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EXHIBIT 2.k.(iv)
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COLLATERAL AGREEMENT
Among
CNET INVESTMENTS II, INC.
AS PLEDGOR,
THE CHASE MANHATTAN BANK,
As Collateral Agent
and
NBCi AUTOMATIC COMMON EXCHANGE SECURITY TRUST
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Dated as of February __, 2000
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms......................................................1
Section 1.2. Interpretation.....................................................6
ARTICLE II
THE SECURITY INTERESTS
Section 2.1. Grant of Security Interests........................................7
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of Pledgor..........................8
Section 3.2. Representations and Warranties of the Collateral Agent.............8
ARTICLE IV
CERTAIN COVENANTS OF PLEDGOR
Section 4.1. Certain Covenants of Pledgor.......................................9
ARTICLE V
ADMINISTRATION OF THE COLLATERAL AND
VALUATION OF THE SECURITIES
Section 5.1. Valuation of Collateral...........................................10
Section 5.2. Substitution of Collateral........................................10
Section 5.3. Additional Collateral.............................................11
Section 5.4. Delivery of Collateral............................................11
Section 5.5. Insufficiency Determination.......................................12
Section 5.6. Release of Excess Collateral......................................14
Section 5.7. Delivery of Contract Consideration................................14
Section 5.8. Investment of Cash Collateral.....................................14
ARTICLE VI
INCOME AND VOTING RIGHTS ON COLLATERAL
Section 6.1. Income on Collateral..............................................14
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Section 6.2. Voting of Collateral..............................................15
ARTICLE VII
REMEDIES UPON EVENTS OF DEFAULT
Section 7.1. Rights of Secured Party...........................................15
Section 7.2. Power of Attorney.................................................16
Section 7.3. Application of Collateral and Proceeds............................17
ARTICLE VIII
THE COLLATERAL AGENT
Section 8.1. Conditions to Duties of the Collateral Agent......................18
Section 8.2. Merger............................................................19
Section 8.3. Resignation.......................................................20
Section 8.4. Removal...........................................................20
Section 8.5. Effectiveness of Resignation or Removal...........................20
Section 8.6. Appointment of Successor..........................................20
Section 8.7. Acceptance by Successor...........................................21
Section 8.7. Compensation......................................................21
ARTICLE IX
MISCELLANEOUS
Section 9.1. Termination.......................................................21
Section 9.2. No Assumption of Liability........................................21
Section 9.3. Notices...........................................................21
Section 9.4. Governing Law; Severability.......................................22
Section 9.5. Entire Agreement..................................................22
Section 9.6. Amendments; Waivers...............................................22
Section 9.7. Non-Assignability.................................................22
Section 9.8. No Third Party Rights; Successors and Assigns.....................23
Section 9.9. Counterparts......................................................23
Exhibits
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Exhibit A - Notice of Pledge Value
Exhibit B - Certificate for Substituted Collateral
Exhibit C - Certificate for Additional Collateral
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COLLATERAL AGREEMENT
COLLATERAL AGREEMENT, dated as of February __, 2000, among CNET Investments
II, Inc., a Delaware corporation ("Pledgor"), The Chase Manhattan Bank, a New
York banking corporation, as collateral agent hereunder for the benefit of NBCi
Automatic Common Exchange Security 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 February __, 2000 (such trust and the trustees thereof
acting in their capacity as such being referred to in this Agreement as
"Purchaser"), and Purchaser.
WITNESSETH:
WHEREAS, pursuant to the Purchase Agreement, dated as of February __, 2000
(the "Contract"), between Pledgor and Purchaser, Pledgor has agreed to sell and
Purchaser has agreed to purchase Class A common stock, par value $0.0001 per
share (the "Class A Common Stock"), of NBC Internet, Inc., a Delaware
corporation (the "Company"), 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. As used in this Agreement, the following terms
have the following meanings:
"Accelerated Portion" has the meaning specified in the Contract.
"Additional Purchase Price" has the meaning specified in the Contract.
"Additional Share Base Amount" has the meaning specified in the
Contract.
"Agreement" means this Collateral Agreement.
"Authorized Representative" of Pledgor means any trustee or other
representative as to whom Pledgor shall have delivered notice to the
Collateral Agent that such trustee or other representative is authorized to
act hereunder on behalf of Pledgor.
"Cash Delivery Obligations" means, at any time (A) if no
Reorganization Event shall have occurred prior to such time, zero, and (B)
from and after any Reorganization Event, the Dilution Adjustment (or
successive Dilution
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Adjustments) that shall have been applied to the Exchange Rate pursuant to
Section 6.1 of the Contract at or prior to the Reorganization Event, times
the product of: (i) the Firm Share Base Amount plus the Additional Share
Base Amount (if any) and (ii) the Transaction Value (as defined in the
Contract) of any Merger Consideration other than Marketable Securities
delivered in the related Reorganization Event, provided that if the
Reorganization Event is a Cash Merger, the Cash Delivery Obligations shall
again be zero after Pledgor has delivered the Accelerated Portion to the
Purchaser as required under the Purchase Agreement.
"Cash Merger" has the meaning specified in the Contract.
"Class A Common Stock" has the meaning specified in the recitals to
this Agreement.
"Closing Price" has the meaning specified in the Contract.
"Collateral" has the meaning specified in Section 2.1(a).
"Collateral Agent" means The Chase Manhattan Bank, in its capacity as
collateral agent under this Agreement, or its successor in such capacity
appointed in accordance with Section 8.5.
"Collateral Event of Default" means, at any time, the occurrence of
any of the following: (A) if no U.S. Government Securities shall be pledged
as substitute Collateral at such time, failure of the aggregate Market
Value of the Collateral to equal or exceed the Pledge Value Requirement;
(B) if any U.S. Government Securities shall be pledged as substitute
Collateral at such time, failure of the Market Value of any U.S. Government
Securities pledged at such time (not including any U.S. Government
Securities pledged in respect of Cash Delivery Obligations at such time) to
have an aggregate Market Value of at least 105% of the Market Value of a
number of Class A Common Stock and, from and after any Spin-Off
Distribution, of the Marketable Securities distributed in such Spin-Off
Distribution (or, from and after any Reorganization Event, the Marketable
Securities distributed in such Reorganization Event in lieu of such Class A
Common Stock or shares of Marketable Securities) equal in each case to (x)
the Maximum Deliverable Number of such securities minus (y) the number of
such securities pledged as Collateral hereunder at such time; or (C) from
and after any Reorganization Event in which consideration other than
Marketable Securities shall have been delivered, failure of the U.S.
Government Securities pledged in respect of Cash Delivery Obligations to
have an aggregate Market Value at least equal to 105% of the Cash Delivery
Obligations at such time, if, in the case of a failure described in this
clause (C), such failure shall continue to be in effect at 4:00 p.m., New
York City time, on the next Business Day following the day on which
telephonic notice in respect of such failure shall have been given pursuant
to Section 5.5(a).
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"Collateral Requirement" means, as of any date and with respect to:
(i) any Class A Common Stock, 100%; (ii) any Marketable Securities, 100%;
(iii) any U.S. Government Securities pledged in respect of Cash Delivery
Obligations, 105%; and (iv) any other U.S. Government 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 5.5(b), which insufficiency shall be continuing on
such next business day, the Collateral Requirement relating to any U.S.
Government Securities shall be 200%. The portion of any pledged U.S.
Government Securities that shall be deemed to be pledged in respect of Cash
Delivery Obligations at any time shall be a portion having a Market Value
equal to 105% of the Cash Delivery Obligations at such time or, if less,
the aggregate Market Value of all U.S. Government Securities pledged at
such time.
"Company" has the meaning specified in the recitals to this Agreement.
"Contract" has the meaning specified in the recitals to this
Agreement.
"Delivery Date" has the meaning specified in Section 7.1.
"Dilution Adjustment" has the meaning specified in the Contract.
"Distribution Date" has the meaning specified in the Trust Agreement.
"Eligible Collateral" means (i) unless and until a Reorganization
Event shall occur, Class A Common Stock and, if a Spin-Off Distribution
occurs, the Marketable Securities distributed in such Spin-Off
Distribution; (ii) U.S. Government Securities, and (iii) from and after any
Reorganization Event, the Marketable Securities distributed in such
Reorganization Event; provided, in each case, that Pledgor has good and
marketable title to 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 Class A Common Stock or shares of Marketable Securities pledged
hereunder exceeds at any time the Maximum Deliverable Number of such
securities, such excess shares shall not be Eligible Collateral.
"Event of Default" means the occurrence of: (i) an event described in
Section 7.1(a) or (b) 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 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 Section
6.2 of the Contract.
"Exchange Date" has the meaning specified in the Contract.
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"Exchange Rate" has the meaning specified in the Contract.
"Firm Purchase Price" has the meaning specified in the Contract.
"Firm Share Base Amount" has the meaning specified in the Contract.
"First Time of Delivery" has the meaning specified in the Contract.
"Insufficiency Determination" has the meaning specified in Section
5.5(a).
"Lien" means any lien, mortgage, security interest, pledge, charge,
encumbrance or adverse claim of any kind.
"Marketable Securities" has the meaning specified in the Contract.
"Market Value" means, as of any date: (a) with respect to any Class A
Common Stock (except as otherwise provided in Section 5.5(b)), the Closing
Price of the Class A Common Stock on such date multiplied by the number of
such Class A Common Stock; (b) with respect to any U.S. Government
Security, the product of (x)(i) the average unit bid price for such
security as published on the Trading Day prior to such date in the New York
edition of The Wall Street Journal or The New York Times or the average
unit bid price set forth on the applicable page of the Bloomberg system,
or, if not so published, (ii) the lower bid price quoted (which quotation
shall be evidenced in writing) on the Trading Day prior to such date by
either of two nationally recognized dealers making a market in such
security which are members of the National Association of Securities
Dealers, Inc. and (y) the number of such units of such security; and (c)
with respect to any shares of Marketable Securities, the Closing Price of
such Marketable Securities on the Trading Day prior to such date multiplied
by the number of such Shares; provided that the "Market Value" of any
Collateral that does not constitute Eligible Collateral shall be zero.
"Maximum Deliverable Number" means, on any date, (i) with respect to
the Class A Common Stock, the product of the Firm Share Base Amount plus
the Additional Share Base Amount (if any), multiplied successively by each
Dilution Adjustment by which the Exchange Rate shall have been multiplied
on or prior to such date pursuant to the Dilution Adjustments provided for
under Section 6.1 of the Contract; and (ii) with respect to the Marketable
Securities of any class or series, the product of (A) the Firm Share Base
Amount plus the Additional Share Base Amount (if any) multiplied by (B) the
number of Marketable Securities included in the Merger Consideration in the
applicable Reorganization Event or distributed in the applicable Spin-Off
Distribution for each Ordinary Share, multiplied successively by (x) each
Dilution Adjustment by which the Exchange Rate with respect to the Class A
Common Stock shall have been multiplied on or prior to the date of such
Reorganization Event or Spin-Off Distribution pursuant to the adjustments
provided for under Article VI of the Contract, and (y) each Dilution
Adjustment by which the Exchange Rate with respect to such Marketable
Securities shall have been multiplied on or prior to
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such date and after the date of such Reorganization Event or Spin-Off
Distribution pursuant to the adjustments provided for under Article VI
of the Contract.
"Person" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency
or instrumentality thereof.
"Pledge Value" means, as of any date, an amount equal to the sum of
the aggregate Market Values 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, (a) the aggregate
Market Value on such date of the Maximum Deliverable Number of Class A
Common Stock on such date or, from and after a Reorganization Event, the
Maximum Deliverable Number of the Marketable Securities included in the
Merger Consideration in such Reorganization Event, plus (b) from and after
a Reorganization Event, the Cash Delivery Obligations, plus (c) from and
after a Spin-Off Distribution, the Market Value on such date of the Maximum
Deliverable Number of the Marketable Securities distributed in such
Spin-Off Distribution.
"Pledged Items" means, as of any date, any and all securities,
instruments, cash and other property 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.
"Reorganization Event" 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 or
assistant secretary located in the division or department of the Collateral
Agent responsible for performing the obligations of the Collateral Agent
under this Agreement.
"Second Time of Delivery" has the meaning specified in the Contract.
"Spin-off Distribution" has the meaning specified in the Contract.
"Trading Day" has the meaning specified in the Contract.
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"Transfer Restriction" means, with respect to any item, any condition
to or restriction on the ability of the holder of such item to sell, assign
or otherwise transfer such item of Collateral or to enforce the provisions
thereof or of any document related thereto whether set forth in such item
of Collateral itself or in any document related thereto, including (i) any
requirement that any sale, assignment or other transfer or enforcement of
such item of Collateral be consented to or approved by any Person,
including the issuer thereof or any other obligor thereon, (ii) any
limitations on the type or status, financial or otherwise, of any
purchaser, pledgee, assignee or transferee of such item of Collateral,
(iii) any requirement to deliver any certificate, consent, agreement,
opinion of counsel, notice or any other document of any Person to the
issuer of, any other obligor on or any registrar or transfer agent for,
such item of Collateral, prior to the sale, pledge, assignment or other
transfer or enforcement of such item of Collateral, and (iv) any
registration or qualification requirement for such item of Collateral
pursuant to any federal or state securities law that has not been
satisfied; provided, however, that the required delivery of any assignment
from the seller, pledgor, assignor or transferor of such item of
Collateral, together with any evidence of the corporate or other authority
of such Person, shall not constitute a "Transfer Restriction".
"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.
"U.S. Government Securities" means direct obligations of the United
States of America that mature 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.
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.
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ARTICLE II
THE SECURITY INTERESTS
Section 2.1. Grant of Security Interests. 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 paragraphs (b) and (c); (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) First Time of Delivery. Effective upon and subject to receipt by
Pledgor of the Firm Purchase Price, at the First 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 __________ Class A
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 Class A 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 Class A 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, as applicable.
(c) Second Time of Delivery. Effective upon and subject to the receipt
by Pledgor of the Additional Purchase Price, at the Second 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 the Additional Share Base Amount of Class A 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 Class A 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 Class A Common Stock to an account of the
Collateral Agent or to an account (other than an
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account of Pledgor) designated by the Collateral Agent with The Depository
Trust Company or such other depositary, 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:
(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 has good
and marketable title to the Collateral, free of all Liens (other than the
Lien created by this Agreement) and Transfer Restrictions and has good,
right and lawful authority to assign, transfer and pledge such Collateral
and all additions to such Collateral and substitutions for such Collateral
under this Agreement. Upon delivery of any Collateral to the Collateral
Agent hereunder, the Collateral Agent will obtain a valid, first priority
perfected security interest in, and a first lien upon, such Collateral
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 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 Collateral 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.
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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 have and
maintain good and marketable title to 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 Reorganization Event. Upon the occurrence of a
Reorganization Event, Pledgor shall immediately cause to be delivered to
the Collateral Agent, in the manner provided in Section 5.4: (i) cash in an
amount equal to 100% of Pledgor's Cash Delivery Obligations (or U.S.
Government Securities having an aggregate Market Value when pledged and at
daily ▇▇▇▇-to-market valuations thereafter at least equal to 105% of the
Cash Delivery Obligations); and (ii) Marketable Securities in an amount at
least equal to the Maximum Deliverable Number of such securities, or, at
Pledgor's election, U.S. Government Securities having an aggregate Market
Value when pledged and at daily ▇▇▇▇-to-market valuations thereafter at
least equal to 150% of such Maximum Deliverable Number of Marketable
Securities, in each case to be held as substitute Collateral hereunder.
(d) Pledge Upon Spin-Off Distribution. Upon the occurrence of a
Spin-Off Distribution, Pledgor shall immediately cause to be delivered to
the Collateral Agent, in the manner provided in Section 5.4, Marketable
Securities in an amount at least equal to the Maximum Deliverable Number of
such securities, or, at Pledgor's election, U.S. Government Securities
having an aggregate Market Value at least equal to 150% of such Maximum
Deliverable Number of Marketable Securities, in each case to be held as
additional Collateral hereunder.
(e) Pledge of Contract Consideration. Notwithstanding Pledgor's right
to substitute Collateral pursuant to Section 5.2, Pledgor shall cause the
Collateral to include, on the Exchange Date, (i) unless a Reorganization
Event shall have occurred, a number of Class A Common Stock at least equal
to the number of Class A Common Stock (and, if a Spin-Off Distribution has
occurred, the number
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of shares of Marketable Securities distributed in such Spin-Off
Distribution) required to be delivered under the Contract on the Exchange
Date, and (ii) if a Reorganization Event has occurred, any Marketable
Securities or other property required to be delivered under the Contract on
the Exchange Date.
(f) 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
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 Reorganization Event, Spin-Off Distribution or
substitution of U.S. Government Securities for pledged Class A Common Stock or
shares of Marketable Securities 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 Collateral
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 with the Collateral Agent in substitution for Pledged
Items previously deposited hereunder ("Prior Collateral") and to obtain the
release of such Prior Collateral from the Lien created by this Agreement.
(b) If Pledgor wishes to deposit Eligible Collateral with the
Collateral Agent in substitution for Prior Collateral, it shall (i) give
written
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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 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 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.
(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 when
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 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 confirming the representations
contained in the second sentence of paragraph 2(b) of Exhibit C. 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.
Section 5.4. Delivery of Collateral. Pledgor shall deliver the Collateral
to the Collateral Agent in accordance with the following provisions:
(a) Pledged Class A Common Stock. In the case of Collateral consisting
of Class A Common Stock, by either (1) delivery to the Collateral Agent of
one or more certificates representing such Class A 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 Class A Common Stock are not held in certificated form but are held
in book-entry form by The Depository Trust Company or any other comparable
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depositary, transfer of such Class A 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, as applicable;
(b) Pledged U.S. Government Securities. In the case of Collateral
consisting of U.S. Government Securities, by transfer of such U.S.
Government 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) Pledged Marketable Securities. In the case of Collateral
consisting of Marketable Securities, by either (1) delivery of certificates
evidencing such Marketable Securities, registered in the name of the
Collateral Agent or its nominee or duly endorsed in blank or accompanied by
stock powers duly executed in blank, or (2) if such 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, by transfer to
an account of the Collateral Agent or to an account (other than an account
of Pledgor) designated by 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, as applicable. Each such
delivery of Marketable Securities shall be accompanied by an opinion of
counsel satisfactory to the Collateral Agent that the Collateral Agent has
obtained a valid, first priority perfected security interest in, and a
first lien upon, such Marketable Securities.
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 paragraph 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
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day, is at least equal to the Pledge Value Requirement, then (x) the
Collateral Requirement with respect to any U.S. Government Securities
pledged hereunder (other than in respect of Cash Delivery Obligations)
shall be increased from 150% to 200% until the termination of this
Agreement, 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. Government
Securities as may be required to be sold in order to generate proceeds
sufficient to purchase Class A Common Stock or, after a Reorganization
Event or Spin-Off Distribution, Marketable Securities 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 Class A Common Stock or, after a Reorganization Event or
Spin-Off Distribution, Marketable Securities 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 Market Value and the Pledge Value of
the Collateral after each purchase of Class A Common Stock or shares of
Marketable Securities 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
Market Value of the Class A Common Stock or shares of Marketable Securities
shall be: (A) the most recent sales price as reported in the composite
transactions for the principal securities exchange on which the Class A Common
Stock or shares of Marketable Securities, 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 the National Quotation Bureau or a similar
organization; or (B) if higher, in the case of Class A Common Stock, the most
recent available Closing Price.
(c) Collateral sold and Class A Common Stock or shares of Marketable
Securities purchased by the Collateral Agent pursuant to the preceding
Sections 5.5(a) and (b) 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 Excess 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,
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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 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.
Section 5.7. Delivery of Contract Consideration. On the Exchange Date,
unless (i) a Reorganization Event shall have occurred prior to the Exchange Date
or (ii) if permitted under the Contract, Seller shall have elected the Cash
Settlement Alternative pursuant to Section 2.3(d) of the Contract and made the
cash payment required by that Section, the Collateral Agent shall deliver to
Purchaser from the Class A Common Stock and, if a Spin-Off Distribution has
occurred, Marketable Securities then held by it hereunder the number of Class A
Common Stock and shares of Marketable Securities that were distributed in such
Spin-Off Distribution then required to be delivered by Pledgor under the
Contract. If a Reorganization Event shall have occurred prior to the Exchange
Date, then, (A) if so instructed by Pledgor by the close of business on the
Business Day preceding the Exchange Date, the Collateral Agent shall deliver to
Purchaser, to the extent Marketable Securities are to be delivered on such date
under Section 6.2 of the Contract, the Marketable Securities then held by the
Collateral Agent hereunder; and (B) if such Reorganization Event is a Cash
Merger, the Collateral Agent shall deliver to Purchaser all cash or other assets
then held by the Collateral Agent and required to be delivered under the
Contract at the time when such delivery is required to be made under the
Contract. Upon such delivery, Purchaser shall hold such Class A Common Stock,
shares of Marketable Securities, cash or other 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 received by it pursuant to Section 6.2 of the Contract in U.S.
Government Securities.
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
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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 mandatory provisions of law, shall: (i) deliver all
Collateral consisting of Class A Common Stock or shares of Marketable Securities
(but not, in either case, in excess of the number of shares of such securities
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 Class A Common Stock or shares of Marketable Securities
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
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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. 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, (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 Collateral, or the portion of such Collateral so
being sold, 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 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 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.
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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 Class A Common Stock and, if a
Spin-Off Distribution has occurred, Marketable Securities distributed in
such Spin-Off Distribution equal to (1) the number of Class A Common Stock
or shares of Marketable Securities, as the case may be, required to be
delivered under the Contract on the Delivery Date minus (2) the number of
Class A Common Stock or shares of Marketable Securities, as the case may
be, delivered by the Collateral Agent to Purchaser on the Delivery Date as
described above; or (B) from and after a Reorganization Event, the sum of
(1) the Cash Delivery Obligations on the Delivery Date and (2) the
aggregate Market Value on the Delivery Date of a number of Marketable
Securities distributed in such Reorganization Event equal to (x) the number
of such Marketable Securities permitted to be delivered on the Delivery
Date under Section 6.2 of the Contract minus (y) the number of such
Marketable Securities delivered by the Collateral Agent to Purchaser on the
Delivery Date as described above; together with, in either of cases (A) and
(B), any amounts due to Purchaser from Pledgor pursuant to Section
2.4(k)(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
finally, 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:
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(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,
wilful 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.
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(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 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 thirty days'
written notice by registered or certified mail to Pledgor and notice to
Purchaser in accordance with the provisions of Section 9.3.
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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 may 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 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 New York, 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
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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 8.7. Compensation. For services to be rendered by the Collateral
Agent pursuant to this Agreement, the Administrator shall receive only such fees
and expenses as shall be paid to it pursuant to the terms of the Indemnity
Agreement and shall have no recourse to the assets of Purchaser for the payment
of any such amounts.
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 Class A Common Stock held following
Seller's election of the Cash Settlement Alternative and payment in respect of
the Cash Settlement Alternative pursuant to the Contract, if permitted
thereunder) 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. Notice.
(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 CNET Investments II, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇▇ ▇▇▇; (ii) notices to the Collateral Agent shall be directed
to it at The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Pledged Asset Control Services;
and (iii) notices to Purchaser shall be directed to it in care of the
Administrator for Purchaser, The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Collateral
Management Services.
(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 or five days after being
deposited in the mail of another
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25
country, 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 party, 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.
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26
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.
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27
IN WITNESS WHEREOF, the parties have caused this Collateral Agreement to be
duly executed and delivered as of the first date set forth above.
PLEDGOR:
CNET INVESTMENTS II, INC.
By:
-------------------------------
Name:
Title:
THE COLLATERAL AGENT:
THE CHASE MANHATTAN BANK,
as Collateral Agent
By:
-------------------------------
Name:
Title:
PURCHASER:
NBCi AUTOMATIC COMMON EXCHANGE
SECURITY TRUST
By:
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
as Trustee
By:
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III,
as Trustee
By:
-------------------------------
▇▇▇▇▇ ▇. ▇'▇▇▇▇▇,
as Trustee
28
Exhibit A
to
Collateral Agreement
NOTICE OF PLEDGE VALUE
To: CNET Investments II, Inc.
[-]
THE CHASE MANHATTAN BANK, as Collateral Agent (the "Collateral Agent")
under the Collateral Agreement, dated as of February __, 2000 (the "Collateral
Agreement"), among you, as Pledgor, the Collateral Agent and NBCi Automatic
Common Exchange Security 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.
THE CHASE MANHATTAN BANK,
as Collateral Agent
By:
-------------------------------
Name:
Title:
29
Exhibit B
to
Collateral Agreement
CERTIFICATE FOR SUBSTITUTED COLLATERAL
The undersigned, CNET Investments II, Inc. (the "Pledgor"), hereby
certifies, pursuant to Section 5.2(b) of the Collateral Agreement, dated as of
February __, 2000 (the "Collateral Agreement"), among Pledgor, The Chase
Manhattan Bank, as Collateral Agent, and NBCi Automatic Common Exchange Security
Trust, that:
1. Pledgor is delivering the following securities to the Collateral Agent
to be held by the Collateral Agent as substituted Collateral (the "Substituted
Collateral"):
[INSERT DESCRIPTION OF SUBSTITUTE COLLATERAL]
2. Pledgor requests that the Collateral Agent transfer to Pledgor the
following Prior Collateral, pursuant to Section 5.2 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 Substituted Collateral to the Collateral Agent
under the Collateral Agreement, or the subsequent sale or transfer of such
items of Substituted Collateral by the Collateral Agent pursuant to the
terms of the Collateral Agreement.
(b) Title to Collateral; Perfected Security Interest. Pledgor has good
and marketable title to the Substituted 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 Substituted Collateral to the Collateral Agent under the
Collateral Agent, the Collateral Agent will obtain a valid, first priority
perfected security interest in, and a first lien upon, such Substituted
Collateral subject to no other Lien. None of such Substituted 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.
30
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
_____ day of ____________, ____.
CNET INVESTMENTS II, INC.
By:
------------------------------
Name:
Title:
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31
Exhibit C
to
Collateral Agreement
CERTIFICATE FOR ADDITIONAL COLLATERAL
The undersigned, CNET Investments II, Inc. (the "Pledgor"), hereby
certifies, pursuant to Section 5.3 of the Collateral Agreement, dated as of
February __, 2000 (the "Collateral Agreement"), among Pledgor, The Chase
Manhattan Bank, as Collateral Agent and NBCi Automatic Common Exchange Security
Trust, that:
1. Pledgor is delivering the following securities 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 has good
and marketable title to 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 ____________, ____.
CNET INVESTMENTS II, INC.
By:
------------------------------
Name:
Title: