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Exhibit 2.k.(iv)
S&C Draft of June 6, 1999
COLLATERAL AGREEMENT
Among
AMDOCS INTERNATIONAL LIMITED,
As Pledgor,
THE CHASE MANHATTAN BANK,
As Collateral Agent
and
AMDOCS AUTOMATIC COMMON EXCHANGE SECURITY TRUST
Dated as of [Pricing Date]
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms........................................... 1
Section 1.2. Interpretation.......................................... 6
ARTICLE II
THE SECURITY INTERESTS
Section 2.1. Grant of Security Interests............................. 7
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of Pledgor............... 8
Section 3.2. Representations and Warranties of the Collateral Agent.. 8
ARTICLE IV
CERTAIN COVENANTS OF PLEDGOR
Section 4.1. Certain Covenants of Pledgor............................ 9
ARTICLE V
ADMINISTRATION OF THE COLLATERAL AND
VALUATION OF THE SECURITIES
Section 5.1. Valuation of Collateral................................. 10
Section 5.2. Substitution of Collateral.............................. 11
Section 5.3. Additional Collateral................................... 11
Section 5.4. Delivery of Collateral.................................. 12
Section 5.5. Insufficiency Determination............................. 13
Section 5.6. Release of Excess Collateral............................ 14
Section 5.7. Delivery of Contract Consideration...................... 14
Section 5.8. Investment of Cash Collateral........................... 15
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ARTICLE VI
INCOME AND VOTING RIGHTS ON COLLATERAL
Section 6.1. Income on Collateral.................................... 15
Section 6.2. Voting of Collateral.................................... 15
ARTICLE VII
REMEDIES UPON EVENTS OF DEFAULT
Section 7.1. Rights of Secured Party................................. 16
Section 7.2. Power of Attorney....................................... 17
Section 7.3. Application of Collateral and Proceeds.................. 17
ARTICLE VIII
THE COLLATERAL AGENT
Section 8.1. Conditions to Duties of the Collateral Agent............ 18
Section 8.2. Merger.................................................. 20
Section 8.3. Resignation............................................. 20
Section 8.4. Removal................................................. 20
Section 8.5. Appointment of Successor................................ 20
Section 8.6. Acceptance by Successor................................. 21
Section 8.7. Compensation............................................ 21
ARTICLE IX
MISCELLANEOUS
Section 9.1. Termination............................................. 21
Section 9.2. No Assumption of Liability.............................. 21
Section 9.3. Notices................................................. 22
Section 9.4. Governing Law; Severability............................. 22
Section 9.5. Entire Agreement........................................ 22
Section 9.6. Amendments; Waivers..................................... 22
Section 9.7. Non-Assignability....................................... 23
Section 9.8. No Third Party Rights; Successors and Assigns........... 23
Section 9.9. Counterparts............................................ 23
Exhibits
Exhibit A - Notice of Pledge Value
Exhibit B - Certificate for Substituted Collateral
Exhibit C - Certificate for Additional Collateral
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COLLATERAL AGREEMENT
COLLATERAL AGREEMENT, dated as of [Pricing Date], among Amdocs
International Limited, a corporation formed under the laws of the Island of
Guernsey ("Pledgor"), The Chase Manhattan Bank, a New York banking corporation,
as collateral agent hereunder for the benefit of Amdocs Automatic Common
Exchange Security Trust, a trust organized under the laws of the State of New
York under and by virtue of an Amended and Restated Trust Agreement, dated as of
[Pricing Date] (such trust and the trustees thereof acting in their capacity as
such being referred to in this Agreement as "Purchaser"), and Purchaser.
WITNESSETH:
WHEREAS, pursuant to the Purchase Agreement, dated as of [Pricing Date]
(the "Contract"), between Pledgor and Purchaser, Pledgor has agreed to sell and
Purchaser has agreed to purchase Ordinary Shares, par value pound sterling 0.01
per share (the "Ordinary Shares"), of Amdocs Limited, a corporation formed under
the laws of the Island of Guernsey (the "Company"), subject to the terms and
conditions of the Contract;
NOW, THEREFORE, to secure the performance by Pledgor of its obligations
under the Contract and to secure the observance and performance of the covenants
and agreements contained in this Agreement and in the Contract, the parties,
intending to be bound, agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms. As used in this Agreement, the following
terms have the following meanings:
"Accelerated Portion" has the meaning specified in the
Contract.
"Additional Purchase Price" has the meaning specified in the
Contract.
"Additional Share Base Amount" has the meaning specified in
the Contract.
"Agreement" means this Collateral Agreement.
"Authorized Representative" of Pledgor means any trustee or
other representative as to whom Pledgor shall have delivered notice to
the Collateral Agent that such trustee or other representative is
authorized to act hereunder on behalf of Pledgor.
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"Cash Delivery Obligations" means, at any time (A) if no
Reorganization Event shall have occurred prior to such time, zero, and
(B) from and after any Reorganization Event, the Dilution Adjustment
(or successive Dilution Adjustments) that shall have been applied to
the Exchange Rate pursuant to Section 6.1 of the Contract at or prior
to the Reorganization Event, times the product of: (i) the Firm Share
Base Amount plus the Additional Share Base Amount (if any) and (ii) the
Transaction Value (as defined in the Contract) of any Merger
Consideration other than Marketable Securities delivered in the related
Reorganization Event, provided that if the Reorganization Event is a
Cash Merger, the Cash Delivery Obligations shall again be zero after
Pledgor has delivered the Accelerated Portion to the Purchaser as
required under the Purchase Agreement.
"Cash Merger" has the meaning specified in the Contract.
"Closing Price" has the meaning specified in the Contract.
"Collateral" has the meaning specified in Section 2.1(a).
"Collateral Agent" means The Chase Manhattan Bank, in its
capacity as collateral agent under this Agreement, or its successor in
such capacity appointed in accordance with Section 8.5.
"Collateral Event of Default" means, at any time, the
occurrence of any of the following: (A) if no U.S. Government
Securities shall be pledged as substitute Collateral at such time,
failure of the aggregate Market Value of the Collateral to equal or
exceed the Pledge Value Requirement; (B) if any U.S. Government
Securities shall be pledged as substitute Collateral at such time,
failure of the Market Value of any U.S. Government Securities pledged
at such time (not including any U.S. Government Securities pledged in
respect of Cash Delivery Obligations at such time) to have an aggregate
Market Value of at least 105% of the Market Value of a number of
Ordinary Shares and, from and after any Spin-Off Distribution, of the
Marketable Securities distributed in such Spin-Off Distribution (or,
from and after any Reorganization Event, the Marketable Securities
distributed in such Reorganization Event in lieu of such Ordinary
Shares or shares of Marketable Securities) equal in each case to (x)
the Maximum Deliverable Number of such securities minus (y) the number
of such securities pledged as Collateral hereunder at such time; or (C)
from and after any Reorganization Event in which consideration other
than Marketable Securities shall have been delivered, failure of the
U.S. Government Securities pledged in respect of Cash Delivery
Obligations to have an aggregate Market Value at least equal to 105% of
the Cash Delivery Obligations at such time, if, in the case of a
failure described in this clause (C), such failure shall continue to be
in effect at 4:00 p.m., New York City time, on the next Business Day
following the day on which telephonic notice in respect of such failure
shall have been given pursuant to Section 5.5(a).
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"Collateral Requirement" means, as of any date and with
respect to: (i) any Ordinary Shares, 100%; (ii) any Marketable
Securities, 100%; (iii) any U.S. Government Securities pledged in
respect of Cash Delivery Obligations, 105%; and (iv) any other U.S.
Government Securities, 150%, provided that upon and after any failure
to cure an Insufficiency Determination by 4:00 p.m. New York City time
on the next Business Day following telephonic notice of such
Insufficiency Determination as described in Section 5.5(b), which
insufficiency shall be continuing on such next business day, the
Collateral Requirement relating to any U.S. Government Securities shall
be 200%. The portion of any pledged U.S. Government Securities that
shall be deemed to be pledged in respect of Cash Delivery Obligations
at any time shall be a portion having a Market Value equal to 105% of
the Cash Delivery Obligations at such time or, if less, the aggregate
Market Value of all U.S. Government Securities pledged at such time.
"Company" has the meaning specified in the recitals to this
Agreement.
"Contract" has the meaning specified in the recitals to this
Agreement.
"Delivery Date" has the meaning specified in Section 7.1.
"Dilution Adjustment" has the meaning specified in the
Contract.
"Distribution Date" has the meaning specified in the Trust
Agreement.
"Eligible Collateral" means (i) unless and until a
Reorganization Event shall occur, Ordinary Shares and, if a Spin-Off
Distribution occurs, the Marketable Securities distributed in such
Spin-Off Distribution; (ii) U.S. Government Securities, and (iii) from
and after any Reorganization Event, the Marketable Securities
distributed in such Reorganization Event; provided, in each case, that
Pledgor has good and marketable title to such securities, free of all
Liens (other than the Liens created by this Agreement) and Transfer
Restrictions and that the Collateral Agent has a valid, first priority
perfected security interest therein and first lien thereon; and
provided further that to the extent the number of Ordinary Shares or
shares of Marketable Securities pledged hereunder exceeds at any time
the Maximum Deliverable Number of such securities, such excess shares
shall not be Eligible Collateral.
"Event of Default" means the occurrence of: (i) an event
described in Section 7.1(a) or (b) of the Contract, (ii) a Collateral
Event of Default, (iii) a failure by Pledgor to have caused the
Collateral to meet the requirements described in Section 4.1(d) on the
Exchange Date, or (iv) if a Reorganization Event shall have occurred
prior to the Exchange Date, failure by Pledgor to cause to be delivered
to Purchaser on the Exchange Date the consideration then required to be
delivered pursuant to Section 6.2 of the Contract.
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"Exchange Date" has the meaning specified in the Contract.
"Exchange Rate" has the meaning specified in the Contract.
"Firm Purchase Price" has the meaning specified in the
Contract.
"Firm Share Base Amount" has the meaning specified in the
Contract.
"First Time of Delivery" has the meaning specified in the
Contract.
"Insufficiency Determination" has the meaning specified in
Section 5.5(a).
"Lien" means any lien, mortgage, security interest, pledge,
charge, encumbrance or adverse claim of any kind.
"Marketable Securities" has the meaning specified in the
Contract.
"Market Value" means, as of any date: (a) with respect to any
Ordinary Shares (except as otherwise provided in Section 5.5(b)), the
Closing Price of the Ordinary Shares on such date multiplied by the
number of such Ordinary Shares; (b) with respect to any U.S. Government
Security, the product of (x)(i) the average unit bid price for such
security as published on the Trading Day prior to such date in the New
York edition of The Wall Street Journal or The New York Times or the
average unit bid price set forth on the applicable page of the
Bloomberg system, or, if not so published, (ii) the lower bid price
quoted (which quotation shall be evidenced in writing) on the Trading
Day prior to such date by either of two nationally recognized dealers
making a market in such security which are members of the National
Association of Securities Dealers, Inc. and (y) the number of such
units of such security; and (c) with respect to any shares of
Marketable Securities, the Closing Price of such Marketable Securities
on the Trading Day prior to such date multiplied by the number of such
Shares; provided that the "Market Value" of any Collateral that does
not constitute Eligible Collateral shall be zero.
"Maximum Deliverable Number" means, on any date, (i) with
respect to the Ordinary Shares, the product of the Firm Share Base
Amount plus the Additional Share Base Amount (if any), multiplied
successively by each Dilution Adjustment by which the Exchange Rate
shall have been multiplied on or prior to such date pursuant to the
Dilution Adjustments provided for under Section 6.1 of the Contract;
and (ii) with respect to the Marketable Securities of any class or
series, the product of (A) the Firm Share Base Amount plus the
Additional Share Base Amount (if any) multiplied by (B) the number of
Marketable Securities included in the Merger Consideration in the
applicable Reorganization Event or distributed in the applicable
Spin-Off Distribution for each Ordinary Share, multiplied successively
by (x) each Dilution Adjustment by which the Exchange Rate with respect
to the Ordinary Shares shall have been multiplied on or prior to
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the date of such Reorganization Event or Spin-Off Distribution pursuant
to the adjustments provided for under Article VI of the Contract, and
(y) each Dilution Adjustment by which the Exchange Rate with respect to
such Marketable Securities shall have been multiplied on or prior to
such date and after the date of such Reorganization Event or Spin-Off
Distribution pursuant to the adjustments provided for under Article VI
of the Contract.
"Ordinary Shares" has the meaning specified in the recitals to
this Agreement.
"Person" means an individual, a corporation, a limited
liability company, a partnership, an association, a trust or any other
entity or organization, including a government or political subdivision
or an agency or instrumentality thereof.
"Pledge Value" means, as of any date, an amount equal to the
sum of the aggregate Market Values of each particular type of
Collateral, as of such date, in each case divided by the Collateral
Requirement for such type of Collateral.
"Pledge Value Requirement" means, as of any date, (a) the
aggregate Market Value on such date of the Maximum Deliverable Number
of Ordinary Shares on such date or, from and after a Reorganization
Event, the Maximum Deliverable Number of the Marketable Securities
included in the Merger Consideration in such Reorganization Event
(provided that when an adjustment in the Maximum Deliverable Number of
Ordinary Shares occurs as the result of a Dilution Adjustment that,
pursuant to the Contract, becomes effective prior to the date on which
the event giving rise to the Dilution Adjustment is made public, the
Pledge Value Requirement shall be adjusted as a result of such Dilution
Adjustment effective as of the earlier of (x) the first Business Day
following the public announcement of such event and (y) the first
Business Day following the date on which Pledgor first becomes aware of
such event or of the Company's intention to effectuate such event),
plus (b) from and after a Reorganization Event, the Cash Delivery
Obligations, plus (c) from and after a Spin-Off Distribution, the
Market Value on such date of the Maximum Deliverable Number of the
Marketable Securities distributed in such Spin-Off Distribution.
"Pledged Items" means, as of any date, any and all securities,
instruments, cash and other property delivered by Pledgor to be held by
the Collateral Agent under this Agreement as Collateral, whether or not
constituting Eligible Collateral and whether or not then required to be
held by the Collateral Agent hereunder.
"Pledgor" has the meaning specified in the preamble to this
Agreement.
"Prior Collateral" has the meaning specified in Section
5.2(a).
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"Purchaser" has the meaning specified in the preamble to this
Agreement.
"Reorganization Event" has the meaning specified in the
Contract.
"Responsible Officer" means, when used with respect to the
Collateral Agent, any vice president, assistant vice president,
assistant treasurer or assistant secretary located in the division or
department of the Collateral Agent responsible for performing the
obligations of the Collateral Agent under this Agreement.
"Second Time of Delivery" has the meaning specified in the
Contract.
"Spin-off Distribution" has the meaning specified in the
Contract.
"Trading Day" has the meaning specified in the Contract.
"Transfer Restriction" means, with respect to any item, any
condition to or restriction on the ability of the holder of such item
to sell, assign or otherwise transfer such item of Collateral or to
enforce the provisions thereof or of any document related thereto
whether set forth in such item of Collateral itself or in any document
related thereto, including (i) any requirement that any sale,
assignment or other transfer or enforcement of such item of Collateral
be consented to or approved by any Person, including the issuer thereof
or any other obligor thereon, (ii) any limitations on the type or
status, financial or otherwise, of any purchaser, pledgee, assignee or
transferee of such item of Collateral, (iii) any requirement to deliver
any certificate, consent, agreement, opinion of counsel, notice or any
other document of any Person to the issuer of, any other obligor on or
any registrar or transfer agent for, such item of Collateral, prior to
the sale, pledge, assignment or other transfer or enforcement of such
item of Collateral, and (iv) any registration or qualification
requirement for such item of Collateral pursuant to any federal or
state securities law that has not been satisfied; provided, however,
that the required delivery of any assignment from the seller, pledgor,
assignor or transferor of such item of Collateral, together with any
evidence of the corporate or other authority of such Person, shall not
constitute a "Transfer Restriction".
"Trustee" or "Trustees" means any trustee or trustees of
Purchaser named in the Trust Agreement, or any successor as such
trustee or trustees.
"UCC" means the Uniform Commercial Code as in effect in the
State of New York.
"U.S. Government Securities" means direct obligations of the
United States of America that mature on a date that is one year or less
from the date
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such obligations are pledged hereunder, but in any event prior to the
Exchange Date then in effect.
Section 1.2. Interpretation.
(a) When a reference is made in this Agreement to Articles, Sections,
Exhibits or Schedules, such reference is to Articles or Sections of, or Exhibits
or Schedules to, this Agreement unless otherwise indicated.
(b) The table of contents and headings contained in this Agreement are
for reference purposes only and are not part of this Agreement, and shall not be
deemed to limit or otherwise affect any of the provisions of this Agreement.
(c) Whenever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation".
(d) Any reference to any statute, regulation or agreement is a
reference to such statute, regulation or agreement as supplemented or amended
from time to time.
ARTICLE II
THE SECURITY INTERESTS
Section 2.1. Grant of Security Interests. In order to secure the
performance by Pledgor of its obligations under the Contract and to secure the
observance and performance of the covenants and agreements contained in this
Agreement and in the Contract:
(a) Security Interests. Pledgor hereby grants, sells, conveys,
assigns, transfers and pledges to the Collateral Agent, as agent of and
for the benefit of Purchaser, a security interest in and to, and a lien
upon and right of set-off against, all of its right, title and interest
in, to and under (i) the Pledged Items described in paragraphs (b) and
(c); (ii) all additions to and substitutions for such Pledged Items;
(iii) all income, products and proceeds and collections received or to
be received, or derived or to be derived, now or any time hereafter
from or in connection with the Pledged Items; and (iv) all powers and
rights now owned or hereafter acquired under or with respect to the
Pledged Items (such Pledged Items, additions, substitutions, income,
products and proceeds, collections, powers and rights being
collectively called the "Collateral"). The Collateral Agent shall have
all of the rights, remedies and recourses with respect to the
Collateral afforded a secured party by the UCC, in addition to, and not
in limitation of, the other rights, remedies and recourses afforded to
the Collateral Agent by this Agreement.
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(b) First Time of Delivery. Effective upon and subject to
receipt by Pledgor of the Firm Purchase Price, at the First Time of
Delivery, Pledgor shall either (1) deliver to the Collateral Agent in
pledge hereunder one or more certificates representing in the
aggregate at least 10,000,000 Ordinary Shares, registered in the name
of the Collateral Agent or its nominee or duly endorsed in blank or
accompanied by undated stock powers duly endorsed in blank, or (2) if
such Ordinary Shares are not held in certificated form but are held in
book-entry form by The Depository Trust Company or any other comparable
depositary, transfer such Ordinary Shares to an account of the
Collateral Agent or to an account (other than an account of Pledgor)
designated by the Collateral Agent with The Depository Trust Company or
such other depositary, as applicable.
(c) Second Time of Delivery. Effective upon and subject to the
receipt by Pledgor of the Additional Purchase Price, at the Second Time
of Delivery, Pledgor shall either (1) deliver to the Collateral Agent
in pledge hereunder one or more certificates representing in the
aggregate at least the Additional Share Base Amount of Ordinary Shares,
registered in the name of the Collateral Agent or its nominee or duly
endorsed in blank or accompanied by undated stock powers duly endorsed
in blank, or (2) if such Ordinary Shares are not held in certificated
form but are held in book-entry form by The Depository Trust Company or
any other comparable depositary, transfer such Ordinary Shares to an
account of the Collateral Agent or to an account (other than an account
of Pledgor) designated by the Collateral Agent with The Depository
Trust Company or such other depositary, as applicable.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of Pledgor. Pledgor hereby
represents and warrants to the Collateral Agent and Purchaser that:
(a) No Transfer Restrictions. No Transfer Restrictions exist
with respect to or otherwise apply to the pledge or assignment of, or
transfer by Pledgor of, any items of Collateral to the Collateral Agent
hereunder, or the subsequent sale or transfer of such items of
Collateral by the Collateral Agent pursuant to the terms of this
Agreement.
(b) Title to Collateral; Perfected Security Interest. Pledgor
has good and marketable title to the Collateral, free of all Liens
(other than the Lien created by this Agreement) and Transfer
Restrictions and has good, right and lawful authority to assign,
transfer and pledge such Collateral and all additions to such
Collateral and substitutions for such Collateral under this Agreement.
Upon delivery of any Collateral to the Collateral Agent hereunder, the
Collateral Agent will obtain a valid, first priority perfected security
interest in, and a first lien upon,
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such Collateral subject to no other Lien. None of the Collateral is or
shall be pledged by Pledgor as collateral for any other purpose.
Section 3.2. Representations and Warranties of the Collateral Agent.
The Collateral Agent represents and warrants to Pledgor and Purchaser that:
(a) Corporate Existence and Power. The Collateral Agent is a
banking corporation, duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, and
has all corporate powers and all governmental licenses, authorizations,
consents and approvals required to enter into, and perform its
obligations under, this Agreement.
(b) Authorization and Non-Contravention. The execution,
delivery and performance by the Collateral Agent of this Collateral
Agreement have been duly authorized by all necessary corporate action
on the part of the Collateral Agent (no action by the shareholders of
the Collateral Agent being required) and do not and will not violate,
contravene or constitute a default under any provision of applicable
law or regulation or of the charter or by-laws of the Collateral Agent
or of any material agreement, judgment, injunction, order, decree or
other instrument binding upon the Collateral Agent.
(c) Binding Effect. This Agreement constitutes a valid and
binding agreement of the Collateral Agent enforceable against the
Collateral Agent in accordance with its terms.
ARTICLE IV
CERTAIN COVENANTS OF PLEDGOR
Section 4.1. Certain Covenants of Pledgor. Pledgor agrees that, so long
as any of its obligations under the Contract remain outstanding:
(a) Title to Collateral. Pledgor shall at all times hereafter
have and maintain good and marketable title to the Collateral pledged
by it, free of all Liens (other than the Lien created by this
Agreement) and Transfer Restrictions, and, subject to the terms of this
Agreement, will at all times hereafter have and maintain good, right
and lawful authority to assign, transfer and pledge such Collateral and
all such additions to such Collateral and substitutions for such
Collateral under this Agreement.
(b) Pledge Value Requirement. Pledgor shall cause the
aggregate Pledge Value of the Collateral to be equal to or greater than
the Pledge Value Requirement at all times, and shall pledge additional
Collateral in the manner described in Section 5.4 as necessary to cause
such requirement to be met.
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(c) Pledge Upon Reorganization Event. Upon the occurrence of a
Reorganization Event, Pledgor shall immediately cause to be delivered
to the Collateral Agent, in the manner provided in Section 5.4: (i)
cash in an amount equal to 100% of Pledgor's Cash Delivery Obligations
(or U.S. Government Securities having an aggregate Market Value when
pledged and at daily ▇▇▇▇-to-market valuations thereafter at least
equal to 105% of the Cash Delivery Obligations); and (ii) Marketable
Securities in an amount at least equal to the Maximum Deliverable
Number of such securities, or, at Pledgor's election, U.S. Government
Securities having an aggregate Market Value when pledged and at daily
▇▇▇▇-to-market valuations thereafter at least equal to 150% of such
Maximum Deliverable Number of Marketable Securities, in each case to be
held as substitute Collateral hereunder.
(d) Pledge Upon Spin-Off Distribution. Upon the occurrence of
a Spin-Off Distribution, Pledgor shall immediately cause to be
delivered to the Collateral Agent, in the manner provided in Section
5.4, Marketable Securities in an amount at least equal to the Maximum
Deliverable Number of such securities, or, at Pledgor's election, U.S.
Government Securities having an aggregate Market Value at least equal
to 150% of such Maximum Deliverable Number of Marketable Securities, in
each case to be held as additional Collateral hereunder.
(e) Pledge of Contract Consideration. Notwithstanding
Pledgor's right to substitute Collateral pursuant to Section 5.2,
Pledgor shall cause the Collateral to include, on the Exchange Date,
(i) unless a Reorganization Event shall have occurred, a number of
Ordinary Shares at least equal to the number of Ordinary Shares (and,
if a Spin-Off Distribution has occurred, the number of shares of
Marketable Securities distributed in such Spin-Off Distribution)
required to be delivered under the Contract on the Exchange Date, and
(ii) if a Reorganization Event has occurred, any Marketable Securities
or other property required to be delivered under the Contract on the
Exchange Date.
(f) Further Assurances. Pledgor shall, at its expense and in
such manner and form as Purchaser or the Collateral Agent may
reasonably require, give, execute, deliver, file and record any
financing statement, notice, instrument, document, agreement or other
papers that may be necessary or desirable in order to create, preserve,
perfect, substantiate or validate any security interest granted
pursuant to this Agreement or to enable the Collateral Agent to
exercise and enforce its rights and the rights of Purchaser hereunder
with respect to such security interest. To the extent permitted by
applicable law, Pledgor hereby authorizes the Collateral Agent to
execute and file, in the name of Pledgor or otherwise, UCC financing or
continuation statements (which may be carbon, photographic, photostatic
or other reproductions of this Agreement or of a financing statement
relating to this Agreement) which the Collateral Agent may reasonably
deem necessary or appropriate to further perfect, or maintain the
perfection of, the security interests granted hereby.
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ARTICLE V
ADMINISTRATION OF THE COLLATERAL AND
VALUATION OF THE SECURITIES
Section 5.1. Valuation of Collateral. The Collateral Agent shall
determine as of 4:00 p.m., New York City time, on each Business Day whether the
Pledge Value is at least equal to the Pledge Value Requirement and whether an
Insufficiency Determination or Collateral Event of Default shall have occurred
and, from and after any Reorganization Event, Spin-Off Distribution or
substitution of U.S. Government Securities for pledged Ordinary Shares or shares
of Marketable Securities pursuant to Section 5.2, shall determine the Pledge
Value and the Pledge Value Requirement on each Business Day and shall provide
written notice of the Pledge Value and the Pledge Value Requirement, in the form
of Exhibit A, to Pledgor.
Section 5.2. Substitution of Collateral. Pledgor may substitute
Collateral in accordance with the following provisions:
(a) Unless an Event of Default or a failure by Pledgor to meet
any of its obligations under Article IV or V has occurred and is
continuing, Pledgor shall have the right at any time and from time to
time to deposit Eligible Collateral with the Collateral Agent in
substitution for Pledged Items previously deposited hereunder ("Prior
Collateral") and to obtain the release of such Prior Collateral from
the Lien created by this Agreement.
(b) If Pledgor wishes to deposit Eligible Collateral with the
Collateral Agent in substitution for Prior Collateral, it shall (i)
give written notice from an Authorized Representative to the Collateral
Agent identifying the Prior Collateral to be released from the Lien
created by this Agreement, (ii) deliver to the Collateral Agent
concurrently with such Eligible Collateral a certificate of Pledgor
substantially in the form of Exhibit B and dated the date of such
delivery, (A) identifying the items of Eligible Collateral being
substituted for the Prior Collateral and the Prior Collateral that is
to be transferred to Pledgor and (B) certifying that the
representations and warranties contained in Exhibit B are true and
correct on and as of the date of such certificate, and (iii) deliver to
the Collateral Agent concurrently with such Eligible Collateral an
opinion, dated the date of such delivery, of counsel addressed to the
Collateral Agent confirming the representations contained in the second
sentence of paragraph 3(b) of Exhibit B. Pledgor hereby covenants and
agrees to take all actions required under Section 5.4 and any other
actions necessary to create for the benefit of the Collateral Agent a
valid, first priority perfected security interest in, and a first lien
upon, such Eligible Collateral deposited with the Collateral Agent in
substitution for Prior Collateral.
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(c) No such substitution shall be made unless and until the
Collateral Agent shall have determined that the aggregate Pledge Value
of all of the Collateral at the time of such proposed substitution,
after giving effect to the proposed substitution, shall at least equal
the Pledge Value Requirement.
Section 5.3. Additional Collateral. Pledgor may pledge additional
Collateral hereunder at any time and shall pledge additional collateral when
required under this Agreement. Concurrently with the delivery of any additional
Eligible Collateral, Pledgor shall deliver (i) a certificate of Pledgor
substantially in the form of Exhibit C, signed by an Authorized Representative,
and dated the date of such delivery, (A) identifying the items of additional
Eligible Collateral being pledged and (B) certifying that the representations
and warranties contained in Exhibit C are true and correct on and as of the date
of such certificate, and (ii) an opinion, dated the date of such delivery, of
counsel addressed to the Collateral Agent confirming the representations
contained in the second sentence of paragraph 2(b) of Exhibit C. Pledgor hereby
covenants and agrees to take all actions required under Section 5.4 and any
other actions necessary to create for the benefit of the Collateral Agent a
valid, first priority perfected security interest in, and a first lien upon,
such additional Eligible Collateral.
Section 5.4. Delivery of Collateral. Pledgor shall deliver the
Collateral to the Collateral Agent in accordance with the following provisions:
(a) Pledged Ordinary Shares. In the case of Collateral
consisting of Ordinary Shares, by either (1) delivery to the Collateral
Agent of one or more certificates representing such Ordinary Shares,
registered in the name of the Collateral Agent or its nominee or duly
endorsed in blank or accompanied by undated stock powers duly endorsed
in blank, or (2) if such Ordinary Shares are not held in certificated
form but are held in book-entry form by The Depository Trust Company or
any other comparable depositary, transfer of such Ordinary Shares to an
account of the Collateral Agent or to an account (other than an account
of Pledgor) designated by the Collateral Agent with The Depository
Trust Company or such other depositary, as applicable;
(b) Pledged U.S. Government Securities. In the case of
Collateral consisting of U.S. Government Securities, by transfer of
such U.S. Government Securities through the Book Entry System of the
Federal Reserve System to the account of the Collateral Agent or to an
account (other than an account of Pledgor) designated by the Collateral
Agent; and
(c) Pledged Marketable Securities. In the case of Collateral
consisting of Marketable Securities, by either (1) delivery of
certificates evidencing such Marketable Securities, registered in the
name of the Collateral Agent or its nominee or duly endorsed in blank
or accompanied by stock powers duly executed in blank, or (2) if such
Marketable Securities are not held in certificated form but are held in
book-entry form by The Depository Trust Company or any other comparable
depositary, by transfer to an account of the Collateral Agent or to an
account (other than an account of Pledgor) designated by the Collateral
Agent or
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to an account (other than an account of Pledgor) designated by the
Collateral Agent with The Depository Trust Company or such other
depositary, as applicable. Each such delivery of Marketable Securities
shall be accompanied by an opinion of counsel satisfactory to the
Collateral Agent that the Collateral Agent has obtained a valid, first
priority perfected security interest in, and a first lien upon, such
Marketable Securities.
Upon delivery of any Pledged Item under this Agreement, the Collateral Agent
shall examine such Pledged Item and any opinions and certificates delivered
pursuant to Sections 5.2 or 5.3, this Section 5.4 or otherwise pursuant to the
terms of this Agreement in connection therewith to determine that they comply as
to form with the requirements for Eligible Collateral. Pledgor hereby designates
the Collateral Agent as the person in whose name any Collateral held in book
entry form in the Federal Reserve System shall be registered.
Section 5.5. Insufficiency Determination.
(a) If as of 4:00 p.m., New York City time, on any Business Day the
Collateral Agent determines that the aggregate Pledge Value of the Collateral is
less than the Pledge Value Requirement (any such determination, an
"Insufficiency Determination"), the Collateral Agent shall promptly notify
Pledgor of such determination by telephone call to an Authorized Representative
of Pledgor followed by a written confirmation of such call.
(b) If, by 4:00 p.m., New York City time on the next Business Day
following the day on which telephonic notice shall have been given pursuant to
the preceding paragraph 5.5(a), Pledgor shall have failed to deliver, in the
manner set forth in Sections 5.3 and 5.4, sufficient additional Eligible
Collateral so that, after giving effect to such delivery, the aggregate Pledge
Value of the Collateral, as of such next business day, is at least equal to the
Pledge Value Requirement, then (x) the Collateral Requirement with respect to
any U.S. Government Securities pledged hereunder (other than in respect of Cash
Delivery Obligations) shall be increased from 150% to 200% until the termination
of this Agreement, and (y) unless a Collateral Event of Default shall have
occurred and be continuing, the Collateral Agent shall:
(i) commence sales, in the manner described in Section 5.5(c),
of such portion of the Collateral consisting of U.S. Government
Securities as may be required to be sold in order to generate proceeds
sufficient to purchase Ordinary Shares or, after a Reorganization Event
or Spin-Off Distribution, Marketable Securities of the applicable type
as described in the following clause (ii); and
(ii) commence purchases, in the manner described in Section
5.5(c), of Ordinary Shares or, after a Reorganization Event or Spin-Off
Distribution, Marketable Securities of the applicable type, in an
amount sufficient to cause the
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aggregate Pledge Value of the Collateral to be at least equal to the
Pledge Value Requirement.
Notwithstanding the foregoing, the Collateral Agent shall discontinue sales and
purchases pursuant to the preceding clauses (i) and (ii), respectively, if at
any time a Collateral Event of Default shall have occurred and be continuing.
The Collateral Agent shall determine the Market Value and the Pledge Value of
the Collateral after each purchase of Ordinary Shares or shares of Marketable
Securities pursuant to the preceding clause (ii) in order to determine whether
the Pledge Value Requirement is met and whether a Collateral Event of Default
has occurred. Solely for purposes of such calculation, the Market Value of the
Ordinary Shares or shares of Marketable Securities shall be: (A) the most recent
sales price as reported in the composite transactions for the principal
securities exchange on which the Ordinary Shares or shares of Marketable
Securities, as the case may be, are then listed or, if such securities are not
so listed, the last quoted ask price for such securities in the over-the-counter
market as reported by the NASDAQ National Market or, if not so reported, by the
National Quotation Bureau or a similar organization; or (B) if higher, in the
case of Ordinary Shares, the most recent available Closing Price.
(c) Collateral sold and Ordinary Shares or shares of Marketable
Securities purchased by the Collateral Agent pursuant to the preceding Sections
5.5(a) and (b) may be sold and purchased on any securities exchange or in any
over-the-counter market or in any private purchase transaction, and at such
price or prices, in each case as the Collateral Agent may deem satisfactory.
Pledgor covenants and agrees that it will execute and deliver such documents and
take such other action as the Collateral Agent deems necessary or advisable in
order that any such sales and purchases may be made in compliance with law.
Section 5.6. Release of Excess Collateral. If on any Business Day the
Collateral Agent determines that the aggregate Pledge Value of Pledgor's
Eligible Collateral exceeds the Pledge Value Requirement and no Event of Default
or failure by Pledgor to meet any of its obligations under Articles IV or V has
occurred and is continuing, Pledgor may obtain the release from the Lien created
by this Agreement of any Collateral having an aggregate Pledge Value on such
Business Day less than or equal to such excess, upon delivery to the Collateral
Agent of a written notice from an Authorized Representative of Pledgor
indicating the items of Collateral to be released. Such Collateral shall be
released only after the Collateral Agent shall have determined that the
aggregate Pledge Value of all of the Collateral remaining after such release as
determined on such Business Day is at least equal to the Pledge Value
Requirement.
Section 5.7. Delivery of Contract Consideration. On the Exchange Date,
unless (i) a Reorganization Event shall have occurred prior to the Exchange Date
or (ii) if permitted under the Contract, Seller shall have elected the Cash
Settlement Alternative pursuant to Section 2.3(d) of the Contract and made the
cash payment required by that Section, the Collateral Agent shall deliver to
Purchaser from the Ordinary Shares and, if a Spin-Off Distribution has occurred,
Marketable Securities then held by it hereunder the
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number of Ordinary Shares and shares of Marketable Securities that were
distributed in such Spin-Off Distribution then required to be delivered by
Pledgor under the Contract. If a Reorganization Event shall have occurred prior
to the Exchange Date, then, (A) if so instructed by Pledgor by the close of
business on the Business Day preceding the Exchange Date, the Collateral Agent
shall deliver to Purchaser, to the extent Marketable Securities are to be
delivered on such date under Section 6.2 of the Contract, the Marketable
Securities then held by the Collateral Agent hereunder; and (B) if such
Reorganization Event is a Cash Merger, the Collateral Agent shall deliver to
Purchaser all cash or other assets then held by the Collateral Agent and
required to be delivered under the Contract at the time when such delivery is
required to be made under the Contract. Upon such delivery, Purchaser shall hold
such Ordinary Shares, shares of Marketable Securities, cash or other property,
as the case may be, absolutely and free from any claim or right whatsoever.
Section 5.8. Investment of Cash Collateral. The Collateral Agent shall
invest any cash received by it pursuant to Section 6.2 of the Contract in U.S.
Government Securities.
ARTICLE VI
INCOME AND VOTING RIGHTS ON COLLATERAL
Section 6.1. Income on Collateral. Unless an Event of Default or
failure by Pledgor to meet any of its obligations under Article IV or V has
occurred and is continuing, Pledgor shall be entitled to receive for its own
account all dividends, interest and, if any, principal and premium relating to
all of the Collateral, unless the payment of such amounts to Pledgor would
reduce the aggregate Pledge Value of the Collateral below the Pledge Value
Requirement. The Collateral Agent agrees to remit to Pledgor on the Business Day
received or the first Business Day thereafter all such payments received by it.
If an Event of Default or failure by Pledgor to meet any of its obligations
under Article IV or V has occurred and is continuing, all such payments made or
accrued after and during the continuance of such default or failure shall be
retained by the Collateral Agent, and any such payments which are received by
Pledgor shall be received in trust for the benefit of Purchaser, shall be
segregated from other funds of Pledgor and shall forthwith be paid over to the
Collateral Agent. Any such payments so retained by, or paid over to, the
Collateral Agent shall be held by the Collateral Agent as Collateral hereunder.
Section 6.2. Voting of Collateral. Unless an Event of Default has
occurred and is continuing, Pledgor shall have the right, from time to time, to
vote and to give consents, ratifications and waivers with respect to the
Collateral, and the Collateral Agent shall, upon receiving a written request
from Pledgor, deliver to Pledgor or as specified in such request such proxies,
powers of attorney, consents, ratifications and waivers in respect of any of the
Collateral which is registered in the name of the Collateral Agent or its
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nominee as shall be specified in such request and be in form and substance
satisfactory to the Collateral Agent.
If an Event of Default shall have occurred and be continuing, the
Collateral Agent shall have the right to the extent permitted by law, and
Pledgor shall take all such action as may be necessary or appropriate to give
effect to such right, to vote and to give consents, ratifications and waivers,
and take any other action with respect to any or all of the Collateral with the
same force and effect as if the Collateral Agent were the absolute and sole
owner of the Collateral.
ARTICLE VII
REMEDIES UPON EVENTS OF DEFAULT
Section 7.1. Rights of Secured Party. If any Event of Default shall
have occurred and be continuing, the Collateral Agent may exercise on behalf of
Purchaser all the rights of a secured party under the UCC (whether or not in
effect in the jurisdiction where such rights are exercised) and, in addition,
without being required to give any notice, except as provided in this Agreement
or as may be required by mandatory provisions of law, shall: (i) deliver all
Collateral consisting of Ordinary Shares or shares of Marketable Securities (but
not, in either case, in excess of the number of shares of such securities
deliverable under the Contract at such time) to Purchaser on the date of such
Event of Default (in either case, the "Delivery Date"), whereupon Purchaser
shall hold such Ordinary Shares or shares of Marketable Securities absolutely
free from any claim or right of whatsoever kind, including any equity or right
of redemption of Pledgor which may be waived, and Pledgor, to the extent
permitted by law, hereby specifically waives all rights of redemption, stay or
appraisal which it has or may have under any law now existing or hereafter
adopted; and (ii) if such delivery shall be insufficient to satisfy in full all
of the obligations of Pledgor under the Contract, sell all of the remaining
Collateral, or such lesser portion of the remaining Collateral as may be
necessary to generate proceeds sufficient to satisfy in full all of the
obligations of Pledgor under the Contract, at public or private sale or at any
broker's board or on any securities exchange, for cash, upon credit or for
future delivery, and at such price or prices as the Collateral Agent may deem
satisfactory. Pledgor covenants and agrees that it will execute and deliver such
documents and take such other action as the Collateral Agent deems necessary or
advisable in order that any such sales may be made in compliance with law. Upon
any such sale the Collateral Agent shall have the right to deliver, assign and
transfer the Collateral so sold to the purchaser of such Collateral. Each
purchaser at any such sale shall hold the Collateral so sold absolutely and free
from any claim or right of whatsoever kind, including any equity or right of
redemption of Pledgor which may be waived, and Pledgor, to the extent permitted
by law, hereby specifically waives all rights of redemption, stay or appraisal
which it has or may have under any law now existing or hereafter adopted. The
notice (if any) of such sale required by Article 9 of the UCC shall (1) in case
of a public sale, state the time and place fixed for such sale, (2) in case of
sale at a broker's board or on a securities exchange, state the board or
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exchange at which such sale is to be made and the day on which the Collateral,
or the portion of such Collateral so being sold, will first be offered for sale
at such board or exchange, and (3) in the case of a private sale, state the day
after which such sale may be consummated. Any such public sale shall be held at
such time or times within ordinary business hours and at such place or places as
the Collateral Agent may fix in the notice of such sale. At any such sale the
Collateral may be sold in one lot as an entirety or in separate parcels, as the
Collateral Agent may determine. The Collateral Agent shall not be obligated to
make any such sale pursuant to any such notice. The Collateral Agent may,
without notice or publication, adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at the time and place
fixed for the sale, and such sale may be made at any time or place to which the
same may be so adjourned. In case of any sale of all or any part of the
Collateral on credit or for future delivery, the Collateral so sold may be
retained by the Collateral Agent until the selling price is paid by the
purchaser of such Collateral, but the Collateral Agent shall not incur any
liability in case of the failure of such purchaser to take up and pay for the
Collateral so sold and, in case of any such failure, such Collateral may again
be sold upon like notice. The Collateral Agent, instead of exercising the power
of sale conferred upon it in this Agreement, may proceed by a suit or suits at
law or in equity to foreclose the security interests and sell the Collateral, or
any portion of such Collateral, under a judgment or decree of a court or courts
of competent jurisdiction.
Section 7.2. Power of Attorney. Upon any delivery or sale of all or any
part of any Collateral made either under the power of delivery or sale given
hereunder or under judgment or decree in any judicial proceedings for
foreclosure or otherwise for the enforcement of this Agreement, the Collateral
Agent is hereby irrevocably appointed the true and lawful attorney of Pledgor,
in the name and stead of Pledgor, to make all necessary deeds, bills of sale and
instruments of assignment, transfer or conveyance of the property thus delivered
or sold. For that purpose the Collateral Agent may execute all such documents
and instruments. This power of attorney shall be deemed coupled with an
interest, and Pledgor hereby ratifies and confirms all that its attorneys acting
under such power, or such attorneys' successors or agents, shall lawfully do by
virtue of this Agreement. If so requested by the Collateral Agent, by the
Trustees or by any purchaser of the Collateral or a portion of the Collateral,
Pledgor shall further ratify and confirm any such delivery or sale by executing
and delivering to the Collateral Agent, to the Trustees or to such purchaser or
purchasers at the expense of Pledgor all proper deeds, bills of sale,
instruments of assignment, conveyance of transfer and releases as may be
designated in any such request.
Section 7.3. Application of Collateral and Proceeds. In the case of an
Event of Default, the Collateral Agent may proceed to realize upon the security
interest in the Collateral against any one or more of the types of Collateral,
at any one time, as the Collateral Agent shall determine in its sole discretion
subject to the foregoing provisions of this Article VII. The proceeds of any
sale of, or other realization upon, or other receipt from, any such Collateral
shall be applied by the Collateral Agent in the following order of priorities:
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first, to the payment to Purchaser of an amount equal to: (A)
the aggregate Market Value of a number of Ordinary Shares and, if a
Spin-Off Distribution has occurred, Marketable Securities distributed
in such Spin-Off Distribution equal to (1) the number of Ordinary
Shares or shares of Marketable Securities, as the case may be, required
to be delivered under the Contract on the Delivery Date minus (2) the
number of Ordinary Shares or shares of Marketable Securities, as the
case may be, delivered by the Collateral Agent to Purchaser on the
Delivery Date as described above; or (B) from and after a
Reorganization Event, the sum of (1) the Cash Delivery Obligations on
the Delivery Date and (2) the aggregate Market Value on the Delivery
Date of a number of Marketable Securities distributed in such
Reorganization Event equal to (x) the number of such Marketable
Securities permitted to be delivered on the Delivery Date under Section
6.2 of the Contract minus (y) the number of such Marketable Securities
delivered by the Collateral Agent to Purchaser on the Delivery Date as
described above; together with, in either of cases (A) and (B), any
amounts due to Purchaser from Pledgor pursuant to Section 2.4(h)(ii) of
the Contract;
second, to the payment to the Collateral Agent of the expenses
of such sale or other realization, including reasonable compensation to
the Collateral Agent and its agents and counsel, and all expenses,
liabilities and advances incurred or made by the Collateral Agent in
connection therewith, including brokerage fees in connection with the
sale by the Collateral Agent of any Pledged Item; and
finally, if all of the obligations of Pledgor hereunder and
under the Contract have been fully discharged or sufficient funds have
been set aside by the Collateral Agent at the request of Pledgor for
the discharge of such obligations, any remaining proceeds shall be
released to Pledgor.
ARTICLE VIII
THE COLLATERAL AGENT
Section 8.1. Conditions to Duties of the Collateral Agent. The
Collateral Agent accepts its duties and responsibilities hereunder as agent for
Purchaser, on and subject to the following terms and conditions:
(a) Performance of Duties. The Collateral Agent undertakes to
perform such duties and only such duties as are expressly set forth in
this Agreement and, beyond the exercise of reasonable care in the
performance of such duties, no implied covenants or obligations shall
be read into this Agreement against the Collateral Agent. No provision
of this Agreement shall be construed to relieve the Collateral Agent
from liability for its own grossly negligent action, grossly
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negligent failure to act, bad faith, wilful misconduct or reckless
disregard of its duties. In performing its duties, the following shall
apply:
(i) The Collateral Agent may consult with counsel,
and the advice or opinion of such counsel shall be full and
complete authorization and protection in respect of an action
taken or suffered hereunder in good faith and in accordance
with such advice or opinion of counsel.
(ii) The Collateral Agent shall not be liable with
respect to any action taken, suffered or omitted by it in good
faith (i) reasonably believed by it to be authorized or within
the discretion or rights or powers conferred on it by this
Agreement or (ii) in accordance with any direction or request
of the Trustees.
(iii) The Collateral Agent shall not be liable for
any error of judgment made in good faith by any of its
officers, unless the Collateral Agent was grossly negligent in
ascertaining the pertinent facts.
(iv) In the absence of bad faith on its part, the
Collateral Agent may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon any note, notice, resolution, consent,
certificate, affidavit, letter, telegram, teletype message,
statement, order or other document believed by it to be
genuine and correct and to have been signed or sent by the
proper Person or Persons.
(v) No provision of this Agreement shall require the
Collateral Agent to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(vi) The Collateral Agent may perform any duties
hereunder either directly or by or through agents or
attorneys, and the Collateral Agent shall not be responsible
for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder. In
furtherance of the preceding sentence, any subsidiary owned or
controlled by the Collateral Agent, or its successors, as
agent for the Collateral Agent, may perform any or all of the
duties of the Collateral Agent relating to the valuation of
securities and other instruments constituting Collateral
hereunder.
(vii) In no event shall the Collateral Agent be
personally liable for any taxes or other governmental charges
imposed upon or in respect of (i) the Collateral or (ii) the
income or other distributions thereon.
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(viii) Unless and until the Collateral Agent shall
have received notice from Pledgor, Purchaser or any other
Person, or unless and until a Responsible Officer of the
Collateral Agent shall have actual knowledge to the contrary,
the Collateral Agent shall be entitled to deem and treat all
Collateral delivered to it hereunder as Eligible Collateral
hereunder, provided that the Collateral Agent has carried out
the duties specified in Article V with respect to such
Collateral at the time of delivery of such Collateral.
The Collateral Agent shall not be responsible for the correctness of
the recitals and statements in this Agreement that are made by Pledgor
or for any statement or certificate delivered by Pledgor pursuant to
this Agreement, provided that the Collateral Agent has carried out the
duties specified in Article V with respect to such Collateral at the
time of delivery of such Collateral. Except as specifically provided in
this Agreement, the Collateral Agent shall not be responsible for the
validity, sufficiency, collectibility or marketability of any
Collateral given to or held by it hereunder or for the validity or
sufficiency of the Contract or the Lien on the Collateral purported to
be created hereby.
(b) Knowledge. The Collateral Agent shall not be deemed to
have knowledge of any Event of Default (except a Collateral Event of
Default), unless and until a Responsible Officer of the Collateral
Agent shall have actual knowledge of such Event of Default or the
Collateral Agent shall have received written notice, delivered in
accordance with Section 9.3, of such Event of Default.
Section 8.2. Merger. Any corporation or association into which the
Collateral Agent may be converted or merged, or with which it may be
consolidated, or to which it may sell or transfer its agency business and assets
as a whole or substantially as a whole, or any corporation or association
resulting from any such conversion, sale, merger, consolidation or transfer to
which it is a party, shall be and become the successor Collateral Agent
hereunder and vested with all of the title to the Collateral and all of the
powers, discretions, immunities, privileges and other matters as was its
predecessor without, except as provided above, the execution or filing of any
instrument or any further act, deed or conveyance on the part of any of the
parties to this Agreement, anything in this Agreement to the contrary
notwithstanding.
Section 8.3. Resignation. Subject to Section 8.5, the Collateral Agent
and any successor Collateral Agent may at any time resign by giving thirty days'
written notice by registered or certified mail to Pledgor and notice to
Purchaser in accordance with the provisions of Section 9.3.
Section 8.4. Removal.
(a) Subject to Section 8.5, the Collateral Agent may be removed at any
time by an instrument or concurrent instruments in writing delivered to the
Collateral Agent and to Pledgor and signed by Purchaser.
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(b) Subject to Section 8.5, the Collateral Agent shall be removed
immediately upon (i) termination of the Trust Agreement, (ii) termination of the
Administration Agreement (as defined in the Trust Agreement), (iii) termination
of the Paying Agent Agreement (as defined in the Trust Agreement), (iv)
termination of the Custodian Agreement (as defined in the Trust Agreement), or
(v) the resignation or removal of the Administrator, the Paying Agent or the
Custodian (in each case as defined in the Trust Agreement).
Section 8.5. Effectiveness of Resignation or Removal. No resignation or
removal of the Collateral Agent shall be effective until a successor Collateral
Agent shall have been appointed and shall have accepted the duties of the
Collateral Agent. If, within 30 days after notice by the Collateral Agent to the
Trust or by the Trust to the Collateral Agent of any such resignation or
removal, no successor Collateral Agent shall have been selected and accepted the
duties of the Collateral Agent, the Collateral Agent may apply to a court of
competent jurisdiction for the appointment of a successor Collateral Agent.
Section 8.6. Appointment of Successor.
(a) If the Collateral Agent hereunder shall resign or be removed, or be
dissolved or shall be in the course of dissolution or liquidation or otherwise
become incapable of action hereunder, or if it shall be taken under the control
of any public officer or officers or of a receiver appointed by a court, a
successor may be appointed by Purchaser by an instrument or concurrent
instruments in writing signed by Purchaser or by its attorneys in fact duly
authorized. A copy of such instrument or concurrent instruments shall be sent by
registered mail to Pledgor.
(b) Every such successor Collateral Agent appointed pursuant to the
provisions of this Agreement shall be a trust company or bank in good standing,
having a reported capital, surplus and retained earnings of not less than
$100,000,000 and capable of holding the Collateral in the State of New York, if
there be such an institution willing, qualified and able to accept the duties of
the Collateral Agent hereunder upon customary terms.
Section 8.7. Acceptance by Successor. Every temporary or permanent
successor Collateral Agent appointed hereunder shall execute, acknowledge and
deliver to its predecessor and also to Pledgor and Purchaser an instrument in
writing accepting such appointment hereunder, whereupon such successor, without
any further act, deed or conveyance, shall become fully vested with all the
estates, properties, rights, powers, duties and obligations of its predecessors.
Such predecessor shall, nevertheless, on the written request of its successor or
Pledgor, execute and deliver an instrument transferring to such successor all
the estates, properties, rights and powers of such predecessor hereunder. Every
predecessor Collateral Agent shall deliver all Collateral held by it as the
Collateral Agent hereunder to its successor. Should any instrument in writing
from Pledgor be required by a successor Collateral Agent for more fully and
certainly vesting in such successor the estates, properties, rights, powers,
duties and
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obligations hereby vested or intended to be vested in the predecessor, any and
all such instruments in writing shall, at the request of the temporary or
permanent successor Collateral Agent, be forthwith executed, acknowledged and
delivered by Pledgor.
Section 8.7. Compensation. For services to be rendered by the
Collateral Agent pursuant to this Agreement, the Administrator shall receive
only such fees and expenses as shall be paid to it pursuant to the terms of the
Indemnity Agreement and shall have no recourse to the assets of Purchaser for
the payment of any such amounts.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Termination. This Agreement and the rights hereby granted
by Pledgor in the Collateral shall cease, terminate and be void upon fulfillment
of all of the obligations of Pledgor under the Contract, and Pledgor shall have
no further liability hereunder upon such termination. Any Collateral remaining
at the time of such termination (including any Ordinary Shares held following
Seller's election of the Cash Settlement Alternative and payment in respect of
the Cash Settlement Alternative pursuant to the Contract, if permitted
thereunder) shall be fully released and discharged from the Lien created by this
Agreement and delivered to Pledgor by the Collateral Agent, all at the expense
of Pledgor.
Section 9.2. No Assumption of Liability. By executing this Agreement,
none of the Trustees assumes any personal liability under this Agreement.
Section 9.3. Notices.
(a) All notices and other communications provided for in this
Agreement, unless otherwise specified, shall be in writing and shall be given at
the addresses set forth in the following sentence or at such other addresses as
may be designated by notice duly given in accordance with this Section 9.3 to
each other party to this Agreement. Until such notice is given, (i) notices to
Pledgor shall be directed to it at [INSERT SELLER NOTICE ADDRESS]; (ii) notices
to the Collateral Agent shall be directed to it at The Chase Manhattan Bank, ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: Collateral Management Services; and (iii) notices to Purchaser shall
be directed to it in care of the Administrator for Purchaser, The Chase
Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier No.
(▇▇▇) ▇▇▇-▇▇▇▇, Attention: Collateral Management Services.
(b) Each notice given pursuant to Section 9.3(a) shall be effective (i)
if sent by certified mail (return receipt requested), 72 hours after being
deposited in the United States mail, postage prepaid or five days after being
deposited in the mail of another country, postage prepaid; (ii) if given by
telex or telecopier, when such telex or
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telecopied notice is transmitted; or (iii) if given by any other means, when
delivered at the address specified in this Section 9.3.
Section 9.4. Governing Law; Severability. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York;
provided that as to Collateral located in any jurisdiction other than the State
of New York, the Collateral Agent on behalf of Purchaser shall have all of the
rights to which a secured party is entitled under the laws of such other
jurisdiction.
To the extent permitted by law, the unenforceability or invalidity of
any provision or provisions of this Agreement shall not render any other
provision or provisions contained in this Agreement unenforceable or invalid.
Section 9.5. Entire Agreement. Except as expressly set forth in this
Agreement, this Agreement constitutes the entire agreement among the parties
with respect to the subject matter of this Agreement and supersedes all prior
agreements, understandings and negotiations, both written and oral, among the
parties with respect to the subject matter of this Agreement.
Section 9.6. Amendments; Waivers. Any provision of this Agreement may
be amended or waived (either generally or in a particular instance and either
retrospectively or prospectively) if, and only if, such amendment or waiver is
in writing and signed, in the case of an amendment, by Pledgor, the Collateral
Agent and Purchaser or, in the case of a waiver, by the party against whom the
waiver is to be effective. No failure or delay by either party in exercising any
right, power or privilege under this Agreement shall operate as a waiver of such
right, power or privilege nor shall any single or partial exercise of any such
right, power or privilege preclude any other or further exercise of such right,
power or privilege or the exercise of any other right, power or privilege. The
rights and remedies provided in this Agreement shall be cumulative and not
exclusive of any rights or remedies provided by law.
Section 9.7. Non-Assignability. This Agreement and the rights and
obligations of the parties under this Agreement may not be assigned or delegated
by either party without the prior written consent of the other party, and any
purported assignment without such consent shall be void.
Section 9.8. No Third Party Rights; Successors and Assigns. This
Agreement is not intended and shall not be construed to create any rights in any
person other than Pledgor, the Collateral Agent and Purchaser and their
respective successors and assigns and no person shall assert any rights as third
party beneficiary under this Agreement. Whenever any of the parties to this
Agreement is referred to, such reference shall be deemed to include the
successors and assigns of such party. All the covenants and agreements in this
Agreement contained by or on behalf of Pledgor, the Collateral Agent and
Purchaser shall bind, and inure to the benefit of, their respective successors
and assigns whether so expressed or not, and shall be enforceable by and inure
to the benefit of Purchaser and its successors and assigns.
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Section 9.9. Counterparts. This Agreement may be executed, acknowledged
and delivered in any number of counterparts, each of which shall be an original,
but all of which shall constitute a single agreement, with the same effect as if
the signatures on each such counterpart were upon the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Collateral Agreement
to be duly executed and delivered as of the first date set forth above.
PLEDGOR:
AMDOCS INTERNATIONAL LIMITED
By:
---------------------------------
Name:
Title:
THE COLLATERAL AGENT:
THE CHASE MANHATTAN BANK,
as Collateral Agent
By:
---------------------------------
Name:
Title:
PURCHASER:
AMDOCS AUTOMATIC COMMON EXCHANGE
SECURITY TRUST
By:
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
as Trustee
By:
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III,
as Trustee
By:
---------------------------------
▇▇▇▇▇ ▇. ▇'▇▇▇▇▇,
as Trustee
29
Exhibit A
to
Collateral Agreement
NOTICE OF PLEDGE VALUE
To: AMDOCS INTERNATIONAL LIMITED
[INSERT ADDRESS]
THE CHASE MANHATTAN BANK, as Collateral Agent (the "Collateral Agent")
under the Collateral Agreement, dated as of [Pricing Date] (the "Collateral
Agreement"), among you, as Pledgor, the Collateral Agent and Amdocs Automatic
Common Exchange Security Trust, hereby notifies you, pursuant to Section 5.1 of
the Collateral Agreement, that as of 4:00 p.m. New York City time on _________
__, ____:
1. The Pledge Value was $__________; and
2. The Pledge Value Requirement was $__________.
Capitalized terms not otherwise defined in this Notice have the
respective meanings specified in the Collateral Agreement.
THE CHASE MANHATTAN BANK,
as Collateral Agent
By:
---------------------------------
Name:
Title:
30
Exhibit B
to
Collateral Agreement
CERTIFICATE FOR SUBSTITUTED COLLATERAL
The undersigned, Amdocs International Limited (the "Pledgor"), hereby
certifies, pursuant to Section 5.2(b) of the Collateral Agreement, dated as of
[Pricing Date] (the "Collateral Agreement"), among Pledgor, The Chase Manhattan
Bank, as Collateral Agent, and Amdocs Automatic Common Exchange Security Trust,
that:
1. Pledgor is delivering the following securities to the Collateral
Agent to be held by the Collateral Agent as substituted Collateral (the
"Substituted Collateral"):
[INSERT DESCRIPTION OF SUBSTITUTE COLLATERAL]
2. Pledgor requests that the Collateral Agent transfer to Pledgor the
following Prior Collateral, pursuant to Section 5.2 of the Collateral Agreement:
[INSERT DESCRIPTION OF PRIOR COLLATERAL]
3. Pledgor hereby represents and warrants to the Collateral Agent and
Purchaser that:
(a) Consents to Transfer. No Transfer Restrictions exist with
respect to or otherwise apply to the pledge or assignment of, or
transfer by Pledgor of, any items of Substituted Collateral to the
Collateral Agent under the Collateral Agreement, or the subsequent sale
or transfer of such items of Substituted Collateral by the Collateral
Agent pursuant to the terms of the Collateral Agreement.
(b) Title to Collateral; Perfected Security Interest. Pledgor
has good and marketable title to the Substituted Collateral, free of
all Liens (other than the Lien created by the Collateral Agreement) and
Transfer Restrictions and has good, right and lawful authority to
assign, transfer and pledge such Substitute Collateral under the
Collateral Agreement. Upon delivery of the Substituted Collateral to
the Collateral Agent under the Collateral Agent, the Collateral Agent
will obtain a valid, first priority perfected security interest in, and
a first lien upon, such Substituted Collateral subject to no other
Lien. None of such Substituted Collateral is or shall be pledged by
Pledgor as collateral for any other purpose.
This Certificate may be relied upon by Purchaser as fully and to the
same extent as if this Certificate had been specifically addressed to Purchaser.
Capitalized terms not otherwise defined Certificate have the respective
meanings specified in the Collateral Agreement.
31
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
_____ day of ____________, ____.
AMDOCS INTERNATIONAL LIMITED
By:
Name:
Title:
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32
Exhibit C
to
Collateral Agreement
CERTIFICATE FOR ADDITIONAL COLLATERAL
The undersigned, Amdocs International Limited (the "Pledgor"), hereby
certifies, pursuant to Section 5.3 of the Collateral Agreement, dated as of
[Pricing Date] (the "Collateral Agreement"), among Pledgor, The Chase Manhattan
Bank, as Collateral Agent and Amdocs Automatic Common Exchange Security Trust,
that:
1. Pledgor is delivering the following securities to the Collateral
Agent to be held by the Collateral Agent as additional Collateral (the
"Additional Collateral"):
[INSERT DESCRIPTION OF ADDITIONAL COLLATERAL]
2. Pledgor hereby represents and warrants to the Collateral Agent and
Purchaser that:
(a) Consents to Transfer. No Transfer Restrictions exist with
respect to or otherwise apply to the pledge or assignment of, or
transfer by Pledgor of, any items of Additional Collateral to the
Collateral Agent under the Collateral Agreement, or the subsequent sale
or transfer of such items of Additional Collateral by the Collateral
Agent pursuant to the terms of the Collateral Agreement.
(b) Title to Collateral; Perfected Security Interest. Pledgor
has good and marketable title to the Additional Collateral, free of all
Liens (other than the Lien created by the Collateral Agreement) and
Transfer Restrictions and has good, right and lawful authority to
assign, transfer and pledge such Additional Collateral under the
Collateral Agreement. Upon delivery of the Additional Collateral to the
Collateral Agent, the Collateral Agent will obtain a valid, first
priority perfected security interest in, and a first lien upon, such
Additional Collateral subject to no other Lien. None of such Additional
Collateral is or shall be pledged by Pledgor as collateral for any
other purpose.
This Certificate may be relied upon by Purchaser as fully and to the
same extent as if this Certificate had been specifically addressed to Purchaser.
Capitalized terms not otherwise defined Certificate have the respective
meanings specified in the Collateral Agreement.
33
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
_____ day of ____________, ____.
AMDOCS INTERNATIONAL LIMITED
By:
Name:
Title:
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