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AMERUS GROUP CO.
And
BNY MIDWEST TRUST
COMPANY,
as Collateral Agent, Custodial Agent
and Securities Intermediary
And
WACHOVIA BANK, NATIONAL
ASSOCIATION,
as Purchase Contract Agent
PLEDGE AGREEMENT
Dated as of May 28, 2003
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TABLE OF CONTENTS
PAGE NO.
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ARTICLE I
DEFINITIONS
ARTICLE II
PLEDGE; CONTROL AND PERFECTION
SECTION 2.1 The Pledge..................................................................... 6
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 Growth PRIDES............. 10
SECTION 4.2 Substitution for Treasury Securities and the Creation of Income PRIDES......... 11
SECTION 4.3 Termination Event.............................................................. 13
SECTION 4.4 Cash Settlement................................................................ 13
SECTION 4.5 Early Settlement............................................................... 15
SECTION 4.6 Application of Proceeds; Settlement............................................ 16
ARTICLE V
VOTING RIGHTS -- DEBT SECURITIES
ARTICLE VI
RIGHTS AND REMEDIES; SUBSTITUTION OF A TREASURY PORTFOLIO FOR DEBT
SECURITIES
SECTION 6.1 Rights and Remedies of the Collateral Agent.................................... 18
SECTION 6.2 Substitution of a Treasury Portfolio for Debt Securities....................... 19
SECTION 6.3 Remarketing.................................................................... 20
SECTION 6.4 Substitutions.................................................................. 20
ARTICLE VII
REPRESENTATIONS AND WARRANTIES; COVENANTS
SECTION 7.1 Representations and Warranties................................................. 21
SECTION 7.2 Covenants...................................................................... 21
ARTICLE VIII
THE COLLATERAL AGENT
SECTION 8.1 Appointment, Powers and Immunities............................................. 22
SECTION 8.2 Instructions of the Company.................................................... 23
SECTION 8.3 Reliance by Collateral Agent................................................... 23
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SECTION 8.4 Rights in Other Capacities..................................................... 23
SECTION 8.5 Non-Reliance on Collateral Agent............................................... 24
SECTION 8.6 Compensation and Indemnity..................................................... 24
SECTION 8.7 Failure to Act................................................................. 24
SECTION 8.8 Resignation of Collateral Agent................................................ 25
SECTION 8.9 Right to Appoint Agent or Advisor.............................................. 26
SECTION 8.10 Survival....................................................................... 26
SECTION 8.11 Exculpation.................................................................... 26
ARTICLE IX
AMENDMENT
SECTION 9.1 Amendment without Consent of Holders........................................... 26
SECTION 9.2 Amendment with Consent of Holders.............................................. 27
SECTION 9.3 Execution of Amendments........................................................ 27
SECTION 9.4 Effect of Amendments........................................................... 28
SECTION 9.5 Reference to Amendments........................................................ 28
ARTICLE X
MISCELLANEOUS
SECTION 10.1 No Waiver...................................................................... 28
SECTION 10.2 Governing Law.................................................................. 28
SECTION 10.3 Notices........................................................................ 29
SECTION 10.4 Successors and Assigns......................................................... 29
SECTION 10.5 Counterparts................................................................... 29
SECTION 10.6 Severability................................................................... 29
SECTION 10.7 Expenses, Etc.................................................................. 30
SECTION 10.8 Security Interest Absolute..................................................... 30
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PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of May 28, 2003 (this "Agreement"), by and
among AmerUs Group Co., an Iowa corporation (the "Company"), as pledgee, BNY
Midwest Trust Company, an Illinois Trust Company, 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") and as a
"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 Wachovia Bank, National
Association, not individually but solely 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 hereinafter 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 5,750,000 new securities (the "Securities") of
the Company. Terms not otherwise defined herein are used herein with the meaning
ascribed to them in the Purchase Contract Agreement.
The Securities will initially consist of 5,000,000 units with a stated
amount, per Security, equal to $25 (the "Stated Amount"). The Securities will
initially consist of 5,000,000 Income PRIDES and 0 Growth PRIDES. Each Income
PRIDES will initially be comprised of (a) a stock purchase contract (as modified
and supplemented and in effect from time to time, a "Purchase Contract") under
which (i) the Holder will purchase from the Company not later than August 16,
2006 (the "Purchase Contract Settlement Date"), for $25 in cash, a number of
newly issued shares of common stock, without par value, of the Company ("Common
Stock") equal to the applicable Settlement Rate and (ii) the Company will pay
certain Contract Adjustment Payments to the Holders as provided in the Purchase
Contract Agreement, and (b) either (A) prior to the Purchase Contract Settlement
Date so long as no Tax Event Redemption has occurred, (i) beneficial ownership
of a Senior Note initially due 2008 of the Company (the "Debt Securities"),
having a principal amount of $25, or (ii) following a successful remarketing of
the Debt Securities on the Remarketing Date, an Applicable Ownership Interest in
the Remarketing Treasury Portfolio, or (B) upon the occurrence of a Tax Event
Redemption prior to the Purchase Contract Settlement Date, an Applicable
Ownership Interest in the Tax Event Treasury Portfolio.
Each Growth PRIDES will initially be comprised of (a) a
Purchase Contract under which (i) the Holder will purchase from the Company not
later than the Purchase Contract Settlement Date, for $25 in cash, a number of
newly issued shares of Common Stock equal to the applicable Settlement Rate and
(ii) the Company will pay certain Contract Adjustment Payments to the Holders as
provided in the Purchase Contract Agreement, and (b) a 1/40, or 2.5% undivided
beneficial ownership interest in a zero-coupon U.S. Treasury security having a
principal amount at maturity equal to $1,000 and maturing on July 15, 2006
(CUSIP No. ▇▇▇▇▇▇▇▇▇) ("Treasury Security"). Following the maturity of the
Treasury Security on July 15,
2006, any reference herein to the "Treasury Security" shall be deemed to be a
reference to the cash proceeds therefrom. Pursuant to the terms of the
Underwriting Agreement, the Company may issue up to 750,000 additional Income
PRIDES and, if the Company issues such additional Income PRIDES, the related
Debt Securities will be pledged hereunder.
Pursuant to the terms of the Indenture (as defined below), the
Company will issue the Debt Securities in an aggregate principal amount equal to
the aggregate Stated Amount of all Income PRIDES.
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
and in the name of such Holders and to grant the pledge provided hereby of the
Debt Securities, any Applicable Ownership Interest in a Treasury Portfolio and
any Treasury Securities 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 will be beneficially owned by the Holders but will
be owned of record by the Purchase Contract Agent subject to the Pledge
hereunder, and the Treasury Securities (and the Applicable Ownership Interest in
the appropriate Treasury Portfolio) will be beneficially owned by the Holders
but will be held in book-entry form by the Securities Intermediary 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
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) terms not otherwise defined herein are used herein
with the meaning ascribed to them in the Purchase Contract Agreement.
"Agreement" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
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"Bankruptcy Code" means title 11 of the United States Code, or
any other law of the United States that from time to time provides a uniform
system of bankruptcy laws.
"Business Day" means any day other than a Saturday, a Sunday
or any other day on which banking institutions and trust companies in The City
of New York (in the State of New York) are permitted or required by any
applicable law to close.
"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
357317) maintained at BNY Midwest Trust Company in the name "Wachovia Bank,
National Association, as Purchase Contract Agent on behalf of the holders of
Securities subject to the security interest of BNY Midwest Trust Company as
Collateral Agent under the Pledge Agreement, for the benefit of AmerUs Group
Co., 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 Agreement until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Custodial Agent" has the meaning specified in the first
paragraph of this Agreement.
"Debt Security" and "Debt Securities" have the respective
meanings specified in the Recitals.
"Indenture" means the Indenture, dated as of June 16, 1998,
between the Company and the Indenture Trustee, supplemented by an officer's
certificate dated the date hereof establishing the Debt Securities, pursuant to
which the Debt Securities are to be issued, as originally executed and delivered
and as it may from time to time be supplemented or amended by one or more
indentures supplemental thereto entered into pursuant to the applicable
provisions thereof and shall include the terms of a particular series of
securities established as contemplated by Section 3.01 thereof.
"Indenture Trustee" means First Union National Bank, as
trustee under the Indenture until a successor is appointed thereunder, and
thereafter means such successor trustee.
"Intermediary" means any entity that in the ordinary course of
its business maintains securities accounts for others and is acting in that
capacity.
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"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 U.S. $200 million at the time of
deposit; (iii) investments with an original maturity of 365 days or less of any
Person that is fully and unconditionally guaranteed by a bank referred to in
clause (ii) hereof; (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 Service, a Division of ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P"), or at
least equal to "P-1" by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"); and (v)
investments in money market funds registered under the Investment Company Act of
1940, as amended, 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 Applicable Ownership Interest in a Treasury
Portfolio" 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 Section 8-102(a)(9) of the Code) and
other property from time to time received, receivable or otherwise distributed
upon, the sale, exchange, collection, disposition or maturity 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.
"Reset Date" means three Business Days after any Remarketing
Date on which the Debt Securities are successfully remarketed pursuant to the
Remarketing Agreement.
"Securities" has the meaning specified in the Recitals.
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"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.
"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) except as otherwise provided in Section 2.1 hereof,
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 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.
"Value" with respect to any item of Collateral on any date
means: as to (i) Debt Securities, the aggregate principal amount thereof, (ii)
Cash, the face amount thereof and (iii) Treasury Securities, the aggregate
principal amount thereof at maturity; provided, however, that in the case of a
successful remarketing of the Debt Securities on any Remarketing Date that is
not the third Business Day immediately preceding the Purchase Contract
Settlement Date. Value means the Remarketing Treasury Portfolio Purchase Price.
ARTICLE II
PLEDGE; CONTROL AND PERFECTION
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SECTION 2.1 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 such
Holders and the Purchase Contract Agent (a) in the Debt Securities and Treasury
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 Article IV 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 or the Purchase
Contract Agent under the provisions of this Agreement; (b) in payments made by
Holders pursuant to Section 4.4 hereof; (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 Applicable Ownership Interest
in the Treasury Portfolio purchased on behalf of the Holders of Income PRIDES by
the Collateral Agent upon the occurrence of (i) a Tax Event Redemption as
provided in Section 6.2 hereof or (ii) a successful remarketing of the Debt
Securities on a day other than the third Business Day immediately preceding
August 16, 2006 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 Income PRIDES to be Transferred to the Collateral Agent for the
benefit of the Company, to secure the obligations of the Holders to purchase
Common Stock pursuant to the Purchase Contracts. Such Debt Securities shall be
Transferred by physically delivering such Debt Securities to the Collateral
Agent endorsed in blank.
Treasury Securities and any 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 the
Applicable Ownership Interest in any Treasury Portfolio subject to the Pledge,
excluding any Debt Securities or Treasury Securities or interest in any Treasury
Portfolio released from the Pledge as provided in Article IV hereof, are
hereinafter referred to as "Pledged Debt Securities," the "Pledged Treasury
Securities," or "Pledged Applicable Ownership Interest in a Treasury Portfolio,"
respectively, and, collectively, the "Pledged Securities." Following the
maturity of the Pledged Treasury Securities on July 15, 2006, the Holders of
Growth PRIDES shall have such interests, rights and obligations, and the
Collateral Agent shall have such security interests, rights and obligations,
with respect to the cash proceeds paid upon maturity of such Pledged Treasury
Securities as they had in respect of the Pledged Treasury Securities, as
provided in II, III, IV, V and VI hereof, and any reference herein to the
Pledged Treasury Securities shall be deemed to be a reference to such
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cash proceeds subject to the Pledge. 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. The Collateral Agent shall have the right to have
the Debt Securities or any other Securities held in physical form reregistered
in its name or in the name of its agent or the Securities Intermediary and
credited to the Collateral Account.
Except as may be required in order to release Debt Securities
(or, if (i) a Tax Event Redemption or (ii) a successful remarketing of the Debt
Securities on a day other than the third Business Day immediately preceding
August 16, 2006, as the case may be, has occurred, the Applicable Ownership
Interest in the appropriate Treasury Portfolio) or Treasury Securities in
connection with a Holder's election to convert its investment from Income PRIDES
to Growth PRIDES, or from Growth PRIDES to Income PRIDES, as the case may be, 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 Debt Securities (or, if (i) a
Tax Event Redemption or (ii) a successful remarketing of the Debt Securities on
a day other than the third Business Day immediately preceding August 16, 2006,
as the case may be, has occurred, the Applicable Ownership Interest in the
appropriate Treasury Portfolio) or Treasury Securities prior to the termination
of this Agreement. If it becomes necessary for the Collateral Agent to
relinquish physical possession of a certificate in order to release a portion of
the Debt Securities evidenced thereby from the Pledge, the Collateral Agent
shall use its best efforts to obtain physical possession of a replacement
certificate evidencing any Debt Securities remaining subject to the Pledge
hereunder registered to it or endorsed in blank within ten days of the date it
relinquished possession. The Collateral Agent shall promptly notify the Company
of its 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, any 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 Purchase Contract
Agent and the Holders from time to time, acting through the Purchase Contract
Agent, each 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
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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) all securities or other property underlying any financial
assets credited to the Collateral Account shall be registered in the name of the
Securities Intermediary, endorsed 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 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 endorsed to the Securities Intermediary
or in blank; (ii) all property delivered to the Securities Intermediary pursuant
to this Pledge Agreement (including, without limitation, any Debt Securities,
the Applicable Ownership Interest in any Treasury Portfolio or any Treasury
Securities) will be promptly credited to the Collateral Account; (iii) 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 the "entitlement holder" (as
defined in Section 8-102(a)(7) of the Code) with respect to the Collateral
Account; (iv) the Securities Intermediary has not entered into, and until the
termination of this Agreement will not enter into, any 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 (v) 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, the Purchase Contract Agent or the Holders of the Securities 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 hereof) 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, and each of them
severally, 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.
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ARTICLE III
DISTRIBUTIONS ON PLEDGED COLLATERAL
So long as the Purchase Contract Agent is the registered owner
of the Pledged Debt Securities, 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 principal or interest on such Pledged
Debt Securities, together with any payments of principal or interest, cash
distributions or other Proceeds in respect of 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:
(a) in the case of (A) payment of interest with respect
to the Pledged Debt Securities or cash distributions on the appropriate Pledged
Applicable Ownership Interest in a Treasury Portfolio (as specified in clauses
(1)(ii), (1)(iii) or (2)(ii) of the definition of the term Applicable Ownership
Interest), as the case may be, and (B) any payments of principal with respect to
any Debt Securities or the appropriate Applicable Ownership Interest (as
specified in clauses (1)(i) or (2)(i) of the definition of such term) in a
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 Income PRIDES, to the account designated by the
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); except that in the case of a
payment of interest with respect to the Pledged Debt Securities on a Reset Date
that is not February 16, 2006, May 16, 2006 or August 16, 2006, the Collateral
Agent shall hold such interest amount in a non-interest bearing account and
shall pay such interest amount with the next payment made to the Purchase
Contract Agent pursuant to this clause (a);
(b) 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 Growth PRIDES to the accounts
designated by them in writing to the Collateral 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); and
(c) in the case of payments of the principal of any
Pledged Debt Securities or on the appropriate Pledged Applicable Ownership
Interest in a Treasury Portfolio (as specified in clauses (1)(i) or (2)(i) of
the definition of the term Applicable Ownership Interest), 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.
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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 or a Holder of Income PRIDES shall receive any payments of
principal on account of any Debt Security or, if applicable, the Applicable
Ownership Interest (as specified in clauses (1)(i) or (2)(i) of the definition
of such term) in the appropriate Treasury Portfolio that, at the time of such
payment, is a Pledged Debt Security or the Pledged Applicable Ownership Interest
in a Treasury Portfolio, as the case may be, or the Purchase Contract Agent or a
Holder of Growth PRIDES 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, as the case may be,
shall transfer the Proceeds of such payment of principal on such Pledged Debt
Security, Pledged Applicable Ownership Interest in a Treasury Portfolio or
Pledged Treasury Securities, as the case may be, to the Collateral Agent and the
Collateral Agent shall hold such Proceeds for the benefit of the Company as
Collateral for the performance when due by such Holder of its obligations under
the related Purchase Contracts.
ARTICLE IV
SUBSTITUTION, RELEASE, REPLEDGE AND SETTLEMENT OF DEBT
SECURITIES
SECTION 4.1 Substitution for Debt Securities and the Creation of Growth
PRIDES.
A Holder of an Income PRIDES may create or recreate a Growth
PRIDES and separate the Debt Securities or the appropriate Applicable Ownership
Interest in a Treasury Portfolio, as applicable, from the related Purchase
Contract in respect of such Income PRIDES by substituting Treasury Securities
for all, but not less than all, of the Debt Securities or Applicable Ownership
Interest in the appropriate Treasury Portfolio that form a part of such Income
PRIDES in accordance with this Section 4.1 and Section 3.13 of the Purchase
Contract Agreement; provided, however, that if a Treasury Portfolio has not
replaced the Debt Securities as a component of Income PRIDES as a result of a
successful remarketing or a Tax Event Redemption, such Collateral Substitutions
may be made only on or prior to the fifth Business Day immediately preceding the
Purchase Contract Settlement Date; if a Treasury Portfolio has replaced Debt
Securities as a component of Income PRIDES as a result of a successful
remarketing of the Debt Securities or a Tax Event Redemption, such Collateral
Substitutions may be made only on or prior to the second Business Day
immediately preceding the Purchase Contract Settlement Date. Holders may make
Collateral Substitutions and establish Growth PRIDES (i) only in integral
multiples of 40 Income PRIDES if only Debt Securities are being substituted by
Treasury Securities, and (ii) only in integral multiples of 32,000 Income PRIDES
(or such other number of Income PRIDES as may be determined by the Reset Agent
upon a successful remarketing of the Debt Securities if the Reset Date is not a
regular quarterly Interest Payment Date) if the appropriate Applicable Ownership
Interests in the Treasury Portfolio are being substituted for Treasury
Securities. For example, to create 40 Growth PRIDES (if a Tax Event Redemption
has not occurred and Debt Securities remain components of Income PRIDES), or
32,000 Growth PRIDES (or such other number of Growth PRIDES as may be determined
by the Reset Agent upon a successful remarketing of the Debt Securities if the
Reset Date is not a regular quarterly Interest Payment Date) (if a Tax Event
Redemption has occurred
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or a Remarketing Treasury Portfolio has replaced Debt Securities as components
of Income PRIDES as a result of a successful remarketing of the Debt
Securities), the Income PRIDES Holder shall
(a) if a Treasury Portfolio has not replaced any Debt
Securities as a component of Income PRIDES as a result of a successful
remarketing or a Tax Event Redemption, on or prior to the fifth
Business Day preceding the Purchase Contract Settlement Date, deposit
with the Collateral Agent a Treasury Security having a principal amount
at maturity of $1,000; or
(b) if a Treasury Portfolio has replaced the Debt
Securities as a component of Income PRIDES as a result of a successful
remarketing of the Debt Securities or a Tax Event Redemption, on or
prior to the second Business Day immediately preceding the Purchase
Contract Settlement Date, deposit with the Collateral Agent Treasury
Securities having an aggregate principal amount at maturity of $800,000
(or $25 multiplied by such number of Income PRIDES as may be determined
by the Reset Agent as described in (ii) above); and
(c) in each case, transfer and surrender the related 40
Income PRIDES, or, in the event a Treasury Portfolio is a component of
Income PRIDES, 32,000 Income PRIDES (or such other number of Income
PRIDES as may be determined by the Reset Agent upon a successful
remarketing of the Debt Securities if the Reset Date is not a regular
quarterly Interest Payment Date), to the Purchase Contract Agent
accompanied by a notice to the Purchase Contract Agent, substantially
in the form of Exhibit B hereto, stating that the Holder has
transferred the relevant amount of Treasury Securities to the
Collateral Agent and requesting that the Purchase Contract Agent
instruct the Collateral Agent to release the applicable Debt Securities
or the appropriate Applicable Ownership Interest in the Treasury
Portfolio, as the case may be, underlying such Income PRIDES, whereupon
the Purchase Contract Agent shall promptly give such instruction to the
Collateral Agent, substantially in the form of Exhibit A hereto.
Upon receipt of the Treasury Securities described in clause
(a) or (b) above and the instructions described in clause (c) above from the
Purchase Contract Agent, the Collateral Agent shall release the Pledged Debt
Securities or the appropriate Pledged Applicable Ownership Interest in a
Treasury Portfolio, as the case may be, and shall promptly Transfer such Pledged
Debt Securities or the appropriate Pledged Applicable Ownership Interest in a
Treasury Portfolio, as the case may be, free and clear of the lien, pledge or
security interest created hereby, to the Purchase Contract Agent.
SECTION 4.2 Substitution for Treasury Securities and the Creation of
Income PRIDES.
A Holder of a Growth PRIDES may create or recreate Income
PRIDES by depositing with the Collateral Agent Debt Securities or the Applicable
Ownership Interest in the appropriate Treasury Portfolio, as the case may be,
having an aggregate principal amount equal to the aggregate principal amount at
maturity of, and in substitution for all, but not less than all, of the Treasury
Securities comprising part of the Growth PRIDES in accordance with this Section
4.2 and Section 3.14 of the Purchase Contract Agreement; provided, however, that
if a
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Treasury Portfolio has not replaced the Debt Securities as a component of Income
PRIDES as a result of a successful remarketing or a Tax Event Redemption, such
Collateral Substitutions may be made only on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date; and if a Treasury
Portfolio has replaced the Debt Securities as a component of Income PRIDES as a
result of a successful remarketing of the Debt Securities or a Tax Event
Redemption, such Collateral Substitutions may be made only on or prior to the
second Business Day immediately preceding the Purchase Contract Settlement Date.
Holders of Growth PRIDES may make such Collateral Substitutions and establish
Income PRIDES (i) only in integral multiples of 40 Growth PRIDES if Treasury
Securities are being replaced by Debt Securities, or (ii) only in integral
multiples of 32,000 Growth PRIDES (or such other number of Growth PRIDES as may
be determined by the Reset Agent upon a successful remarketing of the Debt
Securities if the Reset Date is not a regular quarterly Interest Payment Date)
if any Treasury Security is being replaced by the Applicable Ownership Interest
in the Treasury Portfolio. To create 40 Income PRIDES (if a Tax Event Redemption
has not occurred and the Debt Securities remain components of Income PRIDES), or
32,000 Income PRIDES (or such other number of Income PRIDES as may be determined
by the Reset Agent upon a successful remarketing of the Debt Securities if the
Reset Date is not a regular quarterly Interest Payment Date) (if a Tax Event
Redemption has occurred or a Remarketing Treasury Portfolio has replaced the
Debt Securities as a result of a successful remarketing of the Debt Securities),
the Growth PRIDES Holder shall
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(a) if a Treasury Portfolio has not replaced the Debt
Securities as a component of Income PRIDES as a result of a successful
remarketing or a Tax Event Redemption on or prior to the fifth Business
Day preceding the Purchase Contract Settlement Date, deposit with the
Collateral Agent $1,000 in aggregate principal amount of Debt
Securities; or
(b) if a Treasury Portfolio has replaced the Debt
Securities as a component of Income PRIDES as a result of a successful
remarketing of the Debt Securities or a Tax Event Redemption on or
prior to the second Business Day immediately preceding the Purchase
Contract Settlement Date, deposit with the Collateral Agent the
Applicable Ownership Interest in the appropriate Treasury Portfolio
having an aggregate principal amount at maturity of $800,000 (or $25
multiplied by such number of Growth PRIDES as may be determined by the
Reset Agent as described in (ii) above); or
(c) in each case, transfer and surrender the related 40
Growth PRIDES, or in the event the Treasury Portfolio is a component of
Income PRIDES, 32,000 Growth PRIDES (or such other number of Growth
PRIDES as may be determined by the Reset Agent upon a successful
remarketing of the Debt Securities if the Reset Date is not a regular
quarterly Interest Payment Date), to the Purchase Contract Agent
accompanied by a notice to the Purchase Contract Agent, substantially
in the form of Exhibit B hereto, stating that the Holder has
transferred the relevant amount of Debt Securities or the appropriate
Applicable Ownership Interest in the Treasury Portfolio, as the case
may be, to the Collateral Agent and requesting that the Purchase
Contract Agent instruct the Collateral Agent to release the Pledged
Treasury Securities underlying such Growth PRIDES, whereupon the
Purchase Contract Agent shall promptly give such instruction to the
Collateral Agent, substantially in the form of Exhibit A hereto.
Upon receipt of the Debt Securities or the appropriate
Applicable Ownership Interest in the applicable Treasury Portfolio, as the case
may be, described in clause (a) or (b) above and the instructions described in
clause (c) above, from the Purchase Contract Agent, the Collateral Agent shall
release the related Pledged Treasury Securities and shall promptly Transfer such
Pledged Treasury Securities, free and clear of the lien, pledge or security
interest created hereby, to the Purchase Contract Agent.
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, if (i) a Tax Event
Redemption or (ii) a successful remarketing of the Debt Securities, as the case
may be, has occurred, the Pledged Applicable Ownership Interest in a Treasury
Portfolio) and Pledged Treasury Securities to the Purchase Contract Agent for
the benefit of the Holders of the Income PRIDES and the Growth PRIDES,
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
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effectuate the release and Transfer of all Pledged Debt Securities, the Pledged
Applicable Ownership Interest in a Treasury Portfolio or the Pledged Treasury
Securities, as the case may be, as provided by this Section 4.3, any Holder may,
and the Purchase Contract Agent shall, upon receipt from the Holders of
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by the Purchase Contract Agent in compliance with this
paragraph, (i) use its reasonable best efforts to obtain an opinion of a
nationally recognized law firm reasonably acceptable to the Collateral Agent to
the effect that, as a result of the Company 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) any such Holder or 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 Pledged Applicable Ownership Interest in a
Treasury Portfolio or the Pledged Treasury Securities, as the case may be, as
provided in this Section 4.3, then any Holder may, and the Purchase Contract
Agent shall, within 15 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
Pledged Applicable Ownership Interest in a Treasury Portfolio or the Pledged
Treasury Securities, as the case may be, as provided by this Section 4.3 or (ii)
commence an action or proceeding in the court with jurisdiction of the Company's
case under the Bankruptcy Code 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 that a Holder of an Income PRIDES or a Growth
PRIDES has elected, in accordance with the procedures specified in Section
5.4(a)(i) or (d)(i) of the Purchase Contract Agreement, respectively, to settle
its Purchase Contract with Cash and (ii) payment by such Holder of the amount
required to settle the Purchase Contract 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, 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.
(b) If a Holder of an Income PRIDES (unless a Treasury
Portfolio has replaced the relevant Debt Security) fails to notify the Purchase
Contract Agent of its intention to make a Cash Settlement in accordance with
Section 5.4(a)(i) of the Purchase Contract Agreement, such failure shall
constitute a default under the related Purchase Contract and hereunder, and the
Holder shall be deemed to have consented to the disposition of the Pledged
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Debt Securities pursuant to the remarketing as described in Section 5.4(b) of
the Purchase Contract Agreement, which is incorporated herein by reference and
Section 4.6 hereof, and the Collateral Agent, for the benefit of the Company,
will exercise its rights as a secured party with respect to applicable Pledged
Debt Securities at the direction of the Company to cause the remarketing of such
Pledged Debt Securities. If a Holder of Income PRIDES does notify the Purchase
Contract Agent as provided in Section 5.4(a)(i) of the Purchase Contract
Agreement of its intention to make a Cash Settlement, but fails to make such
payment as required by Section 5.4(a)(ii) of the Purchase Contract Agreement,
such failure shall constitute a default under the related Purchase Contract and
hereunder, and the Pledged 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 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 5.4(b) of the Purchase Contract Agreement,
such Failed Remarketing shall constitute a 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 direction
of the Company to retain or dispose of the Collateral in accordance with
applicable law.
(c) If a Holder of Growth PRIDES or Income PRIDES (if a
Treasury Portfolio has replaced the Debt Securities) fails to notify the
Purchase Contract Agent of such Holder's intention to make a Cash Settlement in
accordance with Section 5.4(d)(i) of the Purchase Contract Agreement, or if a
Holder of Growth PRIDES or Income PRIDES (if a Treasury Portfolio has replaced
the Debt Securities) notifies the Purchase Contract Agent as provided in Section
5.4(d)(i) of the Purchase Contract Agreement of its intention to make a Cash
Settlement, but fails to make such payment as required by Section 5.4(d)(ii) of
the Purchase Contract Agreement, such failure shall constitute a default under
the related Purchase Contracts and hereunder by such Holder and upon the
maturity of the related Pledged Treasury Securities or the Pledged Applicable
Ownership Interest in a Treasury Portfolio, if any, held by the Collateral Agent
on the Business Day immediately preceding the Purchase Contract Settlement Date,
the principal amount of such Pledged Treasury Securities or the portion of the
Pledged Applicable Ownership Interest in a Treasury Portfolio corresponding to
such Purchase Contracts received by the Collateral Agent shall, upon written
direction of the Company, be invested promptly in Permitted Investments. On the
Purchase Contract Settlement Date, an aggregate 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 Pledged Treasury Securities or the Pledged Applicable
Ownership Interest in a 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 Growth PRIDES or Income PRIDES when received.
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SECTION 4.5 Early Settlement.
(a) Upon written notice to the Collateral Agent by the
Purchase Contract Agent that a Holder of a Security has elected to
effect Early Settlement of its entire obligation under the Purchase
Contract forming a part of such Security in accordance with the terms
of the Purchase Contract and the Purchase Contract Agreement, and that
the Purchase Contract Agent has received from such Holder, and paid to
the Company as confirmed in writing by the Company, the related Early
Settlement Amount pursuant to the terms of the Purchase Contract 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) the Pledged Debt Securities or the appropriate
Pledged Applicable Ownership Interest in a Treasury Portfolio in the
case of a Holder of Income PRIDES or (b) the Pledged Treasury
Securities in the case of a Holder of Growth PRIDES, in each case that
had been components of such Security, and shall transfer such Pledged
Debt Securities or the appropriate Pledged Applicable Ownership
Interest in a 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 such Holder.
(b) Upon a Cash Merger, upon written notice to the
Collateral Agent by the Purchase Contract Agent that a Holder of a
Security has elected to effect a Cash Merger Early Settlement of its
entire obligation under the Purchase Contract forming a part of such
Security in accordance with the terms of the Purchase Contract and the
Purchase Contract Agreement, and that the Purchase Contract Agent has
received from such Holder, and paid to the Company as confirmed in
writing by the Company, the related Early Settlement Amount pursuant to
the terms of the Purchase Contract and the Purchase Contract Agreement
and that all conditions to such Cash Merger Early Settlement have been
satisfied, then the Collateral Agent shall release from the Pledge, (a)
the Pledged Debt Securities or the appropriate Pledged Applicable
Ownership Interest in a Treasury Portfolio in the case of a Holder of
Income PRIDES or (b) the Pledged Treasury Securities in the case of a
Holder of Growth PRIDES, in each case that had been components of such
Security, and shall transfer such Pledged Debt Securities or the
appropriate Pledged Applicable Ownership Interest in a 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 such Holder.
SECTION 4.6 Application of Proceeds; Settlement.
(a) In the event a Holder of Income PRIDES, unless a
Treasury Portfolio has replaced the Debt Securities, has not elected to make an
effective Cash Settlement by notifying the Purchase Contract Agent in the manner
provided for in Section 5.4 of the Purchase Contract Agreement or has not made
an Early Settlement or Cash Merger Early Settlement of the Purchase Contracts
underlying its Income PRIDES, such Holder shall be deemed to have elected to pay
for the shares of Common Stock to be issued under such Purchase Contracts from
the Proceeds of the related Pledged Debt Securities. The Collateral Agent shall
by 10:00 a.m., New
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York City time, on the fourth Business Day immediately preceding the Purchase
Contract Settlement Date, without any instruction from such Holder of Income
PRIDES, present the related Pledged Debt Securities to the Remarketing Agent for
remarketing. Upon receiving such Pledged Debt Securities, the Remarketing Agent
will remarket the Pledged Debt Securities pursuant to the terms of the
Remarketing Agreement. After deducting the Remarketing Fee from any amount of
Proceeds of the remarketing in excess of the aggregate Value of such Debt
Securities, the Remarketing Agent will remit the entire amount of the Proceeds
of a successful 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 the Pledged Debt
Securities, to satisfy in full the obligations of such Holders of Income PRIDES
to pay the Purchase Price to purchase the 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 such remarketing on the third Business Day immediately
preceding the Purchase Contract Settlement Date results in a Failed Remarketing,
the Collateral Agent will, for the benefit of the Company, at the written
direction of the Company, retain or dispose of the Pledged Debt 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 Common
Stock under the related Purchase Contracts.
(b) In the event a Holder of Growth PRIDES or, if a
Treasury Portfolio has replaced the Debt Securities, Income PRIDES, has not made
an Early Settlement of the Purchase Contracts underlying its Growth PRIDES or
Income PRIDES, as the case may be, such Holder shall be deemed to have elected
to pay for the shares of Common Stock to be issued under such Purchase Contracts
from the Proceeds of the related Pledged Treasury Securities or the related
Pledged Applicable Ownership Interest in a Treasury Portfolio, as the case may
be. On the Business Day immediately prior to the Purchase Contract Settlement
Date, the Collateral Agent shall, at the written direction of the Purchase
Contract Agent, invest the Cash proceeds of the maturing Pledged Treasury
Securities or the Pledged Applicable Ownership Interest in a Treasury Portfolio,
as the case may be, in overnight Permitted Investments. Without receiving any
instruction from any such Holder of Growth PRIDES or Income PRIDES, the
Collateral Agent shall apply the Proceeds of the related Pledged Treasury
Securities or Pledged Applicable Ownership Interest in a Treasury Portfolio to
the settlement of the related Purchase Contracts on the Purchase Contract
Settlement Date. In the event the sum of the Proceeds from the related Pledged
Treasury Securities or related Pledged Applicable Ownership Interest in a
Treasury Portfolio 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 on the Purchase Contract Settlement
Date, the Collateral Agent shall distribute such excess, when received, to the
Purchase Contract Agent for the benefit of the Holders.
- 17 -
(c) Pursuant to the Remarketing Agreement, on or prior to
the fifth Business Day immediately preceding each proposed Reset Date, but no
earlier than the tenth Business Day immediately preceding such proposed Reset
Date, holders of Separate Debt Securities may elect to have their Separate Debt
Securities remarketed by delivering the 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 the 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 such proposed Reset Date, upon which notice
the Custodial Agent will return the Separate Debt Securities to such holder. On
the fourth Business Day immediately preceding such proposed Reset 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 the Separate Debt Securities, plus accrued and unpaid interest, if any,
thereon, will automatically be remitted by the Remarketing Agent to the
Custodial Agent for the benefit of the holders of the Separate Debt Securities.
In addition, after deducting the Remarketing Fee from any
amount of such proceeds in excess of the aggregate Value of the remarketed
Separate Debt Securities, the Remarketing Agent will remit to the Custodial
Agent the remaining portion of the proceeds, if any, for the benefit of such
holders. If such remarketing is not successful, the Remarketing Agent will
promptly return the Separate Debt Securities to the Custodial Agent for
redelivery to such holders (which may be remarketed again in any subsequent
remarketing as provided in this Section 4.6(c)).
ARTICLE V
VOTING RIGHTS -- DEBT SECURITIES
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
- 18 -
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; SUBSTITUTION OF A TREASURY PORTFOLIO FOR DEBT
SECURITIES
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 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 and
application of the proceeds in full satisfaction of the Holders' obligations
under the Purchase Contracts.
(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 Pledged
Applicable Ownership Interest of a Treasury Portfolio (as specified in clauses
(1)(i) or (2)(i) of the definition of the term "Applicable Ownership Interest")
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 the Securities of which such Pledged Treasury Securities, or the Pledged
Applicable Ownership Interest of a Treasury Portfolio (as specified in clauses
(1)(i) or (2)(i) of the definition of the term "Applicable Ownership Interest"),
as applicable, is a part under the related Purchase Contracts, the inability to
make such payments shall constitute a default hereunder and the Collateral Agent
shall have and may exercise, with reference to such Pledged Treasury Securities,
or such appropriate Pledged Applicable Ownership Interest of a Treasury
Portfolio (as specified in clauses (1)(i) or (2)(i) of the definition of the
term Applicable Ownership Interest), 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.
- 19 -
(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)
principal of, or interest on, the Pledged Debt Securities, (ii) the principal
amount of the Pledged Treasury Securities, or (iii) the appropriate Pledged
Applicable Ownership Interest in a Treasury Portfolio, subject, in each case, to
the provisions of Article III, and as otherwise provided 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 Income PRIDES or Growth PRIDES, agrees that, from time to time,
upon the written request of the Collateral Agent, the Purchase Contract Agent or
such Holder, it 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 or its own willful misconduct.
SECTION 6.2 Substitution of a Treasury Portfolio for Debt Securities.
(a) 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 Indenture 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 Indenture 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, 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, subject to the provisions of Section 4.3 hereof, 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 Tax Event Treasury Portfolio and promptly remit the
remaining portion of such Redemption Price to the Purchase Contract Agent for
payment to the Holders of Income PRIDES. The Collateral Agent shall Transfer the
Tax Event Treasury Portfolio to the Collateral Account to secure the obligation
of all Holders of Income PRIDES to purchase Common Stock of the Company under
the Purchase Contracts constituting a part of such Income PRIDES, in
substitution for the Pledged Debt Securities. Thereafter the Collateral Agent
shall have such security interests, rights and obligations with respect to the
Tax Event Treasury Portfolio as it had in respect of the Pledged Debt
Securities, as provided in Articles II, III, IV, V and VI hereof, and any
reference herein to the Pledged Debt Securities shall be deemed to be a
reference to such Tax Event Treasury Portfolio.
(b) Upon the successful remarketing of the Debt
Securities on any Remarketing Date, the proceeds of such remarketing (after
deducting any Remarketing Fee) shall be delivered to the Collateral Agent in
exchange for the Pledged Debt Securities. Pursuant to the terms of this
Agreement, except in the event of a successful remarketing that occurs on the
third
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Business Day immediately preceding the Purchase Contract Settlement Date, the
Collateral Agent will apply an amount equal to the Remarketing Treasury
Portfolio Purchase Price to purchase on behalf of the Holders of Income PRIDES
the Remarketing Treasury Portfolio and promptly remit the remaining portion of
such proceeds to the Purchase Contract Agent for payment to the Holders of such
Income PRIDES. The Remarketing Treasury Portfolio will be substituted for the
outstanding Pledged Debt Securities, and will be held by the Collateral Agent in
accordance with the terms of this Agreement to secure the obligation of each
Holder of an Income PRIDES to purchase the Common Stock of the Company on the
Purchase Contract Settlement Date under the Purchase Contract constituting a
part of such Income PRIDES. Following such substitution, the Holders of Income
PRIDES and the Collateral Agent shall have such security interests, rights and
obligations with respect to the Remarketing Treasury Portfolio as the Holder of
Income PRIDES and the Collateral Agent had in respect of the Pledged Debt
Securities subject to the Pledge thereof as provided in Articles II, III, IV, V
and VI hereof, and each reference herein to the Pledged Debt Securities shall be
deemed to be a reference to the Remarketing Treasury Portfolio.
SECTION 6.3 Remarketing.
The Collateral Agent shall, by 10:00 a.m., New York City time,
on the fourth Business Day immediately preceding any proposed Reset Date,
without any instruction from any Holder of Income PRIDES, present the related
Pledged Debt Securities to the Remarketing Agent for remarketing pursuant to the
Remarketing Agreement. Upon receiving such Pledged Debt Securities, the
Remarketing Agent will remarket such Debt Securities pursuant to the terms of
the Remarketing Agreement. If such remarketing is successful, after deducting
the Remarketing Fee from any amount of Proceeds therefrom in excess of the
Remarketing Treasury Portfolio Purchase Price, the Remarketing Agent will remit
the entire amount of the Proceeds of such remarketing to the Collateral Agent on
or prior to 12:00 p.m., New York City time, on the Reset Date. In the event the
Collateral Agent receives such Proceeds, the Collateral Agent will, at the
written direction of the Company, apply an amount equal to the Remarketing
Treasury Portfolio Purchase Price to purchase from the Quotation Agent the
Remarketing Treasury Portfolio and remit the remaining portion of such Proceeds,
if any, to the Purchase Contract Agent for payment to the Holders of Income
PRIDES. The Collateral Agent shall Transfer the Remarketing Treasury Portfolio
to the Collateral Account to secure the obligation of all Holders of Income
PRIDES to purchase Common Stock of the Company under the Purchase Contracts
constituting a part of such Income PRIDES, in substitution for the Pledged Debt
Securities. Thereafter the Collateral Agent shall have such security interests,
rights and obligations with respect to the Remarketing Treasury Portfolio as it
had in respect of the Pledged Debt Securities as provided in Articles II, III,
IV, V and VI hereof, and any reference herein to the Pledged Debt Securities
shall be deemed to be a reference to such Remarketing Treasury Portfolio, and
any reference herein to interest on the Debt Securities shall be deemed to be a
reference to distributions on such Remarketing Treasury Portfolio.
SECTION 6.4 Substitutions.
Whenever a Holder has the right to substitute Treasury
Securities, Debt Securities or the appropriate Applicable Ownership Interest in
a Treasury Portfolio, as the case may be, for
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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
Article II hereof;
(c) upon the Transfer of the Collateral to the Collateral
Account or physical delivery of the Debt Securities to the Collateral Agent, 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 Article II 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:
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(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; and
(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.
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 or incorporated into 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 or incorporated 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 in, or received by it under, this
Agreement, the Securities or the Purchase Contract Agreement (except as
specifically incorporated by reference herein), or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement
(other than as against the Collateral Agent, the Custodial Agent or the
Securities Intermediary), the Securities or the Purchase Contract Agreement or
any other document referred to or provided for herein (except as specifically
incorporated by reference 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,
willful misconduct or bad faith; 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 in
accordance with the terms hereof. 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.
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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 and the 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.
The Collateral Agent shall have no obligation to file UCC
financing statements. Except in the event of the gross negligence, bad faith or
willful misconduct of the Collateral Agent, the Collateral Agent shall not be
responsible for the form, execution, validity, value or genuiness of documents
or securities deposited hereunder, or any description therein, or for the
identity, authority or rights of persons executing or delivering or purporting
to execute or deliver any such document, security or endorsement.
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, telecopy, telex or
facsimile) believed by it to be genuine and 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.
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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 and any Holder of 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 and any Holder of 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.
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 Securities 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
Securities. The Collateral Agent, the Custodial Agent and the Securities
Intermediary shall not have any duty or responsibility to provide the Company
with any credit or other information concerning the affairs, financial condition
or business of the Purchase Contract Agent or any Holder of Securities (or any
of their respective 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, claim or reasonable out-of-pocket expense incurred 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 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
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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 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 without negligence, willful misconduct
or bad faith on its part incur by reason of its acting. 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 notice thereof to the
Company and the Purchase Contract Agent as attorney-in-fact for the Holders of
Securities, (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 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
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Collateral Agent or Custodial Agent, as the case may be, may 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 $75,000,000. Upon the acceptance of any
appointment as Collateral Agent or Custodial Agent hereunder, as the case may
be, 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 as Collateral Agent or Custodial Agent hereunder, the provisions of
this Article VIII 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 VIII 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 any of 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, but not limited
to, 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 or willful misconduct on the part of the Collateral Agent,
the Custodial Agent or the Securities Intermediary.
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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:
(a) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of the
Company; or
(b) 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
(c) to evidence and provide for the acceptance of
appointment hereunder by a successor Collateral Agent, Custodial Agent,
Securities Intermediary or Purchase Contract Agent; or
(d) 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, 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 Securities; provided, however, that no
such supplemental agreement shall, without the consent of the Holder of each
Outstanding Security adversely affected thereby,
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(a) change the amount or type of Collateral underlying a
Security (subject to the rights of Holders to make Collateral
Substitutions as contemplated by Sections 4.1 and 4.2), impair the
right of the Holder of any Security to receive distributions on the
underlying Collateral or otherwise adversely affect the Holder's rights
in or to such Collateral; or
(b) otherwise effect any action that would require the
consent of the Holder of each Outstanding Security affected thereby
pursuant to the Purchase Contract Agreement if such action were
effected by an agreement supplemental thereto; or
(c) 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 Article IX 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 provided with, upon its reasonable request, and
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 IX,
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
Securities 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
Article IX 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.
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ARTICLE X
MISCELLANEOUS
SECTION 10.1 No Waiver.
No failure on the part of the Collateral Agent or any of its
agents to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Collateral Agent 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 Company, the
Securities Intermediary, the Custodial Agent, 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. The Company, the Collateral Agent and the Holders from time
to time of the Securities, acting through the Purchase Contract Agent as their
attorney-in-fact, hereby submit to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New York
state court sitting in New York City for the purposes of all legal proceedings
arising out of or relating to this Agreement or the transactions contemplated
hereby. The Company, the Collateral Agent and the Holders from time to time of
the Securities, acting through the Purchase Contract Agent as their
attorney-in-fact, irrevocably waive, to the fullest extent permitted by
applicable law, any objection which they may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum.
SECTION 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 in the case of Holders, may be made and deemed given as provided in
Sections 1.5 and 1.6 of the Purchase Contract Agreement) or, as to any party, at
such other address as shall be designated by such party in a written notice to
each of 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 (except as aforesaid).
- 30 -
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 Securities, 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 the necessary services of a Securities
Intermediary and 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 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:
- 31 -
(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.
- 32 -
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed as of the day and year first above written.
AMERUS GROUP CO.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman, President and Chief
Executive Officer
Address for Notices:
AmerUs Group Co.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Chief Financial Officer,
with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Senior Vice President and General
Counsel
Telecopy: 515-
WACHOVIA BANK, NATIONAL
ASSOCIATION,
as Purchase Contract Agent and as
attorney-in-fact of the Holders from
time to time of the Securities
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
- 33 -
BNY MIDWEST TRUST COMPANY,
as Collateral Agent, Custodial
Agent and as Securities Intermediary
By: /s/ ▇▇▇▇▇▇ Elwangen
---------------------------------
Name: ▇▇▇▇▇▇ Elwangen
Title: Assistant Vice President
Address for Notices:
BNY Midwest Trust Company
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Institutional Trust Services
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
- 34 -
EXHIBIT A
INSTRUCTION FROM PURCHASE CONTRACT AGENT TO COLLATERAL AGENT
BNY MIDWEST TRUST COMPANY, as Collateral Agent
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Global Trust Services
Re: Securities of AmerUs Group Co. (the "Company")
We hereby notify you in accordance with Section {4.1} {4.2} of the
Pledge Agreement, dated as of May 28, 2003 (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 {Income PRIDES} {Growth PRIDES} from time to time, that the
Holder of securities listed below (the "Holder") has elected to substitute $____
{principal amount at maturity of Treasury Securities} {principal amount of Debt
Securities} {the Applicable Ownership Interest in the {Remarketing} {Tax Event}
Treasury Portfolio} in exchange for an equal Value of {Pledged Debt Securities}
{the Pledged Applicable Ownership Interest in the {Remarketing} {Tax Event}
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 {Debt Securities} {the Applicable Ownership Interest in the
{Remarketing} {Tax Event} Treasury Portfolio} {Treasury Securities} to you, as
Collateral Agent. We hereby instruct you, upon receipt of such {Treasury
Securities} {Debt Securities} {Applicable Ownership Interest in the
{Remarketing} {Tax Event} Treasury Portfolio} so Transferred, to release the
{Pledged Debt Securities} {Pledged Applicable Ownership Interest in the
{Remarketing} {Tax Event} Treasury Portfolio} {Pledged Treasury Securities}
related to such {Income PRIDES} {Growth PRIDES} to us in accordance with the
Holder's instructions. Capitalized terms used herein but not defined shall have
the meaning set forth or incorporated by reference in the Pledge Agreement.
Date:___________________________ By:________________________________________
Name:
Title:
Signature Guarantee:____________________
Please print name and address of registered Holder electing to substitute
{Treasury Securities} {Debt Securities} {Applicable Ownership Interest in a
Treasury Portfolio} for {Pledged Debt Securities or Pledged Applicable Ownership
Interest in a Treasury Portfolio} {Pledged Treasury Securities}:
A-1
______________________________ ___________________________________________
Name Social Security or other Taxpayer
Identification Number, if any
Address
______________________________
______________________________
______________________________
A-2
EXHIBIT B
INSTRUCTION TO PURCHASE CONTRACT AGENT
WACHOVIA BANK, NATIONAL ASSOCIATION
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Re: Securities of AmerUs Group Co. (the "Company")
The undersigned Holder hereby notifies you that it has
delivered to BNY MIDWEST TRUST COMPANY, as Collateral Agent, $____ {principal
amount at maturity of Treasury Securities} {principal amount of Debt Securities}
{of the appropriate Applicable Ownership Interest in the {Remarketing} {Tax
Event} Treasury Portfolio} in exchange for an equal Value of {Pledged Debt
Securities or the Pledged Applicable Ownership Interest in the {Remarketing}
{Tax Event} Treasury Portfolio, as the case may be,} {Pledged Treasury
Securities} held by the Collateral Agent, in accordance with Section {4.1} {4.2}
of the Pledge Agreement, dated as of May 28, 2003 (the "Pledge Agreement"),
among you, the Company and the Collateral Agent. The undersigned Holder hereby
instructs you to instruct the Collateral Agent to release to you on behalf of
the undersigned Holder the {Pledged Debt Securities or the Pledged Applicable
Ownership Interest in the {Remarketing} {Tax Event} Treasury Portfolio} {Pledged
Treasury Securities} related to such {Income PRIDES} {Growth PRIDES}.
Capitalized terms used herein but not defined shall have the meaning set forth
or incorporated by reference in the Pledge Agreement.
Date:_________________________ By:________________________________________
Name:
Title:
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
Re: Securities of AmerUs Group Co. (the "Company")
The undersigned hereby notifies you in accordance with Section 4.6(c)
of the Pledge Agreement, dated as of May 28, 2003 (the "Pledge Agreement"),
among the Company, yourselves, as Collateral Agent, Securities Intermediary and
Custodial Agent, and Wachovia Bank, National Association, as Purchase Contract
Agent and as attorney-in-fact for the Holders of Income PRIDES and Growth PRIDES
from time to time, that the undersigned elects to deliver $________ principal
amount of Debt Securities for delivery to the Remarketing Agent on the Business
Day immediately preceding the Remarketing 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 deliver such Debt Securities 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 or incorporated by reference in the Pledge Agreement.
Date:_________________________ By:________________________________________
Name:
Title:
Signature Guarantee:____________________
C-1
______________________________ ___________________________________________
Name Social Security or other Taxpayer
Identification Number, if any
Address
______________________________
______________________________
______________________________
C-2
A. PAYMENT INSTRUCTIONS B. DELIVERY INSTRUCTIONS
Proceeds of the remarketing should be In the event of a Failed Remarketing,
paid by check in the name of the Debt Securities that are in physical
person(s) set forth below and mailed form should be delivered to the
to the address set forth below. person(s) set forth below and mailed to
the address set forth below.
Name(s) Name(s)
_____________________________________ _______________________________________
(Please Print) (Please Print)
Address Address
_____________________________________ _______________________________________
(Please Print)
_____________________________________ _______________________________________
(Please Print) (Zip Code)
_____________________________________
(Zip Code)
_______________________________________
(Tax Identification or
Social Security Number)
_____________________________________
(Tax Identification or Social
Security Number) In the event of a Failed Remarketing,
Debt Securities that are in book-entry
form should be credited to the account
at The Depositary Trust Company set
forth below.
____________________________________
DTC Account Number
Name of Account
Party:________________________________
C-3
EXHIBIT D
INSTRUCTION TO CUSTODIAL AGENT REGARDING
WITHDRAWAL FROM REMARKETING
BNY Midwest Trust Company, as Custodial Agent
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Global Trust Services
Re: Securities of AmerUs Group Co. (the "Company")
The undersigned hereby notifies you in accordance with Section
4.6(c) of the Pledge Agreement, dated as of May [__], 2003 (the "Pledge
Agreement"), among the Company, yourselves, as Collateral Agent, Securities
Intermediary and Custodial Agent and Wachovia Bank, National Association, as
Purchase Contract Agent and as attorney-in-fact for the Holders of Income PRIDES
and Growth PRIDES from time to time, that the undersigned elects to withdraw the
$_____ principal 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 or incorporated in the Pledge Agreement.
Date:_________________________ By:________________________________________
Name:
Title:
Signature Guarantee:____________________
______________________________ ___________________________________________
Name Social Security or other Taxpayer
Identification Number, if any
Address
______________________________
______________________________
______________________________
D-1