EXHIBIT 4.15
PLEDGE AGREEMENT
AMONG
DTE ENERGY COMPANY,
[THE BANK OF NEW YORK,]
AS COLLATERAL AGENT, CUSTODIAL AGENT
AND SECURITIES INTERMEDIARY
AND
[THE BANK OF NEW YORK,]
AS PURCHASE CONTRACT AGENT
DATED AS OF ____________________, ____________
Table of Contents
Page
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ARTICLE I
Definitions
Section 1.1 Definitions.....................................................................................2
ARTICLE II
Pledge; Control and Perfection.
Section 2.1 The Pledge......................................................................................5
Section 2.2 Control and Perfection..........................................................................7
ARTICLE III
Distributions on Pledged Collateral.
ARTICLE IV
Substitution, Release, Repledge and Settlement of Debt Securities.
Section 4.1 Substitution for Debt Securities and the Creation of Stripped Units.............................9
Section 4.2 Substitution of Treasury Securities and the Creation of Normal Units...........................10
Section 4.3 Termination Event..............................................................................11
Section 4.4 Cash Settlement................................................................................11
Section 4.5 Early Settlement...............................................................................12
Section 4.6 Application of Proceeds Settlement.............................................................13
ARTICLE V
Voting Rights -- Debt Securities.
ARTICLE VI
Rights and Remedies
Section 6.1 Rights and Remedies of the Collateral Agent....................................................15
Section 6.2 Substitutions..................................................................................17
ARTICLE VII
Representations and Warranties; Covenants.
Section 7.1 Representations and Warranties.................................................................17
Section 7.2 Covenants......................................................................................18
ARTICLE VIII
The Collateral Agent.
Section 8.1 Appointment, Powers and Immunities.............................................................18
Section 8.2 Instructions of the Company....................................................................19
Section 8.3 Reliance by Collateral Agent...................................................................19
Section 8.4 Rights in Other Capacities.....................................................................20
Section 8.5 Non-Reliance on Collateral Agent...............................................................20
Section 8.6 Compensation and Indemnity.....................................................................20
Section 8.7 Failure to Act.................................................................................21
Section 8.8 Resignation of Collateral Agent................................................................21
Section 8.9 Right to Appoint Agent or Advisor..............................................................22
Section 8.10 Survival.......................................................................................22
Section 8.11 Exculpation....................................................................................22
ARTICLE IX
Amendment.
Section 9.1 Amendment Without Consent of Holders...........................................................23
Section 9.2 Amendment with Consent of Holders..............................................................23
Section 9.3 Execution of Amendments........................................................................24
Section 9.4 Effect of Amendments...........................................................................24
Section 9.5 Reference to Amendments........................................................................24
ARTICLE X
Miscellaneous.
Section 10.1 No Waiver......................................................................................24
Section 10.2 GOVERNING LAW..................................................................................25
Section 10.3 Notices........................................................................................25
Section 10.4 Successors and Assigns.........................................................................25
Section 10.5 Counterparts...................................................................................25
Section 10.6 Severability...................................................................................25
Section 10.7 Expenses, Etc..................................................................................25
Section 10.8 Security Interest Absolute.....................................................................26
Section 10.9 Consent to Jurisdiction; Miscellaneous.........................................................26
EXHIBIT A
Instruction to Collateral Agent.................................................................................A-1
EXHIBIT B
Instruction to Purchase Contract Agent..........................................................................B-1
EXHIBIT C
Instruction to Custodial Agent Regarding Remarketing............................................................C-1
EXHIBIT D
Instruction to Custodial Agent Regarding Withdrawal from
Remarketing.....................................................................................................D-1
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of ___________________ (this "Agreement"),
among DTE Energy Company, a corporation organized and existing under the laws of
the State of Michigan (the "Company"), [The Bank of New York, a New York]
banking corporation, not individually but solely as collateral agent (in such
capacity, together with its successors in such capacity, the "Collateral
Agent"), as custodial agent (in such capacity, together with its successors in
such capacity, the "Custodial Agent"), as "securities intermediary" as defined
in Section 8-102(a)(14) of the Code (as defined herein) (in such capacity,
together with its successors in such capacity, the "Securities Intermediary"),
and as purchase contract agent and as attorney-in-fact of the Holders (as
defined in the Purchase Contract Agreement) from time to time of the Securities
(as hereinafter defined) (in such capacity, together with its successors in such
capacity, the "Purchase Contract Agent") under the Purchase Contract Agreement
(as herein after defined).
RECITALS
The Company and the Purchase Contract Agent are parties to the Purchase
Contract Agreement, dated as of the date hereof (as modified and supplemented
and in effect from time to time, the "Purchase Contract Agreement"), pursuant to
which there may be issued up to ______________________________ [Title of
Securities] of the Company (_______________ if the Underwriters' over-allotment
option pursuant to the Underwriting Agreement and Pricing Agreement is exercised
in full), having a stated amount of $____ (the "Stated Amount") per Unit.
The Units will initially consist of ______________ units (referred to
as "Normal Units") with a face amount, per Unit, equal to the Stated Amount.
Each Normal Unit will be comprised of (a) a stock purchase contract (the
"Purchase Contract") under which the holder will purchase from the Company not
later than ___________________ (the "Purchase Contract Settlement Date"), for an
amount of cash equal to the Stated Amount, a number of shares, $___________ par
value per share (the "Common Stock"), of the Company equal to the Settlement
Rate (as defined below), and (b) either beneficial ownership of a Debt Security
(as defined below) or upon the occurrence of a Tax Event Redemption the
Applicable Ownership Interest in the Treasury Portfolio.
[Pursuant to the terms of the Indenture (as defined below), the Company
will issue _____ ___% Senior Notes due _______ (the "Debt Securities") in an
aggregate principal amount equal to the aggregate Stated Amount of all Normal
Units.]
As provided herein, holders of Normal Units may substitute collateral
in order to create units of Stripped Units ("Stripped Units" and together, with
the Normal Units, the "Securities"). Each Stripped Unit so created will be
comprised of (a) a Purchase Contract under which the holder will purchase from
the Company not later than the Purchase Contract Settlement Date, for an amount
in cash equal to the Stated Amount, a number of shares of Common Stock of the
Company equal to the Settlement Rate, and (b) a _______th undivided beneficial
interest in a
______________ U.S. Treasury Security (CUSIP No. _____________) having a
principal amount at maturity equal to $1,000 and maturing on _______________
(the "Treasury Securities").
Pursuant to the terms of the Purchase Contract Agreement and the
Purchase Contracts, the Holders, from time to time, of the Securities have
irrevocably authorized the Purchase Contract Agent, as attorney-in-fact of such
Holders, among other things, to execute and deliver this Agreement on behalf of
such Holders and to grant the pledge provided hereby of the Debt Securities, any
Applicable Ownership Interest in the Treasury Portfolio and any Treasury
Securities delivered in exchange therefor to secure each Holder's obligations
under the related Purchase Contract, as provided herein and subject to the terms
hereof. Upon such pledge, the Debt Securities and the Treasury Securities will
be beneficially owned by the Holders but will be owned of record by the Purchase
Contract Agent subject to the Pledge hereunder.
Accordingly, the Company, the Collateral Agent, the Securities
Intermediary, the Custodial Agent and the Purchase Contract Agent, on its own
behalf and as attorney-in-fact of the Holders from time to time of the
Securities, agree as follows:
ARTICLE I
Definitions
Section 1.1 Definitions. For all purposes of this agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to
any particular Article, Section or other subdivision;
(c) the following terms have the meanings assigned to them in
the Purchase Contract Agreement: (i) Act, (ii) Agent, (iii) Board
Resolution, (iv) Business Day, (v) Cash Settlement, (vi) Certificate,
(vii) Contract Adjustment Payments, (viii) Early Settlement, (ix) Early
Settlement Amount, (x) Early Settlement Date, (xi) Failed Remarketing,
(xii) Holder, (xiii) Opinion of Counsel, (xiv) Outstanding Securities,
(xv) Remarketing Agent, (xvi) Remarketing Agreement, (xvii) Settlement
Rate and (xviii) Termination Event; and
"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.
"Bankruptcy Code" means Title 11 of the United States Code, or any
other law of the United States that form time to time provides a uniform system
of bankruptcy laws.
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"Cash" means any coin or currency of the United States as at the time
shall be legal tender for payment of public and private debts.
"Code" has the meaning specified in Section 6.1 hereof.
"Collateral" has the meaning specified in Section 2.1 hereof.
"Collateral Account" means the securities account (number
_____________) maintained at [The Bank of New York] in the name ["The Bank of
New York,] as Purchase Contract Agent on behalf of the holders of certain
securities of the Company, Collateral Account subject to the security interest
of [The Bank of New York,] as Collateral Agent, for the benefit of the Company,
as pledgee" and any successor account.
"Collateral Agent" has the meaning specified in the first paragraph of
this Agreement.
"Common Stock" has the meaning specified in the Recitals.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Custodial Agent" has the meaning specified in the Recitals.
["Debt Securities" has the meaning specified in the Recitals.]
[Substitute trust preferred securities, if applicable.]
["Indenture" means the Indenture, dated April 9, 2001, between the
Company and the Trustee under which the Debt Securities are to be issued.]
"Intermediary" means any entity that in the ordinary course of its
business maintains securities accounts for others and is acting in that
capacity.
"Permitted Investments" means any one of the following [which shall
mature not later than the next succeeding Business Day: (i) any evidence of
indebtedness with an original maturity of 365 days or less issued, or directly
and fully guaranteed or insured, by the United States of America or any agency
or instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof or such indebtedness
constitutes a general obligation of it); (ii) deposits, certificates of deposit
or acceptances with an original maturity of 365 days or less of any institution
which is a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than US$200,000,000 at the time of
deposit; (iii) investments with an original maturity of 365 days or less of any
Person that are fully and unconditionally guaranteed by a bank of the type
referred to in clause (ii); (iv) investments in commercial paper, other than
commercial paper issued by the Company or its affiliates, of any corporation
incorporated under the laws of the United States or any State thereof, which
commercial paper has a rating at the time of purchase at least equal to "A-1" by
Standard & Poor's Ratings Services ("S&P") or at least equal to "P-1" by Moody's
Investors
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Service, Inc. ("Moody's"); and (v) investments in money market funds registered
under the Investment Company Act of 1940, as amended, and rated in the highest
applicable rating category by S&P or Moody's.]
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pledge" has the meaning specified in Section 2.1 hereof.
"Pledged Debt Securities" has the meaning specified in Section 2.1
hereof.
"Pledged Treasury Securities" has the meaning specified in Section 2.1
hereof.
"Proceeds" means all interest, dividends, cash, instruments,
securities, financial assets (as defined in Sections 8-102(a)(9) of the Code)
and other property from time to time received, receivable or otherwise
distributed upon the sale, exchange, collection or disposition of the Collateral
or any proceeds thereof.
"Purchase Contract" has the meaning specified in the Recitals.
"Purchase Contract Agent" has the meaning specified in the first
paragraph of this Agreement.
"Purchase Contract Agreement" has the meaning specified in the
Recitals.
"Purchase Contract Settlement Date" has the meaning specified in the
Recitals.
"Remarketing Underwriting Agreement" means the Remarketing Underwriting
Agreement attached as Exhibit A to the Remarketing Agreement.
"Securities" has the meaning specified in the Recitals.
"Securities Intermediary" has the meaning specified in the first
paragraph of this Agreement.
"Security Entitlement" has the meaning set forth in Section
8-102(a)(17) of the Code.
"Separate Debt Securities" means any Debt Securities that are not
Pledged Debt Securities.
"Stated Amount" has the meaning specified in the Recitals.
"TRADES" means the Treasury/Reserve Automated Debt Entry System
maintained by the Federal Reserve Bank of New York pursuant to the TRADES
Regulations.
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"TRADES Regulations" means the regulations of the United States
Department of the Treasury, published at 31 C.F.R. Part 357, as amended from
time to time. Unless otherwise defined herein, all terms defined in the TRADES
Regulations are used herein as therein defined.
"Transfer" means, with respect to the Collateral and in accordance with
the instructions of the Collateral Agent, the Purchase Contract Agent or the
Holder, as applicable:
(i) in the case of Collateral consisting of
securities which cannot be delivered by book-entry or which
the parties agree are to be delivered in physical form,
delivery in appropriate physical form to the recipient
accompanied by any duly executed instruments of transfer,
assignments in blank, transfer tax stamps and any other
documents necessary to constitute a legally valid transfer to
the recipient; and
(ii) in the case of Collateral consisting of
securities maintained in book-entry form, by causing a
"securities intermediary" (as defined in Section 8-102(a)(14)
of the Code) to (i) credit a "security entitlement" (as
defined in Section 8-102(a)(17) of the Code) with respect to
such securities to a "securities account" (as defined in
Section 8-501(a) of the Code) maintained by or on behalf of
the recipient and (ii) to issue a confirmation to the
recipient with respect to such credit. In the case of
Collateral to be delivered to the Collateral Agent, the
securities intermediary shall be the Securities Intermediary
and the securities account shall be the Collateral Account.
"Treasury Security" has the meaning specified in the Recitals.
"Trustee" means The Bank of New York, as trustee under the Indenture
until a successor is appointed thereunder, and thereafter means such successor
trustee.
"Value" with respect to any item of Collateral on any date means, as to
(i) a Debt Security, the Stated Amount, (ii) Cash, the face amount thereof and
(iii) Treasury Securities, the aggregate principal amount thereof at maturity.
ARTICLE II
Pledge; Control and Perfection.
Section 2. The Pledge. The Holders from time to time acting through the
Purchase Contract Agent, as their attorney-in-fact, and the Purchase Contract
Agent, as such attorney-in-fact, hereby pledge and grant to the Collateral
Agent, for the benefit of the Company, as collateral security for the
performance when due by such Holders of their respective obligations under the
related Purchase Contracts, a security interest in all of the right, title and
interest of the Purchase Contract Agent and such Holders (a) in the Debt
Securities constituting a part of the Securities and any Treasury Securities
delivered in exchange for any Debt Securities, and any Debt Securities delivered
in exchange for any Treasury Securities, in accordance with Section 4.2 hereof,
in each case that have been Transferred to or received by the Collateral Agent
and not released by the Collateral Agent to such Holders under the provisions of
this Agreement; (b) in
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payments made by Holders pursuant to Section 4.4; (c) in the Collateral Account
and all securities, financial assets, Cash and other property credited thereto
and all Security Entitlements related thereto; (d) in the Treasury Portfolio
purchased on behalf of the Holders of Normal Units by the Collateral Agent upon
the occurrence of a Tax Event Redemption as provided in Section 6.2 and (e) all
Proceeds of the foregoing (all of the foregoing, collectively, the
"Collateral"). Prior to or concurrently with the execution and delivery of this
Agreement, the Purchase Contract Agent, on behalf of the initial Holders of the
Securities, shall cause the Debt Securities comprising a part of the Normal
Units to be Transferred to the Collateral Agent for the benefit of the Company.
Such Debt Securities shall be Transferred by physically delivering such
Securities to the Securities Intermediary indorsed in blank and causing the
Securities Intermediary to credit the Collateral Account with such Securities
and sending the Collateral Agent a confirmation of the deposit of such
Securities. In the event a Holder of Normal Units so elects, such Holder may
Transfer Treasury Securities to the Collateral Agent for the benefit of the
Company in exchange for the release by the Collateral Agent on behalf of the
Company to the Purchase Contract Agent of Debt Securities with an aggregate
stated liquidation preference equal to the aggregate principal amount at
maturity of the Treasury Securities so Transferred on behalf of such Holder.
Treasury Securities and the Treasury Portfolio, as applicable, shall be
Transferred to the Collateral Account maintained by the Collateral Agent at the
Securities Intermediary by book-entry transfer to the Collateral Account in
accordance with the TRADES Regulations and other applicable law and by the
notation by the Securities Intermediary on its books that a Security Entitlement
with respect to such Treasury Securities or Treasury Portfolio has been credited
to the Collateral Account. For purposes of perfecting the Pledge under
applicable law, including, to the extent applicable, the TRADES Regulations or
the Uniform Commercial Code as adopted and in effect in any applicable
jurisdiction, the Collateral Agent shall be the agent of the Company as provided
herein. The pledge provided in this Section 2.1 is herein referred to as the
"Pledge" and the Debt Securities, Treasury Securities or Treasury Portfolio
subject to the Pledge, excluding any Debt Securities, Treasury Securities or
Treasury Portfolio released from the Pledge as provided in Sections 4.1 and 4.2
hereof, respectively, are hereinafter referred to as "Pledged Debt Securities",
the "Pledged Treasury Securities" or "Pledged Applicable Ownership Interest in
the Treasury Portfolio," respectively, and collectively, the "Pledged
Securities." Subject to the Pledge and the provisions of Section 2.2 hereof, the
Holders from time to time shall have full beneficial ownership of the
Collateral. Whenever directed by the Collateral Agent acting on behalf of the
Company, the Securities Intermediary shall have the right to reregister the Debt
Securities or any other Securities held in physical form in its name.
Except as may be required in order to release Debt Securities (or if a
Tax Event Redemption has occurred, the Applicable Ownership Interest in the
Treasury Portfolio) in connection with a Holder's election to convert its
investment from a Normal Unit to a Stripped Unit, or except as otherwise
required to release Pledged Securities as specified herein, neither the
Collateral Agent nor the Securities Intermediary shall relinquish physical
possession of any certificate evidencing a Debt Security or Treasury Securities
prior to the termination of this Agreement. If it becomes necessary for the
Securities Intermediary to relinquish physical possession of a certificate in
order to release a portion of the Debt Securities evidenced thereby from the
Pledge, the Securities Intermediary shall use its best efforts to obtain
physical possession of a replacement certificate evidencing any Debt Securities
remaining subject to the
6
Pledge hereunder registered to it or endorsed in blank within fifteen days of
the date it relinquished possession. The Securities Intermediary shall promptly
notify the Company and the Collateral Agent of the Securities Intermediary's
failure to obtain possession of any such replacement certificate as required
hereby.
Section 2.2 Control and Perfection. (a) In connection with the Pledge
granted in Section 2.1, and subject to the other provisions of this Agreement,
the Holders from time to time acting through the Purchase Contract Agent, as
their attorney-in-fact, hereby authorize and direct the Securities Intermediary
(without the necessity of obtaining the further consent of the Purchase Contract
Agent or any of the Holders), and the Securities Intermediary agrees, to comply
with and follow any instructions and entitlement orders (as defined in Section
8-102(a)(8) of the Code) that the Collateral Agent on behalf of the Company may
give in writing with respect to the Collateral Account, the Collateral credited
thereto and any Security Entitlements with respect to any thereof. Such
instructions and entitlement orders may, without limitation, direct the
Securities Intermediary to transfer, redeem, sell, liquidate, assign, deliver or
otherwise dispose of the Debt Securities, the Treasury Securities, the Treasury
Portfolio and any Security Entitlements with respect thereto and to pay and
deliver any income, proceeds or other funds derived therefrom to the Company.
The Holders from time to time acting through the Purchase Contract Agent hereby
further authorize and direct the Collateral Agent, as Agent of the Company, to
itself issue instructions and entitlement orders, and to otherwise take action,
with respect to the Collateral Account, the Collateral credited thereto and any
Security Entitlements with respect thereto, pursuant to the terms and provisions
hereof, all without the necessity of obtaining the further consent of the
Purchase Contract Agent or any of the Holders. The Collateral Agent shall be the
agent of the Company and shall act as directed in writing by the Company.
Without limiting the generality of the foregoing, the Collateral Agent shall
issue entitlement orders to the Securities Intermediary when and as directed by
the Company.
(b) The Securities Intermediary hereby confirms and agrees
that: (i) it is a Person that in the ordinary course of business
maintains securities accounts for others and is acting in that
capacity, (ii) all securities or other property underlying any
financial assets credited to the Collateral Account shall be registered
in the name of the Securities Intermediary, indorsed to the Securities
Intermediary or in blank or credited to another Collateral Account
maintained in the name of the Securities Intermediary and in no case
will any financial asset credited to the Collateral Account be
registered in the name of the Purchase Contract Agent, the Collateral
Agent, the Company or any Holder, payable to the order of, or specially
indorsed to, the Purchase Contract Agent, the Collateral Agent, the
Company or any Holder except to the extent the foregoing have been
specially indorsed to the Securities Intermediary or in blank; (iii)
all property delivered to the Securities Intermediary pursuant to this
Pledge Agreement (including, without limitation, any Debt Securities,
Treasury Portfolio or Treasury Securities) will be promptly credited to
the Collateral Account; (iv) the Collateral Account is an account to
which financial assets are or may be credited, and the Securities
Intermediary shall, subject to the terms of this Agreement, treat the
Purchase Contract Agent as entitled to exercise the rights of any
financial asset credited to the Collateral Account; (v) the Securities
Intermediary has not entered into, and until the termination of this
Agreement will not enter into, any
7
agreement with any other person relating to the Collateral Account
and/or any financial assets credited thereto pursuant to which it has
agreed to comply with entitlement orders (as defined in Section
8-102(a)(8) of the Code) of such other person; and (vi) the Securities
Intermediary has not entered into, and until the termination of this
Agreement will not enter into, any agreement with the Company, the
Collateral Agent or the Purchase Contract Agent purporting to limit or
condition the obligation of the Securities Intermediary to comply with
entitlement orders as set forth in this Section 2.2 hereof.
(c) The Securities Intermediary hereby agrees that each item
of property (whether investment property, financial asset, security,
instrument or cash) credited to the Collateral Account shall be treated
as a "financial asset" within the meaning of Section 8-102(a)(9) of the
Code.
(d) In the event of any conflict between this Agreement (or
any portion thereof) and any other agreement now existing or hereafter
entered into, the terms of this Agreement shall prevail.
(e) The Purchase Contract Agent hereby irrevocably constitutes
and appoints the Collateral Agent and the Company, with full power of
substitution, as the Purchase Contract Agent's attorney-in-fact to take
on behalf of, and in the name, place and stead of the Purchase Contract
Agent and the Holders, any action necessary or desirable to perfect and
to keep perfected the security interest in the Collateral referred to
in Section 2.1. The grant of such power-of-attorney shall not be deemed
to require of the Collateral Agent any specific duties or obligations
not otherwise assumed by the Collateral Agent hereunder.
ARTICLE III
Distributions on Pledged Collateral.
So long as the Purchase Contract Agent is the registered owner of the
Pledged Debt Securities and is acting in such capacity, it shall receive all
payments thereon. If the Pledged Debt Securities are reregistered, such that the
Collateral Agent becomes the registered holder, all payments of the Stated
Amount, or cash interest on, the Pledged Debt Securities, as the case may be,
and all payments of the principal of, or cash distributions on, any other
Pledged Securities received by the Collateral Agent that are properly payable
hereunder shall be paid by the Collateral Agent by wire transfer in same day
funds:
(i) In the case of (A) cash interest with respect to
the Pledged Debt Securities or cash distributions on the
appropriate Applicable Ownership Interest (as specified in
clause ___________ of the definition of such term) in the
Treasury Portfolio, as the case may be, and (B) any payments
of the Stated Amount with respect to any Debt Securities or
the appropriate Applicable Ownership Interest (as specified in
clause _____ of the definition of such term) in the Treasury
Portfolio, as the case may be, that have been released from
the Pledge pursuant to Section 4.3 hereof, to the Purchase
Contract Agent, for the benefit of the relevant Holders of
Securities, to the account designated by the
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Purchase Contract Agent for such purpose, no later than 2:00
p.m., New York City time, on the Business Day such payment is
received by the Collateral Agent (provided that in the event
such payment is received by the Collateral Agent 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);
(ii) In the case of any principal payments with
respect to any Treasury Securities that have been released
from the Pledge pursuant to Section 4.3 hereof, to the Holders
of the Stripped Units to the accounts designated by them in
writing for such purpose no later than 2:00 p.m., New York
City time, on the Business Day such payment is received by the
Collateral Agent (provided that in the event such payment is
received by the Collateral Agent 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
(iii) In the case of payments of the Stated Amount of
any Pledged Debt Securities or on the appropriate Applicable
Ownership Interest (as specified in clause ____ of the
definition of such term) in the Treasury Portfolio, as the
case may be, or the principal of any Pledged Treasury
Securities, to the Company on the Purchase Contract Settlement
Date in accordance with the procedure set forth in Section
4.6(a) or 4.6(b) hereof, in full satisfaction of the
respective obligations of the Holders under the related
Purchase Contracts.
All payments received by the Purchase Contract Agent as provided herein
shall be applied by the Purchase Contract Agent pursuant to the provisions of
the Purchase Contract Agreement. If, notwithstanding the foregoing, the Purchase
Contract Agent shall receive any payments of the Stated Amount on account of any
Debt Security or, if applicable, the appropriate Applicable Ownership Interest
(as specified in clause _____ of the definition of such term), that, at the time
of such payment, is a Pledged Debt Security or the appropriate Applicable
Ownership Interest in the Treasury Portfolio, as the case may be, or a Holder of
a Stripped Unit shall receive any payments of principal on account of any
Treasury Securities that, at the time of such payment, are Pledged Treasury
Securities, the Purchase Contract Agent or such Holder shall hold the same as
trustee of an express trust for the benefit of the Company (and promptly deliver
the same over to the Company) for application to the obligations of the Holders
under the related Purchase Contracts, and the Holders shall acquire no right,
title or interest in any such payments of Stated Amount or principal so
received.
ARTICLE IV
Substitution, Release, Repledge and Settlement of Debt Securities.
Section 4.1 Substitution for Debt Securities and the Creation of
Stripped Units. At any time on or prior to the fifth Business Day immediately
preceding the Purchase Contract Settlement Date (unless a Tax Event Redemption
has occurred), a Holder of Normal Units shall have the right to substitute
Treasury Securities for the Debt Securities securing such Holder's
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obligations under the Purchase Contract(s) comprising a part of its Normal Units
in integral multiples of ___ Normal Units by (a) Transferring to the Collateral
Agent Treasury Securities having a Value equal to the aggregate Stated Amount of
the Pledged Debt Securities to be released and (b) delivering the related Normal
Units to the Purchase Contract Agent, accompanied by a notice, substantially in
the form of Exhibit B hereto, to the Purchase Contract Agent stating that such
Holder has Transferred Treasury Securities to the Collateral Agent pursuant to
clause (a) above (stating the Value of the Treasury Securities Transferred by
such Holder) and requesting that the Purchase Contract Agent instruct the
Collateral Agent to release from the Pledge the Pledged Debt Securities related
to such Normal Units. The Purchase Contract Agent shall instruct the Collateral
Agent in the form provided in Exhibit A; provided, however, that if a Tax Event
Redemption has occurred and the Treasury Portfolio has become a component of the
Normal Units, Holders of Normal Units may make such substitution only in
integral multiples of _____ at any time on or prior to the second Business Day
immediately preceding the Purchase Contract Settlement Date. Upon receipt of
Treasury Securities from a Holder of Normal Units and the related instruction
from the Purchase Contract Agent, the Collateral Agent shall release the Pledged
Debt Securities or the appropriate Applicable Ownership Interest in the Treasury
Portfolio, as the case may be, and shall promptly Transfer such Pledged Debt
Securities or the appropriate Applicable Ownership Interest in the Treasury
Portfolio, as the case may be, free and clear of any lien, pledge or security
interest created hereby, to the Purchase Contract Agent. All items Transferred
and/or substituted by any Holder pursuant to this Section 4.1, Section 4.2 or
any other Section of this Agreement shall be Transferred and/or substituted free
and clear of all liens, claims and encumbrances.
Section 4.2 Substitution of Treasury Securities and the Creation of
Normal Units. At any time on or prior to the fifth Business Day immediately
preceding the Purchase Contract Settlement Date (unless a Tax Event Redemption
has occurred), a Holder of Stripped Units shall have the right to reestablish
Normal Units consisting of the Purchase Contracts and Debt Securities in
integral multiples of ___ Normal Units by (a) Transferring to the Collateral
Agent Debt Securities having a Value equal to the Value of the Pledged Treasury
Securities to be released and (b) delivering the related Stripped Units to the
Purchase Contract Agent, accompanied by a notice, substantially in the form of
Exhibit B hereto, to the Purchase Contract Agent stating that such Holder has
transferred Debt Securities to the Collateral Agent pursuant to clause (a) above
and requesting that the Purchase Contract Agent instruct the Collateral Agent to
release from the Pledge the Pledged Treasury Securities related to such Stripped
Units. The Purchase Contract Agent shall instruct the Collateral Agent in the
form provided in Exhibit A; provided, however, that if a Tax Event Redemption
has occurred and the Treasury Portfolio has become a component of the Normal
Units, Holders of Stripped Units may make such substitution only in integral
multiples of ___ Stripped Units, at any time on or prior to the Business Day
immediately preceding the Purchase Contract Settlement Date. Upon receipt of the
Debt Securities from such Holder and the instruction from the Purchase Contract
Agent, the Collateral Agent shall release the Treasury Securities and shall
promptly Transfer such Treasury Securities, free and clear of any lien, pledge
or security interest created hereby, to the Purchase Contract Agent.
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Section 4.3 Termination Event. Upon receipt by the Collateral Agent of
written notice from the Company or the Purchase Contract Agent that there has
occurred a Termination Event, the Collateral Agent shall release all Collateral
from the Pledge and shall promptly Transfer any Pledged Debt Securities (or the
Applicable Ownership Interest in the Treasury Portfolio if a Tax Event
Redemption has occurred) and Pledged Treasury Securities to the Purchase
Contract Agent for the benefit of the Holders of the Normal Units and the
Stripped Units, respectively, free and clear of any lien, pledge or security
interest or other interest created hereby.
If such Termination Event shall result from the Company's becoming a
debtor under the Bankruptcy Code, and if the Collateral Agent shall for any
reason fail promptly to effectuate the release and Transfer of all Pledged Debt
Securities, the Treasury Portfolio or of the Pledged Treasury Securities, as the
case may be, as provided by this Section 4.3, the Purchase Contract Agent shall
(i) use its best efforts to obtain an opinion of a recognized law firm
practicing law in the applicable jurisdiction to the effect that, as a result of
the Company's being the debtor in such a bankruptcy case, the Collateral Agent
will not be prohibited from releasing or Transferring the Collateral as provided
in this Section 4.3, and shall deliver such opinion to the Collateral Agent
within ten days after the occurrence of such Termination Event, and if (y) the
Purchase Contract Agent shall be unable to obtain such opinion within ten days
after the occurrence of such Termination Event or (z) the Collateral Agent shall
continue, after delivery of such opinion, to refuse to effectuate the release
and Transfer of all Pledged Debt Securities, the Treasury Portfolio or the
Pledged Treasury Securities, as the case may be, as provided in this Section
4.3, then the Purchase Contract Agent shall within fifteen days after the
occurrence of such Termination Event commence an action or proceeding in the
court with jurisdiction of the Company's case under the Bankruptcy Code seeking
an order requiring the Collateral Agent to effectuate the release and transfer
of all Pledged Debt Securities, the Treasury Portfolio or of the Pledged
Treasury Securities, as the case may be, as provided by this Section 4.3 or (ii)
commence an action or proceeding like that described in subsection (i)(z) hereof
within ten days after the occurrence of such Termination Event.
Section 4.4 Cash Settlement. (a) Upon receipt by the Collateral Agent
of (i) a notice from the Purchase Contract Agent promptly after the receipt by
the Purchase Contract Agent of such notice that a Holder of a Normal Unit or
Stripped Unit has elected, in accordance with the procedures specified in
Section 5.2(a)(i) or (d)(i) of the Purchase Contract Agreement, respectively, to
settle its Purchase Contract with Cash and (ii) payment of the amount required
to settle such contract by such Holder on or 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 immediately available funds payable to or upon the order of the
Company, then the Collateral Agent shall promptly invest any Cash received from
a Holder in connection with a Cash Settlement in Permitted Investments. Upon
receipt of the proceeds upon the maturity of the Permitted Investments on the
Purchase Contract Settlement Date, the Collateral Agent shall pay the portion of
such proceeds and deliver any certified or cashiers' checks received and any
funds so wired, in an aggregate amount equal to the Purchase Price, to the
Company on the Purchase Contract Settlement Date, and shall distribute any funds
in respect of the interest earned from the Permitted Investments to the Purchase
Contract Agent for payment to the relevant Holder.
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(b) If a Holder of a Normal Unit fails to notify the Purchase
Contract Agent of its intention to make a Cash Settlement in accordance
with Section 5.2(a)(i) of the Purchase Contract Agreement, such failure
shall constitute an event of default under the Purchase Contract
Agreement and hereunder, and the Holder shall be deemed to have
consented to the disposition of the Pledged Debt Securities pursuant to
the remarketing as described in Section 5.2(b) of the Purchase Contract
Agreement, which is incorporated herein by reference. If a Holder of a
Normal Unit does notify the Purchase Contract Agent as provided in
Section 5.2(a)(i) of the Purchase Contract Agreement of its intention
to pay the Purchase Price in cash, but fails to make such payment as
required by Section 5.2(a)(ii) of the Purchase Contract Agreement, such
failure will constitute an event of default under the Purchase Contract
Agreement and hereunder, and the Debt Securities of such a Holder will
not be remarketed but instead the Collateral Agent, for the benefit of
the Company, will exercise its rights as a secured party with respect
to such Debt Securities at the written direction of the Company to
retain or dispose of the Collateral in accordance with applicable law.
In addition, in the event of a Failed Remarketing as described in
Section 5.2(b) of the Purchase Contract Agreement, such Failed
Remarketing shall constitute an event of default hereunder by such
Holder and the Collateral Agent, for the benefit of the Company, will
also exercise its rights as a secured party with respect to such Debt
Securities at the written direction of the Company to retain or dispose
of the Collateral in accordance with applicable law.
(c) If a Holder of a Stripped Unit fails to notify the
Purchase Contract Agent of such Holder's intention to make a Cash
Settlement in accordance with Section 5.2(d)(i) of the Purchase
Contract Agreement, or if a Holder of a Stripped Unit does notify the
Purchase Contract Agent as provided in paragraph 5.2(d)(i) of the
Purchase Contract Agreement of its intention to pay the Purchase Price
in cash, but fails to make such payment as required by paragraph
5.2(d)(ii) of the Purchase Contract Agreement, such failure shall
constitute an event of default hereunder by such Holder and upon the
maturity of any Pledged Treasury Securities or the Treasury Portfolio,
if any, held by the Collateral Agent on the Business Day immediately
preceding the Purchase Contract Settlement Date, the principal amount
at maturity of the Pledged Treasury Securities or the Treasury
Portfolio received by the Collateral Agent shall, upon written
direction of the Company, be invested promptly in any Permitted
Investments. On the Purchase Contract Settlement Date, an amount equal
to the Purchase Price will be remitted to the Company as payment
thereof. In the event the sum of the proceeds from the related Pledged
Treasury Securities or the Treasury Portfolio, as the case may be, 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 will distribute such excess to the
Purchase Contract Agent for the benefit of the Holder of the related
Stripped Units or Normal Units when received.
Section 4.5 Early Settlement. Upon written notice to the Collateral
Agent by the Purchase Contract Agent that one or more Holders of Securities have
elected to effect Early Settlement of their respective obligations under the
Purchase Contracts forming a part of such Securities in accordance with the
terms of the Purchase Contracts and the Purchase Contract
12
Agreement (setting forth the number of such Purchase Contracts as to which such
Holders have elected to effect Early Settlement), and that the Purchase Contract
Agent has received from such Holders, and paid to the Company as confirmed in
writing by the Company, the related Early Settlement Amounts pursuant to the
terms of the Purchase Contracts and the Purchase Contract Agreement and that all
conditions to such Early Settlement have been satisfied, then the Collateral
Agent shall release from the Pledge, (a) Pledged Debt Securities or the
appropriate Applicable Ownership Interest in the Treasury Portfolio in the case
of a Holder of Normal Units or (b) Pledged Treasury Securities in the case of a
Holder of Stripped Units, as the case may be, with a principal amount at
maturity equal to the product of (i) the Stated Amount times (ii) the number of
such Purchase Contracts as to which such Holders have elected to effect Early
Settlement and shall Transfer all such Pledged Debt Securities or the
appropriate Applicable Ownership Interest in the Treasury Portfolio or Pledged
Treasury Securities, as the case may be, free and clear of the Pledge created
hereby, to the Purchase Contract Agent for the benefit of the Holders.
Section 4.6 Application of Proceeds Settlement. (a) In the event a
Holder of Normal Units (if a Tax Event Redemption has not occurred) has not
elected to make an effective Cash Settlement by notifying the Purchase Contract
Agent in the manner provided for in paragraph 5.4(a)(i) in the Purchase Contract
Agreement or has not made an Early Settlement of the Purchase Contract(s)
underlying its Normal Units, such Holder shall be deemed to have elected to pay
for the Common Stock to be issued under such Purchase Contract(s) from the
Proceeds of the related Pledged Debt Securities. The Collateral Agent shall, by
10:00 a.m., New York City time, on the fourth Business Day immediately preceding
the Purchase Contract Settlement Date, without any instruction from such Holder
of Normal Units, present the related Pledged Debt Securities to the Remarketing
Agent for remarketing. Upon receiving such Pledged Debt Securities, the
Remarketing Agent, pursuant to the terms of the Remarketing Agreement and the
Remarketing Underwriting Agreement, will use its reasonable efforts to remarket
such Pledged Debt Securities on such date at a price not less than approximately
-% of the aggregate Value of such Pledged Debt Securities, plus accrued and
unpaid interest, if any, thereon. After deducting as the remarketing fee an
amount not exceeding - basis points (-%) of the aggregate Value of the Pledged
Debt Securities from any amount of such Proceeds in excess of the aggregate
Value, plus such accrued and unpaid interest of the remarketed Pledged Debt
Securities, the Remarketing Agent will remit the entire amount of the Proceeds
of such remarketing to the Collateral Agent. On the Purchase Contract Settlement
Date, the Collateral Agent shall apply that portion of the Proceeds from such
remarketing equal to the aggregate Value of, plus such accrued and unpaid
interest on such Pledged Debt Securities, to satisfy in full the obligations of
such Holders of Normal Units to pay the Purchase Price to purchase the shares of
Common Stock under the related Purchase Contracts. The remaining portion of such
Proceeds, if any, shall be distributed by the Collateral Agent to the Purchase
Contract Agent for payment to the Holders. If the Remarketing Agent advises the
Collateral Agent in writing that it cannot remarket the related Pledged Debt
Securities of such Holders of Normal Units at a price not less than 100% of the
aggregate Value of such Pledged Debt Securities plus any accumulated and unpaid
distributions, thus resulting in a Failed Remarketing and an event of default
under the Purchase Contract Agreement and hereunder, the Collateral Agent, for
the benefit of the Company will, at the written direction of the Company, retain
or dispose of the Pledged Debt
13
Securities in accordance with applicable law and satisfy in full, from any such
disposition or retention, such Holder's obligation to pay the Purchase Price for
the shares of Common Stock.
(b) In the event a Holder of Stripped Units or Normal Units
(if a Tax Event Redemption has occurred) has not made an Early
Settlement of the Purchase Contract(s) underlying its Stripped Units or
Normal Units, such Holder shall be deemed to have elected to pay for
the Common Stock to be issued under such Purchase Contract(s) from the
Proceeds of the related Pledged Treasury Securities or the Treasury
Portfolio, as the case may be. On the Business Day immediately prior to
the Purchase Contract Settlement Date, the Collateral Agent shall
invest the Cash proceeds of the maturing Pledged Treasury Securities or
the Treasury Portfolio, as the case may be, in any overnight Permitted
Investments. Without receiving any instruction from any such Holder of
Stripped Units or Normal Units, the Collateral Agent shall apply the
Proceeds of the related Pledged Treasury Securities or the Treasury
Portfolio, as the case may be, to the settlement of such Purchase
Contracts on the Purchase Contract Settlement Date.
In the event the sum of the Proceeds from the related Pledged Treasury
Securities or the Treasury Portfolio, as the case may be, and the investment
earnings from the investment in overnight Permitted Investments is in excess of
the aggregate Purchase Price of the Purchase Contracts being settled thereby,
the Collateral Agent shall distribute such excess, when received, to the
Purchase Contract Agent for the benefit of the Holder.
(c) Pursuant to the Remarketing Agreement and subject to the
terms of the Remarketing Underwriting Agreement, on or prior to the
fifth Business Day immediately preceding the Purchase Contract
Settlement Date, but no earlier than the Payment Date immediately
preceding the Purchase Contract Settlement Date, holders of Separate
Debt Securities may elect to have their Separate Debt Securities
remarketed by delivering their Separate Debt Securities, together with
a notice of such election, substantially in the form of Exhibit C
hereto, to the Custodial Agent. The Custodial Agent will hold such
Separate Debt Securities in an account separate from the Collateral
Account. A holder of Separate Debt Securities electing to have its
Separate Debt Securities remarketed will also have the right to
withdraw such election by written notice to the Custodial Agent,
substantially in the form of Exhibit D hereto, on or prior to the fifth
Business Day immediately preceding the Purchase Contract Settlement
Date, upon which notice the Custodial Agent will return such Separate
Debt Securities to such holder. On the fourth Business Day immediately
preceding the Purchase Contract Settlement Date, the Custodial Agent
will deliver to the Remarketing Agent for remarketing all Separate Debt
Securities delivered to the Custodial Agent pursuant to this Section
4.6(c) and not withdrawn pursuant to the terms hereof prior to such
date. The portion of the proceeds from such remarketing equal to the
aggregate Value of such Separate Debt Securities will automatically be
remitted by the Remarketing Agent to the Custodial Agent for the
benefit of the holders of such Separate Debt Securities. In addition,
after deducting as the remarketing fee an amount not exceeding - basis
points (-%) of the Value of the remarketed Separate Debt Securities,
from any amount of such proceeds in excess of the aggregate Value of
the remarketed Separate Debt Securities
14
plus any accrued and unpaid interest thereon, the Remarketing Agent
will remit to the Custodial Agent the remaining portion of the
proceeds, if any, for the benefit of such holders. If, despite using
its reasonable efforts, the Remarketing Agent advises the Custodial
Agent in writing that it cannot remarket the related Separate Debt
Securities of such holders at a price not less than -% of the aggregate
Value of such Separate Debt Securities plus accumulated and unpaid
dividends and thus resulting in a Failed Remarketing, the Remarketing
Agent will promptly return such Debt Securities to the Custodial Agent
for redelivery to such holders.
ARTICLE V
Voting Rights -- Debt Securities.
Provided no default hereunder or under the Purchase Contract exists,
the Purchase Contract Agent may exercise, or refrain from exercising, any and
all voting and other consensual rights pertaining to the Pledged Debt Securities
or any part thereof for any purpose not inconsistent with the terms of this
Agreement and in accordance with the terms of the Purchase Contract Agreement;
provided, that the Purchase Contract Agent shall not exercise or, as the case
may be, shall not refrain from exercising such right if, in the judgment of the
Company, such action would impair or otherwise have a material adverse effect on
the value of all or any of the Pledged Debt Securities; and provided, further,
that the Purchase Contract Agent shall give the Company and the Collateral Agent
at least five days' prior written notice of the manner in which it intends to
exercise, or its reasons for refraining from exercising, any such right. Upon
receipt of any notices and other communications in respect of any Pledged Debt
Securities, including notice of any meeting at which holders of Debt Securities
are entitled to vote or solicitation of consents, waivers or proxies of holders
of Debt Securities, the Collateral Agent shall use reasonable efforts to send
promptly to the Purchase Contract Agent such notice or communication, and as
soon as reasonably practicable after receipt of a written request therefor from
the Purchase Contract Agent, execute and deliver to the Purchase Contract Agent
such proxies and other instruments in respect of such Pledged Debt Securities
(in form and substance satisfactory to the Collateral Agent) as are prepared by
the Purchase Contract Agent with respect to the Pledged Debt Securities.
ARTICLE VI
Rights and Remedies
Section 6.1 Rights and Remedies of the Collateral Agent. (a) In
addition to the rights and remedies specified in Section 4.4 hereof or otherwise
available at law or in equity, after an event of default hereunder, the
Collateral Agent shall have all of the rights and remedies with respect to the
Collateral of a secured party under the Uniform Commercial Code (or any
successor thereto) as in effect in the State of New York from time to time (the
"Code") (whether or not the Code is in effect in the jurisdiction where the
rights and remedies are asserted) and the TRADES Regulations and such additional
rights and remedies to which a secured party is entitled under the laws in
effect in any jurisdiction where any rights and remedies hereunder may be
asserted. Wherever reference is made in this Agreement to any section of the
Code, such reference shall be deemed to include a reference to any provision of
the Code which is a
15
successor to, or amendment of, such section. Without limiting the generality of
the foregoing, such remedies may include, to the extent permitted by applicable
law, (i) retention of the Pledged Debt Securities or other Collateral in full
satisfaction of the Holders' obligations under the Purchase Contracts or (ii)
sale of the Pledged Debt Securities or other Collateral in one or more public or
private sales. Each Holder through the Purchase Contract Agent agrees and
acknowledges that the Collateral is of a type customarily sold in a recognized
market and that, accordingly, no notice of intended disposition of the
Collateral need be given by the Collateral Agent.
(b) Without limiting any rights or powers otherwise granted by
this Agreement to the Collateral Agent, in the event the Collateral
Agent is unable to make payments to the Company on account of the
appropriate Applicable Ownership Interest (as specified in clause ____
of the definition of such term) of the Treasury Portfolio or on account
of principal payments of any Pledged Treasury Securities as provided in
Article III hereof in satisfaction of the obligations of the Holder of
Stripped Units of which such Pledged Treasury Securities, or the
appropriate Applicable Ownership Interest (as specified in clause _____
of the definition of such term) of the Treasury Portfolio, as
applicable, is a part under the related Purchase Contracts, the
inability to make such payments shall constitute an event of default
hereunder and the Collateral Agent shall have and may exercise, with
reference to such Pledged Treasury Securities, or the appropriate
Applicable Ownership Interest (as specified in clause _____ of the
definition of such term) of the Treasury Portfolio, as applicable, and
such obligations of such Holder, any and all of the rights and remedies
available to a secured party under the Code and the TRADES Regulations
after default by a debtor, and as otherwise granted herein or under any
other law.
(c) Without limiting any rights or powers otherwise granted by
this Agreement to the Collateral Agent, the Collateral Agent is hereby
irrevocably authorized to receive and collect all payments of (i) the
Stated Amount of or, cash dividends on, the Pledged Debt Securities,
(ii) the principal amount at maturity of the Pledged Treasury
Securities, or (iii) the appropriate Applicable Ownership Interest in
the Treasury Portfolio, subject, in each case, to the provisions of
Article III, and as otherwise granted herein.
(d) The Purchase Contract Agent, individually and as
attorney-in-fact for each Holder of Securities, in the event such
Holder becomes the Holder of a Stripped Unit, agrees that, from time to
time, upon the written request of the Company, Collateral Agent, the
Purchase Contract Agent or such Holder shall execute and deliver such
further documents and do such other acts and things as the Collateral
Agent may reasonably request in order to maintain the Pledge, and the
perfection and priority thereof, and to confirm the rights of the
Collateral Agent hereunder. The Purchase Contract Agent shall have no
liability to any Holder for executing any documents or taking any such
acts requested by the Collateral Agent hereunder, except for liability
for its own negligent act, its own negligent failure to act, its bad
faith or its own willful misconduct.
16
Section 6.2 Tax Event Redemption. Upon the occurrence of a Tax Event
Redemption prior to the Purchase Contract Settlement Date, the Collateral Agent
will, upon the written instruction of the Company and the Purchase Contract
Agent, deliver the Applicable Principal Amount of Pledged Debt Securities to the
Trustee for payment of the Redemption Price. The Collateral Agent shall, or in
the event the Pledged Debt Securities are registered in the name of the Purchase
Contract Agent, the Purchase Contract Agent shall, direct the Trustee to pay the
Redemption Price therefor payable on the Tax Event Redemption Date on or prior
to 12:30 p.m., New York City time, such Redemption Price to be paid by check or
wire transfer in immediately available funds at such place and at such account
as may be designated by the Collateral Agent. In the event the Collateral Agent
receives such Redemption Price, the Collateral Agent will, at the written
direction of the Company, apply an amount equal to the Redemption Amount of such
Redemption Price to purchase from the Quotation Agent, the Treasury Portfolio
and promptly remit the remaining portion of such Redemption Price to the
Purchase Contract Agent for payment to the Holders of Normal Units. The
Collateral Agent shall Transfer the Treasury Portfolio to the Collateral Account
in the manner specified herein for Pledged Debt Securities to secure the
obligation of all Holders of Normal Units to purchase Common Stock of the
Company under the Purchase Contracts constituting a part of such Normal Units,
in substitution for the Pledged Debt Securities. Thereafter the Collateral Agent
shall have such security interests, rights and obligations with respect to the
Treasury Portfolio as it had in respect of the Pledged Debt Securities, as
provided in Articles II, III, IV, V, and VI and any reference herein to the
Pledged Debt Securities shall be deemed to be a reference to such Treasury
Portfolio.
Section 6.3 Substitutions. Whenever a Holder has the right to
substitute Treasury Securities, Debt Securities or the appropriate Applicable
Ownership Interest in the Treasury Portfolio, as the case may be, for Collateral
held by the Collateral Agent, such substitution shall not constitute a novation
of the security interest created hereby.
ARTICLE VII
Representations and Warranties; Covenants.
Section 7.1 Representations and Warranties. The Holders from time to
time, acting through the Purchase Contract Agent as their attorney-in-fact (it
being understood that the Purchase Contract Agent shall not be liable for any
representation or warranty made by or on behalf of a Holder), hereby represent
and warrant to the Collateral Agent, which representations and warranties shall
be deemed repeated on each day a Holder Transfers Collateral that:
(a) such Holder has the power to grant a security interest in
and lien on the Collateral;
(b) such Holder is the sole beneficial owner of the Collateral
and, in the case of Collateral delivered in physical form, is the sole
holder of such Collateral and is the sole beneficial owner of, or has
the right to Transfer, the Collateral it Transfers to the Collateral
Agent, free and clear of any security interest, lien, encumbrance,
call, liability to pay money or other restriction other than the
security interest and lien granted under Section 2.1 hereof;
17
(c) upon the Transfer of the Collateral to the Collateral
Account, the Collateral Agent, for the benefit of the Company, will
have a valid and perfected first priority security interest therein
(assuming that any central clearing operation or any Intermediary or
other entity not within the control of the Holder involved in the
Transfer of the Collateral, including the Collateral Agent, gives the
notices and takes the action required of it hereunder and under
applicable law for perfection of that interest and assuming the
establishment and exercise of control pursuant to Section 2.2 hereof);
and
(d) the execution and performance by the Holder of its
obligations under this Agreement will not result in the creation of any
security interest, lien or other encumbrance on the Collateral other
than the security interest and lien granted under Section 2.1 hereof or
violate any provision of any existing law or regulation applicable to
it or of any mortgage, charge, pledge, indenture, contract or
undertaking to which it is a party or which is binding on it or any of
its assets.
Section 7.2 Covenants. The Holders from time to time, acting through
the Purchase Contract Agent as their attorney-in-fact (it being understood that
the Purchase Contract Agent shall not be liable for any covenant made by or on
behalf of a Holder), hereby covenant to the Collateral Agent that for so long as
the Collateral remains subject to the Pledge:
(a) neither the Purchase Contract Agent nor such Holders will
create or purport to create or allow to subsist any mortgage, charge,
lien, pledge or any other security interest whatsoever over the
Collateral or any part of it other than pursuant to this Agreement;
(b) neither the Purchase Contract Agent nor such Holders will
sell or otherwise dispose (or attempt to dispose) of the Collateral or
any part of it except for the beneficial interest therein, subject to
the pledge hereunder, transferred in connection with the Transfer of
the Securities; and
(c) if any Collateral is delivered to any Holder or to the
Purchase Contract Agent, such Holder or the Purchase Contract Agent
will deliver the sum to the Collateral Agent, properly indorsed when
required, and in the form received.
ARTICLE VIII
The Collateral Agent.
Section 8.1 Appointment, Powers and Immunities. The Collateral Agent
shall act as Agent for the Company hereunder with such powers as are
specifically vested in the Collateral Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto. Each of
the Collateral Agent, the Custodial Agent and the Securities Intermediary: (a)
shall have no duties or responsibilities except those expressly set forth in
this Agreement and no implied covenants or obligations shall be inferred from
this Agreement against any of them, nor shall any of them be bound by the
provisions of any agreement by any party hereto beyond the specific terms
hereof; (b) shall not be responsible for any recitals contained in this
Agreement, or in any certificate or other document referred to or provided for
18
in, or received by it under, this Agreement, the Normal Units, Stripped Units or
the Purchase Contract Agreement, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement (other than as
against the Collateral Agent), the Securities or the Purchase Contract Agreement
or any other document referred to or provided for herein or therein or for any
failure by the Company or any other Person (except the Collateral Agent, the
Custodial Agent or the Securities Intermediary, as the case may be) to perform
any of its obligations hereunder or thereunder or for the perfection, priority
or, except as expressly required hereby, maintenance of any security interest
created hereunder; (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder (except in the case of the
Collateral Agent, pursuant to directions furnished under Section 8.2 hereof,
subject to Section 8.6 hereof); (d) shall not be responsible for any action
taken or omitted to be taken by it hereunder or under any other document or
instrument referred to or provided for herein or in connection herewith or
therewith, except for its own negligence, bad faith or willful misconduct; and
(e) shall not be required to advise any party as to selling or retaining, or
taking or refraining from taking any action with respect to, the Securities or
other property deposited hereunder. Subject to the foregoing, during the term of
this Agreement, the Collateral Agent shall take all reasonable action in
connection with the safekeeping and preservation of the Collateral hereunder.
No provision of this Agreement shall require the Collateral Agent, the
Custodial Agent or the Securities Intermediary to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder. In no event shall the Collateral Agent, the Custodial Agent or
the Securities Intermediary be liable for any amount in excess of the Value of
the Collateral. Notwithstanding the foregoing, the Collateral Agent, the
Custodial Agent, the Purchase Contract Agent and Securities Intermediary, each
in its individual capacity, hereby waive any right of setoff, bankers lien,
liens or perfection rights as securities intermediary or any counterclaim with
respect to any of the Collateral.
Section 8.2 Instructions of the Company. The Company shall have the
right, by one or more instruments in writing executed and delivered to the
Collateral Agent, the Custodial Agent or the Securities Intermediary, as the
case may be, to direct the time, method and place of conducting any proceeding
for the realization of any right or remedy available to the Collateral Agent, or
of exercising any power conferred on the Collateral Agent, the Custodial Agent
or the Securities Intermediary, as the case may be, or to direct the taking or
refraining from taking of any action authorized by this Agreement; provided,
however, that (i) such direction shall not conflict with the provisions of any
law or of this Agreement and (ii) the Collateral Agent, the Custodial Agent and
the Securities Intermediary shall be adequately indemnified as provided herein.
Nothing in this Section 8.2 shall impair the right of the Collateral Agent in
its discretion to take any action or omit to take any action which it deems
proper and which is not inconsistent with such direction.
Section 8.3 Reliance by Collateral Agent. Each of the Securities
Intermediary, the Custodial Agent and the Collateral Agent shall be entitled
conclusively to rely upon any certification, order, judgment, opinion, notice or
other communication (including, without limitation, any thereof by telephone or
facsimile) believed by it in good faith to be genuine and
19
correct and to have been signed or sent by or on behalf of the proper Person or
Persons (without being required to determine the correctness of any fact stated
therein), and upon advice and statements of legal counsel and other experts
selected by the Collateral Agent, the Custodial Agent or the Securities
Intermediary, as the case may be. As to any matters not expressly provided for
by this Agreement, the Collateral Agent, the Custodial Agent and the Securities
Intermediary shall in all cases be fully protected in acting, or in refraining
from acting, hereunder in accordance with instructions given by the Company in
accordance with this Agreement.
Section 8.4 Rights in Other Capacities. The Collateral Agent, the
Custodial Agent and the Securities Intermediary and their affiliates may
(without having to account therefor to the Company) accept deposits from, lend
money to, make their investments in and generally engage in any kind of banking,
trust or other business with the Purchase Contract Agent, any Holder of Normal
Units or Stripped Units and any holder of Separate Debt Securities (and any of
their respective subsidiaries or affiliates) as if it were not acting as the
Collateral Agent, the Custodial Agent or the Securities Intermediary, as the
case may be, and the Collateral Agent, the Custodial Agent and the Securities
Intermediary and their affiliates may accept fees and other consideration from
the Purchase Contract Agent, any Holder of Normal Units or Stripped Units or any
holder of Separate Debt Securities without having to account for the same to the
Company; provided that each of the Securities Intermediary, the Custodial Agent
and the Collateral Agent covenants and agrees with the Company that it shall not
accept, receive or permit there to be created in favor of itself and shall take
no affirmative action to permit there to be created in favor of any other
Person, any security interest, lien or other encumbrance of any kind in or upon
the Collateral and the Collateral shall not be commingled with any other assets
of any such Person.
Section 8.5 Non-Reliance on Collateral Agent. None of the Securities
Intermediary, the Custodial Agent or the Collateral Agent shall be required to
keep itself informed as to the performance or observance by the Purchase
Contract Agent or any Holder of Securities of this Agreement, the Purchase
Contract Agreement, the Normal Units or Stripped Units or any other document
referred to or provided for herein or therein or to inspect the properties or
books of the Purchase Contract Agent or any Holder of Normal Units or Stripped
Units. The Collateral Agent, the Custodial Agent and the Securities Intermediary
shall not have any duty or responsibility to provide the Company or the
Remarketing Agent with any credit or other information concerning the affairs,
financial condition or business of the Purchase Contract Agent, any Holder of
Normal Units or Stripped Units or any holder of Separate Debt Securities (or any
of their respective subsidiaries or affiliates) that may come into the
possession of the Collateral Agent, the Custodial Agent or the Securities
Intermediary or any of their respective affiliates.
Section 8.6 Compensation and Indemnity. The Company agrees: (i) to pay
each of the Collateral Agent and the Custodial Agent from time to time such
compensation as shall be agreed in writing between the Company and the
Collateral Agent or the Custodial Agent, as the case may be, for all services
rendered by each of them hereunder and (ii) to indemnify the Collateral Agent,
the Custodial Agent and the Securities Intermediary for, and to hold each of
them harmless from and against, any loss, liability or reasonable out-of-pocket
expense incurred
20
without negligence, willful misconduct or bad faith on its part, arising out of
or in connection with the acceptance or administration of its powers and duties
under this Agreement, including the reasonable out-of-pocket costs and expenses
(including reasonable fees and expenses of counsel) of defending itself against
any claim or liability in connection with the exercise or performance of such
powers and duties. The Collateral Agent, the Custodial Agent and the Securities
Intermediary shall each promptly notify the Company of any third party claim
which may give rise to the indemnity hereunder and give the Company the
opportunity to participate in the defense of such claim with counsel reasonably
satisfactory to the indemnified party, and no such claim shall be settled
without the written consent of the Company, which consent shall not be
unreasonably withheld.
Section 8.7 Failure to Act. In the event of any ambiguity in the
provisions of this Agreement or any dispute between or conflicting claims by or
among the parties hereto or any other Person with respect to any funds or
property deposited hereunder, the Collateral Agent and the Custodial Agent shall
be entitled, after prompt notice to the Company and the Purchase Contract Agent,
at its sole option, to refuse to comply with any and all claims, demands or
instructions with respect to such property or funds so long as such dispute or
conflict shall continue, and neither the Collateral Agent nor the Custodial
Agent shall be or become liable in any way to any of the parties hereto for its
failure or refusal to comply with such conflicting claims, demands or
instructions. The Collateral Agent and the Custodial Agent shall be entitled to
refuse to act until either (i) such conflicting or adverse claims or demands
shall have been finally determined by a court of competent jurisdiction or
settled by agreement between the conflicting parties as evidenced in a writing,
satisfactory to the Collateral Agent or the Custodial Agent, as the case may be,
or (ii) the Collateral Agent or the Custodial Agent, as the case may be, shall
have received security or an indemnity reasonably satisfactory to the Collateral
Agent or the Custodial Agent, as the case may be, sufficient to save the
Collateral Agent or the Custodial Agent, as the case may be, harmless from and
against any and all loss, liability or reasonable out-of-pocket expense which
the Collateral Agent or the Custodial Agent, as the case may be, may incur by
reason of its acting without bad faith, willful misconduct or gross negligence.
The Collateral Agent or the Custodial Agent may in addition elect to commence an
interpleader action or seek other judicial relief or orders as the Collateral
Agent or the Custodial Agent, as the case may be, may deem necessary.
Notwithstanding anything contained herein to the contrary, neither the
Collateral Agent nor the Custodial Agent shall be required to take any action
that is in its opinion contrary to law or to the terms of this Agreement, or
which would in its opinion subject it or any of its officers, employees or
directors to liability.
Section 8.8 Resignation of Collateral Agent. Subject to the appointment
and acceptance of a successor Collateral Agent or Custodial Agent as provided
below, (a) the Collateral Agent and the Custodial Agent may resign at any time
by giving not less than 20 days prior notice thereof to the Company and the
Purchase Contract Agent as attorney-in-fact for the Holders of Normal Units or
Stripped Units, (b) the Collateral Agent and the Custodial Agent may be removed
at any time by the Company and (c) if the Collateral Agent or the Custodial
Agent fails to perform any of its material obligations hereunder in any material
respect for a period of not less than 20 days after receiving written notice of
such failure by the Purchase Contract Agent and such failure shall be
continuing, the Collateral Agent or the Custodial Agent
21
may be removed by the Purchase Contract Agent. The Purchase Contract Agent shall
promptly notify the Company of any removal of the Collateral Agent pursuant to
clause (c) of the immediately preceding sentence. Upon any such resignation or
removal, the Company shall have the right to appoint a successor Collateral
Agent or Custodial Agent, as the case may be. If no successor Collateral Agent
or Custodial Agent, as the case may be, shall have been so appointed and shall
have accepted such appointment within 30 days after the retiring Collateral
Agent's or Custodial Agent's giving of notice of resignation or such removal,
then the retiring Collateral Agent or Custodial Agent, as the case may be, may,
at the expense of the Company, petition any court of competent jurisdiction for
the appointment of a successor Collateral Agent or Custodial Agent, as the case
may be. Each of the Collateral Agent and the Custodial Agent shall be a bank
which has an office in New York, New York with a combined capital and surplus of
at least $50,000,000. Upon the acceptance of any appointment as Collateral Agent
or Custodial Agent, as the case may be, hereunder by a successor Collateral
Agent or Custodial Agent, as the case may be, such successor shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Collateral Agent or Custodial Agent, as the case may be, and the
retiring Collateral Agent or Custodial Agent, as the case may be, shall take all
appropriate action to transfer any money and property held by it hereunder
(including the Collateral) to such successor. The retiring Collateral Agent or
Custodial Agent shall, upon such succession, be discharged from its duties and
obligations as Collateral Agent or Custodial Agent hereunder. After any retiring
Collateral Agent's or Custodial Agent's resignation hereunder as Collateral
Agent or Custodial Agent, the provisions of this Section 8.8 shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as the Collateral Agent or Custodial Agent. Any
resignation or removal of the Collateral Agent hereunder shall be deemed for all
purposes of this Agreement as the simultaneous resignation or removal of the
Custodial Agent and the Securities Intermediary.
Section 8.9 Right to Appoint Agent or Advisor. The Collateral Agent
shall have the right to appoint agents or advisors in connection with any of its
duties hereunder, and the Collateral Agent shall not be liable for any action
taken or omitted by, or in reliance upon the advice of, such agents or advisors
selected in good faith. The appointment of agents pursuant to this Section 8.9
shall be subject to prior consent of the Company, which consent shall not be
unreasonably withheld.
Section 8.10 Survival. The provisions of this Article 8 shall survive
termination of this Agreement and the resignation or removal of the Collateral
Agent or the Custodial Agent.
Section 8.11 Exculpation. Anything in this Agreement to the contrary
notwithstanding, in no event shall any of the Collateral Agent, the Custodial
Agent or the Securities Intermediary or their 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 Collateral
Agent, the Custodial Agent or the Securities Intermediary, or any of them,
incurred without any act or deed that is found to be attributable to gross
negligence, bad faith or willful misconduct on the part of the Collateral Agent,
the Custodial Agent or the Securities Intermediary.
22
ARTICLE IX
Amendment.
Section 9.1 Amendment Without Consent of Holders. Without the consent
of any Holders or the holders of any Separate Debt Securities, the Company, the
Collateral Agent, the Custodial Agent, the Securities Intermediary and the
Purchase Contract Agent, at any time and from time to time, may amend this
Agreement, in form satisfactory to the Company, the Collateral Agent, the
Custodial Agent, the Securities Intermediary and the Purchase Contract Agent,
for any of the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the
covenants of the Company; or
(2) to add to the covenants of the Company for the benefit
of the Holders, or to surrender any right or power herein
conferred upon the Company so long as such covenants or such
surrender do not adversely affect the validity, perfection or
priority of the security interests granted or created hereunder;
or
(3) to evidence and provide for the acceptance of
appointment hereunder by a successor Collateral Agent,
Securities Intermediary or Purchase Contract Agent; or
(4) to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other such
provisions herein, or to make any other provisions with respect
to such matters or questions arising under this Agreement,
provided such action shall not adversely affect the interests of
the Holders.
Section 9.2 Amendment with Consent of Holders. With the consent of the
Holders of not less than a majority of the Purchase Contracts at the time
outstanding, by Act of said Holders delivered to the Company, the Purchase
Contract Agent or the Collateral Agent, as the case may be, the Company, when
duly authorized, the Company, the Purchase Contract Agent, the Collateral Agent,
the Custodial Agent and the Securities Intermediary may amend this Agreement for
the purpose of modifying in any manner the provisions of this Agreement or the
rights of the Holders in respect of the Normal Units and Stripped Units;
provided, however, that no such supplemental agreement shall, without the
consent of the Holder of each Outstanding Normal Units and Stripped Units
adversely affected thereby,
(1) change the amount or type of Collateral underlying a
Normal Unit or Stripped Unit (except for the rights of holders
of Normal Units to substitute the Treasury Securities for the
Pledged Debt Securities or the appropriate Applicable Ownership
Interest in the Treasury Portfolio, as the case may be, or the
rights of Holders of Stripped Units to substitute Debt
Securities or the appropriate Applicable Ownership Interest in
the Treasury Portfolio, as the case may be, for the Pledged
Treasury Securities), impair the right of the Holder of any
Normal
23
Units or Stripped Units to receive distributions on the
underlying Collateral or otherwise adversely affect the Holder's
rights in or to such Collateral; or
(2) otherwise effect any action that would require the
consent of the Holder of each Outstanding Normal Units or
Stripped Units affected thereby pursuant to the Purchase
Contract Agreement if such action were effected by an agreement
supplemental thereto; or
(3) reduce the percentage of Purchase Contracts the consent
of whose Holders is required for any such amendment.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed amendment, but it shall be
sufficient if such Act shall approve the substance thereof.
Section 9.3 Execution of Amendments. In executing any amendment
permitted by this Section, the Collateral Agent, the Custodial Agent, the
Securities Intermediary and the Purchase Contract Agent shall be entitled to
receive and (subject to Section 6.1 hereof, with respect to the Collateral
Agent, and Section 7.1 of the Purchase Contract Agreement, with respect to the
Purchase Contract Agent) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement and that all conditions precedent, if any, to the execution
and delivery of such amendment have been satisfied.
Section 9.4 Effect of Amendments. Upon the execution of any amendment
under this Article 9, this Agreement shall be modified in accordance therewith,
and such amendment 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 under the Purchase Contract Agreement
shall be bound thereby.
Section 9.5 Reference to Amendments. Security Certificates
authenticated, executed on behalf of the Holders and delivered after the
execution of any amendment pursuant to this Section may, and shall if required
by the Collateral Agent or the Purchase Contract Agent, bear a notation in form
approved by the Purchase Contract Agent and the Collateral Agent as to any
matter provided for in such amendment. If the Company shall so determine, new
Security Certificates so modified as to conform, in the opinion of the
Collateral Agent, the Purchase Contract Agent and the Company, to any such
amendment may be prepared and executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Purchase Contract Agent
in accordance with the Purchase Contract Agreement in exchange for Outstanding
Security Certificates.
ARTICLE X
Miscellaneous.
Section 10.1 No Waiver. No failure on the part of any party hereto or
any of its agents to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power
24
or remedy hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise by any party hereto or any of its agents of any right, power or
remedy hereunder preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies herein are cumulative and are
not exclusive of any remedies provided by law.
Section 10.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Without limiting
the foregoing, the above choice of law is expressly agreed to by the Securities
Intermediary, the Collateral Agent and the Holders from time to time acting
through the Purchase Contract Agent, as their attorney-in-fact, in connection
with the establishment and maintenance of the Collateral Account.
Section 10.3 Notices. All notices, requests, consents and other
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, by telecopy) delivered to the
intended recipient at the "Address for Notices" specified below its name on the
signature pages hereof or, as to any party, at such other address as shall be
designated by such party in a notice to the other parties. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
Section 10.4 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of the
Company, the Collateral Agent, the Custodial Agent, the Securities Intermediary
and the Purchase Contract Agent, and the Holders from time to time of the Normal
Units and Stripped Units, by their acceptance of the same, shall be deemed to
have agreed to be bound by the provisions hereof and to have ratified the
agreements of, and the grant of the Pledge hereunder by, the Purchase Contract
Agent.
Section 10.5 Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
Section 10.6 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision hereof in any jurisdiction shall
not affect the validity or enforceability of such provision in any other
jurisdiction.
Section 10.7 Expenses, Etc. The Company agrees to reimburse the
Collateral Agent and the Custodial Agent for: (a) all reasonable out-of-pocket
costs and expenses of the Collateral Agent and the Custodial Agent (including,
without limitation, the reasonable fees and expenses of counsel to the
Collateral Agent and the Custodial Agent), in connection with (i) the
negotiation, preparation, execution and delivery or performance of this
Agreement and (ii) any modification, supplement or waiver of any of the terms of
this Agreement; (b) all reasonable
25
costs and expenses of the Collateral Agent (including, without limitation,
reasonable fees and expenses of counsel) in connection with (i) any enforcement
or proceedings resulting or incurred in connection with causing any Holder of
Securities to satisfy its obligations under the Purchase Contracts forming a
part of the Securities and (ii) the enforcement of this Section 10.7; and (c)
all transfer, stamp, documentary or other similar taxes, assessments or charges
levied by any governmental or revenue authority in respect of this Agreement or
any other document referred to herein and all costs, expenses, taxes,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated
hereby.
Section 10.8 Security Interest Absolute. All rights of the Collateral
Agent and security interests hereunder, and all obligations of the Holders from
time to time hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any provision of
the Purchase Contracts or the Securities or any other agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
any other term of, or any increase in the amount of, all or any of the
obligations of Holders of Securities under the related Purchase
Contracts, or any other amendment or waiver of any term of, or any
consent to any departure from any requirement of, the Purchase Contract
Agreement or any Purchase Contract or any other agreement or instrument
relating thereto; or
(c) any other circumstance which might otherwise constitute a
defense available to, or discharge of, a borrower, a guarantor or a
pledgor.
Section 10.9 Consent to Jurisdiction; Miscellaneous. Each of the
parties hereto hereby expressly and irrevocably submits to the non-exclusive
jurisdiction of any competent court in the place of its domicile and any United
States Federal or New York State court sitting in the Borough of Manhattan in
The City of New York in any action, suit or proceeding arising out of or
relating to this Pledge Agreement or the transactions contemplated hereby to the
extent that such court has subject matter jurisdiction over the controversy, and
expressly and irrevocably waives, to the extent permitted under applicable law,
any immunity from the jurisdiction thereof and any claim or defense in such
action, suit or proceeding based on a claim of improper venue, forum non
conveniens or any similar basis to which it might otherwise be entitled in any
such action, suit or proceeding.
26
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
DTE ENERGY COMPANY
By:
---------------------------------------------------
Name:
Title:
Address for Notices:
DTE Energy Company
ββββ βββ ββββββ
βββββββ, ββββββββ βββββ
Attention: _________________________
Telecopy:
[THE BANK OF NEW YORK,] as
Purchase Contract Agent and
as attorney-in-fact of the
Holders from time to time
of the Normal Units and
Stripped Units
By:
---------------------------------------------------
Name:
Title:
Address for Notices:
[The Bank of New York
βββ βββββββ ββββββ, βββββ ββ ββββ
βββ ββββ, βββ ββββ βββββ]
Attention: Corporate Trust Administration
Telecopy: [(βββ) βββ-ββββ]
[THE BANK OF NEW YORK,] as Collateral
Agent, Custodial Agent
and as Securities Intermediary
By:
---------------------------------------------------
Name:
Title:
27
Address for Notices:
[The Bank of New York
βββ βββββββ ββββββ, βββββ ββ ββββ
βββ ββββ, βββ ββββ βββββ]
Attention: Corporate Trust Administration
Telecopy: [(βββ) βββ-ββββ]
28
EXHIBIT A
INSTRUCTION FROM PURCHASE CONTRACT AGENT TO COLLATERAL AGENT
[The Bank of New York
βββ βββββββ ββββββ, βββββ ββ ββββ
βββ ββββ, βββ ββββ βββββ]
Attention: Corporate Trust Administration
Re: [Title of Securities] of DTE Energy Company (the "Company")
We hereby notify you in accordance with Section [4.1] [4.2] of the
Pledge Agreement, dated as of _______________ (the "Pledge Agreement") among the
Company, yourselves, as Collateral Agent, Custodial Agent and Securities
Intermediary and ourselves, as Purchase Contract Agent and as attorney-in-fact
for the holders of [Normal Units] [Stripped Units] from time to time, that the
holder of the Securities listed below (the "Holder") has elected to substitute
[$_____ aggregate principal amount at maturity of Treasury Securities]
[$_______Stated Amount of Debt Securities or Stated Amount of the appropriate
Applicable Ownership Interest in the Treasury Portfolio in exchange for an equal
Value of [Pledged Debt Securities or the appropriate Applicable Ownership
Interest in the Treasury Portfolio] [Pledged Treasury Securities] held by you in
accordance with the Pledge Agreement and has delivered to us a notice stating
that the Holder has Transferred [Treasury Securities] [Debt Securities or the
appropriate Applicable Ownership Interest in the Treasury Portfolio] to you, as
Collateral Agent. We hereby instruct you, upon receipt of such [Pledged Treasury
Securities] [Pledged Debt Securities or the appropriate Applicable Ownership
Interest in the Treasury Portfolio], to release the [Debt Securities or the
appropriate Applicable Ownership Interest in the Treasury Portfolio] [Treasury
Securities] related to such [Normal Units] [Stripped Units] to us in accordance
with the Holder's instructions. Capitalized terms used herein but not defined
shall have the meaning set forth in the Pledge Agreement.
Date:
------------------- --------------------------------------------------
By:
------------------------------------
Name:
Title:
Signature Guarantee:
------------------------------------
A-1
Please print name and address of Registered Holder electing to substitute
[Treasury Securities] [Debt Securities or the appropriate Applicable Ownership
Interest in the Treasury Portfolio] for the [Pledged Debt Securities or the
appropriate Applicable Ownership Interest in the Treasury Portfolio] [Pledged
Treasury Securities]:
--------------------------- --------------------------------------------------
Name Social Security or other Taxpayer Identification
Number, if any
---------------------------
Address
---------------------------
---------------------------
A-2
EXHIBIT B
INSTRUCTION TO PURCHASE CONTRACT AGENT
[The Bank of New York
βββ βββββββ ββββββ, βββββ ββ ββββ
βββ ββββ, βββ ββββ βββββ]
Attention: Corporate Trust Administration
Re: [Title of Securities] of DTE Energy Company (the "Company")
The undersigned Holder hereby notifies you that it has delivered to The
Bank of New York, as Collateral Agent, [$_______ aggregate principal amount at
maturity of Treasury Securities] [$ aggregate Stated Amount of Debt Securities
or Stated Amount of the appropriate Applicable Ownership Interest in the
Treasury Portfolio] in exchange for an equal Value of [Pledged Debt Securities
or the appropriate Applicable Ownership Interest in the Treasury Portfolio]
[Pledged Treasury Securities] held by the Collateral Agent, in accordance with
Section 4.1 of the Pledge Agreement, dated __________________ (the "Pledge
Agreement"), between you, as Purchase Contract Agent and Collateral Agent, and
the Company. The undersigned Holder hereby instructs you as Purchase Contract
Agent to instruct the Collateral Agent to release to you on behalf of the
undersigned Holder the [Pledged Debt Securities or the appropriate Applicable
Ownership Interest in the Treasury Portfolio] [Pledged Treasury Securities]
related to such [Normal Units] [Stripped Units]. Capitalized terms used herein
but not defined shall have the meaning set forth in the Pledge Agreement.
Date:
------------------ ---------------------------------------------------
Signature Guarantee:
---------------------
Please print name and address of Registered Holder:
--------------------------- --------------------------------------------------
Name Social Security or other Taxpayer Identification
Number, if any
---------------------------
Address
---------------------------
---------------------------
B-1
EXHIBIT C
INSTRUCTION TO CUSTODIAL AGENT REGARDING REMARKETING
[The Bank of New York
βββ βββββββ ββββββ, βββββ ββ ββββ
βββ ββββ, βββ ββββ βββββ]
Attention: Corporate Trust Administration
Re: Debt Securities of DTE Energy Company (the "Company")
The undersigned hereby notifies you in accordance with Section 4.6(c)
of the Pledge Agreement, dated as of _________________________ (the "Pledge
Agreement"), among the Company, yourselves, as Collateral Agent, Securities
Intermediary and Custodial Agent, and yourselves, as Purchase Contract Agent and
as attorney-in-fact for the Holders of Normal Units and Stripped Units from time
to time, that the undersigned elects to deliver $__________ principal amount of
Debt Securities for delivery to the Remarketing Agent on the fourth Business Day
immediately preceding the Purchase Contract Settlement Date for remarketing
pursuant to Section 4.6(c) of the Pledge Agreement. The undersigned will, upon
request of the Remarketing Agent, execute and deliver any additional documents
deemed by the Remarketing Agent or by the Company to be necessary or desirable
to complete the sale, assignment and transfer of the Debt Securities tendered
hereby.
The undersigned hereby instructs you, upon receipt of the Proceeds of
such remarketing from the Remarketing Agent to deliver such Proceeds to the
undersigned in accordance with the instructions indicated herein under "A.
Payment Instructions." The undersigned hereby instructs you, in the event of
Failed Remarketing, upon receipt of the Debt Securities tendered herewith from
the Remarketing Agent, to be delivered to the person(s) and the address(es)
indicated herein under "B. Delivery Instructions."
With this notice, the undersigned hereby (i) represents and warrants
that the undersigned has full power and authority to tender, sell, assign and
transfer the Debt Securities tendered hereby and that the undersigned is the
record owner of any Debt Securities tendered herewith in physical form or a
participant in The Depository Trust Company ("DTC") and the beneficial owner of
any Debt Securities tendered herewith by book-entry transfer to your account at
DTC and (ii) agrees to be bound by the terms and conditions of Section 4.6(c) of
the Pledge Agreement. Capitalized terms used herein but not defined shall have
the meaning set forth in the Pledge Agreement.
C-1
Date:
--------------------------
-------------------------------------------
By:
--------------------------------------
Name:
Title:
Signature Guarantee:
---------------------
Please print name and address:
-------------------------- ---------------------------------------------------
Name Social Security or other Taxpayer Identification
Number, if any
--------------------------
Address
--------------------------
--------------------------
C-2
A. PAYMENT INSTRUCTIONS
Proceeds of the remarketing should be paid by check in the name of the person(s)
set forth below and mailed to the address set forth below.
Name(s)
-------------------------------------------------
(Please Print)
Address
-------------------------------------------------
(Please Print)
----------------------------------------------------------
----------------------------------------------------------
(Zip Code)
----------------------------------------------------------
(Tax Identification or Social Security Number)
B. DELIVERY INSTRUCTIONS
In the event of a Failed Remarketing, Debt Securities which are in physical form
should be delivered to the person(s) set forth below and mailed to the address
set forth below.
Name(s)
-------------------------------------------------
(Please Print)
Address
-------------------------------------------------
(Please Print)
----------------------------------------------------------
----------------------------------------------------------
(Zip Code)
----------------------------------------------------------
(Tax Identification or Social Security Number)
In the event of a Failed Remarketing, Debt Securities which are in book-entry
form should be credited to the account at The Depository Trust Company set forth
below.
----------------------------------------------
DTC Account Number
Name of Account Party:
--------------------------------------
C-3
EXHIBIT D
INSTRUCTION TO CUSTODIAL AGENT REGARDING
WITHDRAWAL FROM REMARKETING
[The Bank of New York
βββ βββββββ ββββββ, βββββ ββ ββββ
βββ ββββ, βββ ββββ βββββ]
Attention: Corporate Trust Administration
Re: Debt Securities of DTE Energy Company (the "Company")
The undersigned hereby notifies you in accordance with Section 4.6(c)
of the Pledge Agreement, dated as of ____________ (the "Pledge Agreement") among
the Company, yourselves, as Collateral Agent, Securities Intermediary and
Custodial Agent and yourselves, as Purchase Contract Agent and as
attorney-in-fact for the Holders of Normal Units and Stripped Units from time to
time, that the undersigned elects to withdraw the $_____ aggregate stated
liquidation amount of Debt Securities delivered to the Custodial Agent on
___________, for remarketing pursuant to Section 4.6(c) of the Pledge Agreement.
The undersigned hereby instructs you to return such Debt Securities to the
undersigned in accordance with the undersigned's instructions. With this notice,
the Undersigned hereby agrees to be bound by the terms and conditions of Section
4.6(c) of the Pledge Agreement. Capitalized terms used herein but not defined
shall have the meaning set forth in the Pledge Agreement.
Date:
---------------------- ----------------------------------------------
By:
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Name:
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Title:
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Signature Guarantee:
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Please print name and address:
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(Name) Social Security or other Taxpayer
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Identification Number, if any
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Address
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D-1
A. DELIVERY INSTRUCTIONS
In the event of a Failed Remarketing, Debt Securities which are in physical form
should be delivered to the person(s) set forth below and mailed to the address
set forth below.
Name(s)
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(Please Print)
Address
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(Please Print)
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(Zip Code)
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(Tax Identification or Social Security Number)
In the event of a Failed Remarketing, Debt Securities which are in book-entry
form should be credited to the account at The Depository Trust Company set forth
below.
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DTC Account Number
Name of Account Party:
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D-2