Exhibit 4.8
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
and
JPMORGAN CHASE BANK, as Collateral Agent, Custodial Agent and Securities
Intermediary
and
JPMORGAN CHASE BANK, as Purchase Contract Agent
PLEDGE AGREEMENT
Dated as of May __, 2003
TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions............................................................. 3
ARTICLE 2
PLEDGE
SECTION 2.01. Pledge.................................................................. 8
SECTION 2.02. Control; Financing Statement............................................ 8
SECTION 2.03. Termination............................................................. 8
ARTICLE 3
DISTRIBUTIONS ON PLEDGED COLLATERAL
SECTION 3.01. Income and Distributions................................................ 9
SECTION 3.02. Principal Payments Following Termination Event.......................... 9
SECTION 3.03. Principal Payments Prior to or on Purchase Contract
Settlement Date............................................................... 9
SECTION 3.04. Payments to Purchase Contract Agent.................................... 10
SECTION 3.05. Assets Not Properly Released........................................... 10
ARTICLE 4
CONTROL
SECTION 4.01. Establishment of Collateral Account.................................... 11
SECTION 4.02. Treatment as Financial Assets.......................................... 11
SECTION 4.03. Sole Control by Collateral Agent....................................... 11
SECTION 4.04. Securities Intermediary's Location..................................... 12
SECTION 4.05. No Other Claims........................................................ 12
SECTION 4.06. Investment and Release................................................. 12
SECTION 4.07. Statements and Confirmations........................................... 12
SECTION 4.08. Tax Allocations........................................................ 12
SECTION 4.09. No Other Agreements.................................................... 12
SECTION 4.10. Powers Coupled with an Interest........................................ 13
SECTION 4.11. Waiver of Lien; Waiver of Set-off...................................... 13
ARTICLE 5
INITIAL DEPOSIT; CREATION OF STRIPPED UNITS AND RECREATION OF
NORMAL UNITS
SECTION 5.01. Initial Deposit of Senior Notes........................................ 13
SECTION 5.02. Creation of Stripped Units............................................. 14
PAGE
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SECTION 5.03. Recreation of Normal Units............................................. 15
SECTION 5.04. Termination Event...................................................... 16
SECTION 5.05. Cash Settlement........................................................ 18
SECTION 5.06. Early Settlement and Cash Merger Early Settlement...................... 19
SECTION 5.07. Application of Proceeds in Settlement of Purchase
Contracts.................................................................... 20
SECTION 5.08. Special Event Redemption............................................... 23
ARTICLE 6
VOTING RIGHTS - PLEDGED SENIOR NOTES
SECTION 6.01. Voting Rights.......................................................... 23
ARTICLE 7
RIGHTS AND REMEDIES
SECTION 7.01. Rights and Remedies of the Collateral Agent............................ 24
SECTION 7.02. Special Event Redemption............................................... 25
SECTION 7.03. Initial Remarketing.................................................... 26
SECTION 7.04. Second Remarketing..................................................... 26
SECTION 7.05. Third Remarketing...................................................... 26
SECTION 7.06. Successful Remarketing................................................. 26
SECTION 7.07. Substitutions.......................................................... 27
ARTICLE 8
REPRESENTATIONS AND WARRANTIES; COVENANTS
SECTION 8.01. Representations and Warranties......................................... 27
SECTION 8.02. Covenants.............................................................. 28
ARTICLE 9
THE COLLATERAL AGENT, THE CUSTODIAL AGENT AND THE SECURITIES
INTERMEDIARY
SECTION 9.01. Appointment, Powers and Immunities..................................... 28
SECTION 9.02. Instructions of the Company............................................ 30
SECTION 9.03. Reliance by Collateral Agent and Securities Intermediary............... 30
SECTION 9.04. Certain Rights.......................................................... 30
SECTION 9.05. Merger, Conversion, Consolidation or Succession to
Business .................................................................... 31
SECTION 9.06. Rights in Other Capacities............................................. 31
SECTION 9.07. Non-Reliance on Collateral Agent, the Custodial Agent and
Securities Intermediary...................................................... 31
SECTION 9.08. Compensation and Indemnity............................................. 32
SECTION 9.09. Failure to Act......................................................... 32
PAGE
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SECTION 9.10. Resignation of Collateral Agent, the Custodial Agent and
Securities Intermediary...................................................... 33
SECTION 9.11. Right to Appoint Agent or Advisor...................................... 35
SECTION 9.12. Survival............................................................... 35
SECTION 9.13. Exculpation............................................................ 35
ARTICLE 10
AMENDMENT
SECTION 10.01. Amendment Without Consent of Holders.................................. 36
SECTION 10.02. Amendment with Consent of Holders..................................... 36
SECTION 10.03. Execution of Amendments............................................... 37
SECTION 10.04. Effect of Amendments.................................................. 38
SECTION 10.05. Reference of Amendments............................................... 38
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. No Waiver............................................................. 38
SECTION 11.02. Governing Law; Submission to Jurisdiction............................. 38
SECTION 11.03. Notices............................................................... 39
SECTION 11.04. Successors and Assigns................................................ 39
SECTION 11.05. Counterparts.......................................................... 39
SECTION 11.06. Severability.......................................................... 39
SECTION 11.07. Expenses, Etc......................................................... 40
SECTION 11.08. Security Interest Absolute............................................ 40
SECTION 11.09. Notice of Special Event, Special Event Redemption and
Termination Event............................................................ 41
Exhibit A - Instruction from Purchase Contract Agent to Collateral Agent
(Creation of Stripped Units)
Exhibit B - Instruction from Collateral Agent to Securities Intermediary
(Creation of Stripped Units)
Exhibit C - Instruction from Purchase Contract Agent to Collateral Agent
(Recreation of Normal Units)
Exhibit D - Instruction from Collateral Agent to Securities Intermediary
(Recreation of Normal Units)
Exhibit E - Notice of Cash Settlement from Securities Intermediary to Purchase
Contract Agent (Cash Settlement Amounts)
Exhibit F - Instruction to Custodial Agent
(Regarding Remarketing)
Exhibit G - Instruction to Custodial Agent
(Withdrawal from Remarketing)
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of May __, 2003, among THE HARTFORD FINANCIAL
SERVICES GROUP, INC., a Delaware corporation (the "COMPANY"), JPMORGAN CHASE
BANK, a New York banking corporation, 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 securities intermediary (as defined in
Sections 8-102(a)(14) of the UCC) with respect to the Collateral Account (in
such capacity, together with its successors in such capacity, the "SECURITIES
INTERMEDIARY"), and JPMORGAN CHASE BANK, a New York banking corporation, as
purchase contract agent and as attorney-in-fact of the Holders from time to time
of the Units (in such capacity, together with its successors in such capacity,
the "PURCHASE CONTRACT AGENT") under the Purchase Contract Agreement (as defined
below).
RECITALS
WHEREAS, 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 12,000,000 (or 13,800,000 if the over-allotment
option granted to the Underwriters pursuant to the Underwriting Agreement is
exercised in full) Normal Units will be issued.
WHEREAS, each Normal Unit, at issuance, consists of a unit comprised of
(a) a stock purchase contract (a "PURCHASE CONTRACT") pursuant to which the
Holder will purchase from the Company on the Purchase Contract Settlement Date,
for an amount equal to $50.00 (the "STATED AMOUNT"), a number of shares of the
Company's common stock, par value $0.01 per share ("COMMON STOCK"), equal to the
Settlement Rate and (b) an Applicable Ownership Interest in Senior Notes.
WHEREAS, pursuant to the terms of the Purchase Contract Agreement and the
Purchase Contracts, the Holders of the Units have irrevocably authorized the
Purchase Contract Agent, as attorney-in-fact of such Holders, among other
things, to execute and deliver this Agreement on behalf of such Holders and to
grant the pledge provided herein of the Collateral to secure the Obligations.
NOW, THEREFORE, the Company, the Collateral Agent, the Custodial Agent,
the Securities Intermediary and the Purchase Contract Agent agree as follows:
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the words "HEREIN," "HEREOF" and "HEREUNDER" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision;
(b) the following terms which are defined in the UCC shall have the
meanings set forth therein: "CERTIFICATED SECURITY," "CONTROL," "FINANCIAL
ASSET," "ENTITLEMENT ORDER," "SECURITIES ACCOUNT" and "SECURITY ENTITLEMENT";
(c) capitalized terms used herein and not defined herein have the meanings
assigned to them in the Purchase Contract Agreement; and
(d) the following terms have the meanings given to them in this Section
1.01(d):
"AGREEMENT" means this Pledge Agreement, as the same may be amended,
modified or supplemented from time to time.
"CASH" means any coin or currency of the United States of America as at
the time shall be legal tender for payment of public and private debts.
"COLLATERAL" means the collective reference to:
(i) the Collateral Account and all investment property and other
financial assets from time to time credited to the Collateral Account,
including, without limitation, (A) the Applicable Ownership Interests in
Senior Notes and security entitlements relating thereto that are a
component of the Normal Units from time to time, and the aggregate
principal amount of Senior Notes underlying the Applicable Ownership
Interests in Senior Notes and securities entitlements relating thereto
from time to time (B) the Applicable Ownership Interests in the Treasury
Portfolio (as specified in clause (i) of the definition of such term) of
the Holders which are a component of the Normal Units from time to time;
(C) any Treasury Securities and security entitlements relating thereto
delivered from time to time upon creation of Stripped Units in
accordance
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with Section 5.02 hereof and (D) payments made by Holders pursuant to
Section 5.05 hereof;
(ii) all Proceeds of any of the foregoing (whether such Proceeds
arise before or after the commencement of any proceeding under any
applicable bankruptcy, insolvency or other similar law, by or against the
pledgor or with respect to the pledgor); and
(iii) all powers and rights now owned or hereafter acquired under or
with respect to the Collateral.
"COLLATERAL ACCOUNT" means the securities account of JPMorgan Chase Bank,
a New York banking corporation, as Collateral Agent, maintained by the
Securities Intermediary and designated "JPMorgan Chase Bank, as Collateral Agent
of The Hartford Financial Services Group, Inc., as pledgee of JPMorgan Chase
Bank, as the Purchase Contract Agent on behalf of and as attorney-in-fact for
the Holders".
"COMPANY" means the Person named as the "Company" in the first paragraph
of this instrument until a successor shall have become such pursuant to the
applicable provisions of the Purchase Contract Agreement, and thereafter
"Company" shall mean such successor.
"NORMAL UNIT" means the collective rights and obligations of a Holder of a
Normal Units Certificate in respect of an Applicable Ownership Interest in
Senior Notes or an Applicable Ownership Interest in the Treasury Portfolio, as
the case may be, subject in each case to the Pledge thereof, and the related
Purchase Contract; provided that the appropriate Applicable Ownership Interest
in the Treasury Portfolio (as specified in clause (ii) of the definition of such
term) shall not be subject to the Pledge.
"NORMAL UNITS CERTIFICATE " means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Normal Units specified on
such certificate.
"OBLIGATIONS" means, with respect to each Holder, all obligations and
liabilities of such Holder under such Holder's Purchase Contract, the Purchase
Contract Agreement and this Agreement or any other document made, delivered or
given in connection herewith or therewith, in each case whether on account of
principal, interest (including, without limitation, interest accruing before and
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to such Holder, whether
or not a claim for post-filing or post- petition interest is allowed in such
proceeding), fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees
4
and disbursements of counsel to the Company or the Collateral Agent or the
Securities Intermediary that are required to be paid by the Holder pursuant to
the terms of any of the foregoing agreements).
"PERMITTED INVESTMENTS" means any one of the following, in each case
maturing on the Business Day following the date of acquisition:
(1) 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 of the timely payment thereof or such indebtedness
constitutes a general obligation of it);
(2) 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 $500 million at the time of deposit
(and which may include the Collateral Agent);
(3) 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 (2);
(4) repurchase agreements and reverse repurchase agreements relating
to marketable direct obligations issued or unconditionally guaranteed by
the United States of America or issued by any agency thereof and backed as
to timely payment by the full faith and credit of the United States of
America;
(5) investments in commercial paper, other than commercial paper
issued by the Company or its affiliates, of any corporation incorporated
under the laws of the United States or any State thereof, which commercial
paper has a rating at the time of purchase at least equal to "A-1" by
Standard & Poor's Ratings Services ("S&P") or at least equal to "P-1" by
▇▇▇▇▇'▇ Investors Service, Inc. ("MOODY'S"); and
(6) investments in money market funds (including, but not limited
to, money market funds managed by the Collateral Agent or an affiliate of
the Collateral Agent) registered under the Investment Company Act of 1940,
as amended, rated in the highest applicable rating category by S&P or
Moody's.
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"PERSON" means any legal person, including, without limitation, any
individual, corporation, estate, partnership, joint venture, association,
joint-stock company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"PLEDGE" means the lien and security interest created by this Agreement.
"PLEDGED APPLICABLE OWNERSHIP INTERESTS IN SENIOR NOTES" means the
Applicable Ownership Interests in Senior Notes of the Holders and security
entitlements with respect thereto from time to time credited to the Collateral
Account and not then released from the Pledge.
"PLEDGED APPLICABLE OWNERSHIP INTERESTS IN THE TREASURY PORTFOLIO" means
the Applicable Ownership Interests in the Treasury Portfolio (as specified in
clause (i) of the definition of such term) and security entitlements with
respect thereto from time to time credited to the Collateral Account and not
then released from the Pledge.
"PLEDGED SENIOR NOTES" means Senior Notes underlying the Pledged
Applicable Ownership Interests in Senior Notes and security entitlements with
respect thereto from time to time credited to the Collateral Account and not
then released from the Pledge.
"PLEDGED SECURITIES" means the Pledged Senior Notes, the Pledged
Applicable Ownership Interests in Senior Notes, the Pledged Applicable Ownership
Interests in the Treasury Portfolio and the Pledged Treasury Securities,
collectively.
"PLEDGED TREASURY SECURITIES" means Treasury Securities and security
entitlements with respect thereto from time to time credited to the Collateral
Account and not then released from the Pledge.
"PROCEEDS" has the meaning ascribed thereto in the UCC and includes,
without limitation, all interest, dividends, cash, instruments, securities,
financial assets and other property received, receivable or otherwise
distributed upon the sale, exchange, collection or disposition of any financial
assets from time to time held in the Collateral Account.
"PURCHASE CONTRACT AGENT" has the meaning specified in the paragraph
preceding the recitals of this Agreement.
"SENIOR NOTES" means the series of notes designated the senior notes due
August 16, 2008 to be issued by the Company under the Indenture.
6
"SEPARATE SENIOR NOTES" means Senior Notes held separately from Normal
Units.
"STRIPPED UNIT" means, following the substitution of Treasury Securities
for Applicable Ownership Interests in Senior Notes and the related Senior Notes
or Applicable Ownership Interests in the Treasury Portfolio as collateral to
secure a Holder's obligations under the Purchase Contract, the collective rights
and obligations of a Holder of a Stripped Units Certificate in respect of such
Treasury Securities, subject to the Pledge thereof, and the related Purchase
Contract.
"STRIPPED UNITS CERTIFICATE" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Stripped Units specified on
such certificate.
"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 (i) in the case of certificated securities in registered
form, delivery as provided in Section 8-301(a) of the UCC, indorsed to the
transferee or in blank by an effective endorsement; (ii) in the case of Treasury
Securities, registration of the transferee as the owner of such Treasury
Securities on TRADES; and (iii) in the case of security entitlements, including,
without limitation, security entitlements with respect to Treasury Securities, a
securities intermediary indicating by book entry that such security entitlement
has been credited to the transferee's securities account.
"TREASURY SECURITIES" means zero-coupon U.S. treasury securities that
mature on August 15, 2006 (CUSIP No. ▇▇▇▇▇▇▇▇▇).
"UCC" means the Uniform Commercial Code as in effect in the State of New
York from time to time.
"VALUE" means, with respect to any item of Collateral on any date, as to
(1) Cash, the face amount thereof, (2) Treasury Securities or Senior Notes, the
aggregate principal amount thereof at maturity, (3) Applicable Ownership
Interests in the Treasury Portfolio (as specified in clause (i) of the
definition of such term), the appropriate percentage of the aggregate principal
amount at
7
maturity of the Treasury Portfolio and (4) Applicable Ownership Interests in
Senior Notes, the appropriate percentage of the aggregate principal amount of
the related Pledged Senior Notes.
ARTICLE 2
PLEDGE
SECTION 2.01. Pledge. Each Holder, acting through the Purchase Contract
Agent as such Holder's attorney-in-fact, and the Purchase Contract Agent, acting
as such attorney-in-fact and to the extent of its ownership of the Senior Notes,
hereby pledges and grants to the Collateral Agent, as agent of and for the
benefit of the Company, a continuing first priority security interest in and to,
and a lien upon and right of set-off against, all of such Person's right, title
and interest in and to the Collateral (including, for the avoidance of doubt,
such Person's Applicable Ownership Interest in Senior Notes) to secure the
prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of the Obligations. The Collateral Agent
shall have all of the rights, remedies and recourses with respect to the
Collateral afforded a secured party by the UCC, in addition to, and not in
limitation of, the other rights, remedies and recourses afforded to the
Collateral Agent by this Agreement.
SECTION 2.02. Control; Financing Statement.
(a) The Collateral Agent shall have control of the Collateral Account
pursuant to the provisions of Article 4 of this Agreement.
(b) Subsequent to the date of initial issuance of the Units, the Purchase
Contract Agent shall deliver to the Collateral Agent a copy of the financing
statement prepared by the Company and filed in the Office of the Secretary of
State of the State of New York and any other jurisdictions which the Company
deems necessary, authorized by the Purchase Contract Agent, as attorney-in-fact
for the Holders, as Debtors, and describing the Collateral, such filing to be
undertaken by the Company.
SECTION 2.03. Termination. As to each Holder, this Agreement and the
Pledge created hereby shall terminate upon the satisfaction of such Holder's
Obligations. Upon such termination, the Collateral Agent shall Transfer such
Holder's portion of the Collateral to the Purchase Contract Agent for
distribution to such Holder, free and clear of the Pledge created hereby.
8
ARTICLE 3
DISTRIBUTIONS ON PLEDGED COLLATERAL
SECTION 3.01. Income and Distributions. The Collateral Agent shall
transfer all income and distributions received by the Collateral Agent on
account of the Pledged Senior Notes, the Pledged Applicable Ownership Interests
in the Treasury Portfolio or Permitted Investments from time to time held in the
Collateral Account (ABA No. ▇▇▇▇▇▇▇▇▇, A/C No. ▇▇▇▇▇▇▇▇▇▇, Re: The Hartford
Financial Services Group, Inc.) to the Purchase Contract Agent for distribution
to the applicable Holders as provided in the Purchase Contracts or Purchase
Contract Agreement.
SECTION 3.02. Principal Payments Following Termination Event. Following a
Termination Event, the Collateral Agent shall transfer all principal payments it
receives, if any, in respect of (1) the Pledged Applicable Ownership Interests
in the Treasury Portfolio and the Pledged Senior Notes, and (2) the Pledged
Treasury Securities, to the Purchase Contract Agent for the benefit of the
applicable Holders for distribution to such Holders in accordance with their
respective interests, free and clear of the Pledge created hereby.
SECTION 3.03. Principal Payments Prior to or on Purchase Contract
Settlement Date.
(a) Subject to the provisions of Sections 5.06 and 5.08, and except as
provided in clause 3.03(b) below, if no Termination Event shall have occurred,
all principal payments received by the Collateral Agent in respect of (1) the
Pledged Senior Notes, (2) the Pledged Applicable Ownership Interests in the
Treasury Portfolio and (3) the Pledged Treasury Securities, shall be held and
invested in Permitted Investments until the Purchase Contract Settlement Date,
and transferred to the Company on the Purchase Contract Settlement Date as
provided in Section 5.07 hereof. Any balance remaining in the Collateral Account
shall be released from the Pledge and transferred to the Purchase Contract Agent
for the benefit of the applicable Holders for distribution to such Holders in
accordance with their respective interests, free and clear of the Pledge created
thereby. The Company shall instruct the Collateral Agent in writing as to the
type of Permitted Investments in which any payments made under this Section
shall be invested, provided, however, that if the Company fails to
deliver such instructions by 10:30 a.m. (New York City time) on the day such
payments are received by the Collateral Agent, the Collateral Agent shall invest
such payments in the Permitted Investments described in clause (6) of the
definition of Permitted Investments. In no event shall the Collateral Agent be
liable for the selection of Permitted Investments or for investment losses
incurred thereon. The Collateral Agent shall
9
have no liability in respect of losses incurred as a result of the failure of
the Company to provide timely written investment direction.
(b) All principal payments received by the Collateral Agent in respect of
(1) the Pledged Senior Notes, (2) the Applicable Ownership Interests in the
Treasury Portfolio (as specified in clause (i) of the definition of such term)
and (3) the Treasury Securities or security entitlements thereto, that, in each
case, have been released from the Pledge pursuant hereto shall be transferred to
the Purchase Contract Agent for the benefit of the applicable Holders for
distribution to such Holders in accordance with their respective interests.
SECTION 3.04. Payments to Purchase Contract Agent. The Collateral Agent
shall use all commercially reasonable efforts to deliver payments to the
Purchase Contract Agent hereunder to the account designated by the Purchase
Contract Agent for such purpose not later than 12:00 p.m. (New York City time)
on the Business Day such payment is received by the Collateral Agent; provided,
however, that if such payment is received on a day that is not a Business Day or
after 11:00 a.m. (New York City time) on a Business Day, then the Collateral
Agent shall use all commercially reasonable efforts to deliver such payment to
the Purchase Contract Agent no later than 10:30 a.m. (New York City time) on the
next succeeding Business Day.
SECTION 3.05. Assets Not Properly Released. If the Purchase Contract Agent
or any Holder shall receive any principal payments on account of financial
assets credited to the Collateral Account and not released therefrom in
accordance with this Agreement, the Purchase Contract Agent or such Holder shall
hold the same as trustee of an express trust for the benefit of the Company and,
upon receipt of an Officers' Certificate of the Company so directing, promptly
deliver the same to the Collateral Agent for credit to the Collateral Account or
to the Company for application to the Obligations of the Holders, and the
Purchase Contract Agent and Holders shall acquire no right, title or interest in
any such payments of principal amounts so received. The Purchase Contract Agent
shall have no liability under this Section 3.05 unless and until it has been
notified in writing that such payment was delivered to it erroneously and shall
have no liability for any action taken, suffered or omitted to be taken prior to
its receipt of such notice.
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ARTICLE 4
CONTROL
SECTION 4.01. Establishment of Collateral Account. The Securities
Intermediary hereby confirms that:
(a) the Securities Intermediary has established the Collateral Account;
(b) the Collateral Account is a securities account;
(c) subject to the terms of this Agreement, the Securities Intermediary
shall identify in its records the Collateral Agent as the entitlement holder
entitled to exercise the rights that comprise any financial asset credited to
the Collateral Account;
(d) all property delivered to the Securities Intermediary pursuant to
this Agreement or the Purchase Contract Agreement will be credited promptly to
the Collateral Account; and
(e) all securities or other property underlying any financial assets
credited to the Collateral Account shall be (i) registered in the name of the
Purchase Contract Agent and indorsed to the Collateral Agent or in blank, (ii)
registered in the name of the Collateral Agent or (iii) credited to another
securities account maintained in the name of the Collateral Agent. The
Collateral Agent may, at any time or from time to time, in its sole discretion,
cause any or all securities or other property underlying any financial assets
credited to the Collateral Account not registered in its name to be so
registered in its name. In no case will any financial asset credited to the
Collateral Account be registered in the name of the Purchase Contract Agent or
any Holder or specially indorsed to the Purchase Contract Agent or any Holder.
SECTION 4.02. Treatment as Financial Assets. 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.
SECTION 4.03. Sole Control by Collateral Agent. Except as provided in
Section 6.01, at all times prior to the termination of the Pledge, the
Collateral Agent shall have sole control of the Collateral Account, and the
Securities Intermediary shall take instructions and directions with respect to
the Collateral Account solely from the Collateral Agent. If at any time the
Securities Intermediary shall receive an entitlement order issued by the
Collateral Agent and relating to the Collateral Account, the Securities
Intermediary shall comply with such entitlement order without further consent by
the Purchase Contract Agent or
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any Holder or any other Person. Except as otherwise permitted under this
Agreement, until termination of the Pledge, the Securities Intermediary will not
comply with any entitlement orders issued by the Purchase Contract Agent or any
Holder.
SECTION 4.04. Securities Intermediary's Location. The Collateral Account,
and the rights and obligations of the Securities Intermediary, the Collateral
Agent, the Purchase Contract Agent and the Holders with respect thereto, shall
be governed by the laws of the State of New York. Regardless of any provision in
any other agreement, for purposes of the UCC, New York shall be deemed to be the
Securities Intermediary's location.
SECTION 4.05. No Other Claims. Except for the claims and interest of the
Collateral Agent and of the Purchase Contract Agent and the Holders in the
Collateral Account, the Securities Intermediary (without any duty to
investigate) does not know of any claim to, or interest in, the Collateral
Account or in any financial asset credited thereto. If any Person asserts any
lien, encumbrance or adverse claim (including any writ, garnishment, judgment,
warrant of attachment, execution or similar process) against the Collateral
Account or in any financial asset carried therein, the Securities Intermediary
will promptly notify the Collateral Agent and the Purchase Contract Agent.
SECTION 4.06. Investment and Release. All proceeds of financial assets
from time to time deposited in the Collateral Account shall be invested and
reinvested as provided in this Agreement. At all times prior to termination of
the Pledge, no property shall be released from the Collateral Account except in
accordance with this Agreement or upon written instructions of the Collateral
Agent.
SECTION 4.07. Statements and Confirmations. The Securities Intermediary
will promptly send copies of all statements, confirmations and other
correspondence concerning the Collateral Account and any financial assets
credited thereto simultaneously to each of the Purchase Contract Agent and the
Collateral Agent at their addresses for notices under this Agreement.
SECTION 4.08. Tax Allocations. The Purchase Contract Agent shall report
all items of income, gain, expense and loss recognized in the Collateral
Account, to the extent such reporting is required by law, to the Internal
Revenue Service authorities in the manner required by law. Neither the
Securities Intermediary nor the Collateral Agent shall have any tax reporting
duties hereunder.
SECTION 4.09. No Other Agreements. The Securities Intermediary has not
entered into, and prior to the termination of the Pledge will not enter into,
any
12
agreement with any other Person relating to the Collateral Account or any
financial assets credited thereto, including, without limitation, any agreement
to comply with entitlement orders of any Person other than the Collateral Agent.
SECTION 4.10. Powers Coupled with an Interest. The rights and powers
granted in this Article 4 to the Collateral Agent have been granted in order to
perfect its security interests in the Collateral Account, are powers coupled
with an interest and will be affected neither by the bankruptcy of the Purchase
Contract Agent or any Holder nor by the lapse of time. The obligations of the
Securities Intermediary under this Article 4 shall continue in effect until the
termination of the Pledge.
SECTION 4.11. Waiver of Lien; Waiver of Set-off. The Securities
Intermediary waives any security interest, lien or right to make deductions or
setoffs that it may now have or hereafter acquire in or with respect to the
Collateral Account, any financial asset credited thereto or any security
entitlement in respect thereof. Neither the financial assets credited to the
Collateral Account nor the security entitlements in respect thereof will be
subject to deduction, set-off, banker's lien, or any other right in favor of any
Person other than the Company.
ARTICLE 5
INITIAL DEPOSIT; CREATION OF STRIPPED UNITS AND RECREATION
OF NORMAL UNITS
SECTION 5.01. Initial Deposit of Senior Notes. (a) Prior to or
concurrently with the execution and delivery of this Agreement, the Purchase
Contract Agent, on behalf of the initial Holders of the Normal Units, shall
Transfer to the Collateral Agent, for credit to the Collateral Account, the
Applicable Ownership Interests in Senior Notes and the aggregate principal
amount of Senior Notes underlying the Applicable Ownership Interests in Senior
Notes or, in each case, security entitlements relating thereto, and, in the case
of security entitlements, the Securities Intermediary shall indicate by
book-entry that a securities entitlement to such Applicable Ownership Interest
in Senior Notes and such Senior Notes has been credited to the Collateral
Account.
(b) Unless any Event of Default (as defined in the Indenture) shall have
occurred and be continuing, the Collateral Agent agrees to hold any Pledged
Senior Notes or security entitlements relating thereto, constituting a portion
of the Collateral registered in the name of the Purchase Contract Agent, as
attorney-in-fact for the Holders, with appropriate indorsement in the form
delivered to it and
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shall not re-register Pledged Applicable Ownership Interests in Senior Notes or
Pledged Senior Notes or security entitlements relating thereto unless an Event
of Default shall have occurred and be continuing.
SECTION 5.02. Creation of Stripped Units.
(a) So long as the Applicable Ownership Interests in the Treasury
Portfolio have not replaced the Applicable Ownership Interests in Senior Notes
as components of the Normal Units, a Holder of Normal Units shall have the
right, at any time prior to 5:00 p.m. (New York City time) on the fifth Business
Day immediately preceding the Purchase Contract Settlement Date, to create
Stripped Units by substitution of Treasury Securities or security entitlements
with respect thereto for the Pledged Applicable Ownership Interests in Senior
Notes comprising a part of such Holder's Normal Units, in integral multiples of
20 Normal Units by:
(i) Transferring to the Collateral Agent for credit to the
Collateral Account Treasury Securities or security entitlements with
respect thereto having a Value equal to the aggregate principal amount of
the Pledged Senior Notes underlying the Pledged Applicable Ownership
Interests in Senior Notes to be released, accompanied by a notice,
substantially in the form of Exhibit C to the Purchase Contract Agreement,
whereupon the Purchase Contract Agent shall deliver to the Collateral
Agent a notice, substantially in the form of Exhibit A hereto, (A) stating
that such Holder has notified the Purchase Contract Agent that such Holder
has Transferred Treasury Securities or security entitlements with respect
thereto to the Collateral Agent for credit to the Collateral Account, (B)
stating the Value of the Treasury Securities or security entitlements with
respect thereto Transferred by such Holder and (C) requesting that the
Collateral Agent release from the Pledge the Pledged Applicable Ownership
Interests in Senior Notes that are a component of such Normal Units and
the aggregate principal amount of Pledged Senior Notes related thereto;
and
(ii) delivering the related Normal Units to the Purchase Contract
Agent.
Upon receipt of such notice and confirmation that Treasury Securities or
security entitlements with respect thereto have been credited to the Collateral
Account as described in such notice, the Collateral Agent shall instruct the
Securities Intermediary by a notice, substantially in the form of Exhibit B, to
release such Pledged Applicable Ownership Interests in Senior Notes and the
aggregate principal amount of Pledged Senior Notes related thereto; from the
14
Pledge by Transfer of such Senior Notes to the Purchase Contract Agent for
distribution to such Holder, free and clear of the Pledge created hereby.
If the Applicable Ownership Interests in the Treasury Portfolio have
replaced the Applicable Ownership Interests in Senior Notes as components of the
Normal Units and subject to the conditions of the Purchase Contract Agreement, a
Holder may, at any time on or prior to the second Business Day immediately
preceding the Purchase Contract Settlement Date, substitute Treasury Securities
for the Pledged Applicable Ownerships Interests in the Treasury Portfolio with
respect to such Normal Units, but only in multiples of 12,500 Normal Units. In
such an event, the Holder shall Transfer Treasury Securities having a Value
equal to the aggregate Stated Amount of the Purchase Contracts comprising a
component of such Normal Units to the Collateral Agent, and the Purchase
Contract Agent shall instruct the Collateral Agent to release the Pledge of and
transfer to the Holder the appropriate Applicable Ownership Interests in the
Treasury Portfolio in the manner set forth above.
(b) Upon credit to the Collateral Account of Treasury Securities or
security entitlements with respect thereto delivered by a Holder of Normal Units
and receipt of the related instruction from the Collateral Agent, the Securities
Intermediary shall release such Pledged Applicable Ownership Interests in Senior
Notes and the aggregate principal amount of Pledged Senior Notes related thereto
or such Pledged Applicable Ownership Interests in the Treasury Portfolio, as the
case may be, and shall promptly Transfer the same to the Purchase Contract Agent
for distribution to such Holder, free and clear of the Pledge created hereby.
SECTION 5.03. Recreation of Normal Units.
(a) So long as the Applicable Ownership Interests in the Treasury
Portfolio have not replaced the Applicable Ownership Interests in Senior Notes
as components of the Normal Units, at any time prior to 5:00 p.m. (New York City
time) on the fifth Business Day immediately preceding the Purchase Contract
Settlement Date, a Holder of Stripped Units shall have the right to recreate
Normal Units by substitution of Applicable Ownership Interests in Senior Notes
and an aggregate principal amount of Senior Notes underlying such Applicable
Ownership Interests in Senior Notes or security entitlements with respect
thereto for Pledged Treasury Securities in integral multiples of 20 Stripped
Units by:
(i) Transferring to the Collateral Agent for credit to the
Collateral Account Applicable Ownership Interests in Senior Notes and
related Senior Notes or security entitlements with respect thereto having
a Value equal to the Value of the Pledged Treasury Securities to be
released, accompanied by a notice, substantially in the form of Exhibit C
to the Purchase Contract Agreement, whereupon the Purchase Contract Agent
15
shall deliver to the Collateral Agent a notice, substantially in the form
of Exhibit C hereto, stating that such Holder has Transferred the
Applicable Ownership Interests in Senior Notes and related Senior Notes or
security entitlements with respect thereto to the Collateral Account for
credit to the Collateral Account and requesting that the Collateral Agent
release from the Pledge the Pledged Treasury Securities related to such
Stripped Units; and
(ii) delivering the related Stripped Units to the Purchase Contract
Agent.
Upon receipt of such notice and confirmation that the Applicable Ownership
Interests in Senior Notes and Senior Notes or security entitlements with respect
thereto have been credited to the Collateral Account as described in such
notice, the Collateral Agent shall instruct the Securities Intermediary by a
notice substantially in the form of Exhibit D hereto to release such Pledged
Treasury Securities from the Pledge by Transfer to the Purchase Contract Agent
for distribution to such Holder, free and clear of the Pledge created hereby.
If the Applicable Ownership Interests in the Treasury Portfolio have
replaced the Applicable Ownership Interests in Senior Notes as components of the
Normal Units, a Holder may, at any time on or prior to the second Business Day
immediately preceding the Purchase Contract Settlement Date, substitute
Applicable Ownership Interests in the Treasury Portfolio for Pledged Treasury
Securities, but only in multiples of 12,500 Stripped Units. In such an event,
the Holder shall Transfer the Applicable Ownership Interests in the Treasury
Portfolio to the Collateral Agent in an amount such that the Value of such
Applicable Ownership Interests in the Treasury Portfolio (as specified in clause
(i) of the definition of such term) is equal to the aggregate Stated Amount of
the Purchase Contracts underlying such Stripped Units, and the Purchase Contract
Agent shall instruct the Collateral Agent to release and transfer to the Holder
the appropriate Treasury Securities in the manner set forth above.
(b) Upon credit to the Collateral Account of the Applicable Ownership
Interests in Senior Notes and the related Senior Notes or the Applicable
Ownership Interests in the Treasury Portfolio, as the case may be, or security
entitlements with respect thereto delivered by a Holder of Stripped Units and
receipt of the related instruction from the Collateral Agent, the Securities
Intermediary shall release such Pledged Treasury Securities or Applicable
Ownership Interests in the Treasury Portfolio and shall promptly Transfer the
same to the Purchase Contract Agent for distribution to such Holder, free and
clear of the Pledge created hereby.
SECTION 5.04. Termination Event.
16
(a) Upon receipt by the Collateral Agent of written notice from the
Company or the Purchase Contract Agent that a Termination Event has occurred,
the Collateral Agent shall release all Collateral from the Pledge and shall
promptly Transfer:
(i) any Pledged Applicable Ownership Interests in Senior Notes and
Pledged Senior Notes or security entitlements with respect thereto;
(ii) any Pledged Applicable Ownership Interests in the Treasury
Portfolio or security entitlements with respect thereto;
(iii) any Pledged Treasury Securities, and
(iv) any payments by Holders (or the Permitted Investments of such
payments) pursuant to Section 5.05 hereof,
to the Purchase Contract Agent for the benefit of the Holders for distribution
to such Holders, in accordance with their respective interests, free and clear
of the Pledge created hereby; provided, however, if any Holder shall be entitled
to receive less than $1,000 with respect to its interest in the Applicable
Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the
definition of such term), the Purchase Contract Agent shall have the right (but
not the obligation) to dispose of such interest for cash and deliver to such
Holder cash in lieu of delivering the Applicable Ownership Interests in the
Treasury Portfolio (as specified in clause (i) of the definition of such term).
(b) If such Termination Event shall result from the Company's becoming a
debtor under the Bankruptcy Code, and if the Collateral Agent shall for any
reason fail promptly to effectuate the release and Transfer of all Collateral
and Proceeds of any of the foregoing, as the case may be, as provided by this
Section 5.04, the Purchase Contract Agent shall:
(i) use its best efforts to obtain an opinion of a nationally
recognized law firm reasonably acceptable to the Collateral Agent to the
effect that, notwithstanding the Company's being the debtor in such a
bankruptcy case, the Collateral Agent will not be prohibited from
releasing or Transferring the Collateral as provided in this Section 5.04,
and shall deliver or cause to be delivered such opinion to the Collateral
Agent within ten days after the occurrence of such Termination Event, and
if (A) the Purchase Contract Agent shall be unable to obtain such opinion
within ten days after the occurrence of such Termination Event or (B) the
Collateral Agent shall continue, after delivery of such opinion, to refuse
to effectuate the release and Transfer of all Collateral and Proceeds of
any of
17
the foregoing, as the case may be, as provided in this Section 5.04, then
the Purchase Contract Agent shall within fifteen days after the occurrence
of such Termination Event commence an action or proceeding in the court
having 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 Collateral and Proceeds of any of the foregoing, or as
the case may be, as provided by this Section 5.04; or
(ii) commence an action or proceeding like that described in clause
5.04(b)(i) hereof within ten days after the occurrence of such Termination
Event.
SECTION 5.05. Cash Settlement.
(a) Upon receipt by the Collateral Agent of (1) a notice from the Purchase
Contract Agent promptly after the receipt by the Purchase Contract Agent of a
notice from a Holder of Normal Units that such Holder has elected, in accordance
with the procedures specified in Section 5.02(c)(i) of the Purchase Contract
Agreement, to effect a Cash Settlement and (2) payment by such Holder by deposit
in the Collateral Account prior to 11:00 a.m. (New York City time) on the fourth
Business Day immediately preceding the Purchase Contract Settlement Date of the
Purchase Price in lawful money of the United States of America by certified or
cashier's check or wire transfer of immediately available funds payable to or
upon the order of the Securities Intermediary, then the Collateral Agent shall:
(i) instruct the Securities Intermediary promptly to invest any such
Cash in Permitted Investments;
(ii) instruct the Securities Intermediary to release from the Pledge
such Holder's Pledged Applicable Ownership Interests in Senior Notes and
the aggregate principal amount of Pledged Senior Notes underlying such
Pledged Applicable Ownership Interests in Senior Notes related to the
Normal Units, as to which such Holder has effected a Cash Settlement
pursuant to this Section 5.05(a); and
(iii) instruct the Securities Intermediary to Transfer all such
Pledged Applicable Ownership Interests in Senior Notes and such Pledged
Senior Notes to the Purchase Contract Agent for distribution to such
Holder, in each case free and clear of the Pledge created hereby.
A Holder of Normal Units may only affect a Cash Settlement in integral
multiples of 20 Units. The Company shall instruct the Collateral Agent in
writing
18
as to the type of Permitted Investments in which any such Cash shall be
invested; provided, however, that if the Company fails to deliver such written
instructions by 10:30 a.m. (New York City time) on the day such Cash is received
by the Collateral Agent or to be reinvested by the Securities Intermediary, the
Collateral Agent shall instruct the Securities Intermediary to invest such Cash
in the Permitted Investments described in clause (6) of the definition of
Permitted Investments. In no event shall the Collateral Agent or Securities
Intermediary be liable for the selection of Permitted Investments or for
investment losses incurred thereon. The Collateral Agent and Securities
Intermediary shall have no liability in respect of losses incurred as a result
of the failure of the Company to provide timely written investment direction.
Upon receipt of the proceeds upon the maturity of the Permitted
Investments on the Purchase Contract Settlement Date, the Collateral Agent shall
(A) instruct the Securities Intermediary to pay the portion of such proceeds and
deliver any certified or cashier's checks received, in an aggregate amount equal
to the Purchase Price, to the Company on the Purchase Contract Settlement Date,
and (B) release any amounts in excess of the Purchase Price earned from such
Permitted Investments to the Purchase Contract Agent for distribution to such
Holder.
(b) If a Holder of Normal Units (i) fails to notify the Purchase Contract
Agent of its intention to make a Cash Settlement as provided in paragraph
5.02(c)(i) of the Purchase Contract Agreement or (ii) does notify the Purchase
Contract Agent of its intention to pay the Purchase Price in cash, but fails to
make such payment as required by paragraph 5.02(c)(ii) of the Purchase Contract
Agreement, such Holder shall be deemed to have consented to the disposition of
the Pledged Senior Notes related to such Holder's Applicable Ownership Interests
in Senior Notes in accordance with paragraph 5.02(c)(iii) of the Purchase
Contract Agreement.
(c) As soon as practicable after 11:00 a.m. (New York City time) on the
fourth Business Day immediately preceding the Purchase Contract Settlement Date,
the Collateral Agent shall deliver to the Purchase Contract Agent a notice,
substantially in the form of Exhibit E hereto, stating (i) the amount of Cash
that it has received with respect to the Cash Settlement of Normal Units, and
(ii) the amount of Pledged Senior Notes to be remarketed in the Final
Remarketing pursuant to Section 5.02(c)(iii) of the Purchase Contract Agreement.
SECTION 5.06. Early Settlement and Cash Merger Early Settlement. Upon
receipt by the Collateral Agent of a notice from the Purchase Contract Agent
that a Holder of Units has elected to effect either (i) Early Settlement of its
obligations under the Purchase Contracts forming a part of such Units in
19
accordance with the terms of the Purchase Contracts and Section 5.07 of the
Purchase Contract Agreement or (ii) Cash Merger Early Settlement of its
obligations under the Purchase Contracts forming a part of such Units in
accordance with the terms of the Purchase Contracts and Section 5.04(b)(2) of
the Purchase Contract Agreement (which notice shall set forth the number of such
Purchase Contracts as to which such Holder has elected to effect Early
Settlement or Cash Merger Early Settlement), 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 Purchase Price pursuant to the terms of the
Purchase Contracts and the Purchase Contract Agreement and that all conditions
to such Early Settlement or Cash Merger Early Settlement, as the case may be,
have been satisfied, then the Collateral Agent shall release from the Pledge,
(1) the Pledged Applicable Ownership Interests in Senior Notes and the aggregate
principal amount of Pledged Senior Notes underlying such Pledged Applicable
Ownership Interests in Senior Notes or the Pledged Applicable Ownership
Interests in the Treasury Portfolio, as the case may be, related to such Units
in the case of a Holder of Normal Units or (2) Pledged Treasury Securities, in
the case of a Holder of Stripped Units, in each case with a Value equal to the
product of (x) the Stated Amount times (y) the number of Purchase Contracts as
to which such Holder has elected to effect Early Settlement or Cash Merger Early
Settlement, and shall instruct the Securities Intermediary to Transfer all such
Pledged Applicable Ownership Interests in Senior Notes and Pledged Applicable
Ownership Interests in the Treasury Portfolio, or Pledged Treasury Securities,
as the case may be, to the Purchase Contract Agent for distribution to such
Holder, in each case free and clear of the Pledge created hereby. A Holder of
Units may settle early only in integral multiples of 20 Units; provided that a
Holder of Normal Units, if the Applicable Ownership Interests in the Treasury
Portfolio have replaced the Applicable Ownership Interests in Senior Notes as
components of such Normal Units, may settle early only in integral multiples of
12,500 Normal Units.
SECTION 5.07. Application of Proceeds in Settlement of Purchase Contracts.
(a) If a Holder of Normal Units (if the Applicable Ownership Interests in
the Treasury Portfolio have not replaced the Applicable Ownership Interests in
Senior Notes as components of such Normal Units) has not elected to make an
effective Cash Settlement by notifying the Purchase Contract Agent in the manner
provided for in Section 5.02(c)(i) of the Purchase Contract Agreement or does
notify the Purchase Contract Agent as provided in paragraph 5.02(c)(i) of the
Purchase Contract Agreement of its intention to pay the Purchase Price in cash,
but fails to make such payment as required by paragraph 5.02(c)(ii) of the
Purchase Contract Agreement, such Holder shall be deemed to have elected to pay
for the shares of Common Stock to be issued under such Purchase Contracts from
20
the Proceeds of the Final Remarketing of the related Pledged Senior Notes. In
such event, upon written direction from the Purchase Contract Agent, the
Collateral Agent shall instruct the Securities Intermediary to Transfer the
related Pledged Senior Notes to the Remarketing Agent for Final Remarketing.
Upon receiving such Pledged Senior Notes, the Remarketing Agent, pursuant to the
terms of the Remarketing Agreement, will use its reasonable efforts to remarket
such Pledged Senior Notes. The Remarketing Agent will deposit the Proceeds of
such Final Remarketing (less, to the extent permitted by the Remarketing
Agreement, the Remarketing Fee) in the Collateral Account, and the Collateral
Agent shall invest the Proceeds of the Final Remarketing in Permitted
Investments set forth in clause (6) of the definition of Permitted Investments.
On the Purchase Contract Settlement Date, the Purchase Contract Agent shall
consult with the Collateral Agent regarding the instruction the Collateral Agent
shall give to the Securities Intermediary in order to apply a portion of the
Proceeds from such Final Remarketing equal to the aggregate principal amount of
such Pledged Senior Notes to satisfy in full such Holder's obligations to pay
the Purchase Price to purchase the shares of Common Stock under the related
Purchase Contracts and the balance of the Proceeds from the Final Remarketing,
if any, that shall be transferred to the Purchase Contract Agent for
distribution to such Holder.
If the Remarketing Agent advises the Collateral Agent in writing that
there has been a Failed Final Remarketing, the Collateral Agent, for the benefit
of the Company shall, at the written direction of the Company, exercise the
Company's rights as a secured party with respect to the Pledged Applicable
Ownership Interests in Senior Notes and the related Pledged Senior Notes in
accordance with applicable law or deliver the Pledged Applicable Ownership
Interests in Senior Notes and the related Pledged Senior Notes to the Company to
retain to the extent permitted by applicable law. Following such action, the
Holder's obligations to pay the Purchase Price for the shares of Common Stock
will be deemed to be satisfied in full.
(b) In the case of a Stripped Unit or a Normal Unit (if the Applicable
Ownership Interests in the Treasury Portfolio have replaced the Applicable
Ownership Interests in Senior Notes as a component of the Normal Units),
promptly after 11:00 a.m. (New York City time) on the Business Day immediately
prior to the Purchase Contract Settlement Date, the Collateral Agent shall
invest the Cash Proceeds of the maturing Pledged Treasury Securities or Pledged
Applicable Ownership Interests in the Treasury Portfolio, as the case may be, in
Permitted Investments set forth in clause (6) of the definition of Permitted
Investments, unless prior to 10:30 a.m. (New York City time) on such date, the
Company shall otherwise instruct the Collateral Agent in writing as to the type
of Permitted Investments in which any such Cash Proceeds shall be invested. In
no event shall the Collateral Agent be liable for the selection of Permitted
21
Investments or for investment losses incurred thereon. The Collateral Agent
shall have no liability in respect of losses incurred as a result of the failure
of the Company to provide timely written investment direction. Without receiving
any instruction from any such Holder, the Collateral Agent shall apply the
Proceeds of the related Pledged Treasury Securities or Pledged Applicable
Ownership Interests in the Treasury Portfolio, as the case may be, to the
settlement of such Purchase Contracts on the Purchase Contract Settlement Date.
In the event the sum of the Proceeds from the related Pledged Treasury
Securities or Pledged Applicable Ownership Interests in the Treasury Portfolio,
as the case may be, and the investment earnings from the investment in Permitted
Investments exceeds the aggregate Purchase Price of the Purchase Contracts being
settled thereby, the Collateral Agent shall instruct the Securities Intermediary
to transfer such excess, when received, to the Purchase Contract Agent for
distribution to such Holder.
(c) Prior to 5:00 p.m. (New York City time) on the fifth Business Day
immediately preceding the applicable Remarketing Date, but no earlier than the
Payment Date immediately preceding such date, Holders of Separate Senior Notes
may elect to have their Separate Senior Notes remarketed under the Remarketing
Agreement, by delivering their Separate Senior Notes along with a notice of such
election, substantially in the form of Exhibit F hereto, to the Custodial Agent.
After such time, such election shall become an irrevocable election to have such
Separate Senior Notes remarketed in such Remarketing and, if such Remarketing
fails, in any subsequent Remarketing. The Custodial Agent shall hold Separate
Senior Notes in an account separate from the Collateral Account in which the
Pledged Securities shall be held. Holders of Separate Senior Notes electing to
have their Separate Senior Notes remarketed will also have the right to withdraw
that election by written notice to the Custodial Agent, substantially in the
form of Exhibit G hereto, prior to 5:00 p.m. (New York City time) on the fifth
Business Day immediately preceding the applicable Remarketing Date, upon which
notice the Custodial Agent shall return such Separate Senior Notes to such
Holder.
By 11:00 a.m. (New York City time) on the Business Day immediately
preceding the applicable Remarketing Date, the Custodial Agent shall notify the
Remarketing Agent of the aggregate principal amount of the Separate Senior Notes
to be remarketed and deliver to the Remarketing Agent for remarketing all
Separate Senior Notes delivered to the Custodial Agent pursuant to this Section
5.07(c) and not validly withdrawn prior to such date. In the event of a
Successful Remarketing, after deducting the Remarketing Fee (to the extent
permitted under the terms of the Remarketing Agreement), the Remarketing Agent
will remit to the Custodial Agent the remaining portion of the proceeds of such
Remarketing for payment to the Holders of the remarketed Separate Senior Notes,
in accordance with their respective interests. In the event of a Failed
Remarketing, the Remarketing Agent will promptly return such Separate Senior
Notes to the
22
Custodial Agent, and, in the event of a Failed Final Remarketing, the Custodial
Agent shall deliver such Separate Senior Notes to the appropriate Holders.
SECTION 5.08. Special Event Redemption. If the Collateral Agent receives
written notice that a Special Event Redemption has occurred while Applicable
Ownership Interests in Senior Notes are still credited to the Collateral
Account, the Collateral Agent shall apply the Redemption Amount to purchase the
Treasury Portfolio, and the Collateral Agent shall credit the Applicable
Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the
definition of such term) to the Collateral Account and shall transfer the
Applicable Ownership Interests in the Treasury Portfolio (as specified in clause
(ii)(y) of the definition of such term) to the Purchase Contract Agent for
distribution to the Holders of the Normal Units. Upon credit to the Collateral
Account of the Applicable Ownership Interests in the Treasury Portfolio (as
specified in clause (i) of the definition of such term) having a Value equal to
the aggregate principal amount of the Pledged Applicable Ownership Interests in
Senior Notes and the related Pledged Senior Notes, the Collateral Agent shall
cause the Securities Intermediary to release the Pledged Senior Notes from the
Collateral Account and shall promptly transfer the Pledged Senior Notes to the
Company.
ARTICLE 6
VOTING RIGHTS - PLEDGED SENIOR NOTES
SECTION 6.01. Voting Rights. Subject to the terms of Section 4.02 of the
Purchase Contract Agreement, the Purchase Contract Agent may exercise, or
refrain from exercising, any and all voting and other consensual rights
pertaining to the Pledged Senior Notes underlying the Pledged Applicable
Ownership Interests in Senior Notes 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 shall not refrain from exercising such right, as the case
may be, if, in the judgment of the Purchase Contract Agent, such action would
impair or otherwise have a material adverse effect on the value of all or any of
the Pledged Senior Notes underlying the Pledged Applicable Ownership Interests
in the Senior Notes; and provided, further, that the Purchase Contract Agent
shall give the Company and the Collateral Agent at least five Business 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 Senior Notes
underlying the Pledged Applicable Ownership Interests in Senior Notes, including
notice of any meeting at which holders of the Pledged Senior Notes are entitled
to vote or solicitation of
23
consents, waivers or proxies of holders of the Senior Notes, 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 Senior Notes (in form and substance satisfactory to the
Collateral Agent) as are prepared by the Company and delivered to the Purchase
Contract Agent with respect to the Pledged Senior Notes.
ARTICLE 7
RIGHTS AND REMEDIES
SECTION 7.01. Rights and Remedies of the Collateral Agent.
(a) In addition to the rights and remedies specified in Section 5.07
hereof or otherwise available at law or in equity, after an event of default (as
specified in Section 7.01(b) below) hereunder, the Collateral Agent shall have
all of the rights and remedies with respect to the Collateral of a secured party
under the UCC (whether or not the UCC 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. Without limiting the generality of the foregoing, such remedies may
include, to the extent permitted by applicable law, (1) retention of the Pledged
Applicable Ownership Interests in Senior Notes and the related Pledged Senior
Notes, Pledged Treasury Securities or the Pledged Applicable Ownership
Interests in the Treasury Portfolio or (2) sale of the Pledged Senior Notes,
Pledged Treasury Securities or the Pledged Applicable Ownership Interests in the
Treasury Portfolio in one or more public or private sales, and in each instance,
the Holders' obligations under the Purchase Contracts and the Purchase Contract
Agreement shall be deemed to have been satisfied in full.
(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 applicable Pledged Applicable
Ownership Interests in the Treasury Portfolio, or on account of principal
payments of any Pledged Treasury Securities as provided in Article 3 hereof, in
satisfaction of the Obligations of the Holder of the Units of which such
applicable Pledged Applicable Ownership Interests in the Treasury Portfolio or
such Pledged Treasury Securities, as applicable, are a part under the related
Purchase Contracts, the inability to make such payments shall constitute an
event of default hereunder
24
and the Collateral Agent shall have and may exercise, with reference to such
Pledged Treasury Securities or Pledged Applicable Ownership Interests in the
Treasury Portfolio, as applicable, any and all of the rights and remedies
available to a secured party under the UCC and the TRADES Regulations after
default by a debtor, and as otherwise granted herein or under any other law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
authorized to receive and collect all payments of (i) the principal amount of
the Pledged Senior Notes, (ii) the principal amount of the Pledged Applicable
Ownership Interests in the Treasury Portfolio, and (iii) the principal amount of
the Pledged Treasury Securities, subject, in each case, to the provisions of
Article 3 hereof, and as otherwise granted herein.
(d) The Purchase Contract Agent and each Holder of Units agrees that, from
time to time, upon the written request of the Collateral Agent or the Purchase
Contract Agent, such Holder shall execute and deliver such further documents and
do such other acts and things as the Collateral Agent may reasonably request in
order to maintain the Pledge, and the perfection and priority thereof, and to
confirm the rights of the Collateral Agent hereunder. The Purchase Contract
Agent shall have no liability to any Holder for executing any documents or
taking any such acts requested by the Collateral Agent hereunder, except for
liability for its own grossly negligent acts, its own grossly negligent failure
to act or its own willful misconduct.
SECTION 7.02. Special Event Redemption. Upon the occurrence of a Special
Event Redemption while any Applicable Ownership Interests in Senior Notes and
the related Pledged Senior Notes are still credited to the Collateral Account,
the Redemption Price shall be credited to the Collateral Account by the
Collateral Agent upon receipt thereof from the Indenture Trustee, on or prior to
12:30 p.m., New York City time on such Special Event Redemption Date, by federal
funds check or wire transfer of immediately available funds. The Collateral
Agent is hereby authorized to present the Pledged Senior Notes for payment as
may be required by their respective terms. Upon receipt of such funds, the
Pledged Senior Notes shall be released from the Collateral Account. In the event
such funds are credited to the Collateral Account, the Collateral Agent, at the
written direction of the Company, shall instruct the Securities Intermediary to
(a) apply an amount equal to the Redemption Amount of such funds to purchase the
Treasury Portfolio from the Quotation Agent for credit to the Collateral Account
and (b) promptly remit the remaining portion of such funds, if any, to the
Purchase Contract Agent for payment to the Holders of Normal Units, in
accordance with their respective interests.
25
SECTION 7.03. Initial Remarketing. Unless a Special Event Redemption has
occurred prior to the Initial Remarketing Date, the Collateral Agent shall, by
11:00 a.m., New York City time, on the Business Day immediately preceding the
Initial Remarketing Date, without any instruction from any Holder of Normal
Units, present the related Pledged Senior Notes to the Remarketing Agent for
Initial Remarketing. In the event of a Failed Initial Remarketing, the Senior
Notes presented to the Remarketing Agent pursuant to this Section 7.03 for
Remarketing shall be redeposited into the Collateral Account.
SECTION 7.04. Second Remarketing. Unless a Special Event Redemption has
occurred prior to the Second Remarketing Date, if a Failed Initial Remarketing
has occurred, the Collateral Agent shall, by 11:00 a.m., New York City time, on
the Business Day immediately preceding the Second Remarketing Date, without any
instruction from any Holder of Normal Units, present the related Pledged Senior
Notes to the Remarketing Agent for Second Remarketing. In the event of a Failed
Second Remarketing, the Senior Notes presented to the Remarketing Agent pursuant
to this Section 7.04 for Remarketing shall be redeposited into the Collateral
Account.
SECTION 7.05. Third Remarketing. Unless a Special Event Redemption has
occurred prior to the Third Remarketing Date, if a Failed Second Remarketing has
occurred, the Collateral Agent shall, by 11:00 a.m., New York City time, on the
Business Day immediately preceding the Third Remarketing Date, without any
instruction from any Holder of Normal Units, present the related Pledged Senior
Notes to the Remarketing Agent for Third Remarketing. In the event of a Failed
Third Remarketing, the Senior Notes presented to the Remarketing Agent pursuant
to this Section 7.05 for Remarketing shall be redeposited into the Collateral
Account.
SECTION 7.06. Successful Remarketing. In the event the Collateral Agent
receives Proceeds of the Pledged Senior Notes from any Successful Remarketing
prior to the Final Remarketing Date (after deducting any Remarketing Fee to the
extent permitted under the terms of the Remarketing Agreement), the Collateral
Agent will, at the written direction of the Company, apply an amount equal to
the Treasury Portfolio Purchase Price to purchase from the Quotation Agent the
Treasury Portfolio and promptly remit the remaining portion of such Proceeds to
the Purchase Contract Agent for payment to the Holders of Normal Units, in
accordance with their respective interests. With respect to Separate Senior
Notes, any Proceeds of such Remarketing (after deducting any Remarketing Fee to
the extent permitted under the terms of the Remarketing Agreement) attributable
to the Separate Senior Notes will be remitted to the Custodial Agent for payment
to the holders of Separate Senior Notes. The Collateral Agent shall Transfer the
Treasury Portfolio to the Collateral Account and the Pledged Applicable
26
Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the
definition of such term) will secure the obligation of all Holders of Normal
Units to purchase Common Stock of the Company under the Purchase Contracts
constituting a part of such Normal Units, in substitution for the Pledged
Applicable Ownership Interests in Senior Notes and the related Pledged Senior
Notes, which shall be released from the Collateral Account.
SECTION 7.07. Substitutions. Whenever a Holder has the right to substitute
Treasury Securities, Applicable Ownership Interests in Senior Notes and related
Senior Notes or the appropriate Applicable Ownership Interests or security
entitlements for any of them in the Treasury Portfolio (as defined in clause (i)
of the definition of such term), as the case may be, for financial assets held
in the Collateral Account, such substitution shall not constitute a novation of
the security interest created hereby.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES; COVENANTS
SECTION 8.01. Representations and Warranties. Each Holder from time to
time, acting through the Purchase Contract Agent as 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 represents
and warrants to the Collateral Agent (with respect to such Holder's interest in
the Collateral), 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 for credit to the Collateral
Account, 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 2 hereof;
(c) upon the Transfer of the Collateral to the Collateral Agent for credit
to the Collateral Account, the Collateral Agent, for the benefit of the Company,
will have a valid and perfected first priority security interest therein
(assuming that any central clearing operation or any securities intermediary or
other entity
27
not within the control of the Holder involved in the Transfer of the Collateral,
including the Collateral Agent and the Securities Intermediary, 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 Article 4 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 2 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 8.02. Covenants. The Holders from time to time, acting through the
Purchase Contract Agent as their attorney-in-fact (it being understood that the
Purchase Contract Agent shall not be liable for any covenant made by or on
behalf of a Holder), hereby covenant to the Collateral Agent that for so long as
the Collateral remains subject to the Pledge:
(a) neither the Purchase Contract Agent nor such Holders will create or
purport to create or allow to subsist any mortgage, charge, lien, pledge or any
other security interest whatsoever over the Collateral or any part of it other
than pursuant to this Agreement; 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 Units.
ARTICLE 9
THE COLLATERAL AGENT, THE CUSTODIAL AGENT AND THE SECURITIES
INTERMEDIARY
It is hereby agreed as follows:
SECTION 9.01. Appointment, Powers and Immunities. The Collateral Agent,
the Custodial Agent or Securities Intermediary shall act as agent for the
Company hereunder with such powers as are specifically vested in the Collateral
Agent, the Custodial Agent or Securities Intermediary, as the case may be, by
the terms of this Agreement. The Collateral Agent, the Custodial Agent and
Securities Intermediary shall:
28
(a) have no duties or responsibilities except those expressly set forth in
this Agreement and no implied covenants or obligations shall be inferred from
this Agreement against the Collateral Agent, the Custodial Agent and Securities
Intermediary, nor shall the Collateral Agent, the Custodial Agent and Securities
Intermediary be bound by the provisions of any agreement by any party hereto
beyond the specific terms hereof;
(b) 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 Units or the Purchase Contract Agreement, or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement (other than as against the Collateral Agent, the Custodial
Agent or Securities Intermediary, as the case may be), the Units, any Collateral
or the Purchase Contract Agreement or any other document referred to or provided
for herein or therein or for any failure by the Company or any other Person
(except the Collateral Agent, the Custodial Agent or 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) not be required to initiate or conduct any litigation or collection
proceedings hereunder (except pursuant to directions furnished under Section
9.02 hereof, subject to Section 9.08 hereof);
(d) 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 gross
negligence or willful misconduct; and
(e) not be required to advise any party as to selling or retaining, or
taking or refraining from taking any action with respect to, any securities or
other property deposited hereunder.
Subject to the foregoing, during the term of this Agreement, the Collateral
Agent, the Custodial Agent and the Securities Intermediary shall take all
reasonable action in connection with the safekeeping and preservation of the
Collateral hereunder as determined by industry standards.
No provision of this Agreement shall require the Collateral Agent,
Custodial Agent or 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, Custodial Agent or Securities
Intermediary be liable for any amount in excess of the Value of the Collateral.
29
SECTION 9.02. Instructions of the Company. The Company shall have the
right, by one or more written instruments executed and delivered to the
Collateral Agent, 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,
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 or involve the Collateral
Agent in personal liability and (ii) the Collateral Agent shall be indemnified
to its satisfaction as provided herein. Nothing contained in this Section 9.02
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 9.03. Reliance by Collateral Agent and Securities Intermediary.
Each of the Securities Intermediary, the Custodial Agent and the Collateral
Agent shall be entitled to rely conclusively upon any certification, order,
judgment, opinion, notice or other written communication (including, without
limitation, any thereof by e-mail or similar electronic means, 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 consult with and
conclusively rely upon advice, opinions and statements of legal counsel and
other experts selected by the Collateral Agent, the Custodial Agent or the
Securities Intermediary, as the case may be. As to any matters not expressly
provided for by this Agreement, the Collateral Agent, the Custodial Agent and
the Securities Intermediary shall in all cases be fully protected in acting, or
in refraining from acting, hereunder in accordance with instructions given by
the Company in accordance with this Agreement.
SECTION 9.04. Certain Rights. (a) Whenever in the administration of the
provisions of this Agreement the Collateral Agent, the Custodial Agent or the
Securities Intermediary shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any action to be taken
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of gross negligence or bad faith on
the part of the Collateral Agent, the Custodial Agent or the Securities
Intermediary, be deemed to be conclusively proved and established by a
certificate signed by one of the Company's officers, and delivered to the
Collateral Agent, the Custodial Agent or the Securities Intermediary and such
certificate, in the absence of gross negligence or bad faith on the part of the
Collateral Agent, the Custodial Agent or the Securities Intermediary, shall be
full warrant to the Collateral Agent, the Custodial Agent or the Securities
Intermediary for any action taken, suffered or omitted by it under the
provisions of this Agreement upon the faith thereof.
30
(b) The Collateral Agent, the Custodial Agent or the Securities
Intermediary shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, entitlement order, approval or other paper or
document.
SECTION 9.05. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Collateral Agent, the Custodial Agent or the
Securities Intermediary may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Collateral Agent, the Custodial Agent or the
Securities Intermediary shall be a party, or any corporation succeeding to all
or substantially all of the corporate trust business of the Collateral Agent,
the Custodial Agent or the Securities Intermediary shall be the successor of the
Collateral Agent, the Custodial Agent or the Securities Intermediary hereunder
without the execution or filing of any paper with any party hereto or any
further act on the part of any of the parties hereto except where an instrument
of transfer or assignment is required by law to effect such succession, anything
herein to the contrary notwithstanding.
SECTION 9.06. Rights in Other Capacities. The Collateral Agent, the
Custodial Agent and the Securities Intermediary and their affiliates may
(without having to account therefor to the Company) accept deposits from, lend
money to, make their investments in and generally engage in any kind of banking,
trust or other business with the Purchase Contract Agent, any other Person
interested herein and any Holder of Units (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, the Securities Intermediary and their
affiliates may accept fees and other consideration from the Purchase Contract
Agent and any Holder of Units 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 other than the lien created by the Pledge.
SECTION 9.07. Non-Reliance on Collateral Agent, the Custodial Agent and
Securities Intermediary. 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
Units of this Agreement, the Purchase Contract Agreement, the Units or any other
document referred to or provided for herein or therein or to inspect the
properties or books of the Purchase Contract Agent or any Holder of Units. None
of the Collateral Agent, the Custodial Agent or the Securities Intermediary
shall have any duty or responsibility to provide the Company with any credit or
other information
31
concerning the affairs, financial condition or business of the Purchase Contract
Agent or any Holder of Units (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 9.08. Compensation and Indemnity. The Company agrees to:
(a) pay the Collateral Agent, the Custodial Agent and the Securities
Intermediary from time to time such compensation as shall be agreed in writing
between the Company and the Collateral Agent, the Custodial Agent or the
Securities Intermediary, as the case may be, for all services rendered by them
hereunder;
(b) indemnify and hold harmless the Collateral Agent, the Custodial Agent,
the Securities Intermediary and each of their respective directors, officers,
agents and employees (collectively, the "INDEMNITEES"), harmless from and
against any and all claims, liabilities, losses, damages, fines, penalties and
expenses (including reasonable fees and expenses of counsel) (collectively,
"Losses" and individually, a "LOSS") that may be imposed on, incurred by, or
asserted against, the Indemnitees or any of them for following any instructions
or other directions upon which either the Collateral Agent, the Custodial Agent
or the Securities Intermediary is entitled to rely pursuant to the terms of this
Agreement, provided the Collateral Agent, the Custodial Agent or the Securities
Intermediary has not acted with gross negligence or engaged in willful
misconduct or bad faith with respect to the specific Loss against which
indemnification is sought; and
(c) in addition to and not in limitation of paragraph (b) immediately
above, indemnify and hold the Indemnitees and each of them harmless from and
against any and all Losses that may be imposed on, incurred by or asserted
against, the Indemnitees or any of them in connection with or arising out of the
Collateral Agent's, the Custodial Agent's or the Securities Intermediary's
acceptance or performance of its powers and duties under this Agreement,
provided the Collateral Agent, the Custodial Agent or the Securities
Intermediary has not acted with gross negligence or engaged in willful
misconduct or bad faith with respect to the specific Loss against which
indemnification is sought.
The provisions of this Section and Section 11.07 shall survive the
resignation or removal of the Collateral Agent, Custodial Agent or Securities
Intermediary and the termination of this Agreement.
SECTION 9.09. 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
32
deposited hereunder, then at its sole option, each of the Collateral Agent, the
Custodial Agent and the Securities Intermediary shall be entitled, after prompt
notice to the Company and the Purchase Contract Agent, 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 the Collateral
Agent, the Custodial Agent and the Securities Intermediary shall not 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, the Custodial Agent and the Securities Intermediary shall be entitled to
refuse to act until either:
(a) 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, the Custodial Agent or the Securities Intermediary; or
(b) the Collateral Agent, the Custodial Agent or the Securities
Intermediary shall have received security or an indemnity satisfactory to it
sufficient to save it harmless from and against any and all loss, liability or
reasonable out-of-pocket expense which it may incur by reason of its acting.
The Collateral Agent, the Custodial Agent and the Securities Intermediary may in
addition elect to commence an interpleader action or seek other judicial relief
or orders as the Collateral Agent, the Custodial Agent or the Securities
Intermediary may deem necessary. Notwithstanding anything contained herein to
the contrary, none of the Collateral Agent, the Custodial Agent or the
Securities Intermediary 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 9.10. Resignation of Collateral Agent, the Custodial Agent and
Securities Intermediary.
(a) Subject to the appointment and acceptance of a successor Collateral
Agent, Custodial Agent or Securities Intermediary as provided below:
(i) the Collateral Agent, the Custodial Agent and the Securities
Intermediary 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 Units;
(ii) the Collateral Agent, the Custodial Agent and the Securities
Intermediary may be removed at any time by the Company; and
33
(iii) if the Collateral Agent, the Custodial Agent or the Securities
Intermediary 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, the Custodial Agent and
the Securities Intermediary may be removed by the Purchase Contract Agent,
acting at the direction of the Holders of Units.
The Purchase Contract Agent shall promptly notify the Company of any removal of
the Collateral Agent, the Custodial Agent or the Securities Intermediary
pursuant to clause (iii) of this Section 9.10(a). Upon any such resignation or
removal, the Company shall have the right to appoint a successor Collateral
Agent, Custodial Agent or Securities Intermediary, as the case may be, which
shall not be an Affiliate of the Purchase Contract Agent. If no successor
Collateral Agent, Custodial Agent or Securities Intermediary shall have been so
appointed and shall have accepted such appointment within 30 days after the
retiring Collateral Agent's, Custodial Agent's or Securities Intermediary's
giving of notice of resignation or the Company's or the Purchase Contract
Agent's giving notice of such removal, then the retiring or removed Collateral
Agent, Custodial Agent or Securities Intermediary may petition any court of
competent jurisdiction, at the expense of the Company, for the appointment of a
successor Collateral Agent, Custodial Agent or Securities Intermediary. The
Collateral Agent, the Custodial Agent and the Securities Intermediary shall each
be a bank or a national banking association which has an office (or an agency
office) in New York City with a combined capital and surplus of at least
$50,000,000. Upon the acceptance of any appointment as Collateral Agent,
Custodial Agent or Securities Intermediary hereunder by a successor Collateral
Agent, Custodial Agent or Securities Intermediary, as the case may be, such
successor Collateral Agent, Custodial Agent or Securities Intermediary, as the
case may be, shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Collateral Agent, Custodial Agent
or Securities Intermediary, as the case may be, and the retiring Collateral
Agent, Custodial Agent or Securities Intermediary, as the case may be, shall
take all appropriate action, subject to payment of any amounts then due and
payable to it hereunder, to transfer any money and property held by it hereunder
(including the Collateral) to such successor. The retiring Collateral Agent,
Custodial Agent or Securities Intermediary shall, upon such succession, be
discharged from its duties and obligations as Collateral Agent, Custodial Agent
or Securities Intermediary hereunder. After any retiring Collateral Agent's,
Custodial Agent's or Securities Intermediary's resignation hereunder as
Collateral Agent, Custodial Agent or Securities Intermediary, the provisions of
this Article 9 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, Custodial Agent or Securities Intermediary. Any resignation or removal of
the Collateral
34
Agent, Custodial Agent or Securities Intermediary hereunder, at a time when such
Person is acting as the Collateral Agent, Custodial Agent or Securities
Intermediary, shall be deemed for all purposes of this Agreement as the
simultaneous resignation or removal of the Collateral Agent, Securities
Intermediary or Custodial Agent, as the case may be.
(b) Since JPMorgan Chase Bank is serving as the Collateral Agent hereunder
and the Purchase Contract Agent under the Purchase Contract Agreement, if an
event of default (other than an event of default occurring as a result of a
Failed Final Remarketing) occurs hereunder or under the Purchase Contract
Agreement, JPMorgan Chase Bank will resign as the Collateral Agent, but continue
to act as the Purchase Contract Agent. A successor Collateral Agent will be
appointed in accordance with the terms hereof.
SECTION 9.11. 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 9.11
shall be subject to prior written consent of the Company, which consent shall
not be unreasonably withheld.
SECTION 9.12. Survival. The provisions of this Article 9 shall survive
termination of this Agreement and the resignation or removal of the Collateral
Agent, the Custodial Agent or the Securities Intermediary.
SECTION 9.13. Exculpation. Anything contained in this Agreement to the
contrary notwithstanding, in no event shall the Collateral Agent, the Custodial
Agent or the Securities Intermediary or their officers, directors, 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 and regardless of the form of action.
35
ARTICLE 10
AMENDMENT
SECTION 10.01. Amendment Without Consent of Holders. Without the consent
of any Holders, the Company, when authorized by a Board Resolution, 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,
to:
(a) evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company;
(b) evidence and provide for the acceptance of appointment hereunder by a
successor Collateral Agent, Custodial Agent, Securities Intermediary or Purchase
Contract Agent;
(c) add to the covenants of the Company for the benefit of the Holders, or
surrender any right or power herein conferred upon the Company, provided that
such covenants or such surrender do not adversely affect the validity,
perfection or priority of the Pledge created hereunder; or
(d) cure any ambiguity (or formal defect), correct or supplement any
provisions herein which may be inconsistent with any other such provisions
herein, or make any other provisions with respect to such matters or questions
arising under this Agreement, provided that such action shall not adversely
affect the interests of the Holders in any material respect.
SECTION 10.02. 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, including without limitation the consent of the Holders obtained in
connection with a tender or an exchange offer, by Act of such Holders delivered
to the Company, the Purchase Contract Agent, the Custodial Agent, the Securities
Intermediary and the Collateral Agent, as the case may be, the Company, when
duly authorized by a Board Resolution, the Purchase Contract Agent, the
Collateral Agent, the Securities Intermediary and the Custodial Agent 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 Units; provided,
however, that no such supplemental agreement shall, without the unanimous
consent of the Holders of each Outstanding Unit adversely affected thereby in
any material respect:
36
(a) change the amount or type of Collateral underlying a Unit (except for
the rights of holders of Normal Units to substitute the Treasury Securities for
the Pledged Applicable Ownership Interests in Senior Notes and the related
Senior Notes or the Applicable Ownership Interests in the Treasury Portfolio, as
the case may be, or the rights of Holders of Stripped Units to substitute
Applicable Ownership Interests in Senior Notes and the related Senior Notes or
the Applicable Ownership Interests in the Treasury Portfolio (as specified in
clause (i) of the definition of such term), as applicable, for the Pledged
Treasury Securities), unless such change is not adverse to the Holders, impair
the right of the Holder of any Unit 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 Unit affected thereby pursuant to the Purchase
Contract Agreement if such action were effected by a modification or amendment
of the provisions of the Purchase Contract Agreement; or
(c) reduce the percentage of Purchase Contracts the consent of whose
Holders is required for the modification or amendment of the provisions of this
Agreement;
provided that if any amendment or proposal referred to above would adversely
affect only the Normal Units or only the Stripped Units, then only the affected
class of Holders as of the record date for the Holders entitled to vote thereon
will be entitled to vote on such amendment or proposal, and such amendment or
proposal shall not be effective except with the consent of Holders of not less
than a majority of such class; provided, further, that the unanimous consent of
the Holders of each outstanding Purchase Contract of such class affected thereby
shall be required to approve any amendment or proposal specified in clauses (a)
through (c) above.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed amendment, but it shall be
sufficient if such Act shall approve the substance thereof.
SECTION 10.03. Execution of Amendments. In executing any amendment
permitted by this Article, the Collateral Agent, the Custodial Agent, the
Securities Intermediary and the Purchase Contract Agent shall be entitled to
receive and (subject to Section 7.01 of the Purchase Contract Agreement with
respect to the Purchase Contract Agent) shall be fully authorized and 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. The Collateral
37
Agent, Custodial Agent, Securities Intermediary and Purchase Contract Agent may,
but shall not be obligated to, enter into any such amendment which affects their
own respective rights, duties or immunities under this Agreement or otherwise.
SECTION 10.04. Effect of Amendments. Upon the execution of any amendment
under this Article, this Agreement shall be modified in accordance therewith,
and such amendment shall form a part of this Agreement for all purposes; and
every Holder of Certificates theretofore or thereafter authenticated, executed
on behalf of the Holders and delivered under the Purchase Contract Agreement
shall be bound thereby.
SECTION 10.05. Reference of Amendments. Certificates authenticated,
executed on behalf of the Holders and delivered after the execution of any
amendment pursuant to this Section may, and shall if required by the Collateral
Agent or the Purchase Contract Agent, bear a notation in form approved by the
Purchase Contract Agent and the Collateral Agent as to any matter provided for
in such amendment. If the Company shall so determine, new 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 Certificates representing Outstanding Units.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. No Waiver. No failure on the part of the Company, the
Collateral Agent, the Custodial Agent, the Securities Intermediary or any of
their respective agents to exercise, and no course of dealing with respect to,
and no delay in exercising, any right, power or remedy hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise by the Company,
the Collateral Agent, the Custodial Agent, the Securities Intermediary or any of
their respective agents of any right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
SECTION 11.02. Governing Law; Submission to Jurisdiction. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK
38
WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PROVISIONS THEREOF. The Company,
the Collateral Agent, the Custodial Agent, the Securities Intermediary and the
Holders from time to time of the Units, 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, the Custodial Agent, the
Securities Intermediary and the Holders from time to time of the Units, 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 11.03. Notices. All notices, requests, consents and other
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, by telecopy) delivered to the
intended recipient at the "ADDRESS FOR NOTICES" specified below its name on the
signature pages hereof or, as to any party, at such other address as shall be
designated by such party in a notice to the other parties. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
SECTION 11.04. 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 Units,
by their acceptance of the same, shall be deemed to have agreed to be bound by
the provisions hereof and to have ratified the agreements of, and the grant of
the Pledge hereunder by, the Purchase Contract Agent.
SECTION 11.05. 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 11.06. 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
39
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 11.07. Expenses, Etc.. The Company agrees to reimburse the
Collateral Agent, the Custodial Agent and the Securities Intermediary for:
(a) all reasonable costs and expenses of the Collateral Agent, the
Custodial Agent and the Securities Intermediary (including, without limitation,
the reasonable fees and expenses of counsel to the Collateral Agent, the
Custodial Agent and the Securities Intermediary), 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, the
Custodial Agent and the Securities Intermediary (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
Units to satisfy its obligations under the Purchase Contracts forming a part of
the Units and (ii) the enforcement of this Section 11.07;
(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;
(d) all reasonable fees and expenses of any agent or advisor appointed by
the Collateral Agent and consented to by the Company under Section 9.11 of this
Agreement; and
(e) any other out-of-pocket costs and expenses reasonably incurred by the
Collateral Agent, the Custodial Agent and the Securities Intermediary in
connection with the performance of their duties hereunder.
SECTION 11.08. Security Interest Absolute. All rights of the Collateral
Agent and security interests hereunder, and all obligations of the Holders from
time to time hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any provision of the
Purchase Contracts or the Units or any other agreement or instrument relating
thereto;
40
(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 the Units under the related Purchase Contracts, or any other
amendment or waiver of any term of, or any consent to any departure from any
requirement of, the Purchase Contract Agreement or any Purchase Contract or any
other agreement or instrument relating thereto; or
(c) any other circumstance which might otherwise constitute a defense
available to, or discharge of, a borrower, a guarantor or a pledgor.
SECTION 11.09. Notice of Special Event, Special Event Redemption and
Termination Event. Upon the occurrence of a Special Event, a Special Event
Redemption or a Termination Event, the Company shall deliver written notice to
the Purchase Contract Agent, the Collateral Agent and the Securities
Intermediary. Upon the written request of the Collateral Agent or the Securities
Intermediary, the Company shall inform such party whether or not a Special
Event, a Special Event Redemption or a Termination Event has occurred.
[SIGNATURES ON THE FOLLOWING PAGE]
41
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
The Hartford Financial Services JPMORGAN CHASE BANK, as
Group, Inc. Purchase Contract Agent and
as attorney-in-fact of the Holders
from time to time of the Units
By: By:
---------------------------------- ----------------------------------
Name: Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Title: Vice President
Address for Notices: Address for Notices:
The Hartford Financial Services 4 New York Plaza, 15th Floor,
Group, Inc. ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Telecopier No.: (212) 623-6167
Connecticut 06115-1900 Attention: Institutional Trust
Telecopier No.:▇▇▇-▇▇▇-▇▇▇▇ Services
Attention: General Counsel
JPMORGAN CHASE BANK,
as Collateral Agent, Custodial Agent
and Securities Intermediary
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Address for Notices:
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Institutional Trust Services
EXHIBIT A
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Creation of Stripped Units)
JPMorgan Chase Bank
The Collateral Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Institutional Trust Services
Re: _________ Normal Units of The Hartford Financial Services Group,
Inc. (the "COMPANY")
The securities account of JPMorgan Chase Bank, as Collateral Agent,
maintained by the Securities Intermediary and designated "[JPMorgan
Chase Bank], as Collateral Agent of The Hartford Financial Services
Group, Inc., as pledgee of [JPMorgan Chase Bank], as the Purchase
Contract Agent on behalf of and as attorney-in-fact for the Holders"
(the "COLLATERAL ACCOUNT")
Please refer to the Pledge Agreement, dated as of May __, 2003 (the
"PLEDGE AGREEMENT"), among the Company, you, as Collateral Agent, as Securities
Intermediary and as Custodial Agent and the undersigned, as Purchase Contract
Agent and as attorney-in-fact for the holders of Normal Units from time to time.
Capitalized terms used herein but not defined shall have the meaning set forth
in the Pledge Agreement.
We hereby notify you in accordance with Section 5.02 of the Pledge
Agreement that the holder of securities named below (the "HOLDER") has elected
to substitute Treasury Securities or security entitlements with respect thereto
having a Value of $________ in exchange for an equal Value of Pledged Senior
Notes underlying the Pledged Applicable Ownership Interests in Senior Notes
relating to _________ Normal Units and has delivered to the undersigned a notice
stating that the Holder has Transferred such Treasury Securities or security
entitlements with respect thereto to the Securities Intermediary, for credit to
the Collateral Account.
We hereby request that you instruct the Securities Intermediary, upon
confirmation that such Treasury Securities or security entitlements thereto have
been credited to the Collateral Account, to release to the undersigned an equal
Value of Pledged Senior Notes and the related Pledged Applicable Ownership
Interests in Senior Notes in accordance with Section 5.02 of the Pledge
Agreement.
JPMORGAN CHASE BANK,
Date: as Purchase Contract Agent and as
attorney-in-fact of the Holders from
time to time of the Units
By:
---------------------------------
Name:
Title:
Please print name and address of Holder electing to substitute Treasury
Securities or security entitlements with respect thereto for the Pledged Senior
Notes:
--------------------------------- ---------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
---------------------------------
Address
---------------------------------
---------------------------------
EXHIBIT B
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Creation of Stripped Units)
JPMorgan Chase Bank
as Securities Intermediary
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Institutional Trust Services
Re: __________ Normal Units of The Hartford Financial Services Group, Inc.
(the "COMPANY")
The securities account of JPMorgan Chase Bank, as Collateral Agent,
maintained by the Securities Intermediary and designated "JPMorgan Chase
Bank, as Collateral Agent of The Hartford Financial Services Group, Inc.,
as pledgee of JPMorgan Chase Bank, as the Purchase Contract Agent on
behalf of and as attorney-in-fact for the Holders" (the "COLLATERAL
ACCOUNT")
Please refer to the Pledge Agreement, dated as of May __, 2003 (the
"PLEDGE AGREEMENT"), among the Company, you, as Securities Intermediary,
JPMorgan Chase Bank, as Purchase Contract Agent and as attorney-in-fact for the
holders of Normal Units from time to time, and the undersigned, as Collateral
Agent. Capitalized terms used herein but not defined shall have the meanings set
forth in the Pledge Agreement.
When you have confirmed that $__________ Value of Treasury Securities or
security entitlements with respect thereto has been credited to the Collateral
Account by or for the benefit of _________, as Holder of Normal Units (the
"HOLDER"), you are hereby instructed to release from the Collateral Account an
equal Value of Pledged Senior Notes and the related Applicable Ownership
Interest in Senior Notes or security entitlements with respect thereto relating
to _____ Normal Units of the Holder by Transfer to the Purchase Contract Agent.
JPMORGAN CHASE BANK
as Collateral Agent
Dated:
---------------
By:
--------------------------
Name:
Title:
Please print name and address of Holder:
--------------------------------- ---------------------------------
Name Social Security or other
Taxpayer Identification Number,
if any
---------------------------------
Address
---------------------------------
---------------------------------
EXHIBIT C
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Recreation of Normal Units )
JPMorgan Chase Bank
The Purchase Contract Agent
4 New York Plaza, 15th Floor,
New York, New York 10004
Attention: Institutional Trust Services
Re: ____________ Stripped Units of The Hartford Financial Services Group, Inc.
(the "COMPANY")
Please refer to the Pledge Agreement dated as of May __, 2003 (the "PLEDGE
AGREEMENT"), among the Company, you, as Collateral Agent, as Securities
Intermediary, as Custodial Agent and the undersigned, as Purchase Contract Agent
and as attorney-in-fact for the holders of Stripped Units from time to time.
Capitalized terms used herein but not defined shall have the meaning set forth
in the Pledge Agreement.
We hereby notify you in accordance with Section 5.03(a) of the Pledge
Agreement that the holder of securities named below (the "HOLDER") has elected
to substitute Applicable Ownership Interests in Senior Notes and related Senior
Notes or security entitlements with respect thereto having a Value of $_________
in exchange for $__________ Value of Pledged Treasury Securities and has
delivered to the undersigned a notice stating that the holder has Transferred
such Applicable Ownership Interests in Senior Notes and related Senior Notes or
security entitlements with respect thereto to the Securities Intermediary, for
credit to the Collateral Account.
We hereby request that you instruct the Securities Intermediary, upon
confirmation that such Applicable Ownership Interests in Senior Notes and
related Senior Notes or security entitlements with respect thereto have been
credited to
the Collateral Account, to release to the undersigned $__________ Value of
Treasury Securities or security entitlements with respect thereto related to
_____ Stripped Units of such Holder in accordance with Section 5.03(a) of the
Pledge Agreement.
JPMORGAN CHASE BANK
as Purchase Contract Agent
Dated: By:
--------------- ---------------------------
Name:
Title:
Please print name and address of Holder electing to substitute Senior Notes or
security entitlements with respect thereto for Pledged Treasury Securities:
--------------------------------- ---------------------------------
Name Social Security or other
Taxpayer Identification Number,
if any
---------------------------------
Address
---------------------------------
---------------------------------
EXHIBIT D
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Recreation of Normal Units)
JPMorgan Chase Bank
as Securities Intermediary
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Institutional Trust Services
Re: ___________ Stripped Units of The Hartford Financial Services Group, Inc.
(the "COMPANY")
The securities account of JPMorgan Chase Bank, as Collateral Agent,
maintained by the Securities Intermediary and designated "JPMorgan Chase
Bank, as Collateral Agent of The Hartford Financial Services Group, Inc.,
as pledgee of JPMorgan Chase Bank, as the Purchase Contract Agent on
behalf of and as attorney-in-fact for the Holders" (the "COLLATERAL
ACCOUNT")
Please refer to the Pledge Agreement dated as of May __, 2003 (the "PLEDGE
AGREEMENT"), among the Company, you, as Securities Intermediary, Custodial Agent
and Collateral Agent and JPMorgan Chase Bank, as Purchase Contract Agent and as
attorney-in-fact for the holders of Normal Units from time to time, and the
undersigned, as Collateral Agent. Capitalized terms used herein but no defined
shall have the meaning set forth in the Pledge Agreement.
When you have confirmed that Applicable Ownership Interests in Senior
Notes and related Senior Notes or security entitlements with respect thereto
having a Value of $________________ have been credited to the Collateral Account
by or for the benefit of ________________, as Holder of Stripped Units (the
"HOLDER"), you are hereby instructed to release from the Collateral Account $
__________ Value of Treasury Securities or security entitlements thereto by
Transfer to the Purchase Contract Agent.
JPMORGAN CHASE BANK,
as Collateral Agent
Dated: By:
--------------- ---------------------------
Name:
Title:
--------------------------------- ---------------------------------
Name Social Security or other
Taxpayer Identification Number,
if any
---------------------------------
Address
---------------------------------
---------------------------------
EXHIBIT E
NOTICE OF CASH SETTLEMENT FROM COLLATERAL
AGENT TO PURCHASE CONTRACT AGENT
(Cash Settlement Amounts)
JPMorgan Chase Bank
The Purchase Contract Agent
4 New York Plaza, 15th Floor
New York, New York 10004
Attention: Institutional Trust Services
Re: __________ Normal Units of The Hartford Financial Services Group, Inc.
(the "COMPANY") __________ Stripped Units of the Company
Please refer to the Pledge Agreement dated as of May __, 2003 (the "PLEDGE
AGREEMENT"), by and among you, the Company, and JPMorgan Chase Bank, as
Collateral Agent, Custodial Agent and Securities Intermediary. Unless otherwise
defined herein, terms defined in the Pledge Agreement are used herein as defined
therein.
In accordance with Section 5.05(d) of the Pledge Agreement, we hereby
notify you that as of 11:00 a.m. (New York City time) on the fourth Business Day
immediately preceding November 16, 2006 (the "PURCHASE CONTRACT SETTLEMENT
DATE"), we have received (i) $ _______________ in immediately available funds
paid in an aggregate amount equal to the Purchase Price due to the Company on
the Purchase Contract Settlement Date with respect to ________________ Normal
Units, (ii) $ ___________ in immediately available funds paid in an aggregate
amount equal to the Purchase Price due to the Company on the Purchase Contract
Settlement Date with respect to ______ Stripped Units and (iii) based on the
funds received set forth in clause (i) above, an aggregate principal amount of
$_________ of Pledged Senior Notes are to be tendered for purchase in the Final
Remarketing.
JPMORGAN CHASE BANK,
as Collateral Agent,
Dated: By:
--------------- ---------------------------
Name:
Title:
EXHIBIT F
INSTRUCTION TO CUSTODIAL AGENT REGARDING REMARKETING
JPMorgan Chase Bank
The Custodial Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Institutional Trust Services
Re: Senior Notes Due 2008 of The Hartford Financial Services Group,
Inc. (the "COMPANY")
The undersigned hereby notifies you in accordance with Section 5.07(c) of
the Pledge Agreement, dated as of May __, 2003 (the "PLEDGE AGREEMENT"), among
the Company, you, as Collateral Agent, Custodial Agent and Securities
Intermediary and JPMorgan Chase Bank, as the Purchase Contract Agent and as
attorney-in-fact for the holders of Normal Units from time to time, that the
undersigned elects to deliver $______________ aggregate principal amount of
Separate Senior Notes for delivery to the Remarketing Agent prior to 5:00 p.m.
(New York City time) on the fifth Business Day immediately preceding the _______
Remarketing Date for remarketing pursuant to Section 5.07(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 Separate Senior Notes tendered hereby. Capitalized terms used
herein but not defined shall have the meaning set forth in the Pledge Agreement.
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 a
Failed Final Remarketing, upon receipt of the Separate Senior Notes tendered
herewith from the Remarketing Agent, to deliver such Separate Senior Notes 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 Separate Senior Notes tendered hereby and that the undersigned is
the record owner of any Senior Notes tendered herewith in physical form or a
participant in The Depositary Trust Company ("DTC") and the beneficial owner of
any Senior
Notes tendered herewith by book-entry transfer to your account at DTC, (ii)
agrees to be bound by the terms and conditions of Section 5.07(c) of the Pledge
Agreement and (iii) acknowledges and agrees that after 5:00 p.m. (New York City
time) on the fifth Business Day immediately preceding the ________ Remarketing
Date, such election shall become an irrevocable election to have such Separate
Senior Notes remarketed in the Remarketing and, in the case of a Failed
Remarketing, in any subsequent Remarketing, and that the Separate Senior Notes
tendered herewith will only be returned in the event of a Failed Final
Remarketing.
Date:
-------------
------------------------------------
By:
---------------------------------
Name:
Title:
Signature Guarantee:
----------------
--------------------------------- ---------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
---------------------------------
Address
---------------------------------
---------------------------------
A. PAYMENT INSTRUCTIONS
Proceeds of the remarketing should be paid by check in the name of the person(s)
set forth below and mailed to the address set forth below.
Name(s)
(Please Print)
Address
(Please Print)
(Zip Code)
(Tax Identification or Social Security Number)
B. DELIVERY INSTRUCTIONS
In the event of a failed final remarketing, Senior Notes which are in physical
form should be delivered to the person(s) set forth below and mailed to the
address set forth below.
Name(s)
(Please Print)
Address
(Please Print)
(Zip Code)
(Tax Identification or Social Security Number)
In the event of a failed final remarketing, Senior Notes which are in book-entry
form should be credited to the account at The Depository Trust Company set forth
below.
------------------
DTC Account Number
Name of Account Party:
---------------------------------
EXHIBIT G
INSTRUCTION TO CUSTODIAL AGENT REGARDING
WITHDRAWAL FROM REMARKETING
JPMorgan Chase Bank
The Custodial Agent
4 New York Plaza, 15th Floor,
New York, New York 10004
Attention: Institutional Trust Services
Re: Senior Notes due 2008 of The Hartford Financial Services Group,
Inc. (the "COMPANY")
The undersigned hereby notifies you in accordance with Section 5.07(c) of
the Pledge Agreement, dated as of May __, 2003 (the "Pledge Agreement"), among
the Company and you, as Collateral Agent, Custodial Agent and Securities
Intermediary, and JPMorgan Chase Bank, as Purchase Contract Agent and as
attorney-in-fact for the holders of Normal Units from time to time, that the
undersigned elects to withdraw the $_________ aggregate principal amount of
Separate Senior Notes delivered to the Collateral Agent on _________, 200_ for
remarketing pursuant to Section 5.07(c) of the Pledge Agreement. The undersigned
hereby instructs you to return such Senior Notes 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
5.07(c) of the Pledge Agreement. Capitalized terms used herein but not defined
shall have the meaning set forth in the Pledge Agreement.
Date:
-------------
------------------------------------
By:
---------------------------------
Name:
Title:
Signature Guarantee:
----------------
--------------------------------- ---------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
---------------------------------
Address
---------------------------------
---------------------------------