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FORM OF COLLATERAL AGREEMENT
Among
,
as Pledgor,
WILMINGTON TRUST COMPANY,
as Collateral Agent,
and
MANDATORILY EXCHANGEABLE SECURITIES TRUST
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Dated as of , 2005
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ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1 Defined Terms.............................................1
Section 1.2 Interpretation............................................5
ARTICLE II
THE SECURITY INTERESTS
Section 2.1 Grant of Security Interests...............................6
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of Pledgor.................6
Section 3.2 Representations and Warranties of the Collateral Agent....7
ARTICLE IV
CERTAIN COVENANTS OF PLEDGOR
Section 4.1 Certain Covenants of Pledgor..............................7
ARTICLE V
ADMINISTRATION OF THE COLLATERAL AND VALUATION OF THE SECURITIES
Section 5.1 Valuation of Collateral...................................8
Section 5.2 Substitution of Collateral................................8
Section 5.3 Additional Collateral.....................................9
Section 5.4 Delivery of Collateral....................................9
Section 5.5 Release of Excess Collateral.............................12
Section 5.6 Delivery of Contract Consideration.......................12
Section 5.7 Investment of Cash Collateral............................12
ARTICLE VI
INCOME AND VOTING RIGHTS ON COLLATERAL
Section 6.1 Income on Collateral.....................................12
Section 6.2 Voting of Collateral.....................................13
ARTICLE VII
REMEDIES UPON EVENTS OF DEFAULT
Section 7.1 Rights of Secured Party..................................13
Section 7.2 Power of Attorney........................................14
Section 7.3 Application of Collateral and Proceeds...................14
ARTICLE VIII
THE COLLATERAL AGENT
Section 8.1 Conditions to Duties of the Collateral Agent.............15
Section 8.2 Merger...................................................17
Section 8.3 Resignation..............................................17
Section 8.4 Removal..................................................17
Section 8.5 Effectiveness of Resignation or Removal..................17
Section 8.6 Appointment of Successor.................................17
Section 8.7 Acceptance by Successor..................................18
Section 8.8 Compensation.............................................18
Section 8.9 Indemnification..........................................18
ARTICLE IX
MISCELLANEOUS
Section 9.1 Termination..............................................19
Section 9.2 No Assumption of Liability...............................19
Section 9.3 Notices..................................................19
Section 9.4 Governing Law; Severability..............................19
Section 9.5 Entire Agreement.........................................19
Section 9.6 Amendments; Waivers......................................20
Section 9.7 Non-Assignability........................................20
Section 9.8 No Third Party Rights; Successors and Assigns............20
Section 9.9 Counterparts.............................................20
EXHIBITS
Exhibit A - Notice of Pledge Value
Exhibit B - Certificate for Substituted Collateral
Exhibit C - Certificate for Additional Collateral
Exhibit D - Notice of Transfer
Exhibit E - Form of Opinion of Counsel
COLLATERAL AGREEMENT
COLLATERAL AGREEMENT, dated as of ________ , 2005, among ________ , a
_________ corporation ("Pledgor"), Wilmington Trust Company, a Delaware banking
corporation, as collateral agent hereunder for the benefit of
Mandatorily Exchangeable Securities Trust, a trust organized under the
laws of the State of New York under and by virtue of an Amended and Restated
Trust Agreement, dated as of ________ , 2005 (such trust and the trustee thereof
acting in their capacity as such being referred to in this Agreement as
"Purchaser"), and Purchaser.
W I T N E S S E T H:
WHEREAS, pursuant to the Forward Purchase Contract, dated as of
________ , 2005, between Pledgor and Purchaser (the "Contract"), Pledgor has
agreed to sell and Purchaser has agreed to purchase shares of common stock, par
value $0.01 per share, of ________ , a _________ corporation (the "Common
Stock") (ticker symbol " _______ " and CUSIP No. ________ ), subject to the
terms and conditions of the Contract;
NOW, THEREFORE, to secure the performance by Pledgor of its obligations
under the Contract and to secure the observance and performance of the covenants
and agreements contained in this Agreement and in the Contract, the parties,
intending to be bound, agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1 Defined Terms.
(a) Capitalized terms used and not otherwise defined in this Agreement
have the respective meanings specified in the Contract.
(b) As used in this Agreement, the following terms have the following
meanings:
"Administrator" means PFPC Inc., in its capacity as administrator for
Purchaser under the Administration Agreement, dated as of ________ , 2005
between the Administrator and Purchaser, or its successor in such capacity, or
any other Administrator appointed pursuant to the Trust Agreement.
"Agreement" means this Collateral Agreement.
"Authorized Representative" of Pledgor means any Person as to whom
Pledgor shall have delivered notice to the Collateral Agent that such Person is
authorized to act hereunder on behalf of Pledgor.
"Common Stock" has the meaning specified in the recitals to this
Agreement.
"Collateral" has the meaning specified in Section 2.1(a).
"Collateral Account" has the meaning specified in Section 3.3(a).
"Collateral Agent" means Wilmington Trust Company, in its capacity as
collateral agent under this Agreement, or its successor in such capacity
appointed in accordance with Section 8.6.
"Collateral Event of Default" means, at any time, the occurrence of any
of the following: (A) if no U.S. Treasury Securities shall be pledged as
Substitute Collateral at such time, failure of the Collateral to include at
least the maximum amount of Reference Property covered by the Contract at that
time; and (B) if any U.S. Treasury Securities shall be pledged as Substitute
Collateral at such time, failure of those U.S. Treasury Securities to have an
aggregate Applicable Market Value at that time of at least 105% of the aggregate
Applicable Market Value of the Prior Collateral substituted for those U.S.
Treasury Securities at that time.
"Collateral Requirement" means, as of any date and with respect to: (i)
any Collateral other than U.S. Treasury Securities, 100% and (ii) any U.S.
Treasury Securities, 150%, provided that upon and after any failure to cure an
Insufficiency Determination by 4:00 p.m., New York City time, on the next
Business Day following telephonic notice of such Insufficiency Determination as
described in Section 5.4(d), which insufficiency shall be continuing on such
next business day, the Collateral Requirement relating to any U.S. Treasury
Securities shall be 200%.
"Contract" has the meaning specified in the recitals to this Agreement.
"Delivery Date" has the meaning specified in Section 7.1.
"Eligible Collateral" means (i) Common Stock; (ii) U.S. Treasury
Securities maturing on a date that is one year or less from the date such
obligations are pledged hereunder, but in any event prior to the Exchange Date
then in effect, and (iii) from and after any Adjustment Event or Reorganization
Event, the Reference Property distributed in such Adjustment Event or
Reorganization Event; provided, in each case, that Pledgor owns such securities,
free of all Liens (other than the Liens created by this Agreement) and Transfer
Restrictions, and that the Collateral Agent has a valid, first priority
perfected security interest therein and first lien thereon; and provided further
that, to the extent the number of shares of Common Stock and/or other Reference
Property pledged hereunder exceeds at any time the maximum number of such shares
of Common Stock and/or Reference Property deliverable under the Contract, such
excess shares shall not be Eligible Collateral.
"Event of Default" means the occurrence of: (i) an event described in
Section 7.1 of the Contract, (ii) a Collateral Event of Default, (iii) a failure
by Pledgor to have caused the Collateral to meet the requirements described in
Section 4.1(d) on the Exchange Date, or (iv) if an Adjustment Event or a
Reorganization Event shall have occurred prior to the Exchange Date, failure by
Pledgor to cause to be delivered to Purchaser on the Exchange Date the
consideration then required to be delivered pursuant to the Contract.
"Expense Agreement" means the Fund Expense Agreement, dated as of
________ , 2005, among Pledgor, Wilmington Trust Company, in its capacities as
Custodian, Collateral Agent and Paying Agent, the Administrator and Purchaser.
"Insufficiency Determination" has the meaning specified in Section
5.5(a).
"Net Cash Proceeds" has the meaning specified in Section 5.4(c).
"Pledge Value" means, as of any date, an amount equal to the sum of the
aggregate Applicable Market Value of each particular type of Collateral, as of
such date, in each case divided by the Collateral Requirement for such type of
Collateral.
"Pledge Value Requirement" means, as of any date, the aggregate
Applicable Market Value of the maximum amount of Contract Stock and/or other
Reference Property deliverable under the Contract.
"Pledged Items" means, as of any date, any and all securities,
instruments, and cash delivered by Pledgor to be held by the Collateral Agent
under this Agreement as Collateral, whether or not constituting Eligible
Collateral and whether or not then required to be held by the Collateral Agent
hereunder.
"Pledgor" has the meaning specified in the preamble to this Agreement.
"Prior Collateral" has the meaning specified in Section 5.2(a).
"Purchaser" has the meaning specified in the preamble to this
Agreement.
"Quarterly Distribution Date" has the meaning specified in the
Contract.
"Responsible Officer" means, when used with respect to the Collateral
Agent, any vice president, assistant vice president, assistant treasurer,
assistant secretary or any financial services officer located in the division or
department of the Collateral Agent responsible for performing the obligations of
the Collateral Agent under this Agreement.
"Securities Intermediary" has the meaning specified in Section 3.3.
"Substitute Collateral" means any Eligible Collateral substituted for
Prior Collateral in accordance with Section 5.2.
"Trust Agreement" means the Amended and Restated Trust Agreement, dated
as of ________ , 2005, constituting the _________ Mandatorily Exchangeable
Securities Trust.
"Trustee" or "Trustees" means any trustee or trustees of Purchaser
named in the Trust Agreement or any successor as such trustee or trustees.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York.
Section 1.2 Interpretation.
(a) When a reference is made in this Agreement to Articles, Sections,
Exhibits or Schedules, such reference is to Articles or Sections of, or Exhibits
or Schedules to, this Agreement unless otherwise indicated.
(b) The table of contents and headings contained in this Agreement are
for reference purposes only and are not part of this Agreement, and shall not be
deemed to limit or otherwise affect any of the provisions of this Agreement.
(c) Whenever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation".
(d) Any reference to any statute, regulation or agreement is a
reference to such statute, regulation or agreement as supplemented or amended
from time to time.
ARTICLE II
THE SECURITY INTERESTS
Section 2.1 Grant of Security Interests. Effective upon and subject to
the receipt by Pledgor of the Purchase Price at the Time of Delivery, in order
to secure the performance by Pledgor of its obligations under the Contract and
to secure the observance and performance of the covenants and agreements
contained in this Agreement and in the Contract:
(a) Security Interests. Pledgor hereby grants, sells, conveys, assigns,
transfers and pledges to the Collateral Agent, as agent of and for the benefit
of Purchaser, a security interest in and to, and a lien upon and right of
set-off against, all of its right, title and interest in, to and under (i) the
Pledged Items described in paragraph (b); (ii) all additions to and
substitutions for such Pledged Items; (iii) all income, products and proceeds
and collections received or to be received, or derived or to be derived, now or
any time hereafter from or in connection with the Pledged Items; and (iv) all
powers and rights now owned or hereafter acquired under or with respect to the
Pledged Items (such Pledged Items, additions, substitutions, income, products
and proceeds, collections, powers and rights being collectively called the
"Collateral"). 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.
(b) Time of Delivery. Effective upon and subject to receipt by Pledgor
of the Purchase Price, at the Time of Delivery, Pledgor shall either (1) deliver
to the Collateral Agent in pledge hereunder one or more certificates
representing in the aggregate at least _________ shares of Common Stock,
registered in the name of the Collateral Agent or its nominee or duly endorsed
in blank or accompanied by undated stock powers duly endorsed in blank, or (2)
if such shares of Common Stock are not held in certificated form but are held in
book-entry form by The Depository Trust Company or any other comparable
depositary, transfer such shares of Common Stock to an account of the Collateral
Agent or to an account (other than an account of Pledgor) designated by the
Collateral Agent with The Depository Trust Company or such other depositary or
securities intermediary, as applicable.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of Pledgor. Pledgor hereby
represents and warrants to the Collateral Agent and Purchaser that as of the
Time of Delivery:
(a) No Transfer Restrictions. No Transfer Restrictions exist with
respect to or otherwise apply to the pledge or assignment of, or transfer by
Pledgor of, any items of Collateral to the Collateral Agent hereunder, or the
subsequent sale or transfer of such items of Collateral by the Collateral Agent
pursuant to the terms of this Agreement.
(b) Title to Collateral; Perfected Security Interest. Pledgor owns the
Pledged Items, free of all Liens (other than the Lien created by this Agreement)
and Transfer Restrictions. Upon delivery of the Pledged Items pursuant to
Sections 2.1(a) and (b), the Collateral Agent will obtain a valid, first
priority perfected security interest in, and a first lien upon, such Pledged
Items subject to no other Lien. None of the Collateral is or shall be pledged by
Pledgor as collateral for any other purpose.
Section 3.2 Representations and Warranties of the Collateral Agent. The
Collateral Agent represents and warrants to Pledgor and Purchaser that:
(a) Corporate Existence and Power. The Collateral Agent is a Delaware
banking corporation, duly incorporated, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all corporate
powers and all governmental licenses, authorizations, consents and approvals
required to enter into, and perform its obligations under, this Agreement.
(b) Authorization and Non-Contravention. The execution, delivery and
performance by the Collateral Agent of this Agreement have been duly authorized
by all necessary corporate action on the part of the Collateral Agent (no action
by the shareholders of the Collateral Agent being required) and do not and will
not violate, contravene or constitute a default under any provision of
applicable law or regulation or of the charter or by-laws of the Collateral
Agent or of any material agreement, judgment, injunction, order, decree or other
instrument binding upon the Collateral Agent.
(c) Binding Effect. This Agreement constitutes a valid and binding
agreement of the Collateral Agent enforceable against the Collateral Agent in
accordance with its terms.
Section 3.3 Representations and Warranties of the Securities
Intermediary. The parties agree that the Collateral Agent, in its capacity as a
banking corporation, shall act as initial securities intermediary (the
"Securities Intermediary"). Any such Securities Intermediary shall at all times
be a federal depository institution or state-chartered depository institution
subject to regulations regarding fiduciary funds on deposit similar to Title 12
of the Code of Federal Regulations, Section 9.10(b), which, in either case,
meets the requirements of Section 8.6(b). The Securities Intermediary hereby
represents, warrants and agrees as follows:
(a) The Securities Intermediary is a banking corporation that in the
ordinary course of business maintains securities accounts for others and in that
capacity has established a securities account (the "Collateral Account") in the
name of the Collateral Agent.
(b) The Securities Intermediary (i) will treat the Collateral Agent as
the "entitlement holder" within the meaning of the UCC, entitled to exercise the
rights that comprise the financial assets credited to the Collateral Account
(ii) will act only on entitlement orders or other instructions with respect to
the Collateral Account originated by the Collateral Agent and no other Person,
(iii) will treat all property credited to the Collateral Account as a "financial
asset" for purposes of Article 8 of the UCC, (iv) has no notice of any adverse
claim with respect to any financial asset credited to the Collateral Account;
and (v) hereby subordinates any security interest or right of set-off in its
favor with respect to the Collateral Account to the security interest in favor
of the Collateral Agent.
(c) The establishment and maintenance of the Collateral Account and all
interests, duties and obligations related thereto shall be governed by the law
of the State of New York, and the "security intermediary's jurisdiction" for the
purposes of Section 8-110 of the UCC shall be the State of New York.
ARTICLE IV
CERTAIN COVENANTS OF PLEDGOR
Section 4.1 Certain Covenants of Pledgor. Pledgor agrees that, so long
as any of its obligations under the Contract remain outstanding:
(a) Title to Collateral. Pledgor shall at all times hereafter own the
Collateral pledged by it, free of all Liens (other than the Lien created by this
Agreement) and Transfer Restrictions, and, subject to the terms of this
Agreement, will at all times hereafter have and maintain good, right and lawful
authority to assign, transfer and pledge such Collateral and all such additions
to such Collateral and substitutions for such Collateral under this Agreement.
(b) Pledge Value Requirement. Pledgor shall cause the aggregate Pledge
Value of the Collateral to be equal to or greater than the Pledge Value
Requirement at all times, and shall pledge additional Collateral in the manner
described in Section 5.4 as necessary to cause such requirement to be met.
(c) Pledge Upon Adjustment Event or Reorganization Event. Upon the
occurrence of an Adjustment Event or Reorganization Event, Pledgor shall
immediately cause to be delivered to the Collateral Agent, in accordance with
and in the manner provided in Section 5.2, 5.3 and 5.4:
(i) the product of the Reference Property distributed by
Company with respect to each share of Common Stock in the applicable
Adjustment Event or Reorganization Event and the Securities Base Amount
at such time; and
(ii) the product of any Non-Included Property distributed by
Company with respect to each share of Common Stock in the applicable
Adjustment Event or Reorganization Event and the Securities Base Amount
at such time.
(d) Collateral on Exchange Date. Notwithstanding Pledgor's right to
substitute Collateral pursuant to Section 5.2, Pledgor shall cause the
Collateral to include, on the Exchange Date, at least the maximum amount of
Reference Property deliverable under the Contract on the Exchange Date.
(e) Further Assurances. Pledgor shall, at its expense and in such
manner and form as Purchaser or the Collateral Agent may reasonably require,
give, execute, deliver, file and record any financing statement, notice,
instrument, document, agreement or other papers that may be necessary or
desirable in order to create, preserve, perfect, substantiate or validate any
security interest granted pursuant to this Agreement or to enable the Collateral
Agent to exercise and enforce its rights and the rights of Purchaser hereunder
with respect to such security interest. To the extent permitted by applicable
law, Pledgor hereby authorizes the Collateral Agent to execute and file, in the
name of Pledgor or otherwise, UCC financing or continuation statements (which
may be carbon, photographic, photostatic or other reproductions of this
Agreement or of a financing statement relating to this Agreement) which the
Collateral Agent, upon consultation with counsel, may reasonably deem necessary
or appropriate to further perfect, or maintain the perfection of, the security
interests granted hereby.
ARTICLE V
ADMINISTRATION OF THE COLLATERAL
AND VALUATION OF THE SECURITIES
Section 5.1 Valuation of Collateral. The Collateral Agent shall
determine as of 4:00 p.m., New York City time, on each Business Day, whether the
Pledge Value is at least equal to the Pledge Value Requirement and whether an
Insufficiency Determination or Collateral Event of Default shall have occurred
and, from and after any Adjustment Event, Reorganization Event, or substitution
of U.S. Treasury Securities for pledged shares of Common Stock and/or other
Reference Property pursuant to Section 5.2, shall determine the Pledge Value and
the Pledge Value Requirement on each Business Day and shall provide written
notice of the Pledge Value and the Pledge Value Requirement, in the form of
Exhibit A, to Pledgor.
Section 5.2 Substitution of Collateral. Pledgor may substitute any item
of Collateral (and, if applicable, shall substitute each relevant item of
Collateral in connection with an Adjustment Event or Reorganization Event) in
accordance with the following provisions:
(a) Unless an Event of Default or a failure by Pledgor to meet any of
its obligations under Article IV or V has occurred and is continuing, Pledgor
shall have the right at any time and from time to time to deposit Eligible
Collateral, and, if applicable, upon the occurrence of an Adjustment Event or
Reorganization Event, shall deposit the relevant Eligible Collateral with the
Collateral Agent in substitution for Pledged Items previously deposited
hereunder ("Prior Collateral") and the Collateral Agent shall release such Prior
Collateral from the Lien created by this Agreement in accordance with Section
5.6(b).
(b) If Pledgor wishes or is obligated to deposit any Eligible
Collateral with the Collateral Agent in substitution for any Prior Collateral,
it shall
(i) give written notice from an Authorized Representative to
the Collateral Agent identifying the Prior Collateral to be released from
the Lien created by this Agreement;
(ii) deliver to the Collateral Agent concurrently with such
Eligible Collateral a certificate of Pledgor substantially in the form of
Exhibit B and dated the date of such delivery, (A) identifying the items of
Eligible Collateral being substituted for the Prior Collateral and the
Prior Collateral that is to be transferred to Pledgor and (B) certifying
that with respect to such additional Pledged Items the representations and
warranties contained in Exhibit B are true and correct on and as of the
date of such certificate; and
(iii) deliver to the Collateral Agent concurrently with such
Eligible Collateral an opinion, dated the date of such delivery, of counsel
addressed to the Collateral Agent substantially in the form of Exhibit E
hereto. Pledgor hereby covenants and agrees to take all actions required
under Section 5.4 and any other actions necessary to create for the benefit
of the Collateral Agent a valid, first priority perfected security interest
in, and a first lien upon, such Eligible Collateral deposited with the
Collateral Agent in substitution for Prior Collateral, including the filing
of all UCC financing statements and amendments.
(c) No such substitution shall be made unless and until the Collateral
Agent shall have determined that the aggregate Pledge Value of all of the
Collateral at the time of such proposed substitution, after giving effect to the
proposed substitution, shall at least equal the Pledge Value Requirement.
Section 5.3 Additional Collateral. Pledgor may pledge additional
Collateral hereunder at any time and shall pledge additional Collateral upon the
occurrence of an Adjustment Event or Reorganization Event and when otherwise
required under this Agreement. Concurrently with the delivery of any additional
Eligible Collateral, Pledgor shall deliver (i) a certificate of Pledgor
substantially in the form of Exhibit C, signed by an Authorized Representative,
and dated the date of such delivery, (A) identifying the items of additional
Eligible Collateral being pledged and (B) certifying that with respect to such
items of additional Pledged Collateral the representations and warranties
contained in Exhibit C are true and correct on and as of the date of such
certificate, and (ii) an opinion, dated the date of such delivery, of counsel
addressed to the Collateral Agent substantially in the form of Exhibit E hereto.
Pledgor hereby covenants and agrees to take all actions required under Section
5.4 and any other actions necessary to create for the benefit of the Collateral
Agent a valid, first priority perfected security interest in, and a first lien
upon, such additional Eligible Collateral, including the filing of all UCC
financing statements and amendments.
Section 5.4 Delivery of Collateral. Pledgor shall deliver the
Collateral to the Collateral Agent in accordance with the following provisions:
(a) Pledged Common Stock or Marketable Securities. In the case of
Collateral consisting of Common Stock or Marketable Securities (other than U.S.
Treasury Securities), by:
(i) delivery to the Collateral Agent of one or more certificates
representing such shares of Common Stock or Marketable Securities,
registered in the name of the Collateral Agent or its nominee or duly
endorsed in blank or accompanied by undated stock powers duly endorsed in
blank; or
(ii) if such shares of Common Stock or Marketable Securities are
not held in certificated form but are held in book-entry form by The
Depository Trust Company or any other comparable depositary, transfer of
such shares of Common Stock or Marketable Securities to an account of the
Collateral Agent or to an account (other than an account of Pledgor)
designated by the Collateral Agent with The Depository Trust Company or
such other depositary or securities intermediary, as applicable. Any such
securities account shall be maintained by a securities intermediary
pursuant to an agreement providing, inter alia, that the establishment and
maintenance of such securities account will be governed by the law of a
jurisdiction satisfactory to the Collateral Agent and containing the
representations, warranties and agreements set forth in Section 3.3.
Each such delivery of Marketable Securities other than Common
Stock shall be accompanied by an opinion, dated the date of such delivery,
of counsel addressed to the Collateral Agent substantially in the form of
Exhibit E hereto.
(b) Pledged U.S. Treasury Securities. In the case of Collateral
consisting of U.S. Treasury Securities, by transfer of such U.S. Treasury
Securities through the Book Entry System of the Federal Reserve System to the
account of the Collateral Agent or to an account (other than an account of
Pledgor) designated by the Collateral Agent; and
(c) Non-Included Property. In the case of Collateral consisting of
Non-Included Property:
(i) Delivery of Non-Included Property. By delivery of such
Non-Included Property to the Collateral Agent in any commercially
reasonable manner (except for any securities which shall be delivered in
accordance with Section 5.4(a)).
(ii) Sale of Non-Included Property. The Collateral Agent shall
sell any Non-Included Property as soon as practicable after its receipt
thereof at a public or private sale or at any broker's board or on any
securities exchange for cash and at such price or prices as the Collateral
Agent may deem satisfactory, provided that Pledgor has been given an
opportunity to bid. Pledgor covenants and agrees that it will execute and
deliver such documents and take such other action as the Collateral Agent
deems necessary or advisable in order that any such sales may be made in
compliance with law. Upon any such sale the Collateral Agent shall have the
right to deliver, assign and transfer the Non-Included Property so sold to
the purchaser of such Non-Included Property. Subject to applicable law,
each purchaser at any such sale shall hold the Non-Included Property so
sold absolutely and free from any claim or right of whatsoever kind,
including any equity or right of redemption of Pledgor which may be waived,
and Pledgor, to the extent permitted by law, hereby specifically waives all
rights of redemption, stay or appraisal which it has or may have under any
law now existing or hereafter adopted. The notice (if any) of such sale
required by Article 9 of the UCC shall (1) in case of a public sale, state
the time and place fixed for such sale, (2) in case of sale at a broker's
board or on a securities exchange, state the board or exchange at which
such sale is to be made and the day on which the Non-Included Property will
first be offered for sale at such board or exchange, and (3) in the case of
a private sale, state the day after which such sale may be consummated. Any
such public sale shall be held at such time or times within ordinary
business hours and at such place or places as the Collateral Agent may fix
in the notice of such sale. At any such sale the Non-Included Property may
be sold in one lot as an entirety or in separate parcels, as the Collateral
Agent may determine. The Collateral Agent shall not be obligated to make
any such sale pursuant to any such notice. The Collateral Agent may,
without notice or publication, adjourn any public or private sale or cause
the same to be adjourned from time to time by announcement at the time and
place fixed for the sale, and such sale may be made at any time or place to
which the same may be so adjourned.
(iii) Power of Attorney: Upon any sale of all or any part of
Non-Included Property made under the power of sale given hereunder, the
Collateral Agent is hereby irrevocably appointed the true and lawful
attorney of Pledgor, in the name and stead of Pledgor, to make all
necessary deeds, bills of sale and instruments of assignment, transfer or
conveyance of the property thus delivered or sold. For that purpose the
Collateral Agent may execute all such documents and instruments. This power
of attorney shall be deemed coupled with an interest, and Pledgor hereby
ratifies and confirms all that its attorneys acting under such power, or
such attorneys' successors or agents, shall lawfully do by virtue of this
Agreement. If so requested by the Collateral Agent, by the Trustees or by
any purchaser of any Non-Included Property or a portion of any Non-Included
Property, Pledgor shall further ratify and confirm any such delivery or
sale by executing and delivering to the Collateral Agent, to the Trustees
or to such purchaser or purchasers at the expense of Pledgor all proper
deeds, bills of sale, instruments of assignment, conveyance of transfer and
releases as may be designated in any such request.
(iv) Application of Proceeds. The proceeds of any sale of, or
other realization upon, or other receipt from, any Non-Included Property
shall be applied by the Collateral Agent in the following order of
priorities:
first, to the payment to the Collateral Agent of the expenses of
such sale or other realization, including reasonable compensation to the
Collateral Agent and its agents and counsel, and all expenses, liabilities
and advances incurred or made by the Collateral Agent in connection
therewith, including brokerage fees in connection with the sale by the
Collateral Agent of any Non-Included Property; and
second, all remaining proceeds (the "Net Cash Proceeds") shall be
added to the Reference Property and shall be held by the Collateral Agent
as Pledged Items and Collateral.
(d) Upon delivery of any Pledged Item under this Agreement, the
Collateral Agent shall examine such Pledged Item and any opinions and
certificates delivered pursuant to Sections 5.2 or 5.3, this Section 5.4 or
otherwise pursuant to the terms of this Agreement in connection therewith to
determine that they comply as to form with the requirements for Eligible
Collateral. Pledgor hereby designates the Collateral Agent as the Person in
whose name any Collateral held in book-entry form in the Federal Reserve System
shall be registered.
Section 5.5 Insufficiency Determination
(a) If, as of 4:00 p.m., New York City time, on any Business Day, the
Collateral Agent determines that the aggregate Pledge Value of the Collateral is
less than the Pledge Value Requirement (any such determination, an
"Insufficiency Determination"), the Collateral Agent shall promptly notify
Pledgor of such determination by telephone call to an Authorized Representative
of Pledgor followed by a written confirmation of such call.
(b) If, by 4:00 p.m., New York City time, on the next Business Day
following the day on which telephonic notice shall have been given pursuant to
the preceding Section 5.5(a), Pledgor shall have failed to deliver, in the
manner set forth in Sections 5.3 and 5.4, sufficient additional Eligible
Collateral so that, after giving effect to such delivery, the aggregate Pledge
Value of the Collateral, as of such next business day, is at least equal to the
Pledge Value Requirement, then (x) the Collateral Requirement with respect to
any U.S. Treasury Securities pledged hereunder shall be increased from 150% to
200%, and (y) unless a Collateral Event of Default shall have occurred and be
continuing, the Collateral Agent shall:
(i) commence sales, in the manner described in Section 5.5(c), of
such portion of the Collateral consisting of U.S. Treasury Securities as
may be required to be sold in order to generate proceeds sufficient to
purchase shares of Common Stock and/or, after an Adjustment Event or
Reorganization Event, other Reference Property of the applicable type as
described in the following clause (ii); and
(ii) commence purchases, in the manner described in Section
5.5(c), of shares of Common Stock and/or, after an Adjustment Event or
Reorganization Event, other Reference Property of the applicable type, in
an amount sufficient to cause the aggregate Pledge Value of the Collateral
to be at least equal to the Pledge Value Requirement.
Notwithstanding the foregoing, the Collateral Agent shall discontinue
sales and purchases pursuant to the preceding clauses (i) and (ii),
respectively, if at any time a Collateral Event of Default shall have occurred
and be continuing. The Collateral Agent shall determine the Applicable Market
Value and the Pledge Value of the Collateral after each purchase of shares of
Common Stock or other Reference Property pursuant to the preceding clause (ii)
in order to determine whether the Pledge Value Requirement is met and whether a
Collateral Event of Default has occurred. Solely for purposes of such
calculation, the Applicable Market Value of the shares of Common Stock or other
Reference Property shall be: (A) the most recent sales price as reported in the
composite transactions for the principal securities exchange on which the shares
of Common Stock or other Reference Property, as the case may be, are then listed
or, if such securities are not so listed, the last quoted ask price for such
securities in the over-the-counter market as reported by the Nasdaq National
Market or, if not so reported, by PinkSheets LLC or a similar organization; or
(B) if higher, in the case of Common Stock, the most recent available Closing
Price.
(c) Collateral sold and shares of Common Stock or other Reference
Property purchased by the Collateral Agent pursuant to the preceding Section
5.5(a) may be sold and purchased on any securities exchange or in any
over-the-counter market or in any private purchase transaction, and at such
price or prices, in each case as the Collateral Agent may deem satisfactory.
Pledgor covenants and agrees that it will execute and deliver such documents and
take such other action as the Collateral Agent deems necessary or advisable in
order that any such sales and purchases may be made in compliance with law.
Section 5.6 Release of Collateral. If on any Business Day the
Collateral Agent determines that the aggregate Pledge Value of Pledgor's
Eligible Collateral exceeds the Pledge Value Requirement and no Event of Default
or failure by Pledgor to meet any of its obligations under Articles IV or V has
occurred and is continuing:
(a) Release of Excess Collateral. Pledgor may obtain the release from
the Lien created by this Agreement of any Collateral having an aggregate Pledge
Value on such Business Day less than or equal to such excess, upon delivery to
the Collateral Agent of a written notice from an Authorized Representative of
Pledgor substantially in the form of Exhibit D indicating the items of
Collateral to be released. Such Collateral shall be released only after the
Collateral Agent shall have determined that the aggregate Pledge Value of all of
the Collateral remaining after such release as determined on such Business Day
is at least equal to the Pledge Value Requirement. The Collateral Agent shall
transfer such excess Collateral to be released no later than three Business Days
after receipt of the applicable notice to an account specified by Pledgor
therein. Upon such release, the Collateral Agent's security interest in such
excess Collateral released shall terminate.
(b) Release of Prior Collateral. Pledgor may obtain the release from
the Lien created by this Agreement of any Prior Collateral upon delivery to the
Collateral Agent
(i) of a written notice from an Authorized Representative of
Pledgor substantially in the form of Exhibit D indicating the items of
Collateral to be released;
(ii) concurrently with the Substitute Collateral of a certificate
of Pledgor substantially in the form of Exhibit B and dated the date of
such delivery, (A) identifying the items of Eligible Collateral being
substituted for the Prior Collateral and the Prior Collateral that is to be
transferred to Pledgor and (B) certifying that with respect to such
additional Pledged Items the representations and warranties contained in
Exhibit B are true and correct on and as of the date of such certificate;
and
(iii) concurrently with the Substitute Collateral of an opinion,
dated the date of such delivery, of counsel addressed to the Collateral
Agent confirming the representations contained in the second sentence of
paragraph 3(b) of Exhibit B. Pledgor hereby covenants and agrees to take
all actions required under Section 5.4 and any other actions necessary to
create for the benefit of the Collateral Agent a valid, first priority
perfected security interest in, and a first lien upon, such Eligible
Collateral deposited with the Collateral Agent in substitution for Prior
Collateral.
Such Prior Collateral shall be released only after the Collateral Agent
shall have determined that the aggregate Pledge Value of all of the Collateral
remaining after such release as determined on such Business Day is at least
equal to the Pledge Value Requirement. The Collateral Agent shall transfer such
Prior Collateral to be released no later than three Business Days after receipt
of the certificate pursuant to clause (ii) above to an account specified by
Pledgor therein. Upon such release, the Collateral Agent's security interest in
such Prior Collateral released shall terminate.
Section 5.7 Delivery of Common Stock and/or other Reference Property.
On the Exchange Date (unless Pledgor shall have elected the Cash Settlement
Alternative pursuant to and in accordance with Section 2.3(c) of the Contract
and made the cash payment required by that Section), the Collateral Agent shall
deliver to Purchaser the shares of Common Stock and/or other Reference Property
then required to be delivered by Pledgor under the Contract. Upon such delivery,
Purchaser shall hold such shares of Common Stock and/or other Reference
Property, as the case may be, absolutely and free from any claim or right
whatsoever.
Section 5.8 Investment of Cash Collateral. The Collateral Agent shall
invest any cash included in the Collateral in U.S. Treasury Securities maturing
on a date that is one year or less from the date such obligations are pledged
hereunder, but in any event prior to the Exchange Date then in effect.
ARTICLE VI
INCOME AND VOTING RIGHTS ON COLLATERAL
Section 6.1 Income on Collateral. Unless an Event of Default or failure
by Pledgor to meet any of its obligations under Article IV or V has occurred and
is continuing, Pledgor shall be entitled to receive for its own account all
dividends, interest and, if any, principal and premium relating to all of the
Collateral, unless the payment of such amounts to Pledgor would reduce the
aggregate Pledge Value of the Collateral below the Pledge Value Requirement. The
Collateral Agent agrees to remit to Pledgor on the Business Day received or the
first Business Day thereafter all such payments received by it. If an Event of
Default or failure by Pledgor to meet any of its obligations under Article IV or
V has occurred and is continuing, all such payments made or accrued after and
during the continuance of such default or failure shall be retained by the
Collateral Agent, and any such payments which are received by Pledgor shall be
received in trust for the benefit of Purchaser, shall be segregated from other
funds of Pledgor and shall forthwith be paid over to the Collateral Agent. Any
such payments so retained by, or paid over to, the Collateral Agent shall be
held by the Collateral Agent as Collateral hereunder.
Section 6.2 Voting of Collateral. Unless an Event of Default has
occurred and is continuing, Pledgor shall have the right, from time to time, to
vote and to give consents, ratifications and waivers with respect to the
Collateral, and the Collateral Agent shall, upon receiving a written request
from Pledgor, deliver to Pledgor or as specified in such request such proxies,
powers of attorney, consents, ratifications and waivers in respect of any of the
Collateral which is registered in the name of the Collateral Agent or its
nominee as shall be specified in such request and be in form and substance
satisfactory to the Collateral Agent.
If an Event of Default shall have occurred and be continuing, the
Collateral Agent shall have the right to the extent permitted by law, and
Pledgor shall take all such action as may be necessary or appropriate to give
effect to such right, to vote and to give consents, ratifications and waivers,
and take any other action with respect to any or all of the Collateral with the
same force and effect as if the Collateral Agent were the absolute and sole
owner of the Collateral.
ARTICLE VII
REMEDIES UPON EVENTS OF DEFAULT
Section 7.1 Rights of Secured Party. If any Event of Default shall have
occurred and be continuing, the Collateral Agent may exercise on behalf of
Purchaser all the rights of a secured party under the UCC (whether or not in
effect in the jurisdiction where such rights are exercised) and, in addition,
without being required to give any notice, except as provided in this Agreement
or as may be required by applicable law, shall: (i) deliver all Collateral
consisting of shares of Common Stock or Reference Property (but not, in either
case, in excess of the number of shares deliverable under the Contract at such
time) to Purchaser on the date of such Event of Default (in either case, the
"Delivery Date"), whereupon Purchaser shall hold such shares of Common Stock or
Reference Property absolutely free from any claim or right of whatsoever kind,
including any equity or right of redemption of Pledgor which may be waived, and
Pledgor, to the extent permitted by law, hereby specifically waives all rights
of redemption, stay or appraisal which it has or may have under any law now
existing or hereafter adopted; and (ii) if such delivery shall be insufficient
to satisfy in full all of the obligations of Pledgor under the Contract, sell
all of the remaining Collateral, or such lesser portion of the remaining
Collateral as may be necessary to generate proceeds sufficient to satisfy in
full all of the obligations of Pledgor under the Contract, at public or private
sale or at any broker's board or on any securities exchange, for cash, upon
credit or for future delivery, and at such price or prices as the Collateral
Agent may deem satisfactory. Pledgor covenants and agrees that it will execute
and deliver such documents and take such other action as the Collateral Agent
deems necessary or advisable in order that any such sales may be made in
compliance with law. Upon any such sale the Collateral Agent shall have the
right to deliver, assign and transfer the Collateral so sold to the purchaser of
such Collateral. Subject to applicable law, each purchaser at any such sale
shall hold the Collateral so sold absolutely and free from any claim or right of
whatsoever kind, including any equity or right of redemption of Pledgor which
may be waived, and Pledgor, to the extent permitted by law, hereby specifically
waives all rights of redemption, stay or appraisal which it has or may have
under any law now existing or hereafter adopted. The notice (if any) of such
sale required by Article 9 of the UCC shall (1) in case of a public sale, state
the time and place fixed for such sale and (2) in the case of a private sale,
state the day after which such sale may be consummated. Any such public sale
shall be held at such time or times within ordinary business hours and at such
place or places as the Collateral Agent may fix in the notice of such sale. At
any such sale the Collateral may be sold in one lot as an entirety or in
separate parcels, as the Collateral Agent may determine. The Collateral Agent
shall not be obligated to make any such sale pursuant to any such notice. The
Collateral Agent may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for the sale, and such sale may be made at any time
or place to which the same may be so adjourned. In case of any sale of all or
any part of the Collateral on credit or for future delivery, the Collateral so
sold may be retained by the Collateral Agent until the selling price is paid by
the purchaser of such Collateral, but the Collateral Agent shall not incur any
liability in case of the failure of such purchaser to take up and pay for the
Collateral so sold and, in case of any such failure, such Collateral may again
be sold upon like notice. The Collateral Agent, instead of exercising the power
of sale conferred upon it in this Agreement, may proceed by a suit or suits at
law or in equity to foreclose the security interests granted hereunder and sell
the Collateral, or any portion of such Collateral, under a judgment or decree of
a court or courts of competent jurisdiction.
Section 7.2 Power of Attorney. Upon any delivery or sale of all or any
part of any Collateral made either under the power of delivery or sale given
hereunder or under judgment or decree in any judicial proceedings for
foreclosure or otherwise for the enforcement of this Agreement, the Collateral
Agent is hereby irrevocably appointed the true and lawful attorney of Pledgor,
in the name and stead of Pledgor, to make all necessary deeds, bills of sale and
instruments of assignment, transfer or conveyance of the property thus delivered
or sold. For that purpose the Collateral Agent may execute all such documents
and instruments. This power of attorney shall be deemed coupled with an
interest, and Pledgor hereby ratifies and confirms all that its attorneys acting
under such power, or such attorneys' successors or agents, shall lawfully do by
virtue of this Agreement. If so requested by the Collateral Agent, by the
Trustees or by any purchaser of the Collateral or a portion of the Collateral,
Pledgor shall further ratify and confirm any such delivery or sale by executing
and delivering to the Collateral Agent, to the Trustees or to such purchaser or
purchasers at the expense of Pledgor all proper deeds, bills of sale,
instruments of assignment, conveyance of transfer and releases as may be
designated in any such request.
Section 7.3 Application of Collateral and Proceeds. In the case of an
Event of Default, the Collateral Agent may proceed to realize upon the security
interest in the Collateral against any one or more of the types of Collateral,
at any one time, as the Collateral Agent shall determine in its sole discretion
subject to the foregoing provisions of this Article VII. The proceeds of any
sale of, or other realization upon, or other receipt from, any such Collateral
shall be applied by the Collateral Agent in the following order of priorities:
first, to the payment to Purchaser of an amount equal to: (A)
the aggregate Market Value of a number of shares of Common Stock and
(B) if an Adjustment Event or Reorganization Event has occurred,
Reference Property distributed in such Adjustment Event or
Reorganization Event equal to (1) the number of shares of Common Stock
or Reference Property, as the case may be, required to be delivered
under the Contract on the Delivery Date minus (2) the number of shares
of Common Stock or Reference Property, as the case may be, delivered by
the Collateral Agent to Purchaser on the Delivery Date as described
above; together with, in cases (A) and (B), any amounts due to
Purchaser from Pledgor pursuant to Section 2.5(o)(ii) of the Trust
Agreement;
second, to the payment to the Collateral Agent of the expenses
of such sale or other realization, including reasonable compensation to
the Collateral Agent and its agents and counsel, and all expenses,
liabilities and advances incurred or made by the Collateral Agent in
connection therewith, including brokerage fees in connection with the
sale by the Collateral Agent of any Pledged Item; and
third, if all of the obligations of Pledgor hereunder and
under the Contract have been fully discharged or sufficient funds have
been set aside by the Collateral Agent at the request of Pledgor for
the discharge of such obligations, any remaining proceeds shall be
released to Pledgor.
ARTICLE VIII
THE COLLATERAL AGENT
Section 8.1 Conditions to Duties of the Collateral Agent. The
Collateral Agent accepts its duties and responsibilities hereunder as agent for
Purchaser, on and subject to the following terms and conditions:
(a) Performance of Duties. The Collateral Agent undertakes to perform
such duties and only such duties as are expressly set forth in this Agreement
and, beyond the exercise of reasonable care in the performance of such duties,
no implied covenants or obligations shall be read into this Agreement against
the Collateral Agent. No provision of this Agreement shall be construed to
relieve the Collateral Agent from liability for its own grossly negligent
action, grossly negligent failure to act, bad faith, willful misconduct or
reckless disregard of its duties. In performing its duties, the following shall
apply:
(i) The Collateral Agent may consult with counsel, and the advice
or opinion of such counsel shall be full and complete authorization and
protection in respect of an action taken or suffered hereunder in good
faith and in accordance with such advice or opinion of counsel.
(ii) The Collateral Agent shall not be liable with respect to any
action taken, suffered or omitted by it in good faith (i) reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred on it by this Agreement or (ii) in accordance with any
direction or request of the Trustees.
(iii) The Collateral Agent shall not be liable for any error of
judgment made in good faith by any of its officers, unless the
Collateral Agent was grossly negligent in ascertaining the pertinent
facts.
(iv) In the absence of bad faith on its part, the Collateral
Agent may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any note, notice,
resolution, consent, certificate, affidavit, letter, telegram, teletype
message, statement, order or other document believed by it to be
genuine and correct and to have been signed or sent by the proper
Person or Persons.
(v) No provision of this Agreement shall require the Collateral
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(vi) The Collateral Agent may perform any duties hereunder either
directly or by or through agents or attorneys, and the Collateral Agent
shall not be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it hereunder. In
furtherance of the preceding sentence, any subsidiary owned or
controlled by the Collateral Agent, or its successors, as agent for the
Collateral Agent, may perform any or all of the duties of the
Collateral Agent relating to the valuation of securities and other
instruments constituting Collateral hereunder.
(vii) In no event shall the Collateral Agent be personally liable
for any taxes or other governmental charges imposed upon or in respect
of (i) the Collateral or (ii) the income or other distributions
thereon.
(viii) Unless and until the Collateral Agent shall have received
notice from Pledgor, Purchaser or any other Person, or unless and until
a Responsible Officer of the Collateral Agent shall have actual
knowledge to the contrary, the Collateral Agent shall be entitled to
deem and treat all Collateral delivered to it hereunder as Eligible
Collateral hereunder, provided that the Collateral Agent has carried
out the duties specified in Article V with respect to such Collateral
at the time of delivery of such Collateral.
The Collateral Agent shall not be responsible for the correctness of
the recitals and statements in this Agreement that are made by Pledgor or for
any statement or certificate delivered by Pledgor pursuant to this Agreement,
provided that the Collateral Agent has carried out the duties specified in
Article V with respect to such Collateral at the time of delivery of such
Collateral. Except as specifically provided in this Agreement, the Collateral
Agent shall not be responsible for the validity, sufficiency, collectibility or
marketability of any Collateral given to or held by it hereunder or for the
validity or sufficiency of the Contract or the Lien on the Collateral purported
to be created hereby.
(b) Knowledge. The Collateral Agent shall not be deemed to have
knowledge of any Event of Default (except a Collateral Event of Default), unless
and until a Responsible Officer of the Collateral Agent shall have actual
knowledge of such Event of Default or the Collateral Agent shall have received
written notice, delivered in accordance with Section 9.3, of such Event of
Default.
Section 8.2 Merger. Any corporation or association into which the
Collateral Agent may be converted or merged, or with which 1`it may be
consolidated, or to which it may sell or transfer its agency business and assets
as a whole or substantially as a whole, or any corporation or association
resulting from any such conversion, sale, merger, consolidation or transfer to
which it is a party, shall be and become the successor Collateral Agent
hereunder and vested with all of the title to the Collateral and all of the
powers, discretions, immunities, privileges and other matters as was its
predecessor without, except as provided above, the execution or filing of any
instrument or any further act, deed or conveyance on the part of any of the
parties to this Agreement, anything in this Agreement to the contrary
notwithstanding.
Section 8.3 Resignation. Subject to Section 8.5, the Collateral Agent
and any successor Collateral Agent may at any time resign by giving 30 days
written notice by registered or certified mail to Pledgor and notice to
Purchaser in accordance with the provisions of Section 9.3.
Section 8.4 Removal.
(a) Subject to Section 8.5, the Collateral Agent may be removed at any
time by an instrument or concurrent instruments in writing delivered to the
Collateral Agent and to Pledgor and signed by Purchaser.
(b) Subject to Section 8.5, the Collateral Agent shall be removed
immediately upon (i) termination of the Trust Agreement, (ii) termination of the
Administration Agreement (as defined in the Trust Agreement), (iii) termination
of the Paying Agent Agreement (as defined in the Trust Agreement), (iv)
termination of the Custodian Agreement (as defined in the Trust Agreement), or
(v) the resignation or removal of the Administrator, the Paying Agent or the
Custodian (in each case as defined in the Trust Agreement).
Section 8.5 Effectiveness of Resignation or Removal. No resignation or
removal of the Collateral Agent shall be effective until a successor Collateral
Agent shall have been appointed and shall have accepted the duties of the
Collateral Agent. If, within 30 days after notice by the Collateral Agent to the
Trust or by the Trust to the Collateral Agent of any such resignation or
removal, no successor Collateral Agent shall have been selected and accepted the
duties of the Collateral Agent, the Collateral Agent may apply to a court of
competent jurisdiction for the appointment of a successor Collateral Agent.
Section 8.6 Appointment of Successor.
(a) If the Collateral Agent hereunder shall resign or be removed, or be
dissolved or shall be in the course of dissolution or liquidation or otherwise
become incapable of action hereunder, or if it shall be taken under the control
of any public officer or officers or of a receiver appointed by a court, a
successor shall be appointed by Purchaser by an instrument or concurrent
instruments in writing signed by Purchaser or by its attorneys in fact duly
authorized. A copy of such instrument or concurrent instruments shall be sent by
registered mail to Pledgor.
(b) Every such temporary or permanent successor Collateral Agent
appointed pursuant to the provisions of this Agreement shall be a trust company
or bank in good standing, having a reported capital, surplus and retained
earnings of not less than $100,000,000 and capable of holding the Collateral in
the State of Delaware, if there be such an institution willing, qualified and
able to accept the duties of the Collateral Agent hereunder upon customary
terms.
Section 8.7 Acceptance by Successor. Every temporary or permanent
successor Collateral Agent appointed hereunder shall execute, acknowledge and
deliver to its predecessor and also to Pledgor and Purchaser an instrument in
writing accepting such appointment hereunder, whereupon such successor, without
any further act, deed or conveyance, shall become fully vested with all the
estates, properties, rights, powers, duties and obligations of its predecessors.
Such predecessor shall, nevertheless, on the written request of its successor or
Pledgor, execute and deliver an instrument transferring to such successor all
the estates, properties, rights and powers of such predecessor hereunder. Every
predecessor Collateral Agent shall deliver all Collateral held by it as the
Collateral Agent hereunder to its successor. Should any instrument in writing
from Pledgor be required by a successor Collateral Agent for more fully and
certainly vesting in such successor the estates, properties, rights, powers,
duties and obligations hereby vested or intended to be vested in the
predecessor, any and all such instruments in writing shall, at the request of
the temporary or permanent successor Collateral Agent, be forthwith executed,
acknowledged and delivered by Pledgor.
Section 8.8 Compensation. For services to be rendered by the Collateral
Agent pursuant to this Agreement, the Collateral Agent shall receive only such
fees and expenses as shall be paid to it pursuant to the terms of the Expense
Agreement and shall have no recourse to the assets of Purchaser for the payment
of any such amounts.
Section 8.9 Indemnification. The Trust shall indemnify and hold the
Collateral Agent harmless from and against any loss, damages, cost or expense
(including the costs of investigation, preparation for and defense of legal
and/or administrative proceedings related to a claim against it and reasonable
attorneys' fees and disbursements), liability, action, suit or claim incurred by
reason of any inaccuracy in information furnished to the Collateral Agent by the
Trust, or any act or omission in the course of, connected with or arising out of
any services to be rendered hereunder, provided that the Collateral Agent shall
not be indemnified and held harmless from and against any such loss, damages,
cost, expense, liability, action, suit or claim incurred by reason of its
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or its reckless disregard of its duties and obligations hereunder. Such
indemnity shall survive the resignation, removal or discharge of the Collateral
Agent and the termination of this Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Termination. This Agreement and the rights hereby granted
by Pledgor in the Collateral shall cease, terminate and be void upon fulfillment
of all of the obligations of Pledgor under the Contract, and Pledgor shall have
no further liability hereunder upon such termination. Any Collateral remaining
at the time of such termination (including any shares of Common Stock held
following Pledgor's election of the Cash Settlement Alternative and payment in
respect of the Cash Settlement Alternative pursuant to the Contract), shall be
fully released and discharged from the Lien created by this Agreement and
delivered to Pledgor by the Collateral Agent, all at the expense of Pledgor.
Section 9.2 No Assumption of Liability. By executing this Agreement,
none of the Trustees assumes any personal liability under this Agreement.
Section 9.3 Notices.
(a) All notices and other communications provided for in this
Agreement, unless otherwise specified, shall be in writing and shall be given at
the addresses set forth in the following sentence or at such other addresses as
may be designated by notice duly given in accordance with this Section 9.3 to
each other party to this Agreement. Until such notice is given, (i) notices to
Pledgor shall be directed to it at ________ , Telecopier No. ________ ; (ii)
notices to the Collateral Agent shall be directed to it at Wilmington Trust
Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Corporate Trust Agreement;
and (iii) notices to Purchaser shall be directed to it in care of the
Administrator for Purchaser, ________ , Telecopier No. ________ , Attention:
________ .
(b) Each notice given pursuant to Section 9.3(a) shall be effective (i)
if sent by certified mail (return receipt requested), 72 hours after being
deposited in the United States mail, postage prepaid; (ii) if given by telex or
telecopier, when such telex or telecopied notice is transmitted (with electronic
confirmation of transmission or verbal confirmation of receipt); or (iii) if
given by any other means, when delivered at the address specified in this
Section 9.3.
Section 9.4 Governing Law; Severability. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York;
provided that as to Collateral located in any jurisdiction other than the State
of New York, the Collateral Agent on behalf of Purchaser shall have all of the
rights to which a secured party is entitled under the laws of such other
jurisdiction.
To the extent permitted by law, the unenforceability or invalidity of
any provision or provisions of this Agreement shall not render any other
provision or provisions contained in this Agreement unenforceable or invalid.
Section 9.5 Entire Agreement. Except as expressly set forth in this
Agreement, this Agreement constitutes the entire agreement among the parties
with respect to the subject matter of this Agreement and supersedes all prior
agreements, understandings and negotiations, both written and oral, among the
parties with respect to the subject matter of this Agreement.
Section 9.6 Amendments; Waivers. Any provision of this Agreement may be
amended or waived (either generally or in a particular instance and either
retrospectively or prospectively) if, and only if, such amendment or waiver is
in writing and signed, in the case of an amendment, by Pledgor, the Collateral
Agent and Purchaser or, in the case of a waiver, by the party against whom the
waiver is to be effective. No failure or delay by either party in exercising any
right, power or privilege under this Agreement shall operate as a waiver of such
right, power or privilege nor shall any single or partial exercise of any such
right, power or privilege preclude any other or further exercise of such right,
power or privilege or the exercise of any other right, power or privilege. The
rights and remedies provided in this Agreement shall be cumulative and not
exclusive of any rights or remedies provided by law.
Section 9.7 Non-Assignability. This Agreement and the rights and
obligations of the parties under this Agreement may not be assigned or delegated
by either party without the prior written consent of the other parties, and any
purported assignment without such consent shall be void.
Section 9.8 No Third Party Rights; Successors and Assigns. This
Agreement is not intended and shall not be construed to create any rights in any
person other than Pledgor, the Collateral Agent and Purchaser and their
respective successors and assigns and no person shall assert any rights as third
party beneficiary under this Agreement. Whenever any of the parties to this
Agreement is referred to, such reference shall be deemed to include the
successors and assigns of such party. All the covenants and agreements in this
Agreement contained by or on behalf of Pledgor, the Collateral Agent and
Purchaser shall bind, and inure to the benefit of, their respective successors
and assigns whether so expressed or not, and shall be enforceable by and inure
to the benefit of Purchaser and its successors and assigns.
Section 9.9 Counterparts. This Agreement may be executed, acknowledged
and delivered in any number of counterparts, each of which shall be an original,
but all of which shall constitute a single agreement, with the same effect as if
the signatures on each such counterpart were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Collateral Agreement
to be duly executed and delivered as of the first date set forth above.
,
as Pledgor
By:
--------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Securities Intermediary
By:
--------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Collateral Agent
By:
--------------------------------------
Name:
Title:
MANDATORILY EXCHANGEABLE SECURITIES TRUST,
as Purchaser
By:
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
as Trustee
By:
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III,
as Trustee
By:
--------------------------------------
▇▇▇▇▇ ▇. ▇'▇▇▇▇▇,
as Trustee
Exhibit A
to
Collateral Agreement
NOTICE OF PLEDGE VALUE
To: __________
Telecopier No. __________
Wilmington Trust Company, as Collateral Agent (the "Collateral Agent")
under the Collateral Agreement, dated as of _________ , 2005 (the "Collateral
Agreement"), among you, as Pledgor, the Collateral Agent and Mandatorily
Exchangeable Securities Trust, hereby notifies you, pursuant to Section 5.1 of
the Collateral Agreement, that as of 4:00 p.m. New York City time on _________
__, _____:
1. The Pledge Value was $__________; and
2. The Pledge Value Requirement was $____________.
Capitalized terms not otherwise defined in this Notice have the
respective meanings specified in the Collateral Agreement.
Wilmington Trust Company,
as Collateral Agent
By:
----------------------------------
Name:
Title:
Exhibit B
to
Collateral Agreement
CERTIFICATE FOR SUBSTITUTED COLLATERAL
The undersigned, _________ (the "Pledgor"), hereby certifies, pursuant
to Section 5.2(b) of the Collateral Agreement, dated as of ________ , 2005 (the
"Collateral Agreement"), among Pledgor, Wilmington Trust Company, as Collateral
Agent, and _________ Mandatorily Exchangeable Securities Trust, that:
1. Pledgor is delivering the following Eligible Collateral to the
Collateral Agent to be held by the Collateral Agent as substitute Collateral
(the "Substitute Collateral"):
[INSERT DESCRIPTION OF SUBSTITUTE COLLATERAL]
2. Pledgor requests that the Collateral Agent transfer to Pledgor the
following Prior Collateral, pursuant to Sections 5.2 and 5.6(b) of the
Collateral Agreement:
[INSERT DESCRIPTION OF PRIOR COLLATERAL]
3. Pledgor hereby represents and warrants to the Collateral Agent and
Purchaser that:
(a) Consents to Transfer. No Transfer Restrictions exist with
respect to or otherwise apply to the pledge or assignment of, or
transfer by Pledgor of, any items of Substitute Collateral to the
Collateral Agent under the Collateral Agreement, or the subsequent sale
or transfer of such items of Substitute Collateral by the Collateral
Agent pursuant to the terms of the Collateral Agreement.
(b) Title to Collateral; Perfected Security Interest. Pledgor
owns the Substitute Collateral, free of all Liens (other than the Lien
created by the Collateral Agreement) and Transfer Restrictions and has
good, right and lawful authority to assign, transfer and pledge such
Substitute Collateral under the Collateral Agreement. Upon delivery of
the Substitute Collateral to the Collateral Agent under the Collateral
Agreement, the Collateral Agent will obtain a valid, first priority
perfected security interest in, and a first lien upon, such Substitute
Collateral subject to no other Lien. None of such Substitute Collateral
is or shall be pledged by Pledgor as collateral for any other purpose.
This Certificate may be relied upon by Purchaser as fully and to the
same extent as if this Certificate had been specifically addressed to Purchaser.
Capitalized terms not otherwise defined Certificate have the respective meanings
specified in the Collateral Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
_____ day of ____________, ____.
By:
----------------------------------
Name:
Title:
Exhibit C
to
Collateral Agreement
CERTIFICATE FOR ADDITIONAL COLLATERAL
The undersigned, _________ (the "Pledgor"), hereby certifies, pursuant
to Section 5.3 of the Collateral Agreement, dated as of ________ , 2005 (the
"Collateral Agreement"), among Pledgor, Wilmington Trust Company, as Collateral
Agent, and _________ Mandatorily Exchangeable Securities Trust, that:
1. Pledgor is delivering the following Eligible Collateral to the
Collateral Agent to be held by the Collateral Agent as additional Collateral
(the "Additional Collateral"):
[INSERT DESCRIPTION OF ADDITIONAL COLLATERAL]
2. Pledgor hereby represents and warrants to the Collateral Agent and
Purchaser that:
(a) Consents to Transfer. No Transfer Restrictions exist with
respect to or otherwise apply to the pledge or assignment of, or
transfer by Pledgor of, any items of Additional Collateral to the
Collateral Agent under the Collateral Agreement, or the subsequent sale
or transfer of such items of Additional Collateral by the Collateral
Agent pursuant to the terms of the Collateral Agreement.
(b) Title to Collateral; Perfected Security Interest. Pledgor
owns the Additional Collateral, free of all Liens (other than the Lien
created by the Collateral Agreement) and Transfer Restrictions and has
good, right and lawful authority to assign, transfer and pledge such
Additional Collateral under the Collateral Agreement. Upon delivery of
the Additional Collateral to the Collateral Agent, the Collateral Agent
will obtain a valid, first priority perfected security interest in, and
a first lien upon, such Additional Collateral subject to no other Lien.
None of such Additional Collateral is or shall be pledged by Pledgor as
collateral for any other purpose.
This Certificate may be relied upon by Purchaser as fully and to the
same extent as if this Certificate had been specifically addressed to Purchaser.
Capitalized terms not otherwise defined Certificate have the respective
meanings specified in the Collateral Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
_____ day of ____________, ____.
By:
----------------------------------
Name:
Title:
Exhibit D
to
Collateral Agreement
NOTICE OF TRANSFER
Reference is hereby made to the Collateral Agreement, dated as of
________ , 2005 (the "Collateral Agreement"), by and among ________ , as
Pledgor, Wilmington Trust Company, as Collateral Agent and ________ Mandatorily
Exchangeable Securities Trust. Capitalized terms used herein but not otherwise
defined herein shall have the meanings ascribed to them in the Collateral
Agreement.
Pursuant to Section 5.6 of the Collateral Agreement, Pledgor hereby
directs the Collateral Agent to transfer on [insert date] [insert description of
Collateral to be released] to the following account [insert account specifics].
Dated this [insert day] day of [insert month], [insert year].
By:
----------------------------------
Name:
Title:
Exhibit E
to
Collateral Agreement
FORM OF OPINION OF COUNSEL