PNM RESOURCES, INC. and U.S. BANK NATIONAL ASSOCIATION, as Collateral Agent, Custodial Agent and Securities Intermediary and U.S. BANK NATIONAL ASSOCIATION, as Purchase Contract Agent PLEDGE AGREEMENT Dated as of October 7, 2005
Exhibit
4.6
EXECUTION
COPY
PNM
RESOURCES, INC.
and
U.S.
BANK NATIONAL ASSOCIATION,
as Collateral Agent, Custodial Agent and Securities Intermediary
as Collateral Agent, Custodial Agent and Securities Intermediary
and
U.S.
BANK NATIONAL ASSOCIATION,
as Purchase Contract Agent
as Purchase Contract Agent
Dated
as of October 7, 2005
Table
of Contents
|
Page
|
DEFINITIONS
|
Section
1.01
|
Definitions
|
1
|
ARTICLE
2
PLEDGE
|
Section
2.01
|
Pledge
|
5
|
|
Section
2.02
|
Control
|
5
|
|
Section
2.03
|
Termination
|
6
|
ARTICLE
3
DISTRIBUTIONS
ON PLEDGED COLLATERAL
|
Section
3.01
|
Income
and Distributions
|
6
|
|
Section
3.02
|
Principal
Payments Following Termination Event
|
6
|
|
Section
3.03
|
Principal
Payments Prior to or on Purchase Contract Settlement Date
|
6
|
|
Section
3.04
|
Payments
to Purchase Contract Agent
|
7
|
|
Section
3.05
|
Assets
Not Properly Released
|
7
|
ARTICLE
4
CONTROL
|
Section
4.01
|
Establishment
of Collateral Account
|
7
|
|
Section
4.02
|
Treatment
as Financial Assets
|
8
|
|
Section
4.03
|
Sole
Control by Collateral Agent
|
8
|
|
Section
4.04
|
Securities
Intermediary’s Location
|
8
|
|
Section
4.05
|
No
Other Claims
|
8
|
|
Section
4.06
|
Investment
and Release
|
8
|
|
Section
4.07
|
Statements
and Confirmations
|
8
|
|
Section
4.08
|
Tax
Allocations
|
9
|
|
Section
4.09
|
No
Other Agreements
|
9
|
|
Section
4.10
|
Powers
Coupled with an Interest
|
9
|
|
Section
4.11
|
Waiver
of Lien; Waiver of Set-off
|
9
|
i
ARTICLE
5
INITIAL
DEPOSIT; CREATION OF TREASURY UNITS AND RECREATION
OF
CORPORATE UNITS
|
Section
5.01
|
Initial
Deposit of Senior Notes
|
9
|
|
Section
5.02
|
Creation
of Treasury Units
|
10
|
|
Section
5.03
|
Recreation
of Corporate Units
|
11
|
|
Section
5.04
|
Termination
Event
|
12
|
|
Section
5.05
|
Cash
Settlement
|
13
|
|
Section
5.06
|
Early
Settlement and Cash Merger Early Settlement
|
14
|
|
Section
5.07
|
Application
of Proceeds in Settlement of Purchase Contracts
|
15
|
|
Section
5.08
|
Special
Event Redemption
|
17
|
ARTICLE
6
VOTING
RIGHTS - PLEDGED SENIOR NOTES
|
Section
6.01
|
Voting
Rights
|
17
|
ARTICLE
7
RIGHTS
AND REMEDIES
|
Section
7.01
|
Rights
and Remedies of the Collateral Agent
|
18
|
|
Section
7.02
|
Special
Event Redemption
|
19
|
|
Section
7.03
|
Initial
Remarketing
|
19
|
|
Section
7.04
|
Final
Remarketing
|
19
|
|
Section
7.05
|
Successful
Initial Remarketing
|
19
|
|
Section
7.06
|
Substitutions
|
20
|
ARTICLE
8
REPRESENTATIONS
AND WARRANTIES; COVENANTS
|
Section
8.01
|
Representations
and Warranties
|
20
|
|
Section
8.02
|
Covenants
|
21
|
ARTICLE
9
THE
COLLATERAL AGENT, THE CUSTODIAL AGENT AND THE
SECURITIES
INTERMEDIARY
|
Section
9.01
|
Appointment,
Powers and Immunities
|
21
|
|
Section
9.02
|
Instructions
of the Company
|
22
|
|
Section
9.03
|
Reliance
by Collateral Agent, Custodial Agent and Securities
Intermediary
|
22
|
ii
|
Section
9.04
|
Certain
Rights
|
23
|
|
Section
9.05
|
Merger,
Conversion, Consolidation or Succession to Business
|
23
|
|
Section
9.06
|
Rights
in Other Capacities
|
23
|
|
Section
9.07
|
Non-reliance
on Collateral Agent, the Custodial Agent and Securities
Intermediary
|
24
|
|
Section
9.08
|
Compensation
and Indemnity
|
24
|
|
Section
9.09
|
Failure
to Act
|
25
|
|
Section
9.10
|
Resignation
of Collateral Agent, the Custodial Agent and Securities
Intermediary
|
25
|
|
Section
9.11
|
Right
to Appoint Agent or Advisor
|
27
|
|
Section
9.12
|
Survival
|
27
|
|
Section
9.13
|
Exculpation
|
27
|
ARTICLE
10
AMENDMENT
|
Section
10.01
|
Amendment
Without Consent of Holders
|
27
|
|
Section
10.02
|
Amendment
with Consent of Holders
|
28
|
|
Section
10.03
|
Execution
of Amendments
|
29
|
|
Section
10.04
|
Effect
of Amendments
|
29
|
|
Section
10.05
|
Reference
of Amendments
|
29
|
ARTICLE
11
MISCELLANEOUS
|
Section
11.01
|
No
Waiver
|
29
|
|
Section
11.02
|
Governing
Law; Submission to Jurisdiction
|
29
|
|
Section
11.03
|
Notices
|
30
|
|
Section
11.04
|
Successors
and Assigns
|
30
|
|
Section
11.05
|
Counterparts
|
30
|
|
Section
11.06
|
Severability
|
30
|
|
Section
11.07
|
Expenses,
Etc
|
30
|
|
Section
11.08
|
Security
Interest Absolute
|
31
|
|
Section
11.09
|
Notice
of Special Event, Special Event Redemption and Termination
Event
|
31
|
iii
EXHIBITS
Exhibit
A
- Instruction from Purchase Contract Agent to Collateral Agent (Creation
of
Treasury Units)
Exhibit
B
- Instruction from Collateral Agent to Securities Intermediary (Creation
of
Treasury Units)
Exhibit
C
- Instruction from Purchase Contract Agent to Collateral Agent (Recreation
of
Corporate Units)
Exhibit
D
- Instruction from Collateral Agent to Securities Intermediary (Recreation
of
Corporate Units)
Exhibit
E
- Notice of Cash Settlement from Collateral Agent to Purchase Contract
Agent
Exhibit
F
- Instruction to Custodial Agent Regarding Remarketing
Exhibit
G
- Instruction to Custodial Agent Regarding Withdrawal From
Remarketing
iv
PLEDGE
AGREEMENT
dated as
of October 7, 2005 between PNM
RESOURCES, INC.,
a New
Mexico corporation (the“Company”),
and
U.S.
BANK NATIONAL ASSOCIATION,
a
national banking association, as collateral agent (in such capacity, together
with its successors in such capacity, the “Collateral
Agent”),
as
custodial agent (in such capacity, together with its successors in such
capacity, the “Custodial
Agent”),
and as
securities intermediary (as defined in Section 8-102(a)(14) of the UCC) with
respect to the Collateral Account (in such capacity, together with its
successors in such capacity, the “Securities
Intermediary”),
and as
purchase contract agent and as attorney-in-fact of the Holders from time
to time
of the Units (in such capacity, together with its successors in such capacity,
the “Purchase
Contract Agent”)
under
the Purchase Contract Agreement.
RECITALS
WHEREAS,
the
Company and the Purchase Contract Agent are parties to the Purchase Contract
Agreement dated as of October 7, 2005 (as modified and supplemented and in
effect from time to time, the “Purchase
Contract Agreement”),
pursuant to which 4,000,000 Corporate Units will be issued.
WHEREAS,
each
Corporate Unit, at issuance, consists of a unit comprised of (a) a stock
purchase contract (a “Purchase
Contract”)
pursuant to which the Holder will purchase from the Company on the Purchase
Contract Settlement Date, for an amount equal to $25 (the “Stated
Amount”),
a
number of shares of the Company’s common stock, no par value (“Common
Stock”),
equal
to the Settlement Rate and (b) a 1/40, or 2.5%, beneficial ownership interest
in
a Senior Note.
WHEREAS,
pursuant
to the terms of the Purchase Contract Agreement and the Purchase Contracts,
the
Holders of the Units have irrevocably authorized the Purchase Contract Agent,
as
attorney-in-fact of such Holders, among other things, to execute and deliver
this Agreement on behalf of such Holders and to grant the pledge provided
herein
of the Collateral to secure the Obligations.
NOW,
THEREFORE,
the
Company, the Collateral Agent, the Custodial Agent, the Securities Intermediary
and the Purchase Contract Agent agree as follows:
ARTICLE
1
DEFINITIONS
Section
1.01 Definitions.
For
all
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Article have the meanings assigned to them in this Article
and
include the plural as well as the singular, and nouns and pronouns of the
masculine gender include the feminine and neuter genders;
(b) the
words
“herein,” “hereof”
and
“hereunder”
and
other words of similar import refer to this Agreement as a whole and not
to any
particular Article, Section, Exhibit or other subdivision;
(c) the
following terms which are defined in the UCC shall have the meanings set
forth
therein: “certificated
security,” “control,” “financial asset,” “entitlement order,” “securities
account”
and
“security
entitlement”;
(d) capitalized
terms used herein and not defined herein have the meanings assigned to them
in
the Purchase Contract Agreement; and
(e) the
following terms have the meanings given to them in this Section
1.01(e):
“Agreement”
means
this Pledge Agreement, as the same may be amended, modified or supplemented
from
time to time.
“Cash”
means
any coin or currency of the United States as at the time shall be legal tender
for payment of public and private debts.
“Collateral”
means
the collective reference to:
(i) the
Collateral Account and all investment property and other financial assets
from
time to time credited to the Collateral Account and all security entitlements
with respect thereto, including, without limitation, (A) the Senior Notes
and
security entitlements relating thereto that are a component of the Corporate
Units from time to time, (B) the Applicable Ownership Interests (as specified
in
clause (i) of the definition of such term) in the Treasury Portfolio that
are a
component of the Corporate Units from time to time, (C) any Treasury Securities
and security entitlements relating thereto delivered from time to time upon
creation of Treasury Units in accordance with Section
5.02
hereof
and (D) payments made by Holders pursuant to Section
5.05
hereof;
(ii) all
Proceeds of any of the foregoing (whether such Proceeds arise before or after
the commencement of any proceeding under any applicable bankruptcy, insolvency
or other similar law, by or against the pledgor or with respect to the pledgor);
and
(iii) all
powers and rights now owned or hereafter acquired under or with respect to
the
Collateral.
“Collateral
Account”
means
the securities account of U.S. Bank National Association, as Collateral Agent,
maintained by the Securities Intermediary and designated “U.S. Bank National
Association, as Collateral Agent of PNM Resources, Inc., as pledgee of U.S.
Bank
National Association, as the Purchase Contract Agent on behalf of and as
attorney-in-fact for the Holders”.
“Collateral
Agent”
has the
meaning specified in the paragraph preceding the recitals of this
Agreement.
2
“Common
Stock”
has the
meaning specified in the second paragraph of the recitals of this
Agreement.
“Company”
means
the Person named as the “Company”
in the
first paragraph of this Agreement until a successor shall have become such
pursuant to the applicable provisions of the Purchase Contract Agreement,
and
thereafter “Company”
shall
mean such successor.
“Custodial
Agent”
has the
meaning specified in the paragraph preceding the recitals of this
Agreement.
“Indemnitees”
has the
meaning given such term in Section 9.08(b).
“Loss”
or “Losses”
has the
meaning given such term in Section 9.08(b).
“Obligations”
means,
with respect to each Holder, all obligations and liabilities of such Holder
under such Holder’s Purchase Contract, the Purchase Contract Agreement and this
Agreement or any other document made, delivered or given in connection herewith
or therewith, in each case whether on account of principal, interest (including,
without limitation, interest accruing before and after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization
or
like proceeding, relating to such Holder, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding), fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Company or the Collateral Agent or the
Securities Intermediary that are required to be paid by the Holder pursuant
to
the terms of any of the foregoing agreements).
“Permitted
Investments”
means
any one of the following, in each case maturing on the Business Day following
the date of acquisition:
(1)
any
evidence of indebtedness with an original maturity of 365 days or less issued,
or directly and fully guaranteed or insured, by the United States of America
or
any agency or instrumentality thereof (provided
that the
full faith and credit of the United States of America is pledged in support
of
the timely payment thereof or such indebtedness constitutes a general obligation
of it);
(2)
deposits, certificates of deposit or acceptances with an original maturity
of
365 days or less of any institution which is a member of the Federal Reserve
System having combined capital and surplus and undivided profits of not less
than $500 million at the time of deposit (and which may include the Collateral
Agent);
(3)
investments with an original maturity of 365 days or less of any Person that
are
fully and unconditionally guaranteed by a bank referred to in clause
(2);
(4)
repurchase agreements and reverse repurchase agreements relating to marketable
direct obligations issued or unconditionally guaranteed by the United States
of
America or issued by any agency thereof and backed as to timely payment by
the
full faith and credit of the United States of America;
(5)
investments in commercial paper, other than commercial paper issued by the
Company or its Affiliates, of any corporation incorporated under the laws
of the
United States of America or any State thereof, which commercial paper has
a
rating at the time of purchase at least equal to “A-1”
by
Standard & Poor’s Ratings Services (“S&P”)
or at
least equal to “P-1”
by
▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”);
and
3
(6)
investments in money market funds (including, but not limited to, money market
funds managed by the Collateral Agent or an affiliate of the Collateral Agent)
registered under the Investment Company Act of 1940, as amended, rated in
the
highest applicable rating category by S&P or Moody’s.
“Person”
means
any individual, corporation, partnership, joint venture, trust, unincorporated
organization or government or any agency, instrumentality or political
subdivision thereof.
“Pledge”
means
the lien and security interest created by this Agreement.
“Pledged
Applicable Ownership Interests”
means
the Holder’s Applicable Ownership Interests (as specified in clause (i) of the
definition thereof) in the Treasury Portfolio and security entitlements with
respect thereto from time to time credited to the Collateral Account and
not
then released from the Pledge.
“Pledged
Senior Notes”
means
Senior Notes and security entitlements with respect thereto from time to
time
credited to the Collateral Account and not then released from the
Pledge.
“Pledged
Securities”
means
the Pledged Senior Notes, the Pledged Applicable Ownership Interests and
the
Pledged Treasury Securities, collectively.
“Pledged
Treasury Securities”
means
Treasury Securities and security entitlements with respect thereto from time
to
time credited to the Collateral Account and not then released from the
Pledge.
“Proceeds”
has the
meaning ascribed thereto in the UCC and includes, without limitation, all
interest, dividends, cash, instruments, securities, financial assets and
other
property received, receivable or otherwise distributed upon the sale (including,
without limitation, the Remarketing), exchange, collection or disposition
of any
financial assets from time to time held in the Collateral Account.
“Purchase
Contract”
has the
meaning specified in the second paragraph of the recitals of this
Agreement.
“Purchase
Contract Agent”
has the
meaning specified in the paragraph preceding the recitals of this
Agreement.
“Purchase
Contract Agreement”
has the
meaning specified in the first paragraph of the recitals of this
Agreement.
“Purchase
Contract Settlement Date”
means
November 16, 2008.
“Securities
Intermediary”
has the
meaning specified in the paragraph preceding the recitals of this
Agreement.
4
“Stated
Amount”
has the
meaning specified in the second paragraph of the recitals of this
Agreement.
“TRADES”
means
the Treasury/Reserve Automated Debt Entry System maintained by the Federal
Reserve Bank of New York pursuant to the TRADES Regulations.
“TRADES
Regulations”
means
the regulations of the United States Department of the Treasury, published
at 31
C.F.R. Part 357, as amended from time to time. Unless otherwise defined herein,
all terms defined in the TRADES Regulations are used herein as therein
defined.
“Transfer”
means
(i) in the case of certificated securities in registered form, delivery as
provided in § 8-301(a) of the UCC, endorsed to the transferee or in blank by an
effective endorsement, (ii) in the case of Treasury Securities, registration
of
the transferee as the owner of such Treasury Securities on TRADES and (iii)
in
the case of security entitlements, including, without limitation, security
entitlements with respect to Treasury Securities, a securities intermediary
indicating by book entry that such security entitlement has been credited
to the
transferee’s securities account.
“Treasury
Securities”
means
zero-coupon U.S. treasury securities that mature on November 15, 2008 (CUSIP
No.
▇▇▇▇▇▇▇▇▇).
“UCC”
means
the Uniform Commercial Code as in effect in the State of New York from time
to
time.
“Value”
means,
with respect to any item of Collateral on any date, as to (1) Cash, the face
amount thereof, (2) Treasury Securities or Senior Notes, the aggregate principal
amount thereof at maturity and (3) Applicable Ownership Interests (as specified
in clause (i) of the definition of such term), the appropriate percentage
of the
aggregate principal amount at maturity of the Treasury Portfolio.
ARTICLE 2
PLEDGE
Section
2.01 Pledge.
Each
Holder, acting through the Purchase Contract Agent as such Holder’s
attorney-in-fact, and the Purchase Contract Agent, acting solely as such
attorney-in-fact, hereby pledges and grants to the Collateral Agent, as agent
of
and for the benefit of the Company, a continuing first priority security
interest in and to, and a lien upon and right of set-off against, all of
such
Person’s right, title and interest in and to the Collateral to secure the prompt
and complete payment and performance when due (whether at stated maturity,
by
acceleration or otherwise) of the Obligations. The Collateral Agent shall
have
all of the rights, remedies and recourses with respect to the Collateral
afforded a secured party by the UCC, in addition to, and not in limitation
of,
the other rights, remedies and recourses afforded to the Collateral Agent
by
this Agreement.
Section
2.02 Control.
The Collateral Agent shall have control of the Collateral Account pursuant
to
the provisions of Article
4
of this
Agreement.
5
Section
2.03 Termination.
As to each Holder, this Agreement and the Pledge created hereby shall terminate
upon the satisfaction of such Holder’s Obligations. Upon such termination, the
Collateral Agent shall, except as otherwise provided herein, instruct the
Securities Intermediary to Transfer such Holder’s portion of the Collateral to
the Purchase Contract Agent for distribution to such Holder, free and clear
of
the Pledge created hereby.
ARTICLE
3
DISTRIBUTIONS
ON PLEDGED COLLATERAL
Section
3.01 Income
and Distributions.
The
Collateral Agent shall transfer all income and distributions received by
the
Collateral Agent on account of the Pledged Senior Notes, the Pledged Applicable
Ownership Interests or Permitted Investments from time to time held in the
Collateral Account (ABA No. ▇▇▇▇▇▇▇▇▇, Re: PNM Resources, Inc.) to the Purchase
Contract Agent for distribution to the applicable Holders as provided in
the
Purchase Contracts or Purchase Contract Agreement.
Section
3.02 Principal
Payments Following Termination Event. Following a Termination Event, the
Collateral Agent shall transfer all principal payments it receives, if any,
in
respect of (1) the Pledged Senior Notes, (2) the Pledged Applicable Ownership
Interests and (3) the Pledged Treasury Securities, to the Purchase Contract
Agent for the benefit of the applicable Holders for distribution to such
Holders
in accordance with their respective interests, free and clear of the Pledge
created hereby.
Section
3.03 Principal
Payments Prior to or on Purchase Contract Settlement Date.
(a) Subject
to the provisions of Sections
5.06 and
5.08,
and
except as provided in Section
3.03(b)
below,
if no Termination Event shall have occurred, all principal payments received
by
the Securities Intermediary in respect of (1) the Pledged Senior Notes, (2)
the
Pledged Applicable Ownership Interests and (3) the Pledged Treasury Securities,
shall be held and invested in Permitted Investments until the Purchase Contract
Settlement Date, and transferred to the Company on the Purchase Contract
Settlement Date as provided in Section
5.07
hereof.
Any balance remaining in the Collateral Account shall be released from the
Pledge and transferred to the Purchase Contract Agent for the benefit of
the
applicable Holders for distribution to such Holders in accordance with their
respective interests, free and clear of the Pledge created thereby. The Company
shall instruct the Collateral Agent in writing as to the type of Permitted
Investments in which any payments made under this Section
3.03(a)
shall be
invested; provided,
however,
that if
the Company fails to deliver such instructions by 10:30 a.m. (New York City
time) on the day such payments are received by the Collateral Agent, the
Collateral Agent shall invest such payments in the Permitted Investments
as
described in clause (6) of the definition of Permitted Investments. The
Collateral Agent shall have no liability in respect of losses incurred as
a
result of the failure of the Company to provide timely written investment
direction.
(b) All
principal payments received by the Securities Intermediary in respect of
(1) the
Senior Notes, (2) the Applicable Ownership Interests (as specified in clause
(i)
of the definition thereof) in the Treasury Portfolio and (3) the Treasury
Securities or security entitlements thereto, that, in each case, have been
released from the Pledge pursuant hereto shall be transferred to the Purchase
Contract Agent for the benefit of the applicable Holders for distribution
to
such Holders in accordance with their respective interests.
6
Section
3.04 Payments
to Purchase Contract Agent.
The
Securities Intermediary shall use commercially reasonable efforts to deliver
payments to the Purchase Contract Agent hereunder to the account designated
by
the Purchase Contract Agent for such purpose not later than 12:00 p.m. (New
York
City time) on the Business Day such payment is received by the Securities
Intermediary; provided,
however,
that if
such payment is received on a day that is not a Business Day or after 11:00
a.m.
(New York City time) on a Business Day, then the Securities Intermediary
shall
use commercially reasonable efforts to deliver such payment to the Purchase
Contract Agent no later than 10:30 a.m. (New York City time) on the next
succeeding Business Day.
Section
3.05 Assets
Not Properly Released. If the Purchase Contract Agent or any Holder shall
receive any principal payments on account of financial assets credited to
the
Collateral Account and not released therefrom in accordance with this Agreement,
the Purchase Contract Agent or such Holder shall hold the same as trustee
of an
express trust for the benefit of the Company and, upon receipt of an Officers’
Certificate of the Company so directing, promptly deliver the same to the
Securities Intermediary for credit to the Collateral Account or to the Company
for application to the Obligations of the Holders, and the Purchase Contract
Agent and Holders shall acquire no right, title or interest in any such payments
of principal amounts so received. The Purchase Contract Agent shall have
no
liability under this Section
3.05
unless
and until it has been notified in writing that such payment was delivered
to it
erroneously and shall have no liability for any action taken, suffered or
omitted to be taken prior to its receipt of such notice.
ARTICLE
4
CONTROL
Section
4.01 Establishment
of Collateral Account.
The
Securities Intermediary hereby confirms that:
(a) the
Securities Intermediary has established the Collateral Account;
(b) the
Collateral Account is a securities account;
(c) subject
to the terms of this Agreement, the Securities Intermediary shall identify
in
its records the Collateral Agent as the entitlement holder entitled to exercise
the rights that comprise any financial asset credited to the Collateral
Account;
(d) all
property delivered to the Securities Intermediary pursuant to this Agreement
or
the Purchase Contract Agreement, including any Applicable Ownership Interests
(as specified in clause (i) of such definition) in the Treasury Portfolio
and
any Permitted Investments, will be credited promptly to the Collateral Account;
and
7
(e) all
securities or other property underlying any financial assets credited to
the
Collateral Account shall be (i) registered in the name of the Purchase Contract
Agent and endorsed to the Securities Intermediary or in blank, (ii) registered
in the name of the Securities Intermediary or (iii) credited to another
securities account maintained in the name of the Securities Intermediary.
In no
case will any financial asset credited to the Collateral Account be registered
in the name of the Purchase Contract Agent or any Holder or specially endorsed
to the Purchase Contract Agent or any Holder unless such financial asset
has
been further endorsed to the Securities Intermediary or in blank.
Section
4.02 Treatment
as Financial Assets.
Each
item of property (whether investment property, financial asset, security,
instrument or cash) credited to the Collateral Account shall be treated as
a
financial asset.
Section
4.03 Sole
Control by Collateral Agent. Except as provided in Section
6.01,
at all
times prior to the termination of the Pledge, the Collateral Agent shall
have
sole control of the Collateral Account, and the Securities Intermediary shall
take instructions and directions with respect to the Collateral Account solely
from the Collateral Agent. If at any time the Securities Intermediary shall
receive an entitlement order issued by the Collateral Agent and relating
to the
Collateral Account, the Securities Intermediary shall comply with such
entitlement order without further consent by the Purchase Contract Agent
or any
Holder or any other Person. Except as otherwise permitted under this Agreement,
until termination of the Pledge, the Securities Intermediary will not comply
with any entitlement orders issued by the Purchase Contract Agent or any
Holder.
Section
4.04 Securities
Intermediary’s Location. The Collateral Account, and the rights and
obligations of the Securities Intermediary, the Collateral Agent, the Purchase
Contract Agent and the Holders with respect thereto, shall be governed by
the
laws of the State of New York. Regardless of any provision in any other
agreement, for purposes of the UCC, New York shall be deemed to be the
Securities Intermediary’s jurisdiction.
Section
4.05 No
Other Claims. Except for the claims and interest of the Collateral Agent and
of the Purchase Contract Agent and the Holders in the Collateral Account,
the
Securities Intermediary (without having conducted any investigation) does
not
know of any claim to, or interest in, the Collateral Account or in any financial
asset credited thereto. If any Person asserts any lien, encumbrance or adverse
claim (including any writ, garnishment, judgment, warrant of attachment,
execution or similar process) against the Collateral Account or in any financial
asset carried therein, the Securities Intermediary will promptly notify the
Collateral Agent and the Purchase Contract Agent.
Section
4.06 Investment
and Release. All proceeds of financial assets from time to time deposited in
the Collateral Account shall be invested and reinvested as provided in this
Agreement. At no time prior to termination of the Pledge with respect to
any
particular property shall such property be released from the Collateral Account
except in accordance with this Agreement or upon written instructions of
the
Collateral Agent.
Section
4.07 Statements
and Confirmations. The Securities Intermediary will promptly send copies of
all statements, confirmations and other correspondence concerning the Collateral
Account and any financial assets credited thereto simultaneously to each
of the
Purchase Contract Agent and the Collateral Agent at their addresses for notices
under this Agreement.
8
Section
4.08 Tax
Allocations. The Purchase Contract Agent shall report all items of income,
gain, expense and loss recognized in the Collateral Account, to the extent
such
reporting is required by law, to the Internal Revenue Service authorities
in the
manner required by law. Neither the Securities Intermediary nor the Collateral
Agent shall have any tax reporting duties hereunder.
Section
4.09 No
Other Agreements. The Securities Intermediary has not entered into, and
prior to the termination of the Pledge will not enter into, any agreement
with
any other Person relating to the Collateral Account or any financial assets
credited thereto, including, without limitation, any agreement to comply
with
entitlement orders of any Person other than the Collateral Agent.
Section
4.10 Powers
Coupled with an Interest. The rights and powers granted in this Article
4
to the
Collateral Agent have been granted in order to perfect its security interests
in
the Collateral Account, are powers coupled with an interest and will be affected
neither by the bankruptcy of the Purchase Contract Agent or any Holder nor
by
the lapse of time. The obligations of the Securities Intermediary under this
Article
4
shall
continue in effect until the termination of the Pledge with respect to any
and
all Collateral.
Section
4.11 Waiver
of Lien; Waiver of Set-off. The Securities Intermediary waives any security
interest, lien or right to make deductions or set- offs that it may now have
or
hereafter acquire in or with respect to the Collateral Account, any financial
asset credited thereto or any security entitlement in respect thereof. Neither
the financial assets credited to the Collateral Account nor the security
entitlements in respect thereof will be subject to deduction, set-off, banker’s
lien or any other right in favor of any Person other than the
Company.
ARTICLE
5
INITIAL
DEPOSIT; CREATION OF TREASURY UNITS AND RECREATION OF CORPORATE
UNITS
Section
5.01 Initial
Deposit of Senior Notes.
(a) Prior
to
or concurrently with the execution and delivery of this Agreement, the Purchase
Contract Agent, on behalf of the initial Holders of the Corporate Units,
shall
Transfer to the Securities Intermediary, for credit to the Collateral Account,
the Senior Notes or security entitlements relating thereto, and, in the case
of
security entitlements, the Securities Intermediary shall indicate by book-entry
that a securities entitlement to such Senior Notes has been credited to the
Collateral Account.
(b) The
Collateral Agent may, at any time or from time to time, in its sole discretion,
cause any or all securities or other property underlying any financial assets
credited to the Collateral Account to be registered in the name of the
Securities Intermediary, the Collateral Agent or their respective nominees;
provided,
however,
that
unless any Event of Default (as defined in the Indenture) shall have occurred
and be continuing, the Collateral Agent agrees not to cause any Senior Notes
to
be so re-registered.
9
Section
5.02 Creation
of Treasury Units.
(a) Unless
the Treasury Portfolio has replaced the Senior Notes as a component of the
Corporate Units, a Holder of Corporate Units shall have the right, at any
time
on or prior to 5:00 p.m. (New York City time) on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date, to create Treasury
Units by substitution of Treasury Securities or security entitlements with
respect thereto for the Pledged Senior Notes comprising a part of all or
a
portion of such Holder’s Corporate Units, in integral multiples of 40 Corporate
Units by:
(i) transferring
to the Purchase Contract Agent, for credit to the Collateral Account, Treasury
Securities or security entitlements with respect thereto having a Value equal
to
the aggregate principal amount of the Pledged Senior Notes to be released,
accompanied by a notice, substantially in the form of Exhibit
C
to the
Purchase Contract Agreement, whereupon the Purchase Contract Agent shall
deliver
to the Collateral Agent a notice, substantially in the form of Exhibit
A
hereto,
(A) stating that such Holder has notified the Purchase Contract Agent that
such
Holder has Transferred Treasury Securities or security entitlements with
respect
thereto to the Collateral Agent for credit to the Collateral Account, (B)
stating the Value of the Treasury Securities or security entitlements with
respect thereto Transferred by such Holder and (C) requesting that the
Collateral Agent release from the Pledge the Pledged Senior Notes that are
a
component of such Corporate Units; and
(ii) delivering
the related Corporate Units to the Purchase Contract Agent.
Upon
receipt of such notice and confirmation that Treasury Securities or security
entitlements with respect thereto have been credited to the Collateral Account
as described in such notice, the Collateral Agent shall instruct the Securities
Intermediary by a notice, substantially in the form of Exhibit
B
hereto,
to release such Pledged Senior Notes from the Pledge by Transfer to the Purchase
Contract Agent for distribution to such Holder, free and clear of the Pledge
created hereby.
If
the
Treasury Portfolio has replaced the Senior Notes as a component of the Corporate
Units and subject to the conditions of the Purchase Contract Agreement, a
Holder
of Corporate Units may, at any time on or prior to the second Business Day
immediately preceding the Purchase Contract Settlement Date, substitute Treasury
Securities for the Applicable Ownership Interests in the Treasury Portfolio
with
respect to such Corporate Units, but only in multiples of 4,000 Corporate
Units.
In such an event, the Holder shall transfer the required amount of Treasury
Securities to the Securities Intermediary, for credit to the Collateral Account,
and the Purchase Contract Agent shall request the Collateral Agent to instruct
the Securities Intermediary to release the Pledge of and transfer to the
Holder
the appropriate Applicable Ownership Interests in the Treasury Portfolio
in the
manner set forth above.
10
(b) Upon
credit to the Collateral Account of Treasury Securities or security entitlements
with respect thereto delivered by a Holder of Corporate Units and receipt
of the
related instruction from the Collateral Agent, the Securities Intermediary
shall
release such Pledged Senior Notes or Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, from the Pledge and shall promptly
Transfer the same to the Purchase Contract Agent for distribution to such
Holder, free and clear of the Pledge created hereby.
Section
5.03 Recreation
of Corporate Units.
(a) Unless
the Treasury Portfolio has replaced the Senior Notes as a component of the
Corporate Units, at any time on or prior to 5:00 p.m. (New York City time)
on
the fifth Business Day immediately preceding the Purchase Contract Settlement
Date, a Holder of Treasury Units shall have the right to recreate Corporate
Units by substitution of Senior Notes or security entitlements with respect
thereto for Pledged Treasury Securities in integral multiples of 40 Treasury
Units by:
(i) transferring
to the Securities Intermediary, for credit to the Collateral Account, Senior
Notes or security entitlements with respect thereto having a principal amount
equal to the Value of the Pledged Treasury Securities to be released,
accompanied by a notice, substantially in the form of Exhibit
C
to the
Purchase Contract Agreement, whereupon the Purchase Contract Agent shall
deliver
to the Collateral Agent a notice, substantially in the form of Exhibit
C
hereto,
stating that such Holder has Transferred the Senior Notes or security
entitlements with respect thereto to the Collateral Account for credit to
the
Collateral Account and requesting that the Collateral Agent release from
the
Pledge the Pledged Treasury Securities related to such Treasury Units;
and
(ii) delivering
the related Treasury Units to the Purchase Contract Agent.
Upon
receipt of such notice and confirmation that Senior Notes or security
entitlements with respect thereto have been credited to the Collateral Account
as described in such notice, the Collateral Agent shall instruct the Securities
Intermediary by a notice substantially in the form of Exhibit
D
hereto
to release such Pledged Treasury Securities from the Pledge by Transfer to
the
Purchase Contract Agent for distribution to such Holder, free and clear of
the
Pledge created hereby.
If
the
Treasury Portfolio has replaced the Senior Notes as a component of the Corporate
Units, a Holder of Treasury Units may, at any time on or prior to the second
Business Day immediately preceding the Purchase Contract Settlement Date,
substitute the Applicable Ownership Interests in the Treasury Portfolio for
the
Pledged Treasury Securities with respect to such Treasury Units, but only
in
multiples of 4,000 Treasury Units. In such an event, the Holder shall Transfer
the required Applicable Ownership Interests in the Treasury Portfolio to
the
Securities Intermediary, for credit to the Collateral Account, and the Purchase
Contract Agent shall request the Collateral Agent to instruct the Securities
Intermediary to release and Transfer to the Holder the Pledged Treasury
Securities in the manner set forth above.
11
(b) Upon
credit to the Collateral Account of Senior Notes or security entitlements
with
respect thereto or Applicable Ownership Interests in the Treasury Portfolio
delivered by a Holder of Treasury Units and receipt of the related instruction
from the Collateral Agent, the Securities Intermediary shall release such
Pledged Treasury Securities from the Pledge and shall promptly Transfer the
same
to the Purchase Contract Agent for distribution to such Holder, free and
clear
of the Pledge created hereby.
Section
5.04 Termination
Event.
(a) Upon
receipt by the Collateral Agent of written notice from the Company or the
Purchase Contract Agent that a Termination Event has occurred, the Collateral
Agent shall release all Collateral from the Pledge and shall promptly instruct
the Securities Intermediary to Transfer:
(i) any
Pledged Senior Notes or security entitlements with respect thereto or Pledged
Applicable Ownership Interests;
(ii) any
Pledged Treasury Securities; and
(iii) any
payments by Holders (or the Permitted Investments of such payments) pursuant
to
Section
5.05
hereof,
to
the
Purchase Contract Agent for the benefit of the Holders for distribution to
such
Holders, in accordance with their respective interests, free and clear of
the
Pledge created hereby; provided,
however,
if any
Holder shall be entitled to receive less than $1,000 with respect to its
interest in the Applicable Ownership Interests (as specified in clause (i)
of
the definition of such term) in the Treasury Portfolio, the Purchase Contract
Agent shall dispose of such interest for cash and deliver to such Holder
cash in
lieu of delivering the Applicable Ownership Interests (as specified in clause
(i) of the definition of such term) in the Treasury Portfolio.
(b) If
such
Termination Event shall result from the Company’s becoming a debtor under the
Bankruptcy Code, and if the Collateral Agent shall for any reason fail promptly
to effectuate the release and Transfer of all Pledged Senior Notes, Pledged
Applicable Ownership Interests, Pledged Treasury Securities and payments
by
Holders (or the Permitted Investments of such payments) pursuant to Section
5.05
and
Proceeds of any of the foregoing, as the case may be, as provided by this
Section
5.04,
the
Purchase Contract Agent shall:
(i) use
its
best efforts to obtain an opinion of a nationally recognized law firm to
the
effect that, notwithstanding the Company being the debtor in such a bankruptcy
case, the Collateral Agent will not be prohibited from releasing or Transferring
the Collateral as provided in this Section
5.04
and
shall deliver or cause to be delivered such opinion to the Collateral Agent
within ten days after the occurrence of such Termination Event, and if (A)
the
Purchase Contract Agent shall be unable to obtain such opinion within ten
days
after the occurrence of such Termination Event or (B) the Collateral Agent
shall
continue, after delivery of such opinion, to refuse to effectuate the release
and Transfer of all Pledged Senior Notes, Pledged Applicable Ownership
Interests, Pledged Treasury Securities and the payments by Holders (or the
Permitted Investments of such payments) pursuant to Section
5.05
hereof
and Proceeds of any of
12
the
foregoing, as the case may be, as provided in this Section
5.04,
then
the Purchase Contract Agent shall within fifteen days after the occurrence
of
such Termination Event commence an action or proceeding in the court having
jurisdiction of the Company’s case under the Bankruptcy Code seeking an order
requiring the Collateral Agent to effectuate the release and transfer of
all
Pledged Senior Notes, Pledged Applicable Ownership Interests, Pledged Treasury
Securities and the payments by Holders (or the Permitted Investments of such
payments) pursuant to Section
5.05
hereof
and Proceeds of any of the foregoing, or as the case may be, as provided
by this
Section
5.04;
or
(ii) commence
an action or proceeding like that described in Section
5.04(b)(i)
hereof
within ten days after the occurrence of such Termination Event.
Section
5.05 Cash
Settlement.
(a) Upon
receipt by the Collateral Agent of (1) a notice from the Purchase Contract
Agent
promptly after the receipt by the Purchase Contract Agent of a notice from
a
Holder of Corporate Units or Treasury Units that such Holder has elected,
in
accordance with the procedures specified in Section
5.02(b)(i)
of the
Purchase Contract Agreement, to effect a Cash Settlement and (2) payment
by such
Holder by deposit in the Collateral Account on or prior to 5:00 p.m. (New
York
City time) on the fourth Business Day immediately preceding the Purchase
Contract Settlement Date of the Purchase Price in lawful money of the United
States by certified or cashier’s check or wire transfer of immediately available
funds payable to or upon the order of the Securities Intermediary, then the
Collateral Agent shall:
(i) instruct
the Securities Intermediary promptly to invest any such Cash in Permitted
Investments;
(ii) instruct
the Securities Intermediary to release from the Pledge such Holder’s related
Pledged Senior Notes or Pledged Applicable Ownership Interests, as applicable,
as to which such Holder has effected a Cash Settlement pursuant to this
Section
5.05(a);
and
(iii) instruct
the Securities Intermediary to Transfer all such Pledged Senior Notes, Pledged
Applicable Ownership Interests or the Pledged Treasury Securities, as the
case
may be, to the Purchase Contract Agent for distribution to such Holder, in
each
case free and clear of the Pledge created hereby.
The
Company shall instruct the Collateral Agent in writing as to the type of
Permitted Investments in which any such Cash shall be invested; provided,
however,
that if
the Company fails to deliver such written instructions by 10:30 a.m. (New
York
City time) on the day such Cash is received by the Collateral Agent or to
be
reinvested by the Securities Intermediary, the Collateral Agent shall instruct
the Securities Intermediary to invest such Cash in the Permitted Investments
described in clause (6) of the definition of Permitted Investments. In no
event
shall the Collateral Agent or Securities Intermediary be liable for the
selection of Permitted Investments or for investment losses incurred thereon.
The Collateral Agent and Securities Intermediary shall have no liability
with
respect to losses incurred as a result of the failure of the Company to provide
timely written investment direction.
13
Upon
receipt of Proceeds upon the maturity of the Permitted Investments on the
Purchase Contract Settlement Date, the Collateral Agent shall (A) instruct
the
Securities Intermediary to pay the portion of such Proceeds and deliver any
certified or cashier’s checks received, in an aggregate amount equal to the
Purchase Price, to the Company on the Purchase Contract Settlement Date,
and (B)
release any amounts in excess of the Purchase Price earned from such Permitted
Investments to the Purchase Contract Agent for distribution to such Holder
in
accordance with the Purchase Contract Agreement.
(b) If
a
Holder of Corporate Units (unless the Treasury Portfolio has replaced the
Senior
Notes as a component of such Corporate Units) (i) fails to notify the Purchase
Contract Agent of its intention to make a Cash Settlement as provided in
Section
5.02(b)(i)
of the
Purchase Contract Agreement or (ii) does notify the Purchase Contract Agent
of
its intention to pay the Purchase Price in cash, but fails to make such payment
as required by Section
5.02(b)(ii)
of the
Purchase Contract Agreement, such Holder shall be deemed to have consented
to
the disposition of such Holder’s Pledged Senior Notes in accordance with
Section
5.02(b)(iii)
of the
Purchase Contract Agreement.
(c) As
soon
as practicable after 5:00 p.m. (New York City time) on the fourth Business
Day
immediately preceding the Purchase Contract Settlement Date, the Collateral
Agent shall deliver to the Purchase Contract Agent a notice, substantially
in
the form of Exhibit
E
hereto,
stating (i) the amount of Cash that it has received with respect to the Cash
Settlement of Corporate Units, (ii) the amount of Cash that it has received
with
respect to the Cash Settlement of Treasury Units and (iii) the amount of
Pledged
Senior Notes to be remarketed in the Final Remarketing pursuant to Section
5.02(c)
of the
Purchase Contract Agreement.
(d) If
there
has been a Failed Final Remarketing, as soon as practicable after 5:00 p.m.
(New
York City time) on the Business Day immediately preceding the Purchase Contract
Settlement Date, the Collateral Agent shall deliver to the Purchase Contract
Agent a notice, stating (i) the amount of Cash that it has received with
respect
to the Cash Settlement of Corporate Units, (ii) the amount of Cash that it
has
received with respect to the Cash Settlement of Treasury Units and (iii)
the
amount of Pledged Senior Notes with respect to which an automatic deemed
exercise of the Put Right has occurred pursuant to Section
5.02(c)
of the
Purchase Contract Agreement.
Section
5.06 Early
Settlement and Cash Merger Early Settlement.
Upon
receipt by the Collateral Agent of a notice from the Purchase Contract Agent
that a Holder of Units has elected to effect either (i) Early Settlement
of its
obligations under the Purchase Contracts forming a part of such Units in
accordance with the terms of the Purchase Contracts and Section
5.07
of the
Purchase Contract Agreement or (ii) Cash Merger Early Settlement of its
obligations under the Purchase Contracts forming a part of such Units in
accordance with the terms of the Purchase Contracts and Section
5.04(b)(ii)
of the
Purchase Contract Agreement (which notice shall set forth the number of such
Purchase Contracts as to which such Holder has elected to effect Early
Settlement or Cash Merger Early Settlement), and that the Purchase Contract
Agent has received from such Holder, and paid to the Company as confirmed
in
writing by the Company, the related Purchase Price pursuant to the terms
of the
Purchase Contracts and the Purchase Contract Agreement and that all conditions
to such Early Settlement or Cash Merger Early Settlement, as the case may
be,
have been satisfied, then the Collateral Agent shall release from the Pledge,
(1)
14
Pledged
Senior Notes or the Pledged Applicable Ownership Interests in the case of
a
Holder of Corporate Units or (2) Pledged Treasury Securities, in the case
of a
Holder of Treasury Units, in each case with a Value equal to the product
of (x)
the Stated Amount times (y) the number of Purchase Contracts as to which
such
Holder has elected to effect Early Settlement or Cash Merger Early Settlement,
and shall instruct the Securities Intermediary to Transfer all such Pledged
Applicable Ownership Interests or Pledged Senior Notes or Pledged Treasury
Securities, as the case may be, to the Purchase Contract Agent for distribution
to such Holder, in each case free and clear of the Pledge created hereby.
A
holder of Treasury Units may settle early only in integral multiples of 40
Treasury Units, and a Holder of Corporate Units, if the Treasury Portfolio
has
replaced the Senior Notes as a component of such Corporate Units, may settle
early only in integral multiples of 4,000 Corporate Units.
Section
5.07 Application
of Proceeds in Settlement of Purchase Contracts.
(a) If
a
Holder of Corporate Units (unless the Treasury Portfolio has replaced the
Senior
Notes as a component of such Corporate Units) has not elected to make an
effective Cash Settlement by notifying the Purchase Contract Agent in the
manner
provided for in Section
5.02(b)(i)
of the
Purchase Contract Agreement or does notify the Purchase Contract Agent as
provided in Section
5.02(b)(i)
of the
Purchase Contract Agreement of its intention to pay the Purchase Price in
cash,
but fails to make such payment as required by Section
5.02(b)(ii)
of the
Purchase Contract Agreement, such Holder shall be deemed to have elected
to pay
for the shares of Common Stock or Preferred Stock, as applicable, to be issued
under such Purchase Contracts from the Proceeds of the Final Remarketing
of the
related Pledged Senior Notes. In the event of a Successful Final Remarketing,
the Collateral Agent shall instruct the Securities Intermediary to Transfer
the
related Pledged Senior Notes to the Remarketing Agent, upon confirmation
of
deposit by the Remarketing Agent of the Proceeds of such Final Remarketing
(less, to the extent permitted by the Remarketing Agreement, the Remarketing
Fee) in the Collateral Account. The Collateral Agent shall instruct the
Securities Intermediary to invest the Proceeds of the Final Remarketing in
Permitted Investments set forth in clause (6) of the definition of Permitted
Investments. On the Purchase Contract Settlement Date, the Collateral Agent
shall, in consultation with the Purchase Contract Agent, instruct the Securities
Intermediary to remit a portion of the Proceeds from such Final Remarketing
equal to the aggregate principal amount of such Pledged Senior Notes to satisfy
in full such Holder’s obligations to pay the Purchase Price to purchase the
shares of Common Stock or Preferred Stock, as applicable, under the related
Purchase Contracts and to remit the balance of the Proceeds from the Final
Remarketing, if any, to the Purchase Contract Agent for distribution to such
Holder.
Upon
a
Failed Final Remarketing, each Holder of Corporate Units (unless the Treasury
Portfolio has replaced the Senior Notes represented by such Corporate Units)
that has not elected to make an effective Cash Settlement by notifying the
Purchase Contract Agent in the manner provided for in Section
5.02(e)(i)
of the
Purchase Contract Agreement or does notify the Purchase Contract Agent as
provided in Section
5.02(e)(i)
of the
Purchase Contract Agreement of its intention to pay the Purchase Price in
cash,
but fails to make such payment as required by Section
5.02(e)(ii)
of the
Purchase Contract Agreement, shall be deemed to have exercised such Holder’s Put
Right with respect to the Senior Notes that are a component of Corporate
Units
have elected to have a portion of the Proceeds of the Put Right set-off against
such Holder’s obligation to pay the aggregate Price for the shares of Common
Stock or Preferred Stock, as applicable, to be issued under the Purchase
Contracts underlying such Corporate Units in full satisfaction of such Holders’
obligations under the Purchase Contracts. Following such set-off, the Holder’s
obligations to pay the Purchase Price for the shares of Common Stock or
Preferred Stock, as
15
applicable,
will be deemed to be satisfied in full, and the Collateral Agent shall cause
the
Securities Intermediary to release the Pledged Senior Notes from the Collateral
Account and shall promptly transfer the Pledged Senior Notes to the Company.
Thereafter, the Collateral Agent shall promptly remit the remaining Proceeds
of
the Holder’s exercise of the Put Right in excess of the aggregate Purchase Price
for the shares of Common Stock or Preferred Stock, as applicable, to be issued
under such Purchase Contracts to the Purchase Contract Agent for payment
to the
Holder of the Corporate Units to which such Senior Notes relate.
(b) A
Holder
of a Treasury Unit or a Corporate Unit (if the Treasury Portfolio has replaced
the Senior Notes as a component of such Corporate Unit) shall be deemed to
have
elected to pay for the shares of Common Stock or Preferred Stock, as applicable,
to be issued under such Purchase Contracts from the Proceeds of the related
Pledged Treasury Securities or Pledged Applicable Ownership Interests, as
the
case may be. Promptly, after 11:00 a.m. (New York City time) on the Business
Day
immediately prior to the Purchase Contract Settlement Date, the Collateral
Agent
shall invest the Proceeds in the Permitted Investments set forth in Clause
(6)
of the definition of Permitted Investments, unless prior to 10:30 a.m. on
such
date the Company shall otherwise instruct the Collateral Agent in writing
as to
the type of Permitted Investments in which any Proceeds shall be invested.
In no
event shall the Collateral Agent be liable for the selection of Permitted
Investments or for investment losses incurred thereon. The Collateral Agent
shall have no liability in respect of losses incurred as a result of the
failure
of the Company to provide timely written investment direction. Without receiving
any instruction from any Holder, the Collateral Agent shall instruct the
Securities Intermediary to remit the Proceeds of the related Pledged Treasury
Securities or Pledged Applicable Ownership Interests, as the case may be,
to the
Company in settlement of such Purchase Contracts on the Purchase Contract
Settlement Date. In the event the sum of the Proceeds from the related Pledged
Treasury Securities or Pledged Applicable Ownership Interests, as the case
may
be, and the investment earnings from the investment in Permitted Investments
exceeds the aggregate Purchase Price of the Purchase Contracts being settled
thereby, the Collateral Agent shall instruct the Securities Intermediary
to
transfer such excess, when received, to the Purchase Contract Agent for
distribution to Holders.
(c) On
or
prior to 5:00 p.m. (New York City time) on the fifth Business Day immediately
preceding the applicable Remarketing Date, but no earlier than the Payment
Date
immediately preceding such date, Holders of Separate Senior Notes may elect
to
have their Separate Senior Notes remarketed under the Remarketing Agreement,
by
delivering their Separate Senior Notes along with a notice of such election,
substantially in the form of Exhibit
F
hereto,
to the Collateral Agent. The Collateral Agent, acting as Custodial Agent,
shall
hold Separate Senior Notes in an account separate from the Collateral Account
in
which the Pledged Securities shall be held. Holders of Separate Senior Notes
electing to have their Separate Senior Notes remarketed will also have the
right
to withdraw that election by written notice to the Collateral Agent,
substantially in the form of Exhibit
G
hereto,
on or prior to 5:00 p.m. (New York City time) on the fifth Business Day
immediately preceding the applicable Remarketing Date, upon which notice
the
Custodial Agent shall return such Separate Senior Notes to such Holder. After
such time, such election shall become an irrevocable election to have such
Separate Senior Notes remarketed in such Remarketing.
16
By
11:00
a.m. (New York City time) on the Business Day immediately preceding the
applicable Remarketing Date, the Custodial Agent shall notify the Remarketing
Agent of the aggregate principal amount of the Separate Senior Notes to be
remarketed and deliver to the Remarketing Agent for remarketing all Separate
Senior Notes delivered to the Custodial Agent pursuant to this Section
5.07(c)
and not
validly withdrawn prior to such date. In the event of a Successful Remarketing,
after deducting the Remarketing Fee, the Remarketing Agent will remit to
the
Custodial Agent the remaining portion of the proceeds of such Remarketing
for
payment to the Holders of the remarketed Separate Senior Notes, in accordance
with their respective interests. In the event of a Failed Remarketing, the
Remarketing Agent will promptly return such Separate Senior Notes to the
Custodial Agent for distribution to the appropriate Holders.
Section
5.08 Special
Event Redemption.
If the
Collateral Agent receives written notice that a Special Event Redemption
has
occurred while Senior Notes are still credited to the Collateral Account,
the
Collateral Agent shall apply the Redemption Amount to purchase the Treasury
Portfolio, and the Collateral Agent shall credit the Applicable Ownership
Interests (as specified in clause (i) of the definition of such term) in
the
Treasury Portfolio to the Collateral Account and shall transfer the Applicable
Ownership Interests (as specified in clause (ii) of the definition of such
term)
in the Treasury Portfolio to the Purchase Contract Agent for distribution
to the
Holders of the Corporate Units. Upon credit to the Collateral Account of
the
Applicable Ownership Interests (as specified in clause (i) of the definition
of
such term) in the Treasury Portfolio having a Value equal to the aggregate
principal amount of the Pledged Senior Notes, the Collateral Agent shall
cause
the Securities Intermediary to release the Pledged Senior Notes from the
Collateral Account and shall promptly transfer the Pledged Senior Notes to
the
Company.
ARTICLE
6
VOTING
RIGHTS - PLEDGED SENIOR NOTES
Section
6.01 Voting
Rights.
Subject
to the terms of Section
4.02
of the
Purchase Contract Agreement, the Purchase Contract Agent may exercise, or
refrain from exercising, any and all voting and other consensual rights
pertaining to the Pledged Senior Notes or any part thereof for any purpose
not
inconsistent with the terms of this Agreement and in accordance with the
terms
of the Purchase Contract Agreement; provided,
that
the Purchase Contract Agent shall not exercise or shall not refrain from
exercising such right, as the case may be, if, in the reasonable judgment
of the
Purchase Contract Agent, such action would impair or otherwise have a material
adverse effect on the value of all or any of the Pledged Senior Notes; and
provided,
further,
that
the Purchase Contract Agent shall give the Company and the Collateral Agent
at
least five Business Days’ prior written notice of the manner in which it intends
to exercise, or its reasons for refraining from exercising, any such right.
Upon
receipt of any notices and other communications in respect of any Pledged
Senior
Notes, including notice of any meeting at which holders of the Senior Notes
are
entitled to vote or solicitation of consents, waivers or proxies of holders
of
the Senior Notes, the Collateral Agent shall use reasonable efforts to send
promptly to the Purchase Contract Agent such notice or communication, and
as
17
soon
as
reasonably practicable after receipt of a written request therefor from the
Purchase Contract Agent, execute and deliver to the Purchase Contract Agent
such
proxies and other instruments in respect of such Pledged Senior Notes (in
form
and substance satisfactory to the Collateral Agent) as are prepared by the
Company and delivered to the Purchase Contract Agent with respect to the
Pledged
Senior Notes.
ARTICLE
7
RIGHTS
AND REMEDIES
Section
7.01 Rights
and Remedies of the Collateral Agent.
(a) In
addition to the rights and remedies specified in Section
5.07
hereof
or otherwise available at law or in equity, after an event of default (as
specified in Section
7.01(b)
below)
hereunder, the Collateral Agent shall have all of the rights and remedies
with
respect to the Collateral of a secured party under the UCC (whether or not
the
UCC is in effect in the jurisdiction where the rights and remedies are asserted)
and the TRADES Regulations and such additional rights and remedies to which
a
secured party is entitled under the laws in effect in any jurisdiction where
any
rights and remedies hereunder may be asserted. Without limiting the generality
of the foregoing, such remedies may include, to the extent permitted by
applicable law, (1) retention of the Pledged Senior Notes, Pledged Treasury
Securities or the applicable Pledged Applicable Ownership Interests in full
satisfaction of the Holders’ obligations under the Purchase Contracts and the
Purchase Contract Agreement or (2) sale of the Pledged Senior Notes, Pledged
Treasury Securities or the applicable Pledged Applicable Ownership Interests
in
one or more public or private sales.
(b) Without
limiting any rights or powers otherwise granted by this Agreement to the
Collateral Agent, in the event the Collateral Agent is unable to make payments
to the Company on account of the applicable Pledged Applicable Ownership
Interests, or on account of principal payments of any Pledged Treasury
Securities as provided in Article
3
hereof,
in satisfaction of the Obligations of the Holder of the Units of which such
applicable Pledged Applicable Ownership Interests or such Pledged Treasury
Securities, as applicable, are a part under the related Purchase Contracts,
the
inability to make such payments shall constitute an event of default hereunder
and the Collateral Agent shall have and may exercise, with reference to such
Pledged Treasury Securities or Pledged Applicable Ownership Interests, as
applicable, any and all of the rights and remedies available to a secured
party
under the UCC and the TRADES Regulations after default by a debtor, and as
otherwise granted herein or under any other law.
(c) Without
limiting any rights or powers otherwise granted by this Agreement to the
Collateral Agent, the Collateral Agent is hereby irrevocably authorized to
receive and collect all payments of (i) the principal amount of the Pledged
Senior Notes, (ii) the principal amount of the Pledged Treasury Securities
and
(iii) the principal amount of the Pledged Applicable Ownership Interests,
subject, in each case, to the provisions of Article
3
hereof,
and as otherwise granted herein.
18
(d) The
Purchase Contract Agent and each Holder of Units agrees that, from time to
time,
upon the written request of the Collateral Agent or the Purchase Contract
Agent,
such Holder shall execute and deliver such further documents and do such
other
acts and things as the Collateral Agent may reasonably request in order to
maintain the Pledge, and the perfection and priority thereof, and to confirm
the
rights of the Collateral Agent hereunder. The Purchase Contract Agent shall
have
no liability to any Holder for executing any documents or taking any such
acts
requested by the Collateral Agent hereunder, except for liability for its
own
grossly negligent acts, its own grossly negligent failure to act or its own
willful misconduct.
Section
7.02 Special
Event Redemption.
Upon
the occurrence of a Special Event Redemption while Senior Notes are still
credited to the Collateral Account, the Collateral Agent is hereby authorized
to
present the Pledged Senior Notes for payment as may be required by their
respective terms and to direct the Indenture Trustee to remit the Redemption
Price to the Securities Intermediary for credit to the Collateral Account
on or
prior to 12:30 p.m., New York City time on such Special Event Redemption
Date,
by federal funds check or wire transfer of immediately available funds. Upon
receipt of such funds, the Pledged Senior Notes shall be released from the
Collateral Account and promptly transferred to the Company. Upon the crediting
of such funds to the Collateral Account, the Collateral Agent, at the written
direction of the Company, shall instruct the Securities Intermediary to (a)
apply an amount of such funds equal to the Redemption Amount to purchase
the
Treasury Portfolio from the Quotation Agent, (b) credit to the Collateral
Account the Applicable Ownership Interests (specified in clause (i) of the
definition of such term) in the Treasury Portfolio and (c) promptly remit
the
remaining portion of such funds, if any, to the Purchase Contract Agent for
payment to the Holders of Corporate Units, in accordance with their respective
interests and the Purchase Contract Agreement.
Section
7.03 Initial
Remarketing. Unless a Special Event Redemptions has occurred prior to the
Initial Remarketing Date, the Collateral Agent shall, by 11:00 a.m., New
York
City time, on the Business Day immediately preceding the Initial Remarketing
Date, without any instruction from any Holder of Corporate Units, present
the
related Pledged Senior Notes to the Remarketing Agent for Initial Remarketing.
In the event of a Failed Initial Remarketing, the Senior Notes presented
to the
Remarketing Agent pursuant to this Section
7.03
for
Remarketing shall be redeposited into the Collateral Account.
Section
7.04 Final
Remarketing. Unless a Special Event Redemption has occurred prior to the
Final Remarketing Date, if a Failed Initial Remarketing has occurred, the
Collateral Agent shall, by 11:00 a.m., New York City time, on the Business
Day
immediately preceding the Final Remarketing Date, without any instruction
from
any Holder of Corporate Units, present the related Pledged Senior Notes to
the
Remarketing Agent for Final Remarketing. In the event of a Failed Final
Remarketing, the Senior Notes presented to the Remarketing Agent pursuant
to
this Section
7.04
for
Remarketing shall be redeposited into the Collateral Account.
Section
7.05 Successful
Initial Remarketing. In the event of a Successful Initial Remarketing prior
to the Final Remarketing Date, the Collateral Agent shall, at the direction
of
the Company, instruct the Securities Intermediary to (i) Transfer the Pledged
Senior Notes to the Remarketing Agent upon confirmation of deposit by the
Remarketing Agent of the Proceeds of such Successful Initial Remarketing
(after
deducting any Remarketing Fee in accordance with
19
the
Remarketing Agreement) in the Collateral Account, (ii) apply an amount equal
to
the Treasury Portfolio Purchase Price to purchase from the Quotation Agent
the
Treasury Portfolio, (iii) credit the Applicable Ownership Interests (specified
in clause (i) of the definition of such term) in the Treasury Portfolio to
the
Collateral Account, and (iv) promptly remit the remaining portion of such
Proceeds to the Purchase Contract Agent for payment to the Holders of Corporate
Units, in accordance with their respective interests and the Purchase Contract
Agreement. With respect to Separate Senior Notes, any Proceeds of such Initial
Remarketing (after deducting any Remarketing Fee in accordance with the
Remarketing Agreement) attributable to the Separate Senior Notes will be
remitted to the Custodial Agent for payment to the holders of Separate Senior
Notes. The Pledged Applicable Ownership Interests thus credited to the
Collateral Account will secure the obligation of all Holders of Corporate
Units
to purchase Common Stock of the Company under the Purchase Contracts
constituting a part of such Corporate Units, in substitution for the Pledged
Senior Notes, which shall be released from the Collateral Account. In the
event
of a Failed Final Remarketing, the Pledged Senior Notes shall remain credited
to
the Collateral Account and Section
5.07
shall
apply.
Section
7.06 Substitutions.
Whenever a Holder has the right to substitute Treasury Securities, Senior
Notes
or security entitlements for any of them or the appropriate Applicable Ownership
Interest (as defined in clause (i) of the definition of such term) in the
Treasury Portfolio, as the case may be, for financial assets held in the
Collateral Account, such substitution shall not constitute a novation of
the
security interest created hereby.
ARTICLE
8
REPRESENTATIONS
AND WARRANTIES; COVENANTS
Section
8.01 Representations
and Warranties.
Each
Holder from time to time, acting through the Purchase Contract Agent as
attorney-in-fact (it being understood that the Purchase Contract Agent shall
not
be liable for any representation or warranty made by or on behalf of a Holder),
hereby represents and warrants to the Collateral Agent (with respect to such
Holder’s interest in the Collateral), which representations and warranties shall
be deemed repeated on each day a Holder Transfers Collateral, that:
(a) such
Holder has the power to grant a security interest in and lien on the
Collateral;
(b) such
Holder is the sole beneficial owner of the Collateral and, in the case of
Collateral delivered in physical form, is the sole holder of such Collateral
and
is the sole beneficial owner of, or has the right to Transfer, the Collateral
it
Transfers to the Collateral Agent for credit to the Collateral Account, free
and
clear of any security interest, lien, encumbrance, call, liability to pay
money
or other restriction other than the security interest and lien granted under
Article
2
hereof;
(c) upon
the
Transfer of the Collateral to the Collateral Agent for credit to the Collateral
Account, the Collateral Agent, for the benefit of the Company, will have
a valid
and perfected first priority security interest therein (assuming that any
central clearing operation or any securities intermediary or other entity
not
within the control of the Holder involved in the
20
Transfer
of the Collateral, including the Collateral Agent and the Securities
Intermediary, gives the notices and takes the action required of it hereunder
and under applicable law for perfection of that interest and assuming the
establishment and exercise of control pursuant to Article
4
hereof);
and
(d) the
execution and performance by the Holder of its obligations under this Agreement
will not result in the creation of any security interest, lien or other
encumbrance on the Collateral other than the security interest and lien granted
under Article
2
hereof
or violate any provision of any existing law or regulation applicable to
it or
of any mortgage, charge, pledge, indenture, contract or undertaking to which
it
is a party or which is binding on it or any of its assets.
Section
8.02 Covenants.
The
Holders from time to time, acting through the Purchase Contract Agent as
their
attorney-in-fact (it being understood that the Purchase Contract Agent shall
not
be liable for any covenant made by or on behalf of a Holder), hereby covenant
to
the Collateral Agent that for so long as the Collateral remains subject to
the
Pledge:
(a) neither
the Purchase Contract Agent nor such Holders will create or purport to create
or
allow to subsist any mortgage, charge, lien, pledge or any other security
interest whatsoever over the Collateral or any part of it other than pursuant
to
this Agreement; and
(b) neither
the Purchase Contract Agent nor such Holders will sell or otherwise dispose
(or
attempt to dispose) of the Collateral or any part of it except for the
beneficial interest therein, subject to the Pledge hereunder, transferred
in
connection with the Transfer of the Units.
ARTICLE
9
THE
COLLATERAL AGENT, THE CUSTODIAL AGENT AND THE SECURITIES
INTERMEDIARY
It
is
hereby agreed as follows:
Section
9.01 Appointment,
Powers and Immunities.
The
Collateral Agent, the Custodial Agent or the Securities Intermediary shall
act
as agent for the Company hereunder with such powers as are specifically vested
in the Collateral Agent, the Custodial Agent or the Securities Intermediary,
as
the case may be, by the terms of this Agreement. The Collateral Agent, the
Custodial Agent and Securities Intermediary shall:
(a) have
no
duties or responsibilities except those expressly set forth in this Agreement
and no implied covenants or obligations shall be inferred from this Agreement
against the Collateral Agent, the Custodial Agent and the Securities
Intermediary, nor shall the Collateral Agent, the Custodial Agent and the
Securities Intermediary be bound by the provisions of any agreement by any
party
hereto beyond the specific terms hereof;
(b) not
be
responsible for any recitals contained in this Agreement, or in any certificate
or other document referred to or provided for in, or received by it under,
this
Agreement, the Units or the Purchase Contract Agreement, or for the value,
validity,
21
effectiveness,
genuineness, enforceability or sufficiency of this Agreement (other than
as
against the Collateral Agent, the Custodial Agent or the Securities
Intermediary, as the case may be), the Units, any Collateral or the Purchase
Contract Agreement or any other document referred to or provided for herein
or
therein or for any failure by the Company or any other Person (except the
Collateral Agent, the Custodial Agent or the Securities Intermediary, as
the
case may be) to perform any of its obligations hereunder or thereunder or
for
the perfection, priority or, except as expressly required hereby, maintenance
of
any security interest created hereunder;
(c) not
be
required to initiate or conduct any litigation or collection proceedings
hereunder (except pursuant to directions furnished under Section
9.02
hereof,
subject to Section
9.08
hereof);
(d) not
be
responsible for any action taken or omitted to be taken by it hereunder or
under
any other document or instrument referred to or provided for herein or in
connection herewith or therewith, except for its own gross negligence or
willful
misconduct; and
(e) not
be
required to advise any party as to selling or retaining, or taking or refraining
from taking any action with respect to, any securities or other property
deposited hereunder.
Subject
to the foregoing, during the term of this Agreement, the Collateral Agent,
the
Custodial Agent and the Securities Intermediary shall take all reasonable
action
in connection with the safekeeping and preservation of the Collateral hereunder
as determined by industry standards.
No
provision of this Agreement shall require the Collateral Agent, Custodial
Agent
or the Securities Intermediary to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder.
In no event shall the Collateral Agent, Custodial Agent or the Securities
Intermediary be liable for any amount in excess of the Value of the
Collateral.
Section
9.02 Instructions
of the Company.
The
Company shall have the right, by one or more written instruments executed
and
delivered to the Collateral Agent, to direct the time, method and place of
conducting any proceeding for the realization of any right or remedy available
to the Collateral Agent, or of exercising any power conferred on the Collateral
Agent, or to direct the taking or refraining from taking of any action
authorized by this Agreement; provided,
however,
that
(i) such direction shall not conflict with the provisions of any law or of
this
Agreement or involve the Collateral Agent in personal liability and (ii)
the
Collateral Agent shall be indemnified to its satisfaction as provided herein.
Nothing contained in this Section
9.02
shall
impair the right of the Collateral Agent in its discretion to take any action
or
omit to take any action which it deems proper and which is not inconsistent
with
such direction. None of the Collateral Agent, the Custodial Agent or the
Securities Intermediary has any obligation or responsibility to file UCC
financing statements.
Section
9.03 Reliance
by Collateral Agent, Custodial Agent and Securities Intermediary. Each of
the Collateral Agent, the Custodial Agent and the Securities Intermediary
shall
be entitled, in the absence of bad faith, to rely conclusively upon any
certification, order,
22
judgment,
opinion, notice or other written communication (including, without limitation,
any thereof by e-mail or similar electronic means, telecopy, telex or facsimile)
believed by it to be genuine and correct and to have been signed or sent
by or
on behalf of the proper Person or Persons (without being required to determine
the correctness of any fact stated therein) and consult with and conclusively
rely upon advice, opinions and statements of legal counsel and other experts
selected by the Collateral Agent, the Custodial Agent or the Securities
Intermediary, as the case may be. As to any matters not expressly provided
for
by this Agreement, the Collateral Agent, the Custodial Agent and the Securities
Intermediary shall in all cases be fully protected in acting, or in refraining
from acting, hereunder in accordance with instructions given by the Company
in
accordance with this Agreement.
Section
9.04 Certain
Rights.
(a) Whenever
in the administration of the provisions of this Agreement the Collateral
Agent,
the Custodial Agent or the Securities Intermediary shall deem it necessary
or
desirable that a matter be proved or established prior to taking or suffering
any action to be taken hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of gross
negligence or bad faith on the part of the Collateral Agent, the Custodial
Agent
or the Securities Intermediary, be deemed to be conclusively proved and
established by a certificate signed by one of the Company’s officers, and
delivered to the Collateral Agent, the Custodial Agent or the Securities
Intermediary and such certificate, in the absence of gross negligence or
bad
faith on the part of the Collateral Agent, the Custodial Agent or the Securities
Intermediary, shall be full warrant to the Collateral Agent, the Custodial
Agent
or the Securities Intermediary for any action taken, suffered or omitted
by it
under the provisions of this Agreement upon the faith thereof.
(b) The
Collateral Agent, the Custodial Agent or the Securities Intermediary shall
not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, entitlement order, approval or other paper or
document.
Section
9.05 Merger,
Conversion, Consolidation or Succession to Business.
Any
corporation into which the Collateral Agent, the Custodial Agent or the
Securities Intermediary may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Collateral Agent, the Custodial Agent or the
Securities Intermediary shall be a party, or any corporation succeeding to
all
or substantially all of the corporate trust business of the Collateral Agent,
the Custodial Agent or the Securities Intermediary shall be the successor
of the
Collateral Agent, the Custodial Agent or the Securities Intermediary hereunder
without the execution or filing of any paper with any party hereto or any
further act on the part of any of the parties hereto except where an instrument
of transfer or assignment is required by law to effect such succession, anything
herein to the contrary notwithstanding.
Section
9.06 Rights
in Other Capacities. The Collateral Agent, the Custodial Agent and the
Securities Intermediary and their affiliates may (without having to account
therefor to the Company) accept deposits from, lend money to, make their
investments in and generally engage in any kind of banking, trust or other
business with the Purchase Contract Agent, any other
23
Person
interested herein and any Holder of Units (and any of their respective
subsidiaries or affiliates) as if it were not acting as the Collateral Agent,
the Custodial Agent or the Securities Intermediary, as the case may be, and
the
Collateral Agent, the Custodial Agent, the Securities Intermediary and their
affiliates may accept fees and other consideration from the Purchase Contract
Agent and any Holder of Units without having to account for the same to the
Company; provided
that
each of the Securities Intermediary, the Custodial Agent and the Collateral
Agent covenants and agrees with the Company that it shall not accept, receive
or
permit there to be created in favor of itself and shall take no affirmative
action to permit there to be created in favor of any other Person, any security
interest, lien or other encumbrance of any kind in or upon the Collateral
other
than the lien created by the Pledge.
Section
9.07 Non-reliance
on Collateral Agent, the Custodial Agent and Securities Intermediary. None
of the Securities Intermediary, the Custodial Agent or the Collateral Agent
shall be required to keep itself informed as to the performance or observance
by
the Purchase Contract Agent or any Holder of Units of this Agreement, the
Purchase Contract Agreement, the Units or any other document referred to
or
provided for herein or therein or to inspect the properties or books of the
Purchase Contract Agent or any Holder of Units. None of the Collateral Agent,
the Custodial Agent or the Securities Intermediary shall have any duty or
responsibility to provide the Company with any credit or other information
concerning the affairs, financial condition or business of the Purchase Contract
Agent or any Holder of Units (or any of their respective affiliates) that
may
come into the possession of the Collateral Agent, the Custodial Agent or
the
Securities Intermediary or any of their respective affiliates.
Section
9.08 Compensation
and Indemnity. The Company agrees to:
(a) pay
the
Collateral Agent, the Custodial Agent and the Securities Intermediary from
time
to time such compensation as shall be agreed in writing between the Company
and
the Collateral Agent, the Custodial Agent or the Securities Intermediary,
as the
case may be, for all services rendered by them hereunder;
(b) indemnify
and hold harmless the Collateral Agent, the Custodial Agent, the Securities
Intermediary and each of their respective directors, officers, agents and
employees (collectively, the “Indemnitees”),
from
and against any and all claims, liabilities, losses, damages, fines, penalties
and expenses (including reasonable fees and expenses of counsel) and taxes
(other than those based upon, determined by or measured by the income of
the
Collateral Agent, the Custodial Agent and Securities Intermediary)
(collectively, “Losses”
and
individually, a “Loss”)
that
may be imposed on, incurred by, or asserted against, the Indemnitees or any
of
them for following any instructions or other directions upon which either
the
Collateral Agent, the Custodial Agent or the Securities Intermediary is entitled
to rely pursuant to the terms of this Agreement, provided
that the
Collateral Agent, the Custodial Agent or the Securities Intermediary has
not
acted with gross negligence or engaged in willful misconduct or bad faith
with
respect to the specific Loss against which indemnification is sought;
and
(c) in
addition to and not in limitation of paragraph (b) immediately above, indemnify
and hold the Indemnitees and each of them harmless from and against any and
all
Losses that may be imposed on, incurred by or asserted against, the Indemnitees
or any of them in connection with or arising out of the Collateral Agent’s, the
Custodial Agent’s or the
24
Securities
Intermediary’s acceptance or performance of its powers and duties under this
Agreement, provided
that the
Collateral Agent, the Custodial Agent or the Securities Intermediary has
not
acted with gross negligence or engaged in willful misconduct or bad faith
with
respect to the specific Loss against which indemnification is
sought.
The
provisions of this Section
9.08
and
Section
11.07
shall
survive the resignation or removal of the Collateral Agent, Custodial Agent
or
Securities Intermediary and the termination of this Agreement.
Section
9.09 Failure
to Act.
In the
event of any ambiguity in the provisions of this Agreement or any dispute
between or conflicting claims by or among the parties hereto or any other
Person
with respect to any funds or property deposited hereunder, then at its sole
option, each of the Collateral Agent, the Custodial Agent and the Securities
Intermediary shall be entitled, after prompt notice to the Company and the
Purchase Contract Agent, to refuse to comply with any and all claims, demands
or
instructions with respect to such property or funds so long as such dispute
or
conflict shall continue, and the Collateral Agent, the Custodial Agent and
the
Securities Intermediary shall not be or become liable in any way to any of
the
parties hereto for its failure or refusal to comply with such conflicting
claims, demands or instructions. The Collateral Agent, the Custodial Agent
and
the Securities Intermediary shall be entitled to refuse to act until
either:
(a) such
conflicting or adverse claims or demands shall have been finally determined
by a
court of competent jurisdiction or settled by agreement between the conflicting
parties as evidenced in a writing satisfactory to the Collateral Agent, the
Custodial Agent or the Securities Intermediary; or
(b) the
Collateral Agent, the Custodial Agent or the Securities Intermediary shall
have
received security or an indemnity satisfactory to it sufficient to save it
harmless from and against any and all loss, liability or reasonable
out-of-pocket expense which it may incur by reason of its acting.
The
Collateral Agent, the Custodial Agent and the Securities Intermediary may
in
addition elect to commence an interpleader action or seek other judicial
relief
or orders as the Collateral Agent, the Custodial Agent or the Securities
Intermediary may deem necessary. Notwithstanding anything contained herein
to
the contrary, none of the Collateral Agent, the Custodial Agent or the
Securities Intermediary shall be required to take any action that is in its
opinion contrary to law or to the terms of this Agreement, or which would
in its
opinion subject it or any of its officers, employees or directors to
liability.
Section
9.10 Resignation
of Collateral Agent, the Custodial Agent and Securities
Intermediary.
(a) Subject
to the appointment and acceptance of a successor Collateral Agent, Custodial
Agent or Securities Intermediary as provided below:
(i) the
Collateral Agent, the Custodial Agent and the Securities Intermediary may
resign
at any time by giving notice thereof to the Company and the Purchase Contract
Agent as attorney-in-fact for the Holders of Units;
25
(ii) the
Collateral Agent, the Custodial Agent and the Securities Intermediary may
be
removed at any time by the Company; and
(iii) if
the
Collateral Agent, the Custodial Agent or the Securities Intermediary fails
to
perform any of its material obligations hereunder in any material respect
for a
period of not less than 20 days after receiving written notice of such failure
by the Purchase Contract Agent and such failure shall be continuing, the
Collateral Agent, the Custodial Agent and the Securities Intermediary may
be
removed by the Purchase Contract Agent, acting at the direction of the Holders
of Units.
The
Purchase Contract Agent shall promptly notify the Company of any removal
of the
Collateral Agent, the Custodial Agent or the Securities Intermediary pursuant
to
clause (iii) of this Section
9.10.
Upon
any such resignation or removal, the Company shall have the right to appoint
a
successor Collateral Agent, Custodial Agent or Securities Intermediary, as
the
case may be, which shall not be an Affiliate of the Purchase Contract Agent.
If
no successor Collateral Agent, Custodial Agent or Securities Intermediary
shall
have been so appointed and shall have accepted such appointment within 30
days
after the retiring Collateral Agent’s, Custodial Agent’s or Securities
Intermediary’s giving of notice of resignation or the Company’s or the Purchase
Contract Agent’s giving notice of such removal, then the retiring or removed
Collateral Agent, Custodial Agent or Securities Intermediary may petition
any
court of competent jurisdiction, at the expense of the Company, for the
appointment of a successor Collateral Agent, Custodial Agent or Securities
Intermediary. The Collateral Agent, the Custodial Agent and the Securities
Intermediary shall each be a bank or a national banking association which
has an
office (or an agency office) in New York City with a combined capital and
surplus of at least $50,000,000. Upon the acceptance of any appointment as
Collateral Agent, Custodial Agent or Securities Intermediary hereunder by
a
successor Collateral Agent, Custodial Agent or Securities Intermediary, as
the
case may be, such successor Collateral Agent, Custodial Agent or Securities
Intermediary, as the case may be, shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Collateral
Agent, Custodial Agent or Securities Intermediary, as the case may be, and
the
retiring Collateral Agent, Custodial Agent or Securities Intermediary, as
the
case may be, shall take all appropriate action, subject to payment of any
amounts then due and payable to it hereunder, to transfer any money and property
held by it hereunder (including the Collateral) to such successor. The retiring
Collateral Agent, Custodial Agent or Securities Intermediary shall, upon
such
succession, be discharged from its duties and obligations as Collateral Agent,
Custodial Agent or Securities Intermediary hereunder. After any retiring
Collateral Agent’s, Custodial Agent’s or Securities Intermediary’s resignation
hereunder as Collateral Agent, Custodial Agent or Securities Intermediary,
the
provisions of this Article
9
shall
continue in effect for its benefit in respect of any actions taken or omitted
to
be taken by it while it was acting as the Collateral Agent, Custodial Agent
or
Securities Intermediary. Any resignation or removal of the Collateral Agent,
Custodial Agent or Securities Intermediary hereunder, at a time when such
Person
is acting as the Collateral Agent, Custodial Agent or Securities Intermediary,
shall be deemed for all purposes of this Agreement as the simultaneous
resignation or removal of the Collateral Agent, Securities Intermediary or
Custodial Agent, as the case may be.
26
(b) Because
U.S. Bank National Association is serving as the Collateral Agent hereunder
and
the Purchase Contract Agent under the Purchase Contract Agreement, if an
event
of default (other than an event of default occurring as a result of a Failed
Final Remarketing) occurs hereunder or under the Purchase Contract Agreement,
U.S. Bank National Association will resign as the Collateral Agent, but continue
to act as the Purchase Contract Agent. A successor Collateral Agent will
be
appointed in accordance with the terms hereof. If any such event of default
is
cured or waived prior to the appointment of a successor Collateral Agent,
the
duty of U.S. Bank National Association to resign in respect of such event
of
default shall cease.
Section
9.11 Right
to Appoint Agent or Advisor.
The
Collateral Agent shall have the right to appoint agents or advisors in
connection with any of its duties hereunder, and the Collateral Agent shall
not
be liable for any action taken or omitted by, or in reliance upon the advice
of,
such agents or advisors selected in good faith. The appointment of agents
pursuant to this Section
9.11
shall be
subject to prior written consent of the Company, which consent shall not
be
unreasonably withheld.
Section
9.12 Survival.
The provisions of this Article
9
shall
survive termination of this Agreement and the resignation or removal of the
Collateral Agent, the Custodial Agent or the Securities
Intermediary.
Section
9.13 Exculpation.
Anything contained in this Agreement to the contrary notwithstanding, in
no
event shall the Collateral Agent, the Custodial Agent or the Securities
Intermediary or their officers, directors, employees or agents be liable
under
this Agreement to any third party for indirect, special, punitive, or
consequential loss or damage of any kind whatsoever, including, but not limited
to, lost profits, whether or not the likelihood of such loss or damage was
known
to the Collateral Agent, the Custodial Agent or the Securities Intermediary,
or
any of them and regardless of the form of action.
ARTICLE
10
AMENDMENT
Section
10.01 Amendment
Without Consent of Holders.
Without
the consent of any Holders, the Company, when duly authorized, the Collateral
Agent, the Custodial Agent, the Securities Intermediary and the Purchase
Contract Agent, at any time and from time to time, may amend this Agreement,
in
form satisfactory to the Company, the Collateral Agent, the Custodial Agent,
the
Securities Intermediary and the Purchase Contract Agent, to:
(a) evidence
the succession of another Person to the Company and the assumption by any
such
successor of the covenants of the Company;
(b) evidence
and provide for the acceptance of appointment hereunder by a successor
Collateral Agent, Custodial Agent, Securities Intermediary or Purchase Contract
Agent;
(c) add
to
the covenants of the Company for the benefit of the Holders, or surrender
any
right or power herein conferred upon the Company, provided
that
such covenants or such surrender do not adversely affect the validity,
perfection or priority of the Pledge created hereunder;
27
(d) cure
any
ambiguity (or formal defect), correct or supplement any provisions herein
which
may be inconsistent with any other such provisions herein; or
(e) make
any
other provisions with respect to such matters or questions arising under
this
Agreement, provided
that
such action shall not adversely affect the interests of the Holders in any
material respect.
Section
10.02 Amendment
with Consent of Holders.
With
the consent of the Holders of not less than a majority of the Purchase Contracts
at the time outstanding, including without limitation the consent of the
Holders
obtained in connection with a tender or an exchange offer, by Act of such
Holders delivered to the Company, the Purchase Contract Agent, the Custodial
Agent, the Securities Intermediary and the Collateral Agent, as the case
may be,
the Company, when duly authorized by a Board Resolution, the Purchase Contract
Agent, the Collateral Agent, the Securities Intermediary and the Collateral
Agent may amend this Agreement for the purpose of modifying in any manner
the
provisions of this Agreement or the rights of the Holders in respect of the
Units; provided,
however,
that no
such supplemental agreement shall, without the unanimous consent of the Holders
of each Outstanding Unit adversely affected thereby in any material
respect:
(a) change
the amount or type of Collateral underlying a Unit (except for the rights
of
holders of Corporate Units to substitute the Treasury Securities for the
Pledged
Senior Notes or the Pledged Applicable Ownership Interests, as the case may
be,
or the rights of Holders of Treasury Units to substitute Senior Notes or
the
Applicable Ownership Interests (as specified in clause (i) of the definition
of
such term) in the Treasury Portfolio, as applicable, for the Pledged Treasury
Securities), unless such change is not adverse to the Holders, impair the
right
of the Holder of any Unit to receive distributions on the underlying Collateral
or otherwise adversely affect the Holder’s rights in or to such Collateral;
or
(b) otherwise
effect any action that would require the consent of the Holder of each
Outstanding Unit affected thereby pursuant to the Purchase Contract Agreement
if
such action were effected by a modification or amendment of the provisions
of
the Purchase Contract Agreement; or
(c) reduce
the percentage of Purchase Contracts the consent of whose Holders is required
for the modification or amendment of the provisions of this
Agreement;
provided
that if
any amendment or proposal referred to above would adversely affect only the
Corporate Units or only the Treasury Units, then only the affected class
of
Holders as of the record date for the Holders entitled to vote thereon will
be
entitled to vote on such amendment or proposal, and such amendment or proposal
shall not be effective except with the consent of Holders of not less than
a
majority of such class; provided,
further,
that
the unanimous consent of the Holders of each outstanding Purchase Contract
of
such class affected thereby shall be required to approve any amendment or
proposal specified in clauses (a) through (c) above.
It
shall
not be necessary for any Act of Holders under this Section to approve the
particular form of any proposed amendment, but it shall be sufficient if
such
Act shall approve the substance thereof.
28
Section
10.03 Execution
of Amendments.
In
executing any amendment permitted by this Article, the Collateral Agent,
the
Custodial Agent, the Securities Intermediary and the Purchase Contract Agent
shall be entitled to receive and (subject to Section
7.01
of the
Purchase Contract Agreement with respect to the Purchase Contract Agent)
shall
be fully authorized and protected in relying upon, an Opinion of Counsel
and an
officers’ certificate stating that the execution of such amendment is authorized
or permitted by this Agreement and that all conditions precedent, if any,
to the
execution and delivery of such amendment have been satisfied. The Collateral
Agent, Custodial Agent, Securities Intermediary and Purchase Contract Agent
may,
but shall not be obligated to, enter into any such amendment which affects
their
own respective rights, duties or immunities under this Agreement or
otherwise.
Section
10.04 Effect
of Amendments. Upon the execution of any amendment under this Article, this
Agreement shall be modified in accordance therewith, and such amendment shall
form a part of this Agreement for all purposes; and every Holder of Certificates
theretofore or thereafter authenticated, executed on behalf of the Holders
and
delivered under the Purchase Contract Agreement shall be bound
thereby.
Section
10.05 Reference
of Amendments. Certificates authenticated, executed on behalf of the Holders
and delivered after the execution of any amendment pursuant to this Section
may,
and shall if required by the Collateral Agent or the Purchase Contract Agent,
bear a notation in form approved by the Purchase Contract Agent and the
Collateral Agent as to any matter provided for in such amendment. If the
Company
shall so determine, new Certificates so modified as to conform, in the opinion
of the Collateral Agent, the Purchase Contract Agent and the Company, to
any
such amendment may be prepared and executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Purchase Contract
Agent
in accordance with the Purchase Contract Agreement in exchange for Certificates
representing Outstanding Units.
ARTICLE
11
MISCELLANEOUS
Section
11.01 No
Waiver.
No
failure on the part of the Company, the Collateral Agent, the Custodial Agent,
the Securities Intermediary or any of their respective agents to exercise,
and
no course of dealing with respect to, and no delay in exercising, any right,
power or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise by the Company, the Collateral Agent, the Custodial
Agent, the Securities Intermediary or any of their respective agents of any
right, power or remedy hereunder preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. The remedies herein
are
cumulative and are not exclusive of any remedies provided by law.
Section
11.02 Governing
Law; Submission to Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. The Company,
the Collateral Agent, the Custodial Agent, the Securities Intermediary and
the
Holders from time to time of the Units, acting through the Purchase Contract
Agent as their attorney-in-fact, hereby submit to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York
and of
any New York
29
state
court sitting in New York City for the purposes of all legal proceedings
arising
out of or relating to this Agreement or the transactions contemplated hereby.
The Company, the Collateral Agent, the Custodial Agent, the Securities
Intermediary and the Holders from time to time of the Units, acting through
the
Purchase Contract Agent as their attorney-in-fact, irrevocably waive, to
the
fullest extent permitted by applicable law, any objection that they may now
or
hereafter have to the laying of the venue of any such proceeding brought
in such
a court and any claim that any such proceeding brought in such a court has
been
brought in an inconvenient forum.
Section
11.03 Notices.
All notices, requests, consents and other communications provided for herein
(including, without limitation, any modifications of, or waivers or consents
under, this Agreement) shall be given or made in writing (including, without
limitation, by telecopy) delivered to the intended recipient at the “Address
for Notices”
specified below its name on the signature pages hereof or, as to any party,
at
such other address as shall be designated by such party in a notice to the
other
parties. Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given when transmitted by telecopier or
personally delivered or, in the case of a mailed notice, upon receipt, in
each
case given or addressed as aforesaid.
Section
11.04 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit
of the respective successors and assigns of the Company, the Collateral Agent,
the Custodial Agent, the Securities Intermediary and the Purchase Contract
Agent, and the Holders from time to time of the Units, by their acceptance
of
the same, shall be deemed to have agreed to be bound by the provisions hereof
and to have ratified the agreements of, and the grant of the Pledge hereunder
by, the Purchase Contract Agent.
Section
11.05 Counterparts.
This Agreement may be executed in any number of counterparts, all of which
taken
together shall constitute one and the same instrument, and any of the parties
hereto may execute this Agreement by signing any such counterpart.
Section
11.06 Severability.
If any provision hereof is invalid and unenforceable in any jurisdiction,
then,
to the fullest extent permitted by law, (i) the other provisions hereof shall
remain in full force and effect in such jurisdiction and shall be liberally
construed in order to carry out the intentions of the parties hereto as nearly
as may be possible and (ii) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability
of
such provision in any other jurisdiction.
Section
11.07 Expenses,
Etc. The Company agrees to reimburse the Collateral Agent, the Custodial
Agent and the Securities Intermediary for:
(a) all
reasonable costs and expenses of the Collateral Agent, the Custodial Agent
and
the Securities Intermediary (including, without limitation, the reasonable
fees
and expenses of counsel to the Collateral Agent, the Custodial Agent and
the
Securities Intermediary), in connection with (i) the negotiation, preparation,
execution and delivery or performance of this Agreement and (ii) any
modification, supplement or waiver of any of the terms of this
Agreement;
30
(b) all
reasonable costs and expenses of the Collateral Agent, the Custodial Agent
and
the Securities Intermediary (including, without limitation, reasonable fees
and
expenses of counsel) in connection with (i) any enforcement or proceedings
resulting or incurred in connection with causing any Holder of Units to satisfy
its obligations under the Purchase Contracts forming a part of the Units
and
(ii) the enforcement of this Section
11.07;
(c) all
transfer, stamp, documentary or other similar taxes, assessments or charges
levied by any governmental or revenue authority in respect of this Agreement
or
any other document referred to herein and all costs, expenses, taxes,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated
hereby;
(d) all
reasonable fees and expenses of any agent or advisor appointed by the Collateral
Agent and consented to by the Company under Section
9.11
of this
Agreement; and
(e) any
other
out-of-pocket costs and expenses reasonably incurred by the Collateral Agent,
the Custodial Agent and the Securities Intermediary in connection with the
performance of their duties hereunder.
Section
11.08 Security
Interest Absolute.
All
rights of the Collateral Agent and security interests hereunder, and all
obligations of the Holders from time to time hereunder, shall be absolute
and
unconditional irrespective of:
(a) any
lack
of validity or enforceability of any provision of the Purchase Contracts
or the
Units or any other agreement or instrument relating thereto;
(b) any
change in the time, manner or place of payment of, or any other term of,
or any
increase in the amount of, all or any of the obligations of Holders of the
Units
under the related Purchase Contracts, or any other amendment or waiver of
any
term of, or any consent to any departure from any requirement of, the Purchase
Contract Agreement or any Purchase Contract or any other agreement or instrument
relating thereto; or
(c) any
other
circumstance which might otherwise constitute a defense available to, or
discharge of, a borrower, a guarantor or a pledgor.
Section
11.09 Notice
of Special Event, Special Event Redemption and Termination Event.
Upon
the occurrence of a Special Event, a Special Event Redemption or a Termination
Event, the Company shall deliver written notice to the Purchase Contract
Agent,
the Collateral Agent and the Securities Intermediary. Upon the written request
of the Collateral Agent or the Securities Intermediary, the Company shall
inform
such party whether or not a Special Event, a Special Event Redemption or
a
Termination Event has occurred.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
31
[SIGNATURE
PAGE TO PLEDGE AGREEMENT]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
|
PNM
RESOURCES, INC.
|
U.S.
BANK NATIONAL ASSOCIATION
as
Purchase Contract Agent and as attorney-in-fact of the Holders
from time
to time of the Units
|
|
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇
▇. ▇▇▇▇
Vice
President, Corporate Secretary, and Acting Chief Financial
Officer
|
By:/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Vice President
|
|
Address
for Notices:
|
Address
for Notices:
|
|
PNM
Resources, Inc.
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
Treasurer
|
U.S.
Bank National Association
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
Corporate Trust Administration
|
|
U.S.
Bank National Association,
as
Collateral Agent, Custodial Agent and Securities Intermediary
|
|
|
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Vice President
|
|
|
Address
for Notices:
|
|
|
U.S.
Bank National Association
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
Corporate Trust Administration
|
EXHIBIT
A
INSTRUCTION
FROM
PURCHASE CONTRACT AGENT
TO
COLLATERAL AGENT
(Creation
of Treasury Units)
U.S.
Bank
National Association
as
Purchase Contract Agent
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
Corporate Trust Administration
Re:
___________ Corporate Units of PNM Resources, Inc. (the “Company”)
The
securities account of U.S. Bank National Association, as Collateral Agent,
maintained by the Securities Intermediary and designated “U.S. Bank National
Association, as Collateral Agent of PNM Resources, Inc., as pledgee of U.S.
Bank
National Association, as the Purchase Contract Agent on behalf of and as
attorney-in-fact for the Holders” (the “Collateral
Account”)
Please
refer to the Pledge Agreement, dated as of October 7, 2005 (the “Pledge
Agreement”),
among
the Company, you, as Collateral Agent, as Securities Intermediary and as
Custodial Agent and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of Corporate Units from time to time.
Capitalized terms used herein but not defined shall have the meaning set
forth
in the Pledge Agreement.
We
hereby
notify you in accordance with Section 5.02 of the Pledge Agreement that the
holder of securities named below (the “Holder”)
has
elected to substitute $___ Value of Treasury Securities or security entitlements
with respect thereto in exchange for an equal Value of Pledged Senior Notes
relating to _____ Corporate Units and has delivered to the undersigned a
notice
stating that the Holder has Transferred such Treasury Securities or security
entitlements with respect thereto to the Securities Intermediary, for credit
to
the Collateral Account.
A-1
We
hereby
request that you instruct the Securities Intermediary, upon confirmation
that
such Treasury Securities or security entitlements thereto have been credited
to
the Collateral Account, to release to the undersigned an equal Value of Pledged
Senior Notes in accordance with Section 5.02 of the Pledge
Agreement.
Date:
____________________
U.S.
Bank
National Association, as Purchase Contract Agent and as attorney-in-fact
of the
Holders from time to time of the Units
By:
_____________________
Name:
Title:
Please
print name and address of Holder electing to substitute Treasury Securities
or
security entitlements with respect thereto for the Pledged Senior
Notes:
|
Name
|
Social
Security or other Taxpayer
|
|
|
Identification
Number, if any
|
||
|
Address
|
||
A-2
EXHIBIT
B
INSTRUCTION
FROM
COLLATERAL AGENT
TO
SECURITIES INTERMEDIARY
(Creation
of Treasury Units)
U.S.
Bank
National Association
as
Securities Intermediary
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
Corporate Trust Administration
Re:
__________ Corporate Units of PNM Resources, Inc. (the “Company”)
The
securities account of U.S. Bank National Association, as Collateral Agent,
maintained by the Securities Intermediary and designated “U.S. Bank National
Association, as Collateral Agent of PNM Resources, Inc. as pledgee of U.S.
Bank
National Association, as the Purchase Contract Agent on behalf of and as
attorney-in-fact for the Holders” (the “Collateral
Account”)
Please
refer to the Pledge Agreement, dated as of October 7, 2005 (the “Pledge
Agreement”),
among
the Company, you, as Collateral Agent, as Securities Intermediary and as
Custodial Agent and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of Corporate Units from time to time.
Capitalized terms used herein but not defined shall have the meanings set
forth
in the Pledge Agreement.
B-1
When
you
have confirmed that $
Value of
Treasury Securities or security entitlements thereto has been credited to
the
Collateral Account by or for the benefit of _________, as Holder of Corporate
Units (the “Holder”),
you
are hereby instructed to release from the Collateral Account an equal Value
of
Pledged Senior Notes or security entitlements with respect thereto relating
to
Corporate Units of the Holder by Transfer to the Purchase Contract
Agent.
Dated:______________________
U.S.
Bank
National Association,
as
Collateral Agent
By:
______________________
Name:
Title:
Please
print name and address of Holder:
|
Name
|
Social
Security or other Taxpayer
|
|
|
Identification
Number, if any
|
||
|
Address
|
||
B-2
EXHIBIT
C
INSTRUCTION
FROM
PURCHASE CONTRACT AGENT
TO
COLLATERAL AGENT
(Recreation
of Corporate Units)
U.S.
Bank
National Association
as
Purchase Contract Agent
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
Corporate Trust Administration
Re:
__________ Treasury Units of PNM Resources, Inc. (the “Company”)
Please
refer to the Pledge Agreement dated as of October 7, 2005 (the “Pledge
Agreement”),
among
the Company, you, as Collateral Agent, as Securities Intermediary, as Custodial
Agent and the undersigned, as Purchase Contract Agent and as attorney-in-fact
for the holders of Treasury Units from time to time. Capitalized terms used
herein but not defined shall have the meaning set forth in the Pledge
Agreement.
We
hereby
notify you in accordance with Section 5.03 of the Pledge Agreement that the
holder of securities named below (the “Holder”)
has
elected to substitute $__________ Value of Senior Notes or security entitlements
with respect thereto in exchange for $__________ an equal Value of Pledged
Treasury Securities with respect to _______ Treasury Units and has delivered
to
the undersigned a notice stating that the holder has Transferred such Senior
Notes or security entitlements with respect thereto to the Securities
Intermediary, for credit to the Collateral Account.
C-1
We
hereby
request that you instruct the Securities Intermediary, upon confirmation
that
such Senior Notes or security entitlements with respect thereto have been
credited to the Collateral Account, to release to the undersigned $__________
an
equal Value of Treasury Securities in accordance with Section 5.03 of the
Pledge
Agreement.
Dated:______________________
U.S.
Bank
National Association,
as
Collateral Agent
By:
______________________
Name:
Title:
Please
print name and address of Holder electing to substitute Senior Notes or security
entitlements with respect thereto for Pledged Treasury Securities:
|
Name
|
Social
Security or other Taxpayer
|
|
|
Identification
Number, if any
|
||
|
Address
|
||
C-2
EXHIBIT
D
INSTRUCTION
FROM
COLLATERAL AGENT
TO
SECURITIES INTERMEDIARY
(Recreation
of Corporate Units)
U.S.
Bank
National Association
as
Securities Intermediary
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇,
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Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
Corporate Trust Administration
Re:
____
Treasury Units of PNM Resources, Inc. (the “Company”)
The
securities account of U.S. Bank National Association, as Collateral Agent,
maintained by the Securities Intermediary and designated “U.S. Bank National
Association, as Collateral Agent of PNM Resources, Inc., as pledgee of U.S.
Bank
National Association, as the Purchase Contract Agent on behalf of and as
attorney-in-fact for the Holders” (the “Collateral
Account”)
Please
refer to the Pledge Agreement dated as of October 7, 2005 (the “Pledge
Agreement”),
among
the Company, you, as Securities Intermediary, Custodial Agent and Collateral
Agent and U.S. Bank National Association, as Purchase Contract Agent and
as
attorney-in-fact for the holders of Corporate Units from time to time.
Capitalized terms used herein but not defined shall have the meanings set
forth
in the Pledge Agreement.
D-1
When
you
have confirmed that $___________ Value of Senior Notes or security entitlements
with respect thereto has been credited to the Collateral Account by or for
the
benefit of _______________, as Holder of Treasury Units (the “Holder”),
you
are hereby instructed to release from the Collateral Account an equal Value
of
Treasury Securities or security entitlements with respect thereto relating
to
____ treasury Units of the Holder by Transfer to the Purchase Contract
Agent.
Dated:______________________
U.S.
Bank
National Association,
as
Collateral Agent
By:
______________________
Name:
Title:
Please
print name and address of Holder:
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Name
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Social
Security or other Taxpayer
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Identification
Number, if any
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Address
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D-2
EXHIBIT
E
NOTICE
OF CASH SETTLEMENT
FROM
COLLATERAL AGENT
TO
PURCHASE CONTRACT AGENT
(Cash
Settlement Amounts)
U.S.
Bank
National Association
as
Purchase Contract Agent
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Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
Corporate Trust Administration
Re: __________
Corporate Units of PNM Resources, Inc. (the “Company”)
__________ Treasury Units of the Company
Please
refer to the Pledge Agreement dated as of October 7, 2005 (the “Pledge
Agreement”),
by and
among you, the Company, and U.S. Bank National Association, as Collateral
Agent,
Custodial Agent and Securities Intermediary. Unless otherwise defined herein,
terms defined in the Pledge Agreement are used herein as defined
therein.
In
accordance with Section 5.05(c) of the Pledge Agreement, we hereby notify
you
that as of 5:00 p.m. (New York City time) on the fourth Business Day immediately
preceding __________ (the “Purchase
Contract Settlement Date”),
we
have received (i) $___________ in immediately available funds paid in an
aggregate amount equal to the Purchase Price due to the Company on the Purchase
Contract Settlement Date with respect to ___________ Corporate Units, and
(ii)
based on the funds received set forth in clause (i) above, an aggregate
principal amount of $___________ of Pledged Senior Notes are to be tendered
for
purchase in the Final Remarketing.
Dated:______________________
U.S.
Bank
National Association,
as
Collateral Agent
By:
______________________
Name:
Title:
E-1
EXHIBIT
F
INSTRUCTION
TO CUSTODIAL AGENT
REGARDING
REMARKETING
U.S.
Bank
National Association
as
Custodial Agent
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▇▇▇▇,
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Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
Corporate Trust Administration
Re:
Senior Notes Due 2010 of PNM Resources, Inc. (the “Company”)
The
undersigned hereby notifies you in accordance with Section 5.07(c) of the
Pledge
Agreement, dated as of October 7, 2005 (the “Pledge
Agreement”),
among
the Company, you, as Collateral Agent, Custodial Agent and Securities
Intermediary and U.S. Bank National Association, as the Purchase Contract
Agent
and as attorney-in-fact for the holders of Corporate Units from time to time,
that the undersigned elects to deliver $__________ aggregate principal amount
of
Separate Senior Notes for delivery to the Remarketing Agent on or prior to
5:00
p.m. (New York City time) on the fifth Business Day immediately preceding
the
Initial Remarketing Date for remarketing pursuant to Section 5.07(c) of the
Pledge Agreement. The undersigned will, upon request of the Remarketing Agent,
execute and deliver any additional documents deemed by the Remarketing Agent
or
by the Company to be necessary or desirable to complete the sale, assignment
and
transfer of the Separate Senior Notes tendered hereby. Capitalized terms
used
herein but not defined shall have the meaning set forth in the Pledge
Agreement.
The
undersigned hereby instructs you, upon receipt of the Proceeds of such
remarketing from the Remarketing Agent, to deliver such Proceeds to the
undersigned in accordance with the instructions indicated herein under “A.
Payment Instructions.” The undersigned hereby instructs you, in the event of a
Failed Final Remarketing, upon receipt of the Separate Senior Notes tendered
herewith from the Remarketing Agent, to deliver such Separate Senior Notes
to
the person(s) and the address(es) indicated herein under “B. Delivery
Instructions.”
F-1
With
this
notice, the undersigned hereby (i) represents and warrants that the undersigned
has full power and authority to tender, sell, assign and transfer the Separate
Senior Notes tendered hereby and that the undersigned is the record owner
of any
Senior Notes tendered herewith in physical form, (ii) agrees to be bound
by the
terms and conditions of Section 5.07(c) of the Pledge Agreement and (iii)
acknowledges and agrees that after 5:00 p.m. (New York City time) on the
fifth
Business Day immediately preceding the Remarketing Date, such election shall
become an irrevocable election to have such Separate Senior Notes remarketed
in
the Remarketing. In the case of a Failed Remarketing, such Separate Senior
Notes
shall be returned to the undersigned.
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Dated:
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By:
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Name:
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|
Title:
|
|
Signature
Guarantee:
|
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Name
|
Social
Security or other Taxpayer
|
||
|
Identification
Number, if any
|
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|
Address
|
|||
F-2
A.
PAYMENT INSTRUCTIONS
Proceeds
of the remarketing should be paid by check in the name of the person(s) set
forth below and mailed to the address set forth below.
Name(s)
(Please
Print)
Address
(Please
Print)
(Zip
Code)
(Taxpayer
Identification or Social Security Number)
B.
DELIVERY INSTRUCTIONS
In
the
event of a Failed Final Remarketing, Senior Notes that are in physical form
should be delivered to the person(s) set forth below and mailed to the address
set forth below.
Name(s)
(Please
Print)
Address
(Please
Print)
(Zip
Code)
(Tax
Identification or Social Security Number)
F-3
EXHIBIT
G
INSTRUCTION
TO CUSTODIAL AGENT
REGARDING
WITHDRAWAL FROM REMARKETING
U.S.
Bank
National Association
as
Custodial Agent
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▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
Corporate Trust Administration
Re:
Senior Notes due 2010 of PNM Resources, Inc. (the “Company”)
The
undersigned hereby notifies you in accordance with Section 5.07(c) of the
Pledge
Agreement, dated as of October 7, 2005 (the “Pledge
Agreement”),
among
the Company and you, as Collateral Agent, Custodial Agent and Securities
Intermediary, and U.S. Bank National Association, as Purchase Contract Agent
and
as attorney-in-fact for the holders of Corporate Units from time to time,
that
the undersigned elects to withdraw the $__________ aggregate principal amount
of
Separate Senior Notes delivered to the Collateral Agent on __________, 2010
for
remarketing pursuant to Section 5.07(c) of the Pledge Agreement. The undersigned
hereby instructs you to return such Senior Notes to the undersigned in
accordance with the undersigned’s instructions. With this notice, the
undersigned hereby agrees to be bound by the terms and conditions of Section
5.07(c) of the Pledge Agreement. Capitalized terms used herein but not defined
shall have the meaning set forth in the Pledge Agreement.
|
Dated:
|
By:
|
||
|
Name:
|
|||
|
Title:
|
|
Signature
Guarantee:
|
|||
|
Name
|
Social
Security or other Taxpayer
|
||
|
Identification
Number, if any
|
|||
|
Address
|
|||
G-1