prior to the close
of business on the date of the Expiration Time by a fraction:
(i) the numerator of which shall be equal to (A) the
product of (I) the Current Market Price per share of Common Stock
on the date of the Expiration Time and (II) the number of shares
of Common Stock outstanding (including any tendered shares) on the
Expiration Time less (B) the amount of cash plus the fair market
value (determined as aforesaid) of the aggregate consideration
payable to shareholders based on the transactions described in
clauses (I) and (II) above (assuming in the case of clause (I) the
acceptance, up to any maximum specified in the terms of the tender
or exchange offer, of Purchased Shares); and
(ii) the denominator of which shall be equal to the
product of (A) the Current Market Price per share of Common Stock
as of the Expiration Time and (B) the number of shares of Common
Stock outstanding (including any tendered shares) as of the
Expiration Time less the number of all shares validly tendered and
not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the
"Purchased Shares").
(7) The reclassification of Common Stock into securities
including securities other than Common Stock (other than any
reclassification upon a Reorganization Event to which Section 5.04(b)
applies) shall be deemed to involve:
(i) a distribution of such securities other than Common
Stock to all holders of Common Stock (and the effective date of
such reclassification shall be deemed to be "the date fixed for
the determination of shareholders entitled to receive such
distribution" and the "date fixed for such determination" within
the meaning of paragraph (4) of this Section); and
(ii) a subdivision, split or combination, as the case may
be, of the number of shares of Common Stock outstanding
immediately prior to such reclassification into the number of
shares of Common Stock outstanding immediately thereafter (and the
effective date of such reclassification shall be deemed to be "the
day upon which such subdivision or split becomes effective" or
"the day upon which such combination becomes effective", as the
case may be, and "the day upon which such subdivision, split or
combination becomes effective" within the meaning of paragraph (3)
of this Section).
(8) The "Current Market Price" per share of Common Stock on any
date of determination means the average of the daily Closing Prices for the
ten consecutive Trading Days ending not later than the earlier of such date
of determination and the day before the "ex date" with respect to the
issuance or distribution requiring such computation. For purposes of this
paragraph, the term "ex date," when used with respect to any issuance or
distribution, shall mean the first date on which Common Stock trades
regular way on such exchange or in such market without the right to receive
such issuance or distribution.
(9) All adjustments to the Settlement Rate shall be calculated
to the nearest 1/10,000th of a share of Common Stock (or if there is not a
nearest 1/10,000th of a share, to the next lower 1/10,000th of a share). No
adjustment in the Settlement Rate shall be required unless such adjustment
would require an increase or decrease of at least one percent thereof;
provided, however, that any adjustments which by reason of this
subparagraph are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. If an adjustment is made to the
Settlement Rate pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or
(10) of this Section 5.04(a), an adjustment shall also be made to the
Applicable Market Value solely to determine which of clauses (i), (ii) or
(iii) of the definition of Settlement Rate in Section 5.01 will apply on
the Purchase Contract Settlement Date. Such adjustment shall be made by
multiplying the Applicable Market Value by a fraction of which the
numerator shall be the Settlement Rate immediately after such adjustment
pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this
Section 5.04(a) and the denominator shall be the Settlement Rate
immediately prior to such adjustment; provided, however, that if such
adjustment to the Settlement Rate is required to be made pursuant to the
occurrence of any of the events contemplated by paragraph (1), (2), (3),
(4), (5), (6), (7) or (10) of this Section 5.04(a) during the period taken
into consideration for determining the Applicable Market Value, appropriate
and customary adjustments shall be made to the Settlement Rate.
(10) The Company may, but shall not be required to, make such
increases in the Settlement Rate, in addition to those required by this
Section, as it considers to be advisable in order to avoid or diminish any
income tax to any holders of shares of Common Stock resulting from any
dividend or distribution of stock or issuance of rights or warrants to
purchase or subscribe for stock or from any event treated as such for
income tax purposes or for any other reason.
(b) Adjustment for Consolidation, Merger or Other Reorganization
Event.
(1) In the event of:
(i) any consolidation or merger of the Company with or
into another Person (other than a merger or consolidation in which
the Company is the continuing corporation and in which the shares
of Common Stock outstanding immediately prior to the merger or
consolidation are not exchanged for cash, securities or other
property of the Company or another corporation);
(ii) any sale, transfer, lease or conveyance to another
Person of the property of the Company as an entirety or
substantially as an entirety;
(iii) any statutory share exchange of the Company with
another Person (other than in connection with a merger or
acquisition); or
(iv) any liquidation, dissolution or termination of the
Company other than as a result of or after the occurrence of a
Termination Event, (any such event, a "Reorganization Event"),
[each Purchase Contract shall become, without the consent of the Holder of
the related Security, a contract to purchase only the kind of securities,
cash and other property receivable upon consummation of such Reorganization
Event by a holder of Common Stock immediately prior to the closing date of
such Reorganization Event.
The amount of such securities, cash and other property receivable
upon settlement of each such Purchase Contract after the consummation of
the Reorganization Event shall be based on the value as of such settlement
date of the hypothetical amount of securities, cash and other property that
would have been received upon consummation of the Reorganization Event in
exchange for the maximum number of shares of Common Stock deliverable under
a Purchase Contract immediately prior to the closing date of the
Reorganization Event (collectively, the "Exchange Property"). In
determining the kind and amount of the Exchange Property pursuant to the
foregoing, it will be assumed that such holder of Common Stock is not a
Person with which the Company consolidated or into which the Company merged
or which merged into the Company or to which such sale or transfer was
made, as the case may be (any such Person, a "Constituent Person"), or an
Affiliate of a Constituent Person to the extent such Reorganization Event
provides for different treatment of Common Stock held by Affiliates of the
Company and non-affiliates and such Holder failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such Reorganization Event (provided that if the
kind or amount of securities, cash and other property receivable upon such
Reorganization Event is not the same for each share of Common Stock held
immediately prior to such Reorganization Event by other than a Constituent
Person or an Affiliate thereof and in respect of which such rights of
election shall not have been exercised ("non-electing share"), then for the
purpose of this Section the kind and amount of securities, cash and other
property receivable upon such Reorganization Event by each non-electing
share shall be deemed to be the kind and amount so receivable per share by
a plurality of the non-electing shares).
The actual amount of Exchange Property receivable upon settlement
of each Purchase Contract shall be in the case of settlement on the
Purchase Contract Settlement Date or Early Settlement pursuant to Section
5.04(b)(2), a variable amount based upon the applicable Settlement Rate and
the Applicable Market Value of the Exchange Property at such time.
For purposes of this Section 5.04(b)(1) and Section 5.04(b)(2),
the term "Applicable Market Value" shall be deemed to refer to the
"Applicable Market Value" of the Exchange Property, and such value shall be
determined (A) with respect to any publicly traded securities that comprise
all or part of the Exchange Property, based on the Closing Price of such
securities, (B) in the case of any cash that comprises all or part of the
Exchange Property, based on the amount of such cash and (C) in the case of
any other property that comprises all or part of the Exchange Property,
based on the value of such property, as determined by a nationally
recognized independent investment banking firm retained by the Company for
this purpose, and the term "Closing Price" shall be deemed to refer to the
closing sale price, last quoted bid price or mid-point of the last bid and
ask prices, as the case may be, of any publicly traded securities that
comprise all or part of the Exchange Property.
In the event of such a Reorganization Event, the Person formed by
such consolidation, merger or exchange or the Person which acquires the
assets of the Company or, in the event of a liquidation, dissolution or
termination of the Company, the Company or a liquidating trust created in
connection therewith, shall execute and deliver to the Purchase Contract
Agent an agreement supplemental hereto providing that each Holder of an
Outstanding Security shall have the rights provided by this Section
5.04(b). Such supplemental agreement shall provide for adjustments which,
for events subsequent to the effective date of such supplemental agreement,
shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 5.04. The above provisions of this Section
5.04 shall similarly apply to successive Reorganization Events.
(2) In the event of a consolidation or merger of the Company with
or into another Person, any merger of another Person into the Company
(other than a merger that does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock)
in which 30% or more of the total consideration paid to the Company's
shareholders consists of cash or cash equivalents (a "Cash Merger"), then a
Holder of a Security may settle his Purchase Contract for cash as described
in Section 5.02(b)(i) or 5.02(e)(i) hereof, as applicable, on or after the
date of such Cash Merger, at the applicable Settlement Rate. Within five
Business Days of the completion of a Cash Merger, the Company shall provide
written notice to Holders of Securities of such completion of a Cash
Merger, which shall specify the deadline for submitting a notice of Early
Settlement pursuant to this Section 5.04(b)(2), the date on which such
Early Settlement shall occur (the "Early Settlement Date"), the applicable
Settlement Rate and the amount (per share of common stock) of cash,
securities and other consideration receivable by the Holder upon
settlement. For the purposes of this Section 5.04(b)(2), the sixteenth
Business Day after the closing of the merger or consolidation shall be
deemed to be the Purchase Contract Settlement Date for the purpose of
determining the Applicable Market Value and the deadline for submitting the
notice to settle early and the related cash payment shall be 5:00 p.m. (New
York City time) on the tenth Business Day after the date the notice
relating to a Cash Merger is provided to the Holders by the Company. Growth
PACS Holders may only effect Early Settlement pursuant to this Section
5.04(b)(2) in integral multiples of [40] Purchase Contracts. If a Tax Event
Redemption or a Successful Initial Remarketing has occurred, Income PACS
Holders may only effect Early Settlement pursuant to this Section
5.04(b)(2) in integral multiples of [________] Purchase Contracts. Other
than the provisions relating to timing of notice and settlement, which
shall be as set forth above, the provisions of Section 5.01(a) shall apply
with respect to an Early Settlement following a Cash Merger pursuant to
this Section 5.04(b)(2). Notwithstanding the foregoing, no Early Settlement
will be permitted pursuant to this Section 5.04(b)(2) unless, at the time
such Early Settlement is effected, there is an effective Registration
Statement with respect to the shares of Common Stock to be issued and
delivered in connection with such early settlement, if such a Registration
Statement is required (in the view of counsel, which need not be in the
form of a written opinion, for either the Company or the Purchase Contract
Agent) under the Securities Act. If such a Registration Statement is so
required, the Company covenants and agrees to use its best efforts to (A)
have in effect a Registration Statement covering the shares of Common Stock
to be delivered in respect of the Purchase Contracts being settled and (B)
provide a Prospectus in connection therewith, in each case in a form that
the Purchase Contract Agent may use in connection with such early settlement.
(c) All calculations and determinations pursuant to this Section
5.04 shall be made by the Company or its agent and the Purchase Contract
Agent shall have no responsibility with respect thereto.
SECTION 5.05. Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein provided,
the Company shall:
(i) forthwith compute the adjusted Settlement Rate in
accordance with Section 5.04 and prepare and transmit to the
Purchase Contract Agent an Officers' Certificate setting forth the
Settlement Rate, the method of calculation thereof in reasonable
detail, and the facts requiring such adjustment and upon which
such adjustment is based; and
(ii) within 10 Business Days following the occurrence of
an event that requires an adjustment to the Settlement Rate
pursuant to Section 5.04 (or if the Company is not aware of such
occurrence, as soon as practicable after becoming so aware),
provide a written notice to the Holders of the Securities of the
occurrence of such event and a statement in reasonable detail
setting forth the method by which the adjustment to the Settlement
Rate was determined and setting forth the adjusted Settlement
Rate.
(b) The Purchase Contract Agent shall not at any time be under any
duty or responsibility to any Holder of Securities to determine whether any
facts exist which may require any adjustment of the Settlement Rate, or
with respect to the nature or extent or calculation of any such adjustment
when made, or with respect to the method employed in making the same. The
Purchase Contract Agent shall not be accountable with respect to the
validity or value (or the kind or amount) of any shares of Common Stock, or
of any securities or property, which may at the time be issued or delivered
with respect to any Purchase Contract; and the Purchase Contract Agent
makes no representation with respect thereto. The Purchase Contract Agent
shall not be responsible for any failure of the Company to issue, transfer
or deliver any shares of Common Stock pursuant to a Purchase Contract or to
comply with any of the duties, responsibilities or covenants of the Company
contained in this Article.
SECTION 5.06. Termination Event; Notice.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the
rights of the Holders to receive and the obligation of the Company to pay
any Purchase Contract Payments (including any deferred or accrued and
unpaid Purchase Contract Payments), if the Company shall have such
obligation, and the rights and obligations of Holders to purchase Common
Stock, shall immediately and automatically terminate, without the necessity
of any notice or action by any Holder, the Purchase Contract Agent or the
Company, if, prior to or on the Purchase Contract Settlement Date, a
Termination Event shall have occurred.
Upon and after the occurrence of a Termination Event, the
Securities shall thereafter represent the right to receive the Notes, the
Treasury Securities or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, forming part of such Securities, in
accordance with the provisions of Section 5.04 of the Pledge Agreement.
Upon the occurrence of a Termination Event, the Company shall promptly but
in no event later than two Business Days thereafter give written notice to
the Purchase Contract Agent, the Collateral Agent and the Holders, at their
addresses as they appear in the Security Register.
SECTION 5.07. Intentionally Omitted.
SECTION 5.08. Intentionally Omitted.
SECTION 5.09. No Fractional Shares.
No fractional shares or scrip representing fractional shares of
Common Stock shall be issued or delivered upon settlement on the Purchase
Contract Settlement Date or upon Early Settlement of any Purchase
Contracts. If Certificates evidencing more than one Purchase Contract shall
be surrendered for settlement at one time by the same Holder, the number of
full shares of Common Stock which shall be delivered upon settlement shall
be computed on the basis of the aggregate number of Purchase Contracts
evidenced by the Certificates so surrendered. Instead of any fractional
share of Common Stock which would otherwise be deliverable upon settlement
of any Purchase Contracts on the Purchase Contract Settlement Date or upon
Early Settlement, the Company, through the Purchase Contract Agent, shall
make a cash payment in respect of such fractional interest in an amount
equal to the value of such fractional shares times the Applicable Market
Value. The Company shall provide the Purchase Contract Agent from time to
time with sufficient funds to permit the Purchase Contract Agent to make
all cash payments required by this Section 5.09 in a timely manner.
SECTION 5.10. Charges and Taxes.
The Company will pay all stock transfer and similar taxes
attributable to the initial issuance and delivery of the shares of Common
Stock pursuant to the Purchase Contracts; provided, however, that the
Company shall not be required to pay any such tax or taxes which may be
payable in respect of any exchange of or substitution for a Certificate
evidencing a Security or any issuance of a share of Common Stock in a name
other than that of the registered Holder of a Certificate surrendered in
respect of the Securities evidenced thereby, other than in the name of the
Purchase Contract Agent, as custodian for such Holder, and the Company
shall not be required to issue or deliver such share certificates or
Certificates unless or until the Person or Persons requesting the transfer
or issuance thereof shall have paid to the Company the amount of such tax
or shall have established to the satisfaction of the Company that such tax
has been paid.
SECTION 5.11. Purchase Contract Payments.
(a) Subject to Section 5.12, the Company shall pay, on each
Payment Date, the Purchase Contract Payments payable in respect of each
Purchase Contract to the Person in whose name a Certificate is registered
at the close of business on the Record Date next preceding such Payment
Date. The Purchase Contract Payments will be payable at the office of the
Purchase Contract Agent in New York City maintained for that purpose or, at
the option of the Holder, by check mailed to the address of the Person
entitled thereto at such Person's address as it appears on the Security
Register. If any date on which Purchase Contract Payments are to be made is
not a Business Day, then payment of the Purchase Contract Payments payable
on such date will be made on the next succeeding day that is a Business Day
(and without any interest in respect of any such delay). Purchase Contract
Payments payable for any period will be computed on the basis of a 360-day
year of twelve 30-day months.
(b) Upon the occurrence of a Termination Event, the Company's
obligation to pay future Purchase Contract Payments (including any accrued
or deferred Purchase Contract Payments) shall cease.
(c) Each Certificate delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of (including as
a result of a Collateral Substitution or the reestablishment of Income
PACS) any other Certificate shall carry the right to accrued or deferred
and unpaid Purchase Contract Payments and the right to accrue Purchase
Contract Payments, which rights were carried by the Purchase Contracts
underlying such other Certificates.
(d) Subject to Section 5.04(b)(2), in the case of any Security
with respect to which Early Settlement of the underlying Purchase Contract
is effected on a date that is after any Record Date and prior to or on the
next succeeding Payment Date, Purchase Contract Payments otherwise payable
on such Payment Date shall be payable on such Payment Date notwithstanding
such Early Settlement, and such Purchase Contract Payments shall be paid to
the Person in whose name the Certificate evidencing such Security is
registered at the close of business on such Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the
case of any Security with respect to which Early Settlement of the
underlying Purchase Contract is effected, Purchase Contract Payments that
would otherwise be payable after the Early Settlement Date with respect to
such Purchase Contract shall not be payable.
(e) The Company's obligations with respect to Purchase Contract
Payments, if any, will be subordinated and junior in right of payment to
the Company's obligations under any Senior Indebtedness.
(f) In the event (x) of any payment by, or distribution of assets
of, the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution, winding-up, liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, or (y) subject
to the provisions of Section 5.11(h) below, that (i) a default shall have
occurred and be continuing with respect to the payment of principal,
interest or any other monetary amounts due and payable on any Senior
Indebtedness and such default shall have continued beyond the period of
grace, if any, specified in the instrument evidencing such Senior
Indebtedness (and the Purchase Contract Agent shall have received written
notice thereof from the Company or one or more holders of Senior
Indebtedness or their representative or representatives or the trustee or
trustees under any indenture pursuant to which any such Senior Indebtedness
may have been issued), or (ii) the maturity of any Senior Indebtedness
shall have been accelerated because of a default in respect of such Senior
Indebtedness (and the Purchase Contract Agent shall have received written
notice thereof from the Company or one or more holders of Senior
Indebtedness or their representative or representatives or the trustee or
trustees under any indenture pursuant to which any such Senior Indebtedness
may have been issued), then:
(i) the holders of all Senior Indebtedness shall first be
entitled to receive, in the case of clause (x) above, payment of
all amounts due or to become due upon all Senior Indebtedness and,
in the case of subclauses (i) and (ii) of clause (y) above,
payment of all amounts due thereon, or provision shall be made for
such payment in money or money's worth, before the Holders of any
of the Securities are entitled to receive any Purchase Contract
Payments on the Purchase Contracts underlying the Securities;
(ii) any payment by, or distribution of assets of, the
Company of any kind or character, whether in cash, property or
securities, to which the Holders of any of the Securities would be
entitled except for the provisions of Section 5.11(e) through (q),
including any such payment or distribution which may be payable or
deliverable by reason of the payment of any other indebtedness of
the Company being subordinated to the payment of such Purchase
Contract Payments on the Purchase Contracts underlying the
Securities, shall be paid or delivered by the Person making such
payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the
holders of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture
under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of such Senior
Indebtedness held or represented by each, to the extent necessary
to make payment in full of all Senior Indebtedness remaining
unpaid after giving effect to any concurrent payment or
distribution (or provision therefor) to the holders of such Senior
Indebtedness, before any payment or distribution is made of such
Purchase Contract Payments to the Holders of such Securities; and
(iii) in the event that, notwithstanding the foregoing,
any payment by, or distribution of assets of, the Company of any
kind or character, whether in cash, property or securities,
including any such payment or distribution which may be payable or
deliverable by reason of the payment of any other indebtedness of
the Company being subordinated to the payment of Purchase Contract
Payments on the Purchase Contracts underlying the Securities,
shall be received by the Purchase Contract Agent or the Holders of
any of the Securities when such payment or distribution is
prohibited pursuant to Section 5.11(e) through (q), such payment
or distribution shall be paid over to the holders of such Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture pursuant to which any
instruments evidencing any such Senior Indebtedness may have been
issued, ratably as aforesaid, for application to the payment of
all Senior Indebtedness remaining unpaid until all such Senior
Indebtedness shall have been paid in full, after giving effect to
any concurrent payment or distribution (or provision therefor) to
the holders of such Senior Indebtedness.
(g) For purposes of Section 5.11(e) through (q), the words "cash,
property or securities" shall not be deemed to include shares of stock of
the Company as reorganized or readjusted, or securities of the Company or
any other Person provided for by a plan of reorganization or readjustment,
the payment of which is subordinated at least to the extent provided in
Section 5.11(e) through (q) with respect to such Purchase Contract Payments
on the Securities to the payment of all Senior Indebtedness which may at
the time be outstanding; provided that (i) the indebtedness or guarantee of
indebtedness, as the case may be, that constitutes Senior Indebtedness is
assumed by the Person, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of the Senior Indebtedness
are not, without the consent of each such holder adversely affected
thereby, altered by such reorganization or readjustment;
(h) Any failure by the Company to make any payment on or perform
any other obligation under Senior Indebtedness, other than any indebtedness
incurred by the Company or assumed or guaranteed, directly or indirectly,
by the Company for money borrowed (or any deferral, renewal, extension or
refunding thereof) or any indebtedness or obligation as to which the
provisions of Section 5.11(e) through (g) shall have been waived by the
Company in the instrument or instruments by which the Company incurred,
assumed, guaranteed or otherwise created such indebtedness or obligation,
shall not be deemed a default or event of default if (i) the Company shall
be disputing its obligation to make such payment or perform such obligation
and (ii) either (A) no final judgment relating to such dispute shall have
been issued against the Company which is in full force and effect and is
not subject to further review, including a judgment that has become final
by reason of the expiration of the time within which a party may seek
further appeal or review, and (B) in the event a judgment that is subject
to further review or appeal has been issued, the Company shall in good
faith be prosecuting an appeal or other proceeding for review and a stay of
execution shall have been obtained pending such appeal or review.
(i) Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated (equally and ratably with the
holders of all obligations of the Company which by their express terms are
subordinated to Senior Indebtedness of the Company to the same extent as
payment of the Purchase Contract Payments in respect of the Purchase
Contracts underlying the Securities is subordinated and which are entitled
to like rights of subrogation) to the rights of the holders of Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Indebtedness until all
such Purchase Contract Payments owing on the Securities shall be paid in
full, and as between the Company, its creditors other than holders of such
Senior Indebtedness and the Holders, no such payment or distribution made
to the holders of Senior Indebtedness by virtue of Section 5.11(e) through
(q) that otherwise would have been made to the Holders shall be deemed to
be a payment by the Company on account of such Senior Indebtedness, it
being understood that the provisions of Section 5.11(e) through (q) are and
are intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of Senior Indebtedness, on the
other hand.
(j) Nothing contained in Section 5.11(e) through (q) or elsewhere
in this Agreement or in the Securities is intended to or shall impair, as
among the Company, its creditors other than the holders of Senior
Indebtedness and the Holders, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders such Purchase Contract
Payments on the Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect
the relative rights of the Holders and creditors of the Company other than
the holders of Senior Indebtedness, nor shall anything herein or therein
prevent the Purchase Contract Agent or any Holder from exercising all
remedies otherwise permitted by applicable law upon default under this
Agreement, subject to the rights, if any, under Section 5.11(e) through
(q), of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
(k) Upon payment or distribution of assets of the Company referred
to in Section 5.11(e) through (q), the Purchase Contract Agent and the
Holders shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which any such dissolution, winding up,
liquidation or reorganization proceeding affecting the affairs of the
Company is pending or upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors, liquidating trustee or
Purchase Contract Agent or other person making any payment or distribution,
delivered to the Purchase Contract Agent or to the Holders, for the purpose
of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness
of the Company, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto
or to these Section 5.11(e) through (q).
(l) The Purchase Contract Agent shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a
holder of Senior Indebtedness (or a trustee or representative on behalf of
such holder) to establish that such notice has been given by a holder of
Senior Indebtedness or a trustee or representative on behalf of any such
holder or holders. In the event that the Purchase Contract Agent determines
in good faith that further evidence is required with respect to the right
of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to Section 5.11(e) through (q), the
Purchase Contract Agent may request such Person to furnish evidence to the
reasonable satisfaction of the Purchase Contract Agent as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under Section 5.11(e) through (q),
and, if such evidence is not furnished, the Purchase Contract Agent may
defer payment to such Person pending judicial determination as to the right
of such Person to receive such payment.
(m) Nothing contained in Section 5.11(e) through (q) shall affect
the obligations of the Company to make, or prevent the Company from making,
payment of the Purchase Contract Payments, except as otherwise provided in
these Section 5.11(e) through (q).
(n) Each Holder of Securities, by his acceptance thereof,
authorizes and directs the Purchase Contract Agent on his, her or its
behalf to take such action as may be necessary or appropriate to effectuate
the subordination provided in Subsections 5.2 (b) through (n) and appoints
the Purchase Contract Agent his, her or its attorney-in-fact, as the case
may be, for any and all such purposes.
(o) The Company shall give prompt written notice to the Purchase
Contract Agent of any fact known to the Company that would prohibit the
making of any payment of moneys to or by the Purchase Contract Agent in
respect of the Securities pursuant to the provisions of this Section.
Notwithstanding the provisions of Subsections 5.2(b) through (e) or any
other provisions of this Agreement, the Purchase Contract Agent shall not
be charged with knowledge of the existence of any facts that would prohibit
the making of any payment of moneys to or by the Purchase Contract Agent,
or the taking of any other action by the Purchase Contract Agent, unless
and until the Purchase Contract Agent shall have received written notice
thereof mailed or delivered to the Purchase Contract Agent at its
Institutional Trust Services department from the Company, any Holder, any
paying Purchase Contract Agent or the holder or representative of any
Senior Indebtedness; provided that if at least two Business Days prior to
the date upon which by the terms hereof any such moneys may become payable
for any purpose, the Purchase Contract Agent shall not have received with
respect to such moneys the notice provided for in this Section, then,
anything herein contained to the contrary notwithstanding, the Purchase
Contract Agent shall have full power and authority to receive such moneys
and to apply the same to the purpose for which they were received and shall
not be affected by any notice to the contrary that may be received by it
within two Business Days prior to or on or after such date.
(p) The Purchase Contract Agent in its individual capacity shall
be entitled to all the rights set forth in this Section with respect to any
Senior Indebtedness at the time held by it, to the same extent as any other
holder of Senior Indebtedness and nothing in this Agreement shall deprive
the Purchase Contract Agent of any of its rights as such holder.
(q) No right of any present or future holder of any Senior
Indebtedness to enforce the subordination herein shall at any time or in
any way be prejudiced or impaired by any act or failure to act on the part
of the Company or by any noncompliance by the Company with the terms,
provisions and covenants of this Agreement, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with.
(r) Nothing in this Section 5.11 shall apply to claims of, or
payments to, the Purchase Contract Agent under or pursuant to Section 7.07.
(s) With respect to the holders of Senior Indebtedness, (i) the
duties and obligations of the Purchase Contract Agent shall be determined
solely by the express provisions of this Agreement; (ii) the Purchase
Contract Agent shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement;
(iii) no implied covenants or obligations shall be read into this Agreement
against the Purchase Contract Agent; and (iv) the Purchase Contract Agent
shall not be deemed to be a fiduciary as to such holders.
SECTION 5.12. Deferral of Purchase Contract Payments.
(a) The Company has the right to defer payment of all or part of
the Purchase Contract Payments in respect of each Purchase Contract until
no later than the Purchase Contract Settlement Date, but only if the
Company shall give the Holders and the Purchase Contract Agent written
notice of its election to defer such payment (specifying the amount to be
deferred) at least ten Business Days prior to the earlier of (i) the next
succeeding Payment Date or (ii) the date the Company is required to give
notice of the Record Date or Payment Date with respect to payment of such
Purchase Contract Payments to the NYSE or other applicable self-regulatory
organization or to Holders of the Securities, but in any event not less
than one Business Day prior to such Record Date. If the Company so elects
to defer Purchase Contract Payments, the Company shall pay additional
Purchase Contract Payments on such deferred installments of Purchase
Contract Payments at a rate equal to ___% per annum, compounding quarterly,
until such deferred installments are paid in full. Deferred Purchase
Contract Payments shall be due on the Payment Date except to the extent
that payment is deferred pursuant to this Section. Except as otherwise
provided in Section 5.11(d), in the case of any Security with respect to
which Early Settlement of the underlying Purchase Contract is effected on
an Early Settlement Date, the Holder will have no right to receive any
accrued or deferred Purchase Contract Payments.
(b) In the event the Company elects to defer the payment of
Purchase Contract Payments on the Purchase Contracts until the Purchase
Contract Settlement Date, each Holder will receive on the Purchase Contract
Settlement Date the aggregate amount of accrued and unpaid Purchase
Contract Payments. The Company shall pay such amounts on the Purchase
Contract Settlement Date in the manner described in Section 5.02(f).
(c) In the event the Company exercises its option to defer the
payment of Purchase Contract Payments, then, until all deferred Purchase
Contract Payments have been paid, the Company shall not, and shall not
permit any of its subsidiaries to (a) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities that rank junior to the Notes in the right of payment issued by
the Company or any subsidiary of the Company, or (b) make any guarantee
payments with respect to any guarantee by the Company of any securities of
any of its subsidiaries if such guarantee ranks junior to the Notes in the
right of payment, (c) declare or pay any dividends or distributions on any
of the Company's capital stock or (d) redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital stock.
Notwithstanding the foregoing, the Company may (1) purchase or acquire its
capital stock in connection with the satisfaction by it of its obligations
under any employee benefit plans or pursuant to any contract or security
outstanding on the first day of any such event requiring it to purchase its
capital stock; (2) reclassify its capital stock or exchange or convert one
class or series of its capital stock for another class or series of its
capital stock; (3) purchase fractional interests in shares of its capital
stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged; (4) declare dividends
or distributions in its capital stock; and (5) redeem or repurchase any
rights pursuant to a rights agreement.
ARTICLE 6
REMEDIES
SECTION 6.01. Unconditional Right of Holders to Receive Purchase
Contract Payments and to Purchase Shares of Common Stock.
Each Holder of a Security shall have the right, which is absolute
and unconditional, (i) subject to the right of the Company to defer such
payments in accordance with Section 5.12, to receive each Purchase Contract
Payment with respect to the Purchase Contract comprising part of such
Security on the respective Payment Date for such Security and (ii) to
purchase shares of Common Stock pursuant to such Purchase Contract and, in
each such case, to institute suit for the enforcement of any such right to
receive Purchase Contract Payments and the right to purchase shares of
Common Stock, and such rights shall not be impaired without the consent of
such Holder.
SECTION 6.02. Restoration of Rights and Remedies.
If any Holder 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 Company and such Holder shall be restored severally and
respectively to their former positions hereunder and thereafter all rights
and remedies of such Holder shall continue as though no such proceeding had
been instituted.
SECTION 6.03. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates in the last
paragraph of Section 3.10, no right or remedy herein conferred upon or
reserved to the Holders 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 6.04. Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or remedy
upon a default shall impair any such right or remedy or constitute a waiver
of any such right. 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 6.05. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of a
Security, by its acceptance of such Security 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 Purchase Contract Agent for any action taken, suffered or
omitted by it as Purchase Contract 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 and costs 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 Purchase Contract Agent, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% of the Outstanding Securities, or to any suit instituted by
any Holder for the enforcement of interest on any Notes or Purchase
Contract Payments on or after the respective Payment Date therefor in
respect of any Security held by such Holder, or for enforcement of the
right to purchase shares of Common Stock under the Purchase Contracts
constituting part of any Security held by such Holder.
SECTION 6.06. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Agreement; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Purchase
Contract Agent or the Holders, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE 7
THE PURCHASE CONTRACT AGENT
SECTION 7.01. Certain Duties and Responsibilities.
(a) The Purchase Contract Agent:
(1) undertakes to perform, with respect to the Securities, such
duties and only such duties as are specifically set forth in this Agreement
and the Pledge Agreement, and no implied covenants or obligations shall be
read into this Agreement or the Pledge Agreement against the Purchase
Contract Agent; and
(2) in the absence of bad faith or gross negligence on its part,
may, with respect to the Securities, conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Purchase Contract Agent and
conforming to the requirements of this Agreement or the Pledge Agreement,
as applicable, but in the case of any certificates or opinions which by any
provision hereof are specifically required to be furnished to the Purchase
Contract Agent, the Purchase Contract Agent shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Agreement or the Pledge Agreement, as applicable (but
need not confirm or investigate the accuracy of the mathematical
calculations or other facts stated therein).
(b) No provision of this Agreement or the Pledge Agreement shall
be construed to relieve the Purchase Contract Agent from liability for its
own grossly negligent action, its own grossly negligent failure to act, or
its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Purchase Contract Agent shall not be liable for any
error of judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Purchase Contract Agent was negligent in
ascertaining the pertinent facts;
(3) no provision of this Agreement or the Pledge Agreement shall
require the Purchase Contract 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
indemnity satisfactory to the Purchase Contract Agent is not provided to
it; and
(4) the Purchase Contract 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 principal
amount of the Outstanding Securities.
(c) Whether or not therein expressly so provided, every provision
of this Agreement and the Pledge Agreement relating to the conduct or
affecting the liability of or affording protection to the Purchase Contract
Agent shall be subject to the provisions of this Section.
(d) The Purchase Contract Agent is authorized to execute and
deliver the Pledge Agreement in its capacity as Purchase Contract Agent.
SECTION 7.02. Notice of Default.
Within 30 days after the occurrence of any default by the Company
hereunder of which a Responsible Officer of the Purchase Contract Agent has
actual knowledge, the Purchase Contract Agent shall transmit by mail to the
Company and the Holders of Securities, as their names and addresses appear
in the Security Register, notice of such default hereunder, unless such
default shall have been cured or waived.
SECTION 7.03. Certain Rights of Purchase Contract Agent.
Subject to the provisions of Section 7.01:
(1) the Purchase Contract Agent may conclusively rely and shall
be fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, Note, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by an Officers' Certificate, Issuer Order
or Issuer Request, and any resolution of the Board of Directors of the
Company may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Agreement or the
Pledge Agreement the Purchase Contract Agent shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Purchase Contract Agent (unless other evidence be
herein specifically prescribed) may, in the absence of bad faith on its
part, conclusively rely upon an Officers' Certificate of the Company;
(4) the Purchase Contract Agent may consult with counsel of its
selection appointed with due care by it hereunder and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Purchase Contract 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,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Purchase Contract Agent,
in its discretion, and at the expense of the Company, may make reasonable
further inquiry or investigation into such facts or matters related to the
execution, delivery and performance of the Purchase Contracts as it may see
fit, and, if the Purchase Contract Agent shall determine to make such
further inquiry or investigation, it shall be given a reasonable
opportunity to examine the relevant books, records and premises of the
Company, personally or by agent or attorney and shall incur no liability or
additional liability of any kind by reason of such inquiry or
investigation;
(6) the Purchase Contract Agent may execute any of the powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or an Affiliate and the Purchase Contract Agent shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney or an Affiliate appointed with due care by it hereunder;
(7) the Purchase Contract Agent shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement at the
request or direction of any of the Holders pursuant to this Agreement,
unless such Holders shall have offered to the Purchase Contract Agent
security or indemnity satisfactory to the Purchase Contract Agent against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(8) the Purchase Contract Agent shall not be liable for any
action taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(9) the Purchase Contract Agent shall not be deemed to have
notice of any default hereunder unless a Responsible Officer of the
Purchase Contract Agent has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Purchase Contract Agent at the Corporate Trust Office of the Purchase
Contract Agent, and such notice references the Securities and this
Agreement;
(10) the Purchase Contract Agent may request that the Company
deliver an Officers' Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to take specified actions
pursuant to this Agreement, which Officers' Certificate may be signed by
any person authorized to sign an Officers' Certificate, including any
person specified as so authorized in any such certificate previously
delivered and not superseded; and
(11) the rights, privileges, protections, immunities and benefits
given to the Purchase Contract Agent, including, without limitation, its
right to be indemnified, are extended to, and shall be enforceable by, the
Purchase Contract Agent in each of its capacities hereunder, and to each
agent, custodian and other Person employed to act hereunder.
SECTION 7.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Certificates shall be
taken as the statements of the Company, and the Purchase Contract Agent
assumes no responsibility for their accuracy. The Purchase Contract Agent
makes no representations as to the validity or sufficiency of either this
Agreement or of the Securities, or of the Pledge Agreement or the Pledge.
The Purchase Contract Agent shall not be accountable for the use or
application by the Company of the proceeds in respect of the Purchase
Contracts.
SECTION 7.05. May Hold Securities.
Any Security Registrar or any other agent of the Company, or the
Purchase Contract Agent and its Affiliates, in their individual or any
other capacity, may become the owner or pledgee of Securities and may
otherwise deal with the Company, the Collateral Agent or any other Person
with the same rights it would have if it were not Security Registrar or
such other agent, or the Purchase Contract Agent. The Company may become
the owner or pledgee of Securities.
SECTION 7.06. Money Held in Custody.
Money held by the Purchase Contract Agent in custody hereunder
need not be segregated from the other funds except to the extent required
by law or provided herein. The Purchase Contract Agent shall be under no
obligation to invest or pay interest on any money received by it hereunder
except as otherwise provided hereunder or agreed in writing with the
Company.
SECTION 7.07. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Purchase Contract Agent compensation for all
services rendered by it hereunder and under the Pledge Agreement as the
Company and the Purchase Contract Agent shall from time to time agree in
writing;
(2) except as otherwise expressly provided for herein, to
reimburse the Purchase Contract Agent upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Purchase
Contract Agent in accordance with any provision of this Agreement and the
Pledge 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 gross negligence,
willful misconduct or bad faith; and
(3) to indemnify the Purchase Contract Agent and any predecessor
Purchase Contract Agent for, and to hold it harmless against, any loss,
liability or expense incurred without gross negligence, willful misconduct
or bad faith on its part, arising out of or in connection with the
acceptance or administration of its duties hereunder, including the costs
and expenses of defending itself against any claim (whether asserted by the
Company, a Holder or any other person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The provisions of this Section shall survive the resignation and
removal of the Purchase Contract Agent and the termination of this
Agreement.
SECTION 7.08. Corporate Purchase Contract Agent Required;
Eligibility.
There shall at all times be a Purchase Contract 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, authorized under such laws to exercise corporate trust powers,
having (or being a member of a bank holding company having) a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by Federal or State authority and having a corporate trust
office in the Borough of Manhattan, New York City, if there be such a
corporation in the Borough of Manhattan, New York City, qualified and
eligible under this Article and willing to act on reasonable terms. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of said 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. If at any time
the Purchase Contract 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.
SECTION 7.09. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Purchase Contract Agent and
no appointment of a successor Purchase Contract Agent pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Purchase Contract Agent in accordance with the applicable
requirements of Section 7.10.
(b) The Purchase Contract Agent may resign at any time by giving
written notice thereof to the Company 60 days prior to the effective date
of such resignation. If the instrument of acceptance by a successor
Purchase Contract Agent required by Section 7.10 shall not have been
delivered to the Purchase Contract Agent within 30 days after the giving of
such notice of resignation, the resigning Purchase Contract Agent may
petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Purchase Contract Agent.
(c) The Purchase Contract Agent may be removed at any time by Act
of the Holders of a majority in number of the Outstanding Securities
delivered to the Purchase Contract Agent and the Company. If the instrument
of acceptance by a successor Purchase Contract Agent required by Section
7.10 shall not have been delivered to the Purchase Contract Agent within 30
days after the giving of such notice of resignation, the resigning Purchase
Contract Agent may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Purchase Contract
Agent.
(d) If at any time:
(1) the Purchase Contract Agent fails to comply with
Section 310(b) of the TIA, as if the Purchase Contract Agent were
an indenture trustee under an indenture qualified under the TIA,
after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months;
(2) the Purchase Contract Agent shall cease to be
eligible under Section 7.08 and shall fail to resign after written
request therefor by the Company or by any such Holder; or
(3) the Purchase Contract Agent shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a receiver
of the Purchase Contract Agent or of its property shall be
appointed or any public officer shall take charge or control of
the Purchase Contract Agent or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove
the Purchase Contract Agent, or (ii) any Holder who has been a bona fide
Holder of a Security 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 Purchase Contract Agent and the appointment of a
successor Purchase Contract Agent.
(e) If the Purchase Contract Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
Purchase Contract Agent for any cause, the Company, by a Board Resolution,
shall promptly appoint a successor Purchase Contract Agent and shall comply
with the applicable requirements of Section 7.10. If no successor Purchase
Contract Agent shall have been so appointed by the Company and accepted
appointment in the manner required by Section 7.10, any Holder who has been
a bona fide Holder of a Security for at least six months, on behalf of
itself and all others similarly situated, or the Purchase Contract Agent
may petition at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Purchase Contract Agent.
(f) The Company shall give, or shall cause such successor Purchase
Contract Agent to give, notice of each resignation and each removal of the
Purchase Contract Agent and each appointment of a successor Purchase
Contract Agent by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders as their names and addresses appear in the
applicable Register. Each notice shall include the name of the successor
Purchase Contract Agent and the address of its Corporate Trust Office.
SECTION 7.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Purchase
Contract Agent, every such successor Purchase Contract Agent so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Purchase Contract Agent an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Purchase Contract
Agent shall become effective and such successor Purchase Contract Agent,
without any further act, deed or conveyance, shall become vested with all
the rights, powers, agencies and duties of the retiring Purchase Contract
Agent; but, on the request of the Company or the successor Purchase
Contract Agent, such retiring Purchase Contract Agent shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Purchase Contract Agent all the rights, powers and trusts of the
retiring Purchase Contract Agent and shall duly assign, transfer and
deliver to such successor Purchase Contract Agent all property and money
held by such retiring Purchase Contract Agent hereunder.
(b) Upon request of any such successor Purchase Contract Agent,
the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Purchase Contract
Agent all such rights, powers and agencies referred to in paragraph 7.10(a)
of this Section.
(c) No successor Purchase Contract Agent shall accept its
appointment unless at the time of such acceptance such successor Purchase
Contract Agent shall be qualified and eligible under this Article.
SECTION 7.11. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Purchase Contract 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 Purchase Contract Agent shall be a party, or any corporation succeeding
to all or substantially all the corporate trust business of the Purchase
Contract Agent, shall be the successor of the Purchase Contract Agent
hereunder, provided that such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any
Certificates shall have been authenticated and executed on behalf of the
Holders, but not delivered, by the Purchase Contract Agent then in office,
any successor by merger, conversion or consolidation to such Purchase
Contract Agent may adopt such authentication and execution and deliver the
Certificates so authenticated and executed with the same effect as if such
successor Purchase Contract Agent had itself authenticated and executed
such Securities.
SECTION 7.12. Preservation of Information; Communications to
Holders.
(a) The Purchase Contract Agent shall preserve, in as current a
form as is reasonably practicable, the names and addresses of Holders
received by the Purchase Contract Agent in its capacity as Security
Registrar.
(b) If three or more Holders (herein referred to as "Applicants")
apply in writing to the Purchase Contract Agent, and furnish to the
Purchase Contract Agent reasonable proof that each such applicant has owned
a Security 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 Securities and is accompanied by a copy of the form
of proxy or other communication which such applicants propose to transmit,
then the Purchase Contract Agent shall mail to all the Holders copies of
the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Purchase Contract
Agent of the materials to be mailed and of payment, or provision for the
payment, of the reasonable expenses of such mailing.
SECTION 7.13. No Obligations of Purchase Contract Agent.
Except to the extent otherwise expressly provided in this
Agreement, the Purchase Contract Agent assumes no obligations and shall not
be subject to any liability under this Agreement, the Pledge Agreement or
any Purchase Contract in respect of the obligations of the Holder of any
Security thereunder. The Company agrees, and each Holder of a Certificate,
by his or her acceptance thereof, shall be deemed to have agreed, that the
Purchase Contract Agent's execution of the Certificates on behalf of the
Holders shall be solely as agent and attorney-in-fact for the Holders, and
that the Purchase Contract Agent shall have no obligation to perform such
Purchase Contracts on behalf of the Holders, except to the extent expressly
provided in Article Five hereof. Anything contained in this Agreement to
the contrary notwithstanding, in no event shall the Purchase Contract Agent
or its officers, employees or agents be liable under this Agreement to any
third party for indirect, special, punitive, or consequential loss or
damage of any kind whatsoever, including lost profits, whether or not the
likelihood of such loss or damage was known to the Purchase Contract Agent,
incurred without any act or deed that is found to be attributable to gross
negligence or willful misconduct on the part of the Purchase Contract
Agent.
SECTION 7.14. Tax Compliance.
(a) The Company and the Purchase Contract Agent will comply with
all applicable certification, information reporting and withholding
(including "backup" withholding) requirements imposed by applicable tax
laws, regulations or administrative practice with respect to (i) any
payments made with respect to the Securities or (ii) the issuance,
delivery, holding, transfer, redemption or exercise of rights under the
Securities. Such compliance shall include, without limitation, the
preparation and timely filing of required returns and the timely payment of
all amounts required to be withheld to the appropriate taxing authority or
its designated agent.
(b) The Purchase Contract Agent shall comply in accordance with
the terms hereof with any written direction received from the Company with
respect to the execution or certification of any required documentation and
the application of such requirements to particular payments or Holders or
in other particular circumstances, and may for purposes of this Agreement
conclusively rely on any such direction in accordance with the provisions
of Section 7.01(a)(2) hereof.
(c) The Purchase Contract Agent shall maintain all appropriate
records documenting compliance with such requirements, and shall make such
records available, on written request, to the Company or its authorized
representative within a reasonable period of time after receipt of such
request.
ARTICLE 8
SUPPLEMENTAL AGREEMENTS
SECTION 8.01. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Company and the Purchase
Contract Agent, at any time and from time to time, may enter into one or
more agreements supplemental hereto, in form satisfactory to the Company
and the Purchase Contract Agent, to:
(1) evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants
of the Company herein and in the Certificates;
(2) evidence and provide for the acceptance of
appointment hereunder by a successor Purchase Contract Agent;
(3) add to the covenants of the Company for the benefit
of the Holders, or
surrender any right or power herein conferred upon the Company;
(4) make provision with respect to the rights of Holders
pursuant to the requirements of Section 5.04(b); or -------
(5) except as provided for in Section 5.04, cure any
ambiguity, correct or supplement any provisions herein which may
be inconsistent with any other provisions herein, or make any
other provisions with respect to such matters or questions arising
under this Agreement, provided that such action shall not
adversely affect the interests of the Holders.
SECTION 8.02. Supplemental Agreements with Consent of Holders.
With the consent of the Holders of not less than a majority of the
outstanding Securities voting together as one class, by Act of said Holders
delivered to the Company and the Purchase Contract Agent, the Company, when
authorized by a Board Resolution, and the Purchase Contract Agent may enter
into an agreement or agreements supplemental hereto for the purpose of
modifying in any manner the terms of the Purchase Contracts, or the
provisions of this Agreement or the rights of the Holders in respect of the
Securities; provided, however, that, except as contemplated herein, no such
supplemental agreement shall, without the unanimous consent of the Holders
of each outstanding Purchase Contract affected thereby,
(1) change any Payment Date;
(2) change the amount or the type of Collateral required
to be Pledged to secure a Holder's obligations under the Purchase
Contract, impair the right of the Holder of any Purchase Contract
to receive distributions on the related Collateral (except for the
rights of Holders of Income PACS to substitute Treasury Securities
for the Pledged Notes or the rights of Holders of Growth PACS to
substitute Notes for the Pledged Treasury Securities) or otherwise
adversely affect the Holder's rights in or to such Collateral or
adversely alter the rights in or to such Collateral;
(3) impair the right to institute suit for the
enforcement of any Purchase Contract;
(4) reduce the number of shares of Common Stock to be
purchased pursuant to any Purchase Contract, increase the price to
purchase shares of Common Stock upon settlement of any Purchase
Contract or change the Purchase Contract Settlement Date or the
right to Early Settlement following a Cash Merger or otherwise
adversely affect the Holder's rights under the Purchase Contract;
(5) reduce the percentage of the outstanding Purchase
Contracts the consent of whose Holders is required for any such
supplemental agreement; or
(6) reduce any Purchase Contract Payments or change any
place where, or the coin or currency in which, any Purchase
Contract Payment is payable;
provided that if any amendment or proposal referred to above would
adversely affect only the Income PACS or the Growth PACS, then only the
affected class of Holders as of the record date for the Holders entitled to
vote thereon will be entitled to vote on such amendment or proposal, and
such amendment or proposal shall not be effective except with the consent
of Holders of not less than a majority of such class; and provided,
further, that the unanimous consent of the Holders of each outstanding
Purchase Contract of such class affected thereby shall be required to
approve any amendment or proposal specified in clauses (1) through (6)
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 8.03. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications
thereby of the agencies created by this Agreement, the Purchase Contract
Agent shall be provided, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such supplemental agreement is
authorized or permitted by this Agreement and that any and all conditions
precedent to the execution and delivery of such supplemental agreement have
been satisfied. The Purchase Contract Agent may, but shall not be obligated
to, enter into any such supplemental agreement which affects the Purchase
Contract Agent's own rights, duties or immunities under this Agreement or
otherwise.
SECTION 8.04. 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 Certificates theretofore or thereafter
authenticated, executed on behalf of the Holders and delivered hereunder,
shall be bound thereby.
SECTION 8.05. Reference to Supplemental Agreements.
Certificates authenticated, executed on behalf of the Holders and
delivered after the execution of any supplemental agreement pursuant to
this Article may, and shall if required by the Purchase Contract Agent,
bear a notation in form approved by the Purchase Contract Agent as to any
matter provided for in such supplemental agreement. If the Company shall so
determine, new Certificates so modified as to conform, in the opinion of
the Purchase Contract Agent and the Company, to any such supplemental
agreement may be prepared and executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Purchase Contract
Agent in exchange for outstanding Certificates.
ARTICLE 9
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 9.01. Covenant Not to Consolidate, Merge, Convey, Transfer
or Lease Property Except under Certain Conditions.
The Company covenants that it will not consolidate with or merge
into any other corporation or convey, transfer or lease all or
substantially all of its properties and assets to any Person, unless:
(i) either the Company shall be the continuing
corporation, or the successor (if other than the Company) shall be
a corporation organized and existing under the laws of the United
States of America or a State thereof or the District of Columbia
and such corporation shall expressly assume all the obligations of
the Company under the Purchase Contracts, this Agreement, the
Pledge Agreement, the Indenture (including any supplement thereto)
and the Remarketing Agreement by one or more supplemental
agreements in form reasonably satisfactory to the Purchase
Contract Agent and the Collateral Agent, executed and delivered to
the Purchase Contract Agent and the Collateral Agent by such
corporation; and
(ii) the Company or such successor corporation, as the
case may be, shall not, immediately after such consolidation,
merger, conveyance, transfer or lease, be in default in the
performance of any covenant or condition hereunder, under any of
the Securities or under the Pledge Agreement.
SECTION 9.02. Rights and Duties of Successor Corporation.
In case of any such merger, consolidation, share exchange, sale,
assignment, transfer, lease or conveyance and upon any such assumption by a
successor corporation in accordance with Section 9.01, such successor
corporation shall succeed to and be substituted for the Company with the
same effect as if it had been named herein as the Company. Such successor
corporation thereupon may cause to be signed, and may issue either in its
own name or in the name of The Xxxxxxxx Companies, Inc., any or all of the
Certificates evidencing Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Purchase
Contract Agent; and, upon the order of such successor corporation, instead
of the Company, and subject to all the terms, conditions and limitations in
this Agreement prescribed, the Purchase Contract Agent shall authenticate
and execute on behalf of the Holders and deliver any Certificates which
previously shall have been signed and delivered by the officers of the
Company to the Purchase Contract Agent for authentication and execution,
and any Certificate evidencing Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Purchase Contract
Agent for that purpose. All the Certificates issued shall in all respects
have the same legal rank and benefit under this Agreement as the
Certificates theretofore or thereafter issued in accordance with the terms
of this Agreement as though all of such Certificates had been issued at the
date of the execution hereof.
In case of any such merger, consolidation, share exchange, sale,
assignment, transfer, lease or conveyance such change in phraseology and
form (but not in substance) may be made in the Certificates evidencing
Securities thereafter to be issued as may be appropriate.
SECTION 9.03. Officers' Certificate and Opinion of Counsel Given
to Purchase Contract Agent.
The Purchase Contract Agent, subject to Sections 7.01 and 7.03,
shall receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any such merger, consolidation, share exchange,
sale, assignment, transfer, lease or conveyance, and any such assumption,
complies with the provisions of this Article and that all conditions
precedent to the consummation of any such merger, consolidation, share
exchange, sale, assignment, transfer, lease or conveyance have been met.
ARTICLE 10
COVENANTS
SECTION 10.01. Performance under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders
from time to time of the Securities 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 10.02. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, New York
City an office or agency where Certificates may be presented or surrendered
for acquisition of shares of Common Stock upon settlement of the Purchase
Contracts on the Purchase Contract Settlement Date or Early Settlement and
for transfer of Collateral upon occurrence of a Termination Event, where
Certificates may be surrendered for registration of transfer or exchange,
for a Collateral Substitution or reestablishment of Income PACS and where
notices and demands to or upon the Company in respect of the Securities and
this Agreement may be served. The Company will give prompt written notice
to the Purchase Contract Agent of the location, and any change in the
location, of such office or agency. The Company initially designates the
Corporate Trust Office of the Purchase Agent as such office of the Company.
If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Purchase Contract Agent with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office, and the Company hereby
appoints the Purchase Contract Agent as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where 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 Company of its obligation to maintain an
office or agency in the Borough of Manhattan, New York City for such
purposes. The Company will give prompt written notice to the Purchase
Contract Agent of any such designation or rescission and of any change in
the location of any such other office or agency. The Company hereby
designates as the place of payment for the Securities the Corporate Trust
Office and appoints the Purchase Contract Agent at its Corporate Trust
Office as paying agent in such city.
SECTION 10.03. Company to Reserve Common Stock.
The Company shall at all times prior to the Purchase Contract
Settlement Date reserve and keep available, free from preemptive rights,
out of its authorized but unissued Common Stock the full number of shares
of Common Stock issuable against tender of payment in respect of all
Purchase Contracts constituting a part of the Securities evidenced by
Outstanding Certificates.
SECTION 10.04. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may be
issued against tender of payment in respect of any Purchase Contract
constituting a part of the Outstanding Securities will, upon issuance, be
duly authorized, validly issued, fully paid and nonassessable.
SECTION 10.05. Statements of Officers of the Company as to Default.
The Company will deliver to the Purchase Contract Agent, within
120 days after the end of each fiscal year of the Company (which as of the
date hereof is December 31) ending after the date hereof, an Officers'
Certificate (one of the signers of which shall be the principal executive
officer, principal financial officer or principal accounting officer of the
Company), stating whether or not to the knowledge of the signers thereof
the Company is in default in the performance and observance of any of the
terms, provisions and conditions hereof, and if the Company shall be in
default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 10.06. ERISA.
Each Holder from time to time of the Securities that is a Plan
hereby represents that its acquisition of the Income PACS and the holding
of the same satisfies the applicable fiduciary requirements of ERISA and
that it is entitled to exemption relief from the prohibited transaction
provisions of ERISA and the Code in accordance with one or more prohibited
transaction exemptions or otherwise will not result in a nonexempt
prohibited transaction.
[SIGNATURES ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
THE XXXXXXXX COMPANIES, INC.
By:
------------------------------
Name:
Title:
[ ],
as Purchase Contract Agent
By:
------------------------------
Name:
Title:
EXHIBIT A
FACE OF Income PACS CERTIFICATE
[THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF
THE PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF CEDE & CO., AS THE NOMINEE OF THE DEPOSITORY TRUST COMPANY,
A NEW YORK CORPORATION (THE "DEPOSITARY"), THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY
OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE
CONTRACT AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A
TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
No. ____ CUSIP No._____________
Number of Income PACS:______________
THE XXXXXXXX COMPANIES, INC.
Income PACS
This Income PACS Certificate certifies that ___________________ is
the registered Holder of the number of Income PACS set forth above. Each
Income PACS consists of (i) either (a) the beneficial ownership by the
Holder of $__ principal amount of Notes due 2007 (the "Notes") of The
Xxxxxxxx Companies, Inc., a Delaware corporation (the "Company"), subject
to the Pledge of such Note by such Holder pursuant to the Pledge Agreement,
or (b) upon the occurrence of a Tax Event Redemption prior to the Purchase
Contract Settlement Date or a Successful Initial Remarketing, the
appropriate Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio by such Holder
pursuant to the Pledge Agreement, and (ii) the rights and obligations of
the Holder under one Purchase Contract with the Company. All capitalized
terms used herein which are defined in the Purchase Contract Agreement (as
defined on the reverse hereof) have the meaning set forth therein.
Pursuant to the Pledge Agreement, the Notes or the appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio, as the case may be, constituting
part of each Income PACS evidenced hereby has been pledged to the
Collateral Agent, for the benefit of the Company, to secure the obligations
of the Holder under the Purchase Contract comprising part of such Income
PACS.
The Pledge Agreement provides that all payments of the principal
amount with respect to any of the Pledged Notes or the appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio, as the case may be, or interest on
any Pledged Notes (as defined in the Pledge Agreement) or the appropriate
Applicable Ownership Interest (as specified in clause (B) of the definition
of such term) of the Treasury Portfolio, as the case may be, constituting
part of the Income PACS received by the Securities Intermediary shall be
paid by wire transfer in same day funds (i) in the case of (A) interest on
Pledged Notes or cash distributions with respect to the appropriate
Applicable Ownership Interest (as specified in clause (B) of the definition
of such term) of the Treasury Portfolio, as the case may be, and (B) any
payments of the principal amount of any Notes or liquidation amount with
respect to the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio, as
the case may be, that have been released from the Pledge pursuant to the
Pledge Agreement, to the Purchase Contract Agent to the account designated
by the Purchase Contract Agent, no later than 2:00 p.m., New York City
time, on the Business Day such payment is received by the Securities
Intermediary (provided that in the event such payment is received by the
Securities Intermediary on a day that is not a Business Day or after 12:30
p.m., New York City time, on a Business Day, then such payment shall be
made no later than 10:30 a.m., New York City time, on the next succeeding
Business Day) and (ii) in the case of payments of the principal amount of
the Notes or the liquidation amount with respect to the appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio, to the Company on the Purchase
Contract Settlement Date (as described herein) in accordance with the terms
of the Pledge Agreement, in full satisfaction of the respective obligations
of the Holders of the Income PACS of which such Pledged Notes or the
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio, as the case may be, are a part
under the Purchase Contracts forming a part of such Income PACS. Interest
on the Notes and distributions on the appropriate Applicable Ownership
Interest (as specified in clause (B) of the definition of such term) of the
Treasury Portfolio, as the case may be, forming part of an Income PACS
evidenced hereby, which are payable quarterly in arrears on
_______________, ___________________, ________________, and
________________ of each year, commencing ______________, 2002 (a "Payment
Date"), shall, subject to receipt thereof by the Purchase Contract Agent
from the Securities Intermediary, be paid to the Person in whose name this
Income PACS Certificate (or a Predecessor Income PACS Certificate) is
registered at the close of business on the Record Date for such Payment
Date.
Each Purchase Contract evidenced hereby obligates the Holder of
this Income PACS Certificate to purchase, and the Company to sell, on
February 16, 2005 (the "Purchase Contract Settlement Date"), at a price
equal to $[25] (the "Stated Amount"), a number of shares of Common Stock,
par value $1.00 ("Common Stock"), of the Company, equal to the Settlement
Rate, unless on or prior to the Purchase Contract Settlement Date there
shall have occurred a Termination Event or an Early Settlement with respect
to the Income PACS of which such Purchase Contract is a part, all as
provided in the Purchase Contract Agreement and more fully described on the
reverse hereof. The purchase price (the "Purchase Price") for the shares of
Common Stock purchased pursuant to each Purchase Contract evidenced hereby,
if not paid earlier, shall be paid on the Purchase Contract Settlement Date
by application of payment received in respect of the principal amount with
respect to any Pledged Notes pursuant to the Remarketing or the appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio, as the case may be, pledged to
secure the obligations under such Purchase Contract of the Holder of the
Income PACS of which such Purchase Contract is a part.
The Company shall pay, on each Payment Date, in respect of each
Purchase Contract forming part of an Income PACS evidenced hereby, an
amount (the "Purchase Contract Payments") equal to ___% per year of the
Stated Amount. Such Purchase Contract Payments shall be payable to the
Person in whose name this Income PACS Certificate is registered at the
close of business on the Record Date for such Payment Date. The Company
may, at its option, defer such Purchase Contract Payments.
Interest on the Notes and distributions on the Applicable
Ownership Interest (as specified in clause (B) of the definition of such
term) and the Purchase Contract Payments will be payable at the office of
the Purchase Contract Agent in New York City or, at the option of the
Company, by check mailed to the address of the Person entitled thereto as
such address appears on the Security Register.
Reference is hereby made to the further provisions set forth on
the reverse hereof, which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Purchase Contract Agent by manual signature, this Income PACS
Certificate shall not be entitled to any benefit under the Pledge Agreement
or the Purchase Contract Agreement or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
THE XXXXXXXX COMPANIES, INC.
By:
------------------------------------
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts)
By: [ ],
not individually but solely as
Attorney-in-Fact of such Holder
By:
------------------------------------
Name:
Title:
DATED:__________________
CERTIFICATE OF AUTHENTICATION
OF PURCHASE CONTRACT AGENT
This is one of the Income PACS Certificates referred to in the
within mentioned Purchase Contract Agreement.
By: [ ],
as Purchase Contract Agent
By:
------------------------------------
Authorized Signatory
Dated: ____________________
(FORM OF REVERSE OF Income PACS CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of _____________, 2002 (as may be supplemented
from time to time, the "Purchase Contract Agreement"), between the Company
and [ ], as Purchase Contract Agent (including its successors hereunder,
the "Purchase Contract Agent"), to which Purchase Contract 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 Purchase Contract Agent, the Company, and the
Holders and of the terms upon which the Income PACS Certificates are, and
are to be, executed and delivered.
Unless a Cash Settlement or an Early Settlement has occurred, each
Purchase Contract evidenced hereby obligates the Holder of this Income PACS
Certificate to purchase, and the Company to sell, on the Purchase Contract
Settlement Date at a price equal to the Stated Amount (the "Purchase
Price"), a number of shares of Common Stock equal to the Settlement Rate,
unless, prior to or on the Purchase Contract Settlement Date, there shall
have occurred a Termination Event with respect to the Security of which
such Purchase Contract is a part or an Early Settlement shall have
occurred. The "Settlement Rate" is equal to:
(1) if the Applicable Market Value (as defined below) is
greater than $______ (the "Appreciation Cap Price"), the number of
shares of Common Stock per Purchase Contract having a value, based
on the Applicable Market Value, equal to ____ multiplied by the
Appreciation Cap Price divided by the Applicable Market Value; and
(2) if the Applicable Market Value is less than or equal
to the Appreciation Cap Price, ______ shares of Common Stock per
Purchase Contract,
in each case subject to adjustment as provided in the Purchase Contract
Agreement (and in each case rounded upward or downward to the nearest
1/10,000th of a share).
No fractional shares of Common Stock will be issued upon
settlement of Purchase Contracts, as provided in Section 5.09 of the
Purchase Contract Agreement.
Each Purchase Contract evidenced hereby, which is settled either
through Early Settlement or Cash Settlement, shall obligate the Holder of
the related Income PACS to purchase at the Purchase Price, and the Company
to sell, a number of shares of Common Stock equal to the Settlement Rate.
The "Applicable Market Value" means the average of the Closing
Price per share of Common Stock on each of the 20 consecutive Trading Days
ending on the third Trading Day immediately preceding the Purchase Contract
Settlement Date.
The "Closing Price" per share of Common Stock on any date of
determination means:
(1) the closing sale price as of the close of the
principal trading session (or, if no closing price is reported,
the last reported sale price) per share on the New York Stock
Exchange, Inc. (the "NYSE") on such date;
(2) if Common Stock is not listed for trading on the NYSE
on any such date, the closing sale price per share as reported in
the composite transactions for the principal United States
securities exchange on which Common Stock is so listed;
(3) if Common Stock is not so listed on a United States
national or regional securities exchange, the closing sale price
per share as reported by The Nasdaq Stock Market;
(4) if Common Stock is not so reported, the last quoted
bid price for Common Stock in the over-the-counter market as
reported by the National Quotation Bureau or similar organization;
or
(5) if such bid price is not available, the market value
of Common Stock on such date as determined by a nationally
recognized independent investment banking firm retained for this
purpose by the Company.
A "Trading Day" means a day on which Common Stock (1) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (2) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of Common Stock.
In accordance with the terms of the Purchase Contract Agreement,
the Holder of this Income PACS Certificate may pay the Purchase Price for
the shares of Common Stock purchased pursuant to each Purchase Contract
evidenced hereby by effecting a Cash Settlement or an Early Settlement
following a Cash Merger or from the proceeds of the Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio or a Remarketing of the related Pledged Notes. Unless a
Tax Event Redemption or a Successful Initial Remarketing has occurred, a
Holder of Income PACS who does not effect (1) on or prior to 11:00 a.m.
(New York City time) on the fourth Business Day immediately preceding the
Purchase Contract Settlement Date, an effective Cash Settlement, or (2) on
or prior to 5:00 p.m. (New York City time) on the fifth Business Day prior
to the Purchase Contract Settlement Date an effective Early Settlement
following a Cash Merger, shall pay the Purchase Price for the shares of
Common Stock to be delivered under the related Purchase Contract from the
proceeds of the sale of the related Pledged Notes held by the Collateral
Agent. Unless a Tax Event Redemption or a Successful Initial Remarketing
has occurred, such sale will be made by the Remarketing Agent pursuant to
the terms of the Remarketing Agreement on the third Business Day prior to
the Purchase Contract Settlement Date. If a Tax Event Redemption or a
Successful Initial Remarketing has occurred, a Holder of Income PACS who
does not effect on or prior to 11:00 a.m. (New York City time) on the
second Business Day immediately preceding the Purchase Contract Settlement
Date, an effective Cash Settlement, shall pay the Purchase Price for the
shares of Common Stock to be delivered under the related Purchase Contract
from the proceeds at maturity of the Applicable Ownership Interests (as
defined in clause (A) of the definition of such term) of the Treasury
Portfolio.
If, as provided in the Purchase Contract Agreement, upon the
occurrence of a Failed Secondary Remarketing, the Collateral Agent, for the
benefit of the Company, exercises its rights as a secured creditor with
respect to the Pledged Notes related to this Income PACS certificate, any
accrued and unpaid interest on such Pledged Notes will become payable by
the Company to the holder of this Income PACS Certificate in the manner
provided for in the Purchase Contract Agreement.
The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates
therefor to the Holder unless it shall have received payment of the
aggregate Purchase Price for the shares of Common Stock to be purchased
thereunder in the manner herein set forth.
Each Purchase Contract evidenced hereby and all obligations and
rights of the Company and the Holder thereunder shall terminate if a
Termination Event shall occur. Upon the occurrence of a Termination Event,
the Company shall give written notice to the Purchase Contract Agent and to
the Holders, at their addresses as they appear in the Security Register.
Upon and after the occurrence of a Termination Event, the Collateral Agent
shall release the Pledged Notes or the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio forming a part of each Income PACS from the Pledge. An
Income PACS shall thereafter represent the right to receive the Note or the
appropriate Applicable Ownership Interest of the Treasury Portfolio forming
a part of such Income PACS in accordance with the terms of the Purchase
Contract Agreement and the Pledge Agreement.
Under the terms of the Pledge Agreement, the Purchase Contract
Agent will be entitled to exercise the voting and any other consensual
rights pertaining to the Pledged Notes. Upon receipt of notice of any
meeting at which holders of Notes are entitled to vote or upon the
solicitation of consents, waivers or proxies of holders of Notes, the
Purchase Contract Agent shall, as soon as practicable thereafter, mail to
the Income PACS Holders a notice:
(1) containing such information as is contained in the
notice or solicitation;
(2) stating that each Income PACS Holder on the record
date set by the Purchase Contract Agent therefor (which, to the
extent possible, shall be the same date as the record date for
determining the holders of Notes entitled to vote) shall be
entitled to instruct the Purchase Contract Agent as to the
exercise of the voting rights pertaining to the Notes constituting
a part of such Holder's Income PACS; and
(3) stating the manner in which such instructions may be
given.
Upon the written request of the Income PACS Holders on such record date,
the Purchase Contract Agent shall endeavor insofar as practicable to vote
or cause to be voted, in accordance with the instructions set forth in such
requests, the maximum aggregate principal amount of Notes as to which any
particular voting instructions are received. In the absence of specific
instructions from the Holder of an Income PACS, the Purchase Contract Agent
shall abstain from voting the Note evidenced by such Income PACS.
Upon the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date, an amount equal to the Redemption Amount
plus any accumulated and unpaid interest payable on the Tax Event
Redemption Date with respect to the principal amount of the Notes shall be
deposited in the Collateral Account in exchange for the Pledged Notes.
Thereafter, pursuant to the terms of the Pledge Agreement, the Collateral
Agent shall cause the Securities Intermediary to apply an amount equal to
the Redemption Amount of such funds to purchase on behalf of the Holders of
Income PACS, the Treasury Portfolio and promptly (a) transfer the
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio to the Collateral Account to secure
the obligations of each Holder of Income PACS to purchase shares of Common
Stock under the Purchase Contracts constituting a part of such Income PACS,
(b) transfer the Applicable Ownership Interest (as specified in clause (B)
of the definition of such term) of the Treasury Portfolio to the Purchase
Contract Agent for the benefit of the Holders of such Income PACS and (C)
remit the remaining portion of such funds to the Purchase Contract Agent
for payment to the Holders of such Income PACS.
Upon the occurrence of a Successful Initial Remarketing, pursuant
to the terms of the Remarketing Agreement, the Remarketing Agent will apply
an amount equal to the Treasury Portfolio Purchase Price to purchase on
behalf of the Holders of Income PACS, the Treasury Portfolio, and, after
deducting the Remarketing Fee to the extent permitted under the terms of
the Remarketing Agreement, promptly remit the remaining portion of such
proceeds of the Successful Initial Remarketing to the Purchase Contract
Agent for payment to the Holders of such Income PACS.
Following the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date, or following a Successful Initial
Remarketing, the Holders of Income PACS and the Collateral Agent shall have
such security interest rights and obligations with respect to the
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio as the Holder of Income PACS and
the Collateral Agent had in respect of the Notes, as the case may be,
subject to the Pledge thereof as provided in the Pledge Agreement and any
reference herein to the Notes shall be deemed to be a reference to such
Treasury Portfolio.
The Income PACS Certificates are issuable only in registered form
and only in denominations of a single Income PACS and any integral multiple
thereof. The transfer of any Income PACS Certificate will be registered and
Income PACS Certificates may be exchanged as provided in the Purchase
Contract Agreement. The Security Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
permitted by the Purchase Contract Agreement. No service charge shall be
required for any such registration of transfer or exchange, but the Company
and the Purchase Contract Agent may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
A Holder who elects to substitute a Treasury Security for a Note, thereby
creating Growth PACS, shall be responsible for any fees or expenses payable
in connection therewith. Except as provided in the Purchase Contract
Agreement, for so long as the Purchase Contract underlying an Income PACS
remains in effect, such Income PACS shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such
Income PACS in respect of the Notes and Purchase Contract constituting such
Income PACS may be transferred and exchanged only as an Income PACS.
The Holder of Income PACS may substitute for the Pledged Notes
securing such Holder's obligations under the related Purchase Contracts
Treasury Securities in an aggregate principal amount equal to the aggregate
principal amount of the Pledged Notes in accordance with the terms of the
Purchase Contract Agreement and the Pledge Agreement. From and after such
Collateral Substitution, each Security for which such Pledged Treasury
Securities secures the Holder's obligation under the Purchase Contract
shall be referred to as a "Growth PACS". A Holder may make such Collateral
Substitution only in integral multiples of [40] Income PACS for [40] Growth
PACS.
If the Treasury Portfolio has replaced the Notes as a component of
the Income PACS as a result of a Tax Event Redemption or a Successful
Initial Remarketing, an Income PACS Holder may make such Collateral
Substitutions only in integral multiples of _____ Income PACS.
A Holder of Growth PACS may recreate Income PACS by delivering to
the Securities Intermediary Notes with an aggregate principal amount equal
to the aggregate principal amount at maturity of the Pledged Treasury
Securities in exchange for the release of such Pledged Treasury Securities
in accordance with the terms of the Purchase Contract Agreement and the
Pledge Agreement. A Holder may recreate Income PACS only in integral
multiples of [40] Growth PACS for [40] Income PACS.
If the Treasury Portfolio has replaced the Notes as a component of
the Income PACS as a result of a Tax Event Redemption or a Successful
Initial Remarketing, a Growth PACS Holder may recreate Income PACS only in
integral multiples of _____ Growth PACS.
The Company shall pay, on each Payment Date, the Purchase Contract
Payments payable in respect of each Purchase Contract to the Person in
whose name the Income PACS Certificate evidencing such Purchase Contract is
registered at the close of business on the Record Date for such Payment
Date. Purchase Contract Payments will be payable at the office of the
Purchase Contract Agent in New York City or, at the option of the Holder,
by check mailed to the address of the Person entitled thereto at such
address as it appears on the Security Register.
The Company has the right to defer payment of all or part of the
Purchase Contract Payments in respect of each Purchase Contract until no
later than the Purchase Contract Settlement Date. If the Company so elects
to defer Purchase Contract Payments, the Company shall pay additional
Purchase Contract Payments on such deferred installments of Purchase
Contract Payments at a rate equal to ___% per annum, compounding quarterly,
until such deferred installments are paid. In the event that the Company
elects to defer the payment of Purchase Contract Payments on the Purchase
Contracts until the Purchase Contract Settlement Date, each Holder will
receive on the Purchase Contract Settlement Date the aggregate amount of
accrued and unpaid Purchase Contract Payments.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the
rights of the Holders to receive and the obligation of the Company to pay
any Purchase Contract Payments, shall immediately and automatically
terminate, without the necessity of any notice or action by any Holder, the
Purchase Contract Agent or the Company, if, on or prior to the Purchase
Contract Settlement Date, a Termination Event shall have occurred. Upon the
occurrence of a Termination Event, the Company shall promptly but in no
event later than two Business Days thereafter give written notice to the
Purchase Contract Agent, the Collateral Agent and the Holders, at their
addresses as they appear in the Security Register. Upon and after the
occurrence of a Termination Event, the Collateral Agent shall release the
Notes or the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio, as
the case may be, from the Pledge in accordance with the provisions of the
Pledge Agreement.
Upon the occurrence of a Cash Merger, a Holder of Income PACS may
effect Early Settlement of the Purchase Contract underlying such Income
PACS pursuant to the terms of Section 5.04(b)(2) of the Purchase Contract
Agreement. Upon Early Settlement of Purchase Contracts by a Holder of the
related Income PACS, the Pledged Notes or Pledged Applicable Ownership
Interests (as specified in clause (A) of the definition of such term) of
the Treasury Portfolio underlying such Income PACS shall be released from
the Pledge as provided in the Pledge Agreement.
Upon registration of transfer of this Income PACS Certificate, 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 Purchase Contract
Agent pursuant to the Purchase Contract Agreement), under the terms of the
Purchase Contract Agreement and the Purchase Contracts evidenced hereby and
the transferor shall be released from the obligations under the Purchase
Contracts evidenced by this Income PACS Certificate. The Company covenants
and agrees, and the Holder, by its acceptance hereof, likewise covenants
and agrees, to be bound by the provisions of this paragraph.
The Holder of this Income PACS Certificate, by its acceptance
hereof, authorizes the Purchase Contract Agent to enter into and perform
the related Purchase Contracts forming part of the Income PACS evidenced
hereby on its behalf as its attorney-in-fact, expressly withholds any
consent to the assumption (i.e., affirmance) of the Purchase Contracts by
the Company or its trustee in the event that the Company becomes the
subject of a case under the Bankruptcy Code, agrees to be bound by the
terms and provisions thereof, covenants and agrees to perform his
obligations under such Purchase Contracts, consents to the provisions of
the Purchase Contract Agreement, authorizes the Purchase Contract Agent to
enter into and perform the Purchase Contract Agreement and the Pledge
Agreement on its behalf as its attorney-in-fact, and consents to the Pledge
of the Notes or the appropriate Applicable Ownership Interest (as specified
in clause (A) of the definition of such term) of the Treasury Portfolio, as
the case may be, underlying this Income PACS Certificate pursuant to the
Pledge Agreement. The Holder further covenants and agrees that, to the
extent and in the manner provided in the Purchase Contract Agreement and
the Pledge Agreement, but subject to the terms thereof, payments in respect
to the aggregate principal amount of the Pledged Notes or the appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio, as the case may be, on the
Purchase Contract Settlement Date shall be paid by the Collateral Agent to
the Company in satisfaction of such Holder's obligations under such
Purchase Contract and such Holder shall acquire no right, title or interest
in such payments.
Subject to certain exceptions, the provisions of the Purchase
Contract Agreement may be amended with the consent of the Holders of a
majority of the Purchase Contracts.
The Purchase Contracts shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to
conflicts of laws principles thereof.
The Company, the Purchase Contract Agent and its Affiliates and
any agent of the Company or the Purchase Contract Agent may treat the
Person in whose name this Income PACS Certificate is registered as the
owner of the Income PACS evidenced hereby for the purpose of receiving
payments of interest payable on the Notes, receiving payments of Purchase
Contract Payments, performance of the Purchase Contracts and for all other
purposes whatsoever, whether or not any payments in respect thereof be
overdue and notwithstanding any notice to the contrary, and neither the
Company, the Purchase Contract Agent nor any such agent shall be affected
by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common
Stock.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Purchase Contract Agent.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM: as tenants in common
UNIF GIFT MIN ACT: ___________________ Custodian ___________________
(cust) (minor)
Under Uniform Gifts to Minors Act of __________
__________________________________________________
TENANT: as tenants by the entireties
JT TEN: as joint tenants with right of survivorship and not
as tenants in common
Additional abbreviations may also be used though not in the above list.
___________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_______________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
_______________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Income PACS Certificates and all rights thereunder, hereby
irrevocably constituting and appointing attorney __________________, to
transfer said Income PACS Certificates on the books of The Xxxxxxxx
Companies, Inc., with full power of substitution in the premises.
Dated: _______________________ Signature _____________________________
NOTICE: The signature to this
assignment must correspond with the
name as it appears upon the face of
the within Income PACS Certificates
in every particular, without
alteration or enlargement or any
change whatsoever.
Signature Guarantee: _________________________________________
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of
Common Stock deliverable upon settlement on or after the Purchase Contract
Settlement Date of the Purchase Contracts underlying the number of Income
PACS evidenced by this Income PACS Certificate be registered in the name
of, and delivered, together with a check in payment for any fractional
share, to the undersigned at the address indicated below unless a different
name and address have been indicated below. If shares are to be registered
in the name of a Person other than the undersigned, the undersigned will
pay any transfer tax payable incident thereto.
Dated:______________________________ ___________________________________
Signature
Signature Guarantee:_______________
(if assigned to another person)
If shares are to be registered in
the name of and delivered to a Person REGISTERED HOLDER
other than the Holder, please (i)
print such Person's name and address Please print name and address of
and (ii) provide a guarantee of your Registered Holder:
signature:
____________________________________ ___________________________________
Name Name
____________________________________ ___________________________________
Address Address
____________________________________ ___________________________________
____________________________________ ___________________________________
____________________________________ ___________________________________
Social Security or other
Taxpayer Identification
Number, if any ___________________________________
ELECTION TO SETTLE EARLY
The undersigned Holder of this Income PACS Certificate hereby
irrevocably exercises the option to effect Early Settlement following a
Cash Merger in accordance with the terms of the Purchase Contract Agreement
with respect to the Purchase Contracts underlying the number of Income PACS
evidenced by this Income PACS Certificate specified below. The undersigned
Holder directs that a certificate for shares of Common Stock deliverable
upon such Early Settlement be registered in the name of, and delivered,
together with a check in payment for any fractional share and any Income
PACS Certificate representing any Income PACS evidenced hereby as to which
Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and
address have been indicated below. Pledged Notes or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be, deliverable upon such Early Settlement will be transferred in
accordance with the transfer instructions set forth below. If shares are to
be registered in the name of a Person other than the undersigned, the
undersigned will pay any transfer tax payable incident thereto.
Dated: _____________________________ ________________________________
Signature
Signature Guarantee: _________________________
Number of Securities evidenced hereby as to which Early Settlement
of the related Purchase Contracts is being elected:
If shares of Common Stock or Income REGISTERED HOLDER
PACS Certificates are to be registered
in the name of and delivered to and
Pledged Notes or the Applicable
Ownership Interest of the Treasury
Portfolio, as the case may be, are to
be transferred to a Person other than
the Holder, please print such Person's Please print name and address of
name and address: Registered Holder:
____________________________________ ___________________________________
Name Name
____________________________________ ___________________________________
Address Address
____________________________________ ___________________________________
____________________________________ ___________________________________
____________________________________ ___________________________________
Social Security or other
Taxpayer Identification
Number, if any ___________________________________
Transfer Instructions for Pledged Notes or the Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, transferable upon
Early Settlement or a Termination Event:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
=======================================================================================================================
Number of Income
Amount of increase in Amount of decrease in PACS evidenced by
Number of Income Number of Income this Global Certificate Signature of authorized
PACS evidenced by PACS evidenced by following such signatory of Trustee or
Date the Global Certificate the Global Certificate decrease or increase Securities Custodian
_______________________________________________________________________________________________________________________
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_______________________________________________________________________________________________________________________
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_______________________________________________________________________________________________________________________
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EXHIBIT B
FACE OF GROWTH PACS CERTIFICATE
[THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF
THE PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF CEDE & CO., AS NOMINEE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION (THE "DEPOSITARY"), THE DEPOSITARY OR ANOTHER NOMINEE
OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF
THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
No. ____ CUSIP No._____________
Number of Growth PACS:___________
THE XXXXXXXX COMPANIES, INC.
Growth PACS
This Growth PACS Certificate certifies that __________________ is
the registered Holder of the number of Growth PACS set forth above. Each
Growth PACS consists of (i) a [1/40] undivided beneficial ownership
interest of a Treasury Security having a principal amount at maturity equal
to $1,000, subject to the Pledge of such Treasury Security by such Holder
pursuant to the Pledge Agreement, and (ii) the rights and obligations of
the Holder under one Purchase Contract with The Xxxxxxxx Companies, Inc., a
Delaware corporation (the "Company"). All capitalized terms used herein
which are defined in the Purchase Contract Agreement (as defined on the
reverse hereof) have the meaning set forth therein.
Pursuant to the Pledge Agreement, the Treasury Securities
constituting part of each Growth PACS evidenced hereby have been pledged to
the Collateral Agent, for the benefit of the Company, to secure the
obligations of the Holder under the Purchase Contract comprising part of
such Growth PACS. Each Purchase Contract evidenced hereby obligates the
Holder of this Growth PACS Certificate to purchase, and the Company, to
sell, on February 16, 2005 (the "Purchase Contract Settlement Date"), at a
price equal to $[25] (the "Stated Amount"), a number of shares of Common
Stock, par value $1.00 ("Common Stock"), of the Company, equal to the
Settlement Rate, unless prior to or on the Purchase Contract Settlement
Date there shall have occurred a Termination Event or an Early Settlement
with respect to the Growth PACS of which such Purchase Contract is a part,
all as provided in the Purchase Contract Agreement and more fully described
on the reverse hereof. The purchase price (the "Purchase Price") for the
shares of Common Stock purchased pursuant to each Purchase Contract
evidenced hereby, if not paid earlier, shall be paid on the Purchase
Contract Settlement Date by application of the proceeds from the Treasury
Securities at maturity pledged to secure the obligations of the Holder
under such Purchase Contract of the Growth PACS of which such Purchase
Contract is a part.
The Company shall pay, on each Payment Date, in respect of each
Purchase Contract forming part of a Growth PACS evidenced hereby, an amount
(the "Purchase Contract Payments") equal to ___% per year of the Stated
Amount. Such Purchase Contract Payments shall be payable to the Person in
whose name this Growth PACS Certificate is registered at the close of
business on the Record Date for such Payment Date. The Company may, at its
option, defer such Purchase Contract Payments.
The Purchase Contract Payments will be payable at the office of
the Purchase Contract Agent in New York City or, at the option of the
Company, by check mailed to the address of the Person entitled thereto as
such address appears on the Security Register.
Reference is hereby made to the further provisions set forth on
the reverse hereof, which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Purchase Contract Agent by manual signature, this Growth PACS
Certificate shall not be entitled to any benefit under the Pledge Agreement
or the Purchase Contract Agreement or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
THE XXXXXXXX COMPANIES, INC.
By:__________________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts)
By: [ ],
not individually but solely as
Attorney-in-Fact of such Holder
By:__________________________________
Name:
Title:
Dated:_____________________
CERTIFICATE OF AUTHENTICATION OF
PURCHASE CONTRACT AGENT
This is one of the Growth PACS referred to in the within-mentioned
Purchase Contract Agreement.
By: [ ],
as Purchase Contract Agent
By:______________________________
Authorized Signatory
Dated:_________________
(REVERSE OF Growth PACS CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of ___________, 2002 (as may be supplemented
from time to time, the "Purchase Contract Agreement") between the Company
and [ ], as Purchase Contract Agent (including its successors thereunder,
herein called the "Purchase Contract Agent"), to which the Purchase
Contract 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 Purchase Contract
Agent, the Company and the Holders and of the terms upon which the Growth
PACS Certificates are, and are to be, executed and delivered.
Unless a Cash Settlement or an Early Settlement has occurred, each
Purchase Contract evidenced hereby obligates the Holder of this Growth PACS
Certificate to purchase, and the Company to sell, on the Purchase Contract
Settlement Date at a price equal to the Stated Amount (the "Purchase
Price") a number of shares of Common Stock equal to the Settlement Rate,
unless prior to the Purchase Contract Settlement Date, there shall have
occurred a Termination Event with respect to the Security of which such
Purchase Contract is a part or an Early Settlement shall have occurred. The
"Settlement Rate" is equal to:
(1) if the Applicable Market Value (as defined below) is
greater than $______ (the "Appreciation Cap Price"), the number of
shares of Common Stock per Purchase Contract having a value, based
on the Applicable Market Value, equal to ____ multiplied by the
Appreciation Cap Price divided by the Applicable Market Value; and
(2) if the Applicable Market Value is less than or equal
to the Appreciation Cap Price ______ shares of Common Stock per
Purchase Contract,
in each case subject to adjustment as provided in the Purchase
Contract Agreement (and in each case rounded upward or downward to the
nearest 1/10,000th of a share).
No fractional shares of Common Stock will be issued upon
settlement of Purchase Contracts, as provided in Section 5.09 of the
Purchase Contract Agreement.
Each Purchase Contract evidenced hereby, which is settled either
through Early Settlement or Cash Settlement, shall obligate the Holder of
the related Growth PACS to purchase at the Purchase Price for cash, and the
Company to sell, a number of shares of Common Stock equal to the Settlement
Rate.
The "Applicable Market Value" means the average of the Closing
Prices per share of Common Stock on each of the 20 consecutive Trading Days
ending on the third Trading Day immediately preceding the Purchase Contract
Settlement Date.
The "Closing Price" per share of Common Stock on any date of
determination means the:
(1) closing sale price as of the close of the principal
trading session (or, if no closing price is reported, the last
reported sale price) per share on the New York Stock Exchange,
Inc. (the "NYSE") on such date;
(2) if the Common Stock is not listed for trading on the
NYSE on any such date, the closing sale price per share as
reported in the composite transactions for the principal United
States securities exchange on which the Common Stock is so listed;
(3) if the Common Stock is not so listed on a United
States national or regional securities exchange, the closing sale
price per share as reported by The Nasdaq Stock Market;
(4) if the Common Stock is not so reported, the last
quoted bid price for the Common Stock in the over-the-counter
market as reported by the National Quotation Bureau or similar
organization; or
(5) if such bid price is not available, the market value
of the Common Stock on such date as determined by a nationally
recognized independent investment banking firm retained for this
purpose by the Company.
A "Trading Day" means a day on which the Common Stock (1) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (2) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement,
the Holder of this Growth PACS shall pay the Purchase Price for the shares
of the Common Stock purchased pursuant to each Purchase Contract evidenced
hereby either by effecting a Cash Settlement or an Early Settlement of each
such Purchase Contract or by applying a principal amount of the Pledged
Treasury Securities underlying such Holder's Growth PACS equal to the
Stated Amount of such Purchase Contract to the purchase of the Common
Stock. A Holder of Growth PACS who does not effect, (1) on or prior to 5:00
p.m. (New York City time) on the second Business Day immediately preceding
the Purchase Contract Settlement Date, an effective Cash Settlement, or (2)
on or prior to 11:00 a.m. (New York City time) on the second Business Day
immediately preceding the Purchase Contract Settlement Date an effective
Early Settlement following a Cash Merger, shall pay the Purchase Price for
the shares of Common Stock to be issued under the related Purchase Contract
from the proceeds of the Pledged Treasury Securities.
The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates
therefor to the Holder unless it shall have received payment of the
aggregate purchase price for the shares of Common Stock to be purchased
thereunder in the manner herein set forth.
Each Purchase Contract evidenced hereby and all obligations and
rights of the Company and the Holder thereunder shall terminate if a
Termination Event shall occur. Upon the occurrence of a Termination Event,
the Company shall give written notice to the Purchase Contract Agent and to
the Holders, at their addresses as they appear in the Security Register.
Upon and after the occurrence of a Termination Event, the Collateral Agent
shall release the Pledged Treasury Securities (as defined in the Pledge
Agreement) forming a part of each Growth PACS. A Growth PACS shall
thereafter represent the right to receive the Proceeds of the Treasury
Security forming a part of such Growth PACS, in accordance with the terms
of the Purchase Contract Agreement and the Pledge Agreement.
The Growth PACS Certificates are issuable only in registered form
and only in denominations of a single Growth PACS and any integral multiple
thereof. The transfer of any Growth PACS Certificate will be registered and
Growth PACS Certificates may be exchanged as provided in the Purchase
Contract Agreement. The Security Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
permitted by the Purchase Contract Agreement. No service charge shall be
required for any such registration of transfer or exchange, but the Company
and the Purchase Contract Agent may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
A Holder who elects to substitute Notes, for Treasury Securities, thereby
recreating Income PACS, shall be responsible for any fees or expenses
associated therewith. Except as provided in the Purchase Contract
Agreement, for so long as the Purchase Contract underlying a Growth PACS
remains in effect, such Growth PACS shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such
Growth PACS in respect of the Treasury Security and the Purchase Contract
constituting such Growth PACS may be transferred and exchanged only as a
Growth PACS.
A Holder of Growth PACS may recreate Income PACS by delivering to
the Securities Intermediary Notes or the Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio, as the case may be, with an aggregate principal amount, equal to
the aggregate principal amount at maturity of the Pledged Treasury
Securities in exchange for the release of such Pledged Treasury Securities
in accordance with the terms of the Purchase Contract Agreement and the
Pledge Agreement. From and after such substitution, the Holder's Security
shall be referred to as a "Income PACS". Any such creation of Income PACS
may be effected only in multiples of [40] Growth PACS for [40] Income PACS.
If the Treasury Portfolio has replaced the Notes as a component of the
Income PACS as a result of a Tax Event Redemption or a Successful Initial
Remarketing, a Growth PACS Holder may recreate Income PACS only in integral
multiples of _____ Growth PACS.
A Holder of Income PACS may recreate Growth PACS by delivering to
the Securities Intermediary Treasury Securities in an aggregate principal
amount equal to the aggregate principal amount at maturity of the Pledged
Notes or the Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio, as the case may be,
in accordance with the terms of the Purchase Contract Agreement and the
Pledge Agreement. Any such recreation of Growth PACS may be effected only
in multiples of [40] Income PACS for [40] Growth PACS. If the Treasury
Portfolio has replaced the Notes as a component of the Income PACS as a
result of a Tax Event Redemption or a Successful Initial Remarketing, an
Income PACS Holder may recreate Growth PACS only in integral multiples of
_____ Income PACS.
The Company shall pay, on each Payment Date, the Purchase Contract
Payments payable in respect of each Purchase Contract to the Person in
whose name the Growth PACS Certificate evidencing such Purchase Contract is
registered at the close of business on the Record Date for such Payment
Date. Purchase Contract Payments will be payable at the office of the
Purchase Contract Agent in New York City or, at the option of the Holder,
by check mailed to the address of the Person entitled thereto at such
address as it appears on the Security Register.
The Company has the right to defer payment of all or part of the
Purchase Contract Payments in respect of each Purchase Contract until no
later than the Purchase Contract Settlement Date. If the Company so elects
to defer Purchase Contract Payments, the Company shall pay additional
Purchase Contract Payments on such deferred installments of Purchase
Contract Payments at a rate equal to ___% per annum, compounding quarterly,
until such deferred installments are paid. In the event that the Company
elects to defer the payment of Purchase Contract Payments on the Purchase
Contracts until the Purchase Contract Settlement Date, each Holder will
receive on the Purchase Contract Settlement Date the aggregate amount of
accrued and unpaid Purchase Contract Payments.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the
rights of the Holders to receive and the obligation of the Company to pay
any Purchase Contract Payments, shall immediately and automatically
terminate, without the necessity of any notice or action by any Holder, the
Purchase Contract Agent or the Company, if, on or prior to the Purchase
Contract Settlement Date, a Termination Event shall have occurred. Upon the
occurrence of a Termination Event, the Company shall promptly but in no
event later than two Business Days thereafter give written notice to the
Purchase Contract Agent, the Collateral Agent and the Holders, at their
addresses as they appear in the Security Register. Upon and after the
occurrence of a Termination Event, the Collateral Agent shall release the
Treasury Securities from the Pledge in accordance with the provisions of
the Pledge Agreement. A Growth PACS shall thereafter represent the right to
receive the interest in the Treasury Security forming a part of such Growth
PACS, in accordance with the terms of the Purchase Contract Agreement and
the Pledge Agreement.
Upon the occurrence of a Cash Merger, a Holder of Growth PACS may
effect Early Settlement of the Purchase Contract underlying such Growth
PACS pursuant to the terms of Section 5.04(b)(2) of the Purchase Contract
Agreement. Upon Early Settlement of Purchase Contracts by a Holder of the
related Growth PACS, the Pledged Treasury Securities underlying such Growth
PACS shall be released from the Pledge as provided in the Pledge Agreement.
Upon registration of transfer of this Growth PACS Certificate, 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 Purchase Contract
Agent pursuant to the Purchase Contract Agreement), under the terms of the
Purchase Contract Agreement and the Purchase Contracts evidenced hereby and
the transferor shall be released from the obligations under the Purchase
Contracts evidenced by this Growth PACS Certificate. The Company covenants
and agrees, and the Holder, by its acceptance hereof, likewise covenants
and agrees, to be bound by the provisions of this paragraph.
The Holder of this Growth PACS Certificate, by its acceptance
hereof, authorizes the Purchase Contract Agent to enter into and perform
the related Purchase Contracts forming part of the Growth PACS evidenced
hereby on its behalf as its attorney-in-fact, expressly withholds any
consent to the assumption (i.e., affirmance) of the Purchase Contracts by
the Company or its trustee in the event that the Company becomes the
subject of a case under the Bankruptcy Code, agrees to be bound by the
terms and provisions thereof, covenants and agrees to perform its
obligations under such Purchase Contracts, consents to the provisions of
the Purchase Contract Agreement, authorizes the Purchase Contract Agent to
enter into and perform the Purchase Contract Agreement and the Pledge
Agreement on its behalf as its attorney-in-fact, and consents to the Pledge
of the Treasury Securities underlying this Growth PACS Certificate pursuant
to the Pledge Agreement. The Holder further covenants and agrees, that, to
the extent and in the manner provided in the Purchase Contract Agreement
and the Pledge Agreement, but subject to the terms thereof, payments in
respect to the aggregate principal amount of the Pledged Treasury
Securities on the Purchase Contract Settlement Date shall be paid by the
Collateral Agent to the Company in satisfaction of such Holder's
obligations under such Purchase Contract and such Holder shall acquire no
right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase
Contract Agreement may be amended with the consent of the Holders of a
majority 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, without
regard to conflicts of laws principles thereof.
The Company, the Purchase Contract Agent and its Affiliates and
any agent of the Company or the Purchase Contract Agent may treat the
Person in whose name this Growth PACS Certificate is registered as the
owner of the Growth PACS evidenced hereby for the purpose of receiving
payments of interest on the Treasury Securities, receiving payments of
Purchase Contract Payments, performance of the Purchase Contracts and for
all other purposes whatsoever, whether or not any payments in respect
thereof be overdue and notwithstanding any notice to the contrary, and
neither the Company, the Purchase Contract Agent nor any such agent shall
be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common
Stock.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Purchase Contract Agent.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM: as tenants in common
UNIF GIFT MIN ACT: ___________________ Custodian ___________________
(cust) (minor)
Under Uniform Gifts to Minors Act of __________
__________________________________________________
TENANT: as tenants by the entireties
JT TEN: as joint tenants with right of survivorship and not
as tenants in common
Additional abbreviations may also be used though not in the above list.
___________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_______________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
_______________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Growth PACS Certificates and all rights thereunder, hereby
irrevocably constituting and appointing ________________ attorney to
transfer said Growth PACS Certificates on the books of The Xxxxxxxx
Companies, Inc., with full power of substitution in the premises.
Dated: _______________________ _____________________________
Signature
NOTICE: The signature to this
assignment must correspond with the
name as it appears upon the face of
the within Growth PACS Certificates
in every particular, without
alteration or enlargement or any
change whatsoever.
Signature Guarantee: _________________________________________
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of
Common Stock deliverable upon settlement on or after the Purchase Contract
Settlement Date of the Purchase Contracts underlying the number of Growth
PACS evidenced by this Growth PACS Certificate be registered in the name
of, and delivered, together with a check in payment for any fractional
share, to the undersigned at the address indicated below unless a different
name and address have been indicated below. If shares are to be registered
in the name of a Person other than the undersigned, the undersigned will
pay any transfer tax payable incident thereto.
Dated:______________________________ ___________________________________
Signature
Signature Guarantee:_______________
(if assigned to another person)
If shares are to be registered in
the name of and delivered to a Person REGISTERED HOLDER
other than the Holder, please (i)
print such Person's name and address Please print name and address of
and (ii) provide a guarantee of your Registered Holder:
signature:
____________________________________ ___________________________________
Name Name
____________________________________ ___________________________________
Address Address
____________________________________ ___________________________________
____________________________________ ___________________________________
____________________________________ ___________________________________
Social Security or other
Taxpayer Identification
Number, if any ___________________________________
ELECTION TO SETTLE EARLY
The undersigned Holder of this Growth PACS Certificate hereby
irrevocably exercises the option to effect Early Settlement following a
Cash Merger in accordance with the terms of the Purchase Contract Agreement
with respect to the Purchase Contracts underlying the number of Growth PACS
evidenced by this Growth PACS Certificate specified below. The option to
effect Early Settlement following a Cash Merger may be exercised only with
respect to Purchase Contracts underlying Growth PACS with an aggregate
Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and
any Growth PACS Certificate representing any Growth PACS evidenced hereby
as to which Early Settlement of the related Purchase Contracts is not
effected, to the undersigned at the address indicated below unless a
different name and address have been indicated below. Pledged Treasury
Securities deliverable upon such Early Settlement will be transferred in
accordance with the transfer instructions set forth below. If shares are to
be registered in the name of a Person other than the undersigned, the
undersigned will pay any transfer tax payable incident thereto.
Dated: _____________________________ ________________________________
Signature
Signature Guarantee: _________________________
Number of Securities evidenced hereby as to which Early Settlement
of the related Purchase Contracts is being elected:
If shares of Common Stock or Growth REGISTERED HOLDER
PACS Certificates are to be registered
in the name of and delivered to and
Pledged Treasury Securities are to
be transferred to a Person other than
the Holder, please print such Person's Please print name and address of
name and address: Registered Holder:
____________________________________ ___________________________________
Name Name
____________________________________ ___________________________________
Address Address
____________________________________ ___________________________________
____________________________________ ___________________________________
____________________________________ ___________________________________
Social Security or other
Taxpayer Identification
Number, if any ___________________________________
Transfer Instructions for Pledged Treasury Securities Transferable Upon or
Early Settlement or a Termination Event:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
=======================================================================================================================
Number of Growth
Amount of increase in Amount of decrease in PACS evidenced by
Number of Growth Number of Growth this Global Certificate Signature of authorized
PACS evidenced by PACS evidenced by following such signatory of Trustee or
Date the Global Certificate the Global Certificate decrease or increase Securities Custodian
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
EXHIBIT C
INSTRUCTION TO PURCHASE CONTRACT AGENT
[ ]
[ ]
[ ]
Attention: Corporate Trust Department
Re: [_______ Income PACS] [_______ Growth PACS] of The Xxxxxxxx
Companies, Inc., a Delaware corporation (the "Company").
The undersigned Holder hereby notifies you that it has delivered to
[ ], as Securities Intermediary, for credit to the
Collateral Account, $______ aggregate principal amount of [Notes] [Applicable
Ownership Interests (as specified in clause (A) of the definition of such term)
of the Treasury Portfolio] [Treasury Securities] in exchange for the [Pledged
Notes][Pledged Treasury Securities] held in the Collateral Account, in
accordance with the Pledge Agreement, dated as of ____________, 2002 (the
"Pledge Agreement"; unless otherwise defined herein, terms defined in the
Pledge Agreement are used herein as defined therein), between you, the Company,
the Collateral Agent and the Securities Intermediary. The undersigned
Holder has paid all applicable fees relating to such exchange. The
undersigned Holder hereby instructs you to instruct the Collateral Agent to
release to you on behalf of the undersigned Holder the [Pledged Notes]
[Pledged Applicable Ownership Interests] [Pledged Treasury Securities]
related to such [Income PACS] [Growth PACS].
Date: _________________________ __________________________________
Signature
Signature Guarantee:_______________________
Please print name and address of Registered Holder:
_______________________________ _________________________________
Name Social Security or other Taxpayer
Identification Number, if any
Address
_______________________________
_______________________________
_______________________________
_______________________________
EXHIBIT D
NOTICE FROM PURCHASE CONTRACT AGENT
TO HOLDERS
(Transfer of Collateral upon Occurrence of a Termination Event)
[HOLDER]
_______________________________
_______________________________
Attention:
Telecopy: __________
Re: [__________ Income PACS] [______ Growth PACS] of
The Xxxxxxxx Companies, Inc., a Delaware corporation
(the "Company")
Please refer to the Purchase Contract Agreement, dated as of
__________, 2002 (the "Purchase Contract Agreement"; unless otherwise
defined herein, terms defined in the Purchase Contract Agreement are used
herein as defined therein), between the Company and the undersigned, as
Purchase Contract Agent and as attorney-in-fact for the holders of Income
PACS and Growth PACS from time to time.
We hereby notify you that a Termination Event has occurred and
that [the Notes] [Applicable Ownership Interests (as specified in clause
(A) of the definition of such term) of the Treasury Portfolio] [the
Treasury Securities] underlying your ownership interest in _____ [Income
PACS] [Growth PACS] have been released and are being held by us for your
account pending receipt of transfer instructions with respect to such
[Notes][Treasury Securities] (the "Released Securities").
Pursuant to Section 3.15 of the Purchase Contract Agreement, we
hereby request written transfer instructions with respect to the Released
Securities. Upon receipt of your instructions and upon transfer to us of
your [Income PACS][Growth PACS] effected through book-entry or by delivery
to us of your [Income PACS Certificate][Growth PACS Certificate], we shall
transfer the Released Securities by book-entry transfer or other
appropriate procedures, in accordance with your instructions. In the event
you fail to effect such transfer or delivery, the Released Securities and
any distributions thereon, shall be held in our name, or a nominee in trust
for your benefit, until such time as such [Income PACS][Growth PACS] are
transferred or your [Income PACS Certificate] [Growth PACS Certificate] is
surrendered or satisfactory evidence is provided that such [Income PACS
Certificate][Growth PACS Certificate] has been destroyed, lost or stolen,
together with any indemnification that we or the Company may require.
Date: By: [ ]
_______________________________________
Name:
Title: Authorized Signatory
EXHIBIT E
NOTICE TO SETTLE BY CASH
[ ]
[ ]
[ ]
Attention: Corporate Trust Department
Re: [_______ Income PACS] [Growth PACS] of The Xxxxxxxx
Companies, Inc., a Delaware corporation (the
"Company")
The undersigned Holder hereby irrevocably notifies you in
accordance with Section 5.02 of the Purchase Contract Agreement, dated as
of ______________, 2002 (the "Purchase Contract Agreement"; unless
otherwise defined herein, terms defined in the Purchase Contract Agreement
are used herein as defined therein), between the Company and you, as
Purchase Contract Agent and as Attorney-in-Fact for the Holders of the
Purchase Contracts, that such Holder has elected to pay to the Securities
Intermediary for deposit in the Collateral Account, prior to or on 11:00
a.m. (New York City time) on the fourth Business Day immediately preceding
the Purchase Contract Settlement Date (in lawful money of the United States
by certified or cashiers' check or wire transfer, in immediately available
funds), $______ as the Purchase Price for the shares of Common Stock
issuable to such Holder by the Company under the related Purchase Contracts
on the Purchase Contract Settlement Date. The undersigned Holder hereby
instructs you to notify promptly the Collateral Agent of the undersigned
Holders' election to make such cash settlement with respect to the Purchase
Contracts related to such Holder's [Income PACS] [Growth PACS].
Date: _________________________ __________________________________
Signature
Signature Guarantee:_______________________
Please print name and address of Registered Holder:
EXHIBIT F
NOTICE FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT AND PROPERTY TRUSTEE
(Settlement of Purchase Contract through Remarketing)
[ ]
[ ]
[ ]
[ ]
[ ]
Attention:
Telecopy:
[ ]
[ ]
[ ]
Attention:
Telecopy:
Re: __________ Income PACS of The Xxxxxxxx Companies,
Inc., a Delaware corporation (the "Company")
Please refer to the Purchase Contract Agreement, dated as of
_________, 2002 (the "Purchase Contract Agreement"; unless otherwise
defined herein, terms defined in the Purchase Contract Agreement are used
herein as defined therein), between the Company and the undersigned, as
Purchase Contract Agent and as attorney-in-fact for the Holders of Income
PACS from time to time.
In accordance with Section 5.02 of the Purchase Contract Agreement
and, based on instructions and Cash Settlements received from Holders of
Income PACS as of 11:00 a.m. (New York City time), the Business Day
immediately preceding the [Initial Remarketing Date] [Secondary Remarketing
Date], we hereby notify you that ______ Notes are to be tendered for
purchase in the Remarketing.
Date: By: [ ]
____________________________________________
Name:
Title: Authorized Signatory