Exhibit 4.7
PLEDGE AGREEMENT
DATED AS OF FEBRUARY 6, 2002
AMONG
GABELLI ASSET MANAGEMENT INC.
AND
JPMORGAN CHASE BANK
AS COLLATERAL AGENT, CUSTODIAL AGENT
AND SECURITIES INTERMEDIARY
AND
THE BANK OF NEW YORK
AS PURCHASE CONTRACT AGENT
PLEDGE AGREEMENT, dated as of February 6, 2002 (this "Agreement"),
among Gabelli Asset Management Inc., a New York corporation (the
"Company"), JPMorgan Chase Bank, a banking corporation duly incorporated
under the laws of the State of New York ("JPMorgan Chase Bank"), not
individually but solely 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 Code (as defined herein) (in such capacity, together
with its successors in such capacity, the "Securities Intermediary"), and
The Bank of New York, not individually but solely as purchase contract
agent and as attorney-in-fact of the Holders (as defined in the Purchase
Contract Agreement) from time to time of the Securities (as hereinafter
defined) (in such capacity, together with its successors in such capacity,
the "Purchase Contract Agent") under the Purchase Contract Agreement (as
hereinafter defined).
RECITALS
WHEREAS, the Company and the Purchase Contract Agent are parties
to the Purchase Contract Agreement, dated as of the date hereof (as
modified and supplemented and in effect from time to time, the "Purchase
Contract Agreement"), pursuant to which there may be issued 3,600,000
FELINE PRIDESSM of the Company (or 3,800,000 FELINE PRIDES if the
underwriters' overallotment option is exercised in full), each having a
stated amount of $25 (the "Stated Amount") per FELINE PRIDES; and
WHEREAS, the FELINE PRIDES will initially consist of 3,600,000
units (or 3,800,000 units if the underwriters' overallotment option is
exercised in full) (referred to as "Income PRIDESSM") with a stated amount,
per Income PRIDES, equal to the Stated Amount. Each Income PRIDES will
initially consist of (a) a stock purchase contract (the "Purchase
Contract") pursuant to which the Holders will purchase from the Company not
later than February 17, 2005 (the "Purchase Contract Settlement Date"), for
an amount of cash equal to the Stated Amount, a fraction of a newly issued
share of class A common stock, $0.001 par value per share (the "Common
Stock"), of the Company equal to the Settlement Rate (as defined below) and
(b) either beneficial ownership of a Note (as defined below) or, following
a Successful Initial Remarketing or a Tax Event Redemption, the Applicable
Ownership Interest in the Treasury Portfolio; and
WHEREAS, if Holders of Income PRIDES substitute collateral as
contemplated by Section 4.1 hereof, each unit created thereby (referred to
as "Growth PRIDESSM" and, together with the Income PRIDES, the
"Securities") will initially consist of (a) a Purchase Contract pursuant to
which the Holders will purchase from the Company on the Purchase Contract
Settlement Date, for an amount in cash equal to the Stated Amount, a
fraction of a newly issued share of Common Stock of the Company, equal to
the Settlement Rate, and (b) a 1/40, or 2.5%, undivided beneficial
ownership interest in a zero-coupon U.S. Treasury Security (CUSIP No.
000000XX0) having a principal amount at maturity equal to $1,000 and
maturing on February 15, 2005 (the "Treasury Securities"); and
WHEREAS, pursuant to the terms of the Indenture (as defined
below), the Company will issue $90,000,000 aggregate principal amount of
the Company's senior notes due February 17, 2007 (or $95,000,000 if the
underwriters' overallotment option is exercised in full) (the "Notes"),
each having a principal amount equal to $25; and
WHEREAS, pursuant to the terms of the Purchase Contract Agreement
and the Purchase Contracts, the Holders, from time to time, of the
Securities 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 hereby of the Notes, any Applicable Ownership Interest in the
Treasury Portfolio and the Treasury Securities to secure each Holder's
obligations under the related Purchase Contract, as provided herein and
subject to the terms hereof; and
WHEREAS, upon such pledge, the Pledged Notes or the Applicable
Ownership Interests in the Treasury Portfolio, as the case may be, and the
Pledged Treasury Securities will be beneficially owned by the Holders but
will be owned of record by the Purchase Contract Agent or the Securities
Intermediary subject to the Pledge hereunder.
NOW THEREFORE, in consideration of the foregoing premises, the
Company, the Collateral Agent, the Securities Intermediary, the Custodial
Agent and the Purchase Contract Agent, on its own behalf and as
attorney-in-fact of the Holders from time to time of the Securities, agree
as follows:
Article I
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;
(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 or other subdivision;
(c) initially capitalized terms used but not otherwise defined
herein have the meanings assigned to such terms in the Purchase Contract
Agreement; and
(d) the following terms have the meanings assigned to them in this
subsection (d); and
"Agreement" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions
hereof.
"Bankruptcy Code" means title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform
system of bankruptcy laws.
"Business Day" means any day other than a Saturday, a Sunday or
any other day on which banking institutions in The City of New York (in the
State of New York) are permitted or required by any applicable law to
close.
"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.
"Code" has the meaning specified in Section 6.1 hereof.
"Collateral" has the meaning specified in Section 2.1 hereof.
"Collateral Account" means the securities account (number
161451.1) maintained at JPMorgan Chase Bank in the name "The Bank of New
York, as Purchase Contract Agent on behalf of the holders of certain
securities of Gabelli Asset Management Inc., Collateral Account subject to
the security interest of JPMorgan Chase Bank, as Collateral Agent, for the
benefit of Gabelli Asset Management Inc., as pledgee" and any successor
account.
"Collateral Agent" has the meaning specified in the first
paragraph of this instrument.
"Common Stock" has the meaning specified in the Recitals.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Custodial Agent" has the meaning specified in the first paragraph
of this instrument.
"Growth PRIDES" has the meaning specified in the Recitals.
"Income PRIDES" has the meaning specified in the Recitals.
"Intermediary" means any entity that in the ordinary course of its
business maintains securities accounts for others and is acting in that
capacity.
"Notes" has the meaning specified in the Recitals.
"Note Trustee" means The Bank of New York, as trustee under the
Indenture until a successor is appointed thereunder, and thereafter means
such successor trustee.
"Permitted Investments" means any one of the following which shall
mature not later than the next succeeding Business Day (i) 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 thereof or
such indebtedness constitutes a general obligation of it); (ii) 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 US $200.0 million at the time of deposit; (iii) investments with
an original maturity of 365 days or less of any Person that is fully and
unconditionally guaranteed by a bank referred to in clause (ii); (iv)
investments in commercial paper, other than commercial paper issued by the
Company or its affiliates, of any corporation incorporated under the laws
of the United States or any State thereof, which commercial paper has a
rating at the time of purchase at least equal to "A-1" by Standard & Poor's
Ratings Services ("S&P") or at least equal to "P-1" by Xxxxx'x Investors
Service, Inc. ("Moody's"); and (v) investments in money market funds
registered under the Investment Company Act of 1940, as amended, rated in
the highest applicable rating category by S&P or Moody's.
"Person" and "person" means any individual, corporation, limited
liability company, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Pledge" has the meaning specified in Section 2.1 hereof.
"Pledged Notes" has the meaning specified in Section 2.1 hereof.
"Pledged Treasury Securities" has the meaning specified in Section
2.1 hereof.
"Primary Treasury Dealer" means a primary U.S. government
securities dealer in The City of New York.
"Proceeds" means all interest, dividends, cash, instruments,
securities, financial assets (as defined in ss. 8-102(a)(9) of the Code)
and other property from time to time received, receivable or otherwise
distributed upon the sale, exchange, maturity, collection or disposition of
the Collateral or any proceeds thereof.
"Purchase Contract" has the meaning specified in the Recitals.
"Purchase Contract Agent" has the meaning specified in the first
paragraph of this Agreement.
"Purchase Contract Agreement" has the meaning specified in the
Recitals.
"Purchase Contract Settlement Date" has the meaning specified in
the Recitals.
"Securities" has the meaning specified in the Recitals.
"Securities Intermediary" has the meaning specified in the first
paragraph of this Agreement.
"Security Entitlement" has the meaning set forth in Section
8-102(a)(17) of the Code.
"Separate Notes" means any Notes that are not Pledged Notes.
"Stated Amount" has the meaning specified in the Recitals.
"Supplemental Remarketing Agreement" means the Supplemental
Remarketing Agreement, as defined in the Remarketing Agreement.
"Tax Event Redemption Date" means the date upon which a Tax Event
Redemption is to occur.
"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, except as otherwise expressly provided herein,
with respect to the Collateral and in accordance with the instructions of
the Collateral Agent, the Purchase Contract Agent or the Holder, as
applicable:
(i) in the case of Collateral consisting of securities which
cannot be delivered by book-entry or which the parties agree are to be
delivered in physical form, delivery in appropriate physical form to
the recipient accompanied by any duly executed instruments of
transfer, assignments in blank, transfer tax stamps and any other
documents necessary to constitute a legally valid transfer to the
recipient;
(ii) in the case of Collateral consisting of securities
maintained in book-entry form by causing a "securities intermediary"
(as defined in Section 8-102(a)(14) of the Code) to (i) credit a
"security entitlement" (as defined in Section 8-102(a)(17) of the
Code) with respect to such securities to a "securities account" (as
defined in Section 8-501(a) of the Code) maintained by or on behalf of
the recipient and (ii) to issue a confirmation to the recipient with
respect to such credit. In the case of Collateral to be delivered to
the Collateral Agent, the Securities Intermediary shall be the
securities intermediary and the securities account shall be the
Collateral Account.
"Treasury Securities" has the meaning specified in the Recitals.
"Value" with respect to any item of Collateral on any date means,
as to (i) a Note, the principal amount thereof, (ii) Cash, the face amount
thereof and (iii) Treasury Securities, the aggregate principal amount
thereof at maturity.
Article II
PLEDGE; CONTROL AND PERFECTION
Section 2.1 The Pledge. (a) The Holders from time to time as
beneficial owners of the Collateral (as defined below) acting through the
Purchase Contract Agent, as their attorney-in-fact, and the Purchase
Contract Agent, as nominal owner of the Collateral, each hereby pledge and
grant to the Collateral Agent, for the benefit of the Company, as
collateral security for the performance when due (whether at stated
settlement date or earlier settlement date) by such Holders of their
respective obligations under the Purchase Contracts, a security interest in
all of the right, title and interest of the Purchase Contract Agent and
such Holders (a) in the Notes constituting a part of the Securities, any
Treasury Securities delivered in exchange for any Notes (or, if applicable,
the Applicable Ownership Interest in the Treasury Portfolio), and any Notes
(or, if applicable, the Applicable Ownership Interest in the Treasury
Portfolio) delivered in exchange for any Treasury Securities, in accordance
with Article IV hereof, in each case that have been Transferred to or
received by the Collateral Agent and not released by the Collateral Agent
to such Holders under the provisions of this Agreement; (b) in payments
made by Holders pursuant to Section 4.4 hereof; (c) in the Collateral
Account and all securities, financial assets, Cash and other property
credited thereto and all Security Entitlements related thereto; (d) in the
Treasury Portfolio purchased on behalf of the Holders of Income PRIDES by
the Collateral Agent upon the occurrence of a Successful Initial
Remarketing or a Tax Event Redemption as provided in Article VI, or
otherwise, and (e) all Proceeds of the foregoing (all of the foregoing,
collectively, the "Collateral").
Prior to or concurrently with the execution and delivery of this
Agreement, the Purchase Contract Agent, on behalf of the initial Holders of
the Securities, shall cause the Notes comprising a part of the Income
PRIDES to be Transferred to the Collateral Agent for the benefit of the
Company. Such Notes shall be Transferred by physically delivering such
Notes to the Securities Intermediary indorsed in blank (or accompanied by a
stock or bond power indorsed in blank) and causing the Securities
Intermediary to credit the Collateral Account with such Notes such that
security entitlements with respect to such Notes are credited to the
Collateral Account. In the event a Holder of Income PRIDES so elects, such
Holder may Transfer Treasury Securities to the Collateral Agent for the
benefit of the Company as provided in Section 4.1 hereof in exchange for
the release by the Collateral Agent on behalf of the Company of Notes or
the appropriate Applicable Ownership Interest of the Treasury Portfolio, as
the case may be, with an aggregate principal amount equal to the aggregate
principal amount of the Treasury Securities so Transferred, in the case of
Notes, or with an appropriate Applicable Ownership Interest (as specified
in clause (A) of the definition of such term) of the Treasury Portfolio
equal to the aggregate principal amount of the Treasury Securities so
Transferred, in the event that a Successful Initial Remarketing or a Tax
Event Redemption has occurred, to the Purchase Contract Agent on behalf of
such Holder. In the event that a Holder of Growth PRIDES so elects, such
Holder may Transfer Notes or the appropriate Applicable Ownership Interest
of the Treasury Portfolio to the Collateral Agent for the benefit of the
Company as provided in Section 4.2 hereof in exchange for the release by
the Collateral Agent on behalf of the Company of Treasury Securities with
an aggregate principal amount at maturity equal to the aggregate principal
amount of the Notes or the appropriate Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio so transferred to the Purchase Contract Agent on behalf of such
Holder. Treasury Securities and the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as applicable, shall be Transferred to
the Collateral Account maintained by the Collateral Agent at the Securities
Intermediary by book-entry transfer to the Collateral Account in accordance
with the TRADES Regulations and other applicable law and by the notation by
the Securities Intermediary on its books that a Security Entitlement with
respect to such Treasury Securities or appropriate Applicable Ownership
Interest of the Treasury Portfolio, has been credited to the Collateral
Account.
(b) For purposes of perfecting the Pledge under applicable law,
including, to the extent applicable, the TRADES Regulations or the Uniform
Commercial Code as adopted and in effect in any applicable jurisdiction,
the Collateral Agent shall be the agent of the Company as provided herein.
The pledge provided in this Section 2.1 is herein referred to as the
"Pledge" and the Notes or Treasury Securities subject to the Pledge,
excluding any Notes that are delivered pursuant to Section 6.2 hereof or
Treasury Securities released from the Pledge as provided in Article IV
hereof, are hereinafter referred to as "Pledged Notes" or the "Pledged
Treasury Securities," respectively. Subject to the Pledge and the
provisions of Section 2.2 hereof, the Holders from time to time shall have
full beneficial ownership of the Collateral. Whenever directed by the
Collateral Agent acting on behalf of the Company, the Securities
Intermediary shall have the right to reregister the Notes or any other
securities held in physical form in its name.
Except as may be required in order to release Notes in connection
with a Holder's election to convert its investment from an Income PRIDES to
a Growth PRIDES, or except as otherwise required to release Notes as
specified herein, neither the Collateral Agent nor the Securities
Intermediary shall relinquish physical possession of any certificate
evidencing a Note prior to the termination of this Agreement, except Notes
may be held in any clearing corporation in an account including only assets
of customers of the Collateral Agent or Securities Intermediary. If it
becomes necessary for the Collateral Agent to relinquish physical
possession of a certificate in order to release a portion of the Notes
evidenced thereby from the Pledge, the Collateral Agent shall use
commercially reasonable efforts to obtain physical possession of a
replacement certificate evidencing any Notes remaining subject to the
Pledge hereunder registered to it or indorsed in blank (or accompanied by a
stock or bond power indorsed in blank) within fifteen days of the date it
relinquished possession. The Collateral Agent shall promptly notify the
Company of the Collateral Agent's failure to obtain possession of any such
replacement certificate as required hereby.
Section 2.2 Control and Perfection. (a) In connection with the
Pledge granted in Section 2.1 hereof, and subject to the other provisions
of this Agreement, the Holders from time to time acting through the
Purchase Contract Agent, as their attorney-in-fact, and the Purchase
Contract Agent each hereby authorize and direct the Securities Intermediary
(without the necessity of obtaining the further consent of the Purchase
Contract Agent or any of the Holders), and the Securities Intermediary
agrees, to comply with and follow any instructions and entitlement orders
(as defined in Section 8-102(a)(8) of the Code) that the Collateral Agent
on behalf of the Company may give in writing with respect to the Collateral
Account, the Collateral credited thereto and any Security Entitlements with
respect to any thereof. Such instructions and entitlement orders may,
without limitation, direct the Securities Intermediary to transfer, redeem,
sell, liquidate, assign, deliver or otherwise dispose of the Notes, the
Treasury Securities, the Treasury Portfolio, and any Security Entitlements
with respect thereto and to pay and deliver any income, proceeds or other
funds derived therefrom to the Company. The Holders from time to time
acting through the Purchase Contract Agent hereby further authorize and
direct the Collateral Agent, as agent of the Company, to itself issue
instructions and entitlement orders, and to otherwise take action, with
respect to the Collateral Account, the Collateral credited thereto and any
security entitlements with respect thereto, pursuant to the terms and
provisions hereof, all without the necessity of obtaining the further
consent of the Purchase Contract Agent or any of the Holders. The
Collateral Agent shall be the agent of the Company and shall act as
directed in writing by the Company. Without limiting the generality of the
foregoing, the Collateral Agent shall issue entitlement orders to the
Securities Intermediary when and as directed by the Company.
(b) The Collateral Agent hereby confirms and agrees that: (i) all
securities or other property underlying any financial assets credited to
the Collateral Account shall be registered in the name of the Collateral
Agent, indorsed to the Collateral Agent or in blank or credited to another
collateral account maintained in the name of the Collateral Agent and in no
case will any financial asset credited to the Collateral Account be
registered in the name of the Purchase Contract Agent, the Company or any
Holder, payable to the order of, or specially indorsed to, the Purchase
Contract Agent, the Company or any Holder except to the extent the
foregoing have been specially indorsed to the Collateral Agent or in blank;
(ii) all property delivered to the Collateral Agent pursuant to this Pledge
Agreement (including, without limitation, any Notes, the Treasury Portfolio
or Treasury Securities) will be promptly credited on the books of the
Securities Intermediary to the Collateral Account; (iii) the Collateral
Account is an account to which financial assets are or may be credited, and
the Securities Intermediary shall, subject to the terms of this Agreement,
treat the Collateral Agent as entitled to exercise the rights of any
financial asset credited to the Collateral Account; (iv) the Securities
Intermediary has not entered into, and until the termination of this
Agreement will not enter into, any agreement with any other person relating
to the Collateral Account and/or any financial assets credited thereto
pursuant to which it has agreed to comply with entitlement orders (as
defined in Section 8-102(a)(8) of the Code) of such other person; and (v)
the Securities Intermediary has not entered into, and until the termination
of this Agreement will not enter into, any agreement with the Company or
the Purchase Contract Agent purporting to limit or condition the obligation
of the Securities Intermediary to comply with entitlement orders as set
forth in this Section 2.2 hereof.
(c) The Securities Intermediary hereby agrees that 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" within the meaning of Section 8-102(a)(9) of the Code.
(d) In the event of any conflict between this Agreement (or any
portion thereof) and any other agreement now existing or hereafter entered
into, the terms of this Agreement shall prevail.
(e) The Purchase Contract Agent hereby irrevocably constitutes and
appoints the Collateral Agent and the Company, with full power of
substitution, as the Purchase Contract Agent's attorneys-in-fact to take on
behalf of, and in the name, place and stead of, the Purchase Contract Agent
and the Holders, any action necessary or desirable to perfect and to keep
perfected the security interest in the Collateral referred to in Section
2.1 hereof. The grant of such power-of-attorney shall not be deemed to
require of the Collateral Agent any specific duties or obligations not
otherwise assumed by the Collateral Agent hereunder, it being hereby
acknowledged and agreed that the Collateral Agent shall have no duty to
file or record any documents in any jurisdiction for purposes of perfecting
or maintaining the security interest in the Collateral except those that it
shall be directed in writing to execute by the Company.
Article III
DISTRIBUTIONS ON PLEDGED COLLATERAL
So long as the Purchase Contract Agent is the registered owner of
the Pledged Notes, it shall receive all payments thereon. If the Pledged
Notes are reregistered, such that the Collateral Agent becomes the
registered holder, all payments of principal on the Pledged Notes or, if
applicable, the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio, or
interest payments on the Pledged Notes or on the appropriate Applicable
Ownership Interest (as specified in clause (B) of the definition of such
term) of the Treasury Portfolio, as the case may be, and all payments of
the principal of, or cash distributions on, any Pledged Treasury Securities
received by the Collateral Agent that are properly payable hereunder, shall
be paid by the Collateral Agent by wire transfer in same day funds:
(i) in the case of (A) interest payments with respect to the
Pledged Notes or the appropriate Applicable Ownership Interest (as
specified in clause (B) of the definition of such term) of the Treasury
Portfolio, as the case may be, and (B) any payments of principal or, if
applicable, the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio with
respect to any Notes or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be, that have been released from
the Pledge pursuant to Section 4.1 or 4.3 hereof, to the Purchase Contract
Agent, for the benefit of the relevant Holders of Securities, to the
account designated by the Purchase Contract Agent for such purpose, no
later than 2:00 p.m., New York City time, on the Business Day such payment
is received by the Collateral Agent (provided that in the event such
payment is received by the Collateral Agent on a day that is not a Business
Day or after 12:30 p.m., New York City time, on a Business Day, then such
payment shall be made no later than 10:30 a.m., New York City time, on the
next succeeding Business Day);
(ii) in the case of any principal payments with respect to any
Treasury Securities that have been released from the Pledge pursuant to
Section 4.2 or 4.3 hereof, to the Purchase Contract Agent, for the benefit
of the Holders of the Growth PRIDES, to the accounts designated by the
Purchase Contract Agent in writing for such purpose, no later than 2:00
p.m., New York City time, on the Business Day such payment is received by
the Collateral Agent (provided that in the event such payment is received
by the Collateral Agent on a day that is not a Business Day or after 12:30
p.m., New York City time, on a Business Day, then such payment shall be
made no later than 10:30 a.m., New York City time, on the next succeeding
Business Day); and
(iii) in the case of payments of the Proceeds of any Pledged Notes
or the appropriate Applicable Ownership Interest (as specified in clause
(A) of the definition of such term) of the Treasury Portfolio, as the case
may be, or the Proceeds of any Pledged Treasury Securities, to the Company
on the Purchase Contract Settlement Date to the extent of the Purchase
Price in accordance with the procedure set forth in Section 4.6(a) or
4.6(b) hereof, in full satisfaction of the respective obligations of the
Holders under the related Purchase Contracts and, to the extent such
Proceeds exceed the Purchase Price, to the Purchase Contract Agent for the
benefit of the Holders.
All payments received by the Purchase Contract Agent as provided
herein shall be applied by the Purchase Contract Agent pursuant to the
provisions of the Purchase Contract Agreement. If, notwithstanding the
foregoing, the Purchase Contract Agent shall receive any payments of the
principal amount of the Notes or, if applicable, the appropriate Applicable
Ownership Interest (as specified in clause (A) of the definition of such
term) on account of any Pledged Note or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as applicable, that, at the
time of such payment, is subject to the Pledge, or a Holder of a Growth
PRIDES shall receive any payments of principal on account of any Treasury
Securities that, at the time of such payment, are Pledged Treasury
Securities, the Purchase Contract Agent or such Holder shall hold the same
as trustee of an express trust for the benefit of the Company (and promptly
deliver the same over to the Company) for application to the obligations of
the Holders under the related Purchase Contracts, and the Holders shall
acquire no right, title or interest in any such payments of principal so
received.
Article IV
SUBSTITUTION, RELEASE, REPLEDGE AND SETTLEMENT OF NOTES
Section 4.1 Substitution for Notes and the Creation of Growth
PRIDES. At any time on or prior to the fifth Business Day immediately
preceding the Purchase Contract Settlement Date (or on or prior to the
second Business Day immediately preceding the Purchase Contract Settlement
Date, if a Tax Event Redemption or a Successful Initial Remarketing has
occurred), a Holder of Income PRIDES shall have the right to substitute
Treasury Securities for the Pledged Notes (or, if a Tax Event Redemption or
a Successful Initial Remarketing has occurred, the appropriate Applicable
Ownership Interest in the Treasury Portfolio) securing such Holder's
obligations under the Purchase Contract(s) comprising a part of its Income
PRIDES in integral multiples of 40 Income PRIDES by (a) Transferring to the
Collateral Agent Treasury Securities having a Value equal to the aggregate
principal amount of the Pledged Notes (or appropriate Applicable Ownership
Interest (as defined in clause (A) of the definition of such term) in the
Treasury Portfolio as the case may be), to be released and transferring the
related Income PRIDES to the Purchase Contract Agent, accompanied by a
notice, substantially in the form of Exhibit B hereto, to the Purchase
Contract Agent stating that such Holder has Transferred the relevant
Treasury Securities to the Collateral Agent pursuant to clause (a) above
(stating the Value of the Treasury Securities Transferred by such Holder)
and requesting that the Purchase Contract Agent instruct the Collateral
Agent to release from the Pledge the Pledged Notes or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be, related to such Income PRIDES. The Purchase Contract Agent shall
instruct the Collateral Agent pursuant to the form provided in Exhibit A;
provided, however, that if a Tax Event Redemption or a Successful Initial
Remarketing has occurred and the Treasury Portfolio has become a component
of the Income PRIDES, Holders of Income PRIDES may make such substitution
only in integral multiples of 8,000 Income PRIDES at any time on or prior
to the second Business Day immediately preceding the Purchase Contract
Settlement Date. Without limiting the generality of any other provision
herein, in no event shall the Collateral Agent have any liability for
acting in accordance with instructions in the form provided in Exhibit A.
Upon receipt of Treasury Securities from a Holder of Income PRIDES and the
related instruction from the Purchase Contract Agent, the Collateral Agent
shall release the Pledged Notes or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, and shall promptly
Transfer to the securities account specified by the Purchase Contract Agent
such Pledged Notes or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, free and clear of any lien, pledge
or security interest created hereby. All items Transferred and/or
substituted by any Holder pursuant to this Section 4.1, Section 4.2 or any
other Section of this Agreement shall be Transferred and/or substituted
free and clear of all liens, claims and encumbrances.
Section 4.2 Substitution of Treasury Securities and the Recreation
of Income PRIDES. At any time on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date (or on or prior
to the second Business Day immediately preceding the Purchase Contract
Settlement Date, if a Tax Event Redemption or a Successful Initial
Remarketing has occurred), a Holder of Growth PRIDES shall have the right
to recreate Income PRIDES in integral multiples of 40 Growth PRIDES by (a)
Transferring to the Collateral Agent Notes having a Value equal to the
Value of the Pledged Treasury Securities to be released (or the appropriate
Applicable Ownership Interest of the Treasury Portfolio with the Applicable
Ownership Interest (as defined in clause (A) of the definition of such
term) having Value equal to the Value of the Pledged Treasury Securities to
be released) and (b) delivering the related Growth PRIDES to the Purchase
Contract Agent, accompanied by a notice, substantially in the form of
Exhibit B hereto, to the Purchase Contract Agent stating that such Holder
has transferred the relevant amount of Notes (or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be) to the
Collateral Agent pursuant to clause (a) above and requesting that the
Purchase Contract Agent instruct the Collateral Agent to release from the
Pledge the Pledged Treasury Securities underlying such Growth PRIDES. The
Purchase Contract Agent shall instruct the Collateral Agent in the form
provided in Exhibit A; provided, however, that if a Tax Event Redemption or
a Successful Initial Remarketing has occurred and the Treasury Portfolio
has become a component of the Income PRIDES, Holders of Growth PRIDES may
make such substitution only in integral multiples of 8,000 Growth PRIDES,
at any time on or prior to the second Business Day immediately preceding
the Purchase Contract Settlement Date. Without limiting the generality of
any other provision herein, in no event shall the Collateral Agent have any
liability for acting in accordance with instructions in the form provided
in Exhibit A. Upon receipt of the Notes or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, from such
Holder and the instruction from the Purchase Contract Agent, the Collateral
Agent shall release the Treasury Securities having a corresponding
aggregate principal amount from the Pledge and shall promptly Transfer such
Treasury Securities, free and clear of any lien, pledge or security
interest created hereby, to the Purchase Contract Agent.
Section 4.3 Termination Event. Upon receipt by the Collateral
Agent of written notice from the Company or the Purchase Contract Agent
that there has occurred a Termination Event, the Collateral Agent shall
release all Collateral from the Pledge and shall promptly Transfer any
Pledged Notes (or the Applicable Ownership Interest of the Treasury
Portfolio if a Tax Event Redemption or a Successful Initial Remarketing has
occurred) and Pledged Treasury Securities to the Purchase Contract Agent
for the benefit of the Holders of the Income PRIDES and the Growth PRIDES,
respectively, free and clear of any lien, pledge or security interest or
other interest created hereby.
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 Notes, the Treasury Portfolio or of the Pledged Treasury
Securities, as the case may be, as provided by this Section 4.3, the
Purchase Contract Agent shall (i) use reasonable efforts to obtain an
opinion of a nationally recognized law firm reasonably acceptable to the
Collateral Agent to the effect that, as a result of the Company's being the
debtor in such a bankruptcy case, the Collateral Agent will not be
prohibited from releasing or Transferring the Collateral as provided in
this Section 4.3, and shall deliver such opinion to the Collateral Agent
within ten days after the occurrence of such Termination Event, and if (y)
the Purchase Contract Agent shall be unable to obtain such opinion within
ten days after the occurrence of such Termination Event or (z) the
Collateral Agent shall continue, after delivery of such opinion, to refuse
to effectuate the release and Transfer of all Pledged Notes, the Treasury
Portfolio or the Pledged Treasury Securities, as the case may be, as
provided in this Section 4.3, then the Purchase Contract Agent shall within
fifteen days after the occurrence of such Termination Event commence an
action or proceeding in the court with 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 Notes, the Treasury
Portfolio or of the Pledged Treasury Securities, as the case may be, as
provided by this Section 4.3 or (ii) commence an action or proceeding like
that described in subsection (i)(z) hereof within ten days after the
occurrence of such Termination Event.
Section 4.4 Cash Settlement. (a) Upon receipt by the Collateral
Agent of (i) a notice from the Purchase Contract Agent promptly after the
receipt by the Purchase Contract Agent of such notice that a Holder of an
Income PRIDES has elected, in accordance with the procedures specified in
Section 5.5(a)(i) of the Purchase Contract Agreement to settle its Purchase
Contract with Cash and (ii) payment of the amount required to settle such
Purchase Contract by such Holder on or prior to 11:00 a.m., New York City
time, on the Business Day immediately preceding the Purchase Contract
Settlement Date in lawful money of the United States by certified or
cashiers' check or wire transfer in immediately available funds payable to
or upon the order of the Company, then the Collateral Agent shall, at the
written direction of the Company, promptly invest any Cash received from a
Holder in connection with a Cash Settlement in Permitted Investments. Upon
receipt of the proceeds upon the maturity of the Permitted Investments on
the Purchase Contract Settlement Date, the Collateral Agent shall pay the
portion of such proceeds and deliver any certified or cashiers' checks
received and any funds so wired, in an aggregate amount equal to the
Purchase Price, to the Company on the Purchase Contract Settlement Date,
and shall distribute any funds in respect of the interest earned from the
Permitted Investments to the Purchase Contract Agent for payment to the
relevant Holders.
(b) If a Holder of an Income PRIDES (unless a Tax Event Redemption
or a Successful Initial Remarketing has occurred) fails to notify the
Purchase Contract Agent of its intention to make a Cash Settlement in
accordance with Section 5.5(a)(i) of the Purchase Contract Agreement, such
failure shall constitute an event of default under the Purchase Contract
Agreement and hereunder, and the Holder shall be deemed to have consented
to the disposition of the Pledged Notes pursuant to the remarketing as
described in Section 5.5(b) of the Purchase Contract Agreement, which is
incorporated herein by reference. If a Holder of an Income PRIDES does
notify the Purchase Contract Agent as provided in Section 5.5(a)(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 5.5(a)(ii) of
the Purchase Contract Agreement, the Pledged Notes of such a Holder will
not be remarketed but instead the Collateral Agent, for the benefit of the
Company, will exercise its rights as a secured party with respect to such
Notes at the direction of the Company to retain or dispose of the
Collateral in accordance with applicable law. In addition, in the event of
a Failed Secondary Remarketing as described in Section 5.5(b) of the
Purchase Contract Agreement, such Failed Secondary Remarketing shall
constitute an additional event of default hereunder by such Holder and the
Collateral Agent, for the benefit of the Company, will also exercise its
rights as a secured party with respect to such Pledged Notes at the
direction of the Company to retain or dispose of the Collateral in
accordance with applicable law.
Section 4.5 Early Settlement. Upon written notice to the
Collateral Agent by the Purchase Contract Agent that one or more Holders of
Securities have elected to effect Early Settlement of their respective
obligations under the Purchase Contracts forming a part of such Securities
in accordance with the terms of the Purchase Contracts and the Purchase
Contract Agreement (setting forth the number of such Purchase Contracts as
to which such Holders have elected to effect Early Settlement), and that
the Purchase Contract Agent has received from such Holders, and paid to the
Company as confirmed in writing by the Company, the related Early
Settlement Amounts pursuant to the terms of the Purchase Contracts and the
Purchase Contract Agreement and that all conditions to such Early
Settlement have been satisfied, then the Collateral Agent shall release
from the Pledge, (a) Pledged Notes or the appropriate Applicable Ownership
Interest of the Treasury Portfolio in the case of a Holder of Income PRIDES
or (b) Pledged Treasury Securities in the case of a Holder of Growth
PRIDES, as the case may be, in each case with an aggregate principal
amount, as the case may be, equal to the product of (i) the Stated Amount
times (ii) the number of such Purchase Contracts as to which such Holders
have elected to effect Early Settlement and shall Transfer all such Pledged
Notes, the appropriate Applicable Ownership Interest of the Treasury
Portfolio or the Pledged Treasury Securities, as the case may be, free and
clear of the Pledge created hereby, to the Purchase Contract Agent for the
benefit of such Holders.
Section 4.6 Application of Proceeds; Settlement. (a) In the event
a Holder of Income PRIDES (unless a Tax Event Redemption or a Successful
Initial Remarketing has occurred) has not elected to make an effective Cash
Settlement by notifying the Purchase Contract Agent (with a copy to the
Collateral Agent) in the manner provided for in paragraph 5.5(a)(i) in the
Purchase Contract Agreement and has not made an Early Settlement of the
Purchase Contracts underlying its Income PRIDES, such Holder shall be
deemed to have elected to pay for the shares of Common Stock to be issued
under such Purchase Contracts from the Proceeds of the related Pledged
Notes. The Collateral Agent shall, by 10:00 a.m., New York City time, on
the fourth Business Day immediately preceding the Purchase Contract
Settlement Date, without any instruction from such Holder of Income PRIDES,
present the related Pledged Notes to the Remarketing Agent for remarketing.
Upon receiving such Pledged Notes, the Remarketing Agent, pursuant to the
terms of the Remarketing Agreement and the Supplemental Remarketing
Agreement, will use its reasonable efforts to remarket such Pledged Notes
on such date at a price of approximately 100.5% (but not less than 100%) of
the aggregate Value of such Pledged Notes. After deducting as the
Remarketing Fee an amount not exceeding 25 basis points (.25%) of the
aggregate Value of the remarketed Pledged Notes from any amount of such
Proceeds in excess of the aggregate Value of the Remarketed Pledged Notes,
the Remarketing Agent will remit the entire amount of the Proceeds of such
remarketing to the Collateral Agent. On the Purchase Contract Settlement
Date, the Collateral Agent shall remit to the Company that portion of the
Proceeds from such remarketing equal to the aggregate Value of such
remarketed Pledged Notes to satisfy in full the obligations of such Holders
of Income PRIDES to pay the Purchase Price to purchase the Common Stock
under the related Purchase Contracts. The remaining portion of such
Proceeds, if any, shall be remitted by the Collateral Agent to the Purchase
Contract Agent for payment to the Holders. If the Remarketing Agent advises
the Collateral Agent in writing that it cannot remarket the related Pledged
Notes of such Holders of Income PRIDES at a price not less than 100% of the
aggregate Value of such Pledged Notes or if the remarketing shall not have
occurred because a condition precedent to the remarketing shall not have
been fulfilled, thus resulting in a Failed Secondary Remarketing and an
event of default under the Purchase Contract Agreement and hereunder, the
Collateral Agent, for the benefit of the Company will, at the written
direction of the Company, retain or dispose of the Pledged Notes in
accordance with applicable law and satisfy in full, from any such
disposition or retention, such Holder's obligation to pay the Purchase
Price for the Common Stock.
(b) In the event a Holder of Growth PRIDES or Income PRIDES (if a
Tax Event Redemption or a Successful Initial Remarketing has occurred) has
not made an Early Settlement of the Purchase Contracts underlying its
Growth PRIDES or Income PRIDES, such Holder shall be deemed to have elected
to pay for the shares of Common Stock to be issued under such Purchase
Contracts from the Proceeds of the related Pledged Treasury Securities or
the appropriate Applicable Ownership Interest (as defined in clause (A) of
the definition of such term) of the Treasury Portfolio, as the case may be.
On the Business Day immediately prior to the Purchase Contract Settlement
Date, the Collateral Agent shall, at the written direction of the Purchase
Contract Agent, which written direction shall be furnished to the
Collateral Agent prior to 11:30 a.m., New York City time, invest the Cash
proceeds of the maturing Pledged Treasury Securities or the maturing
appropriate Applicable Ownership Interest (as defined in clause (A) of the
definition of such term) of the Treasury Portfolio, as the case may be, in
overnight Permitted Investments. Without receiving any instruction from any
such Holder of Growth PRIDES or Income PRIDES, the Collateral Agent shall
remit to the Company that portion of the Proceeds of the related Pledged
Treasury Securities or appropriate Applicable Ownership Interest (as
defined in clause (A) of the definition of such term) of the Treasury
Portfolio equal to the aggregate Purchase Price 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 appropriate Applicable Ownership Interest (as
defined in clause (A) of the definition of such term) of the Treasury
Portfolio, as the case may be, and the investment earnings from the
investment in overnight Permitted Investments is in excess of the aggregate
Purchase Price of the Purchase Contracts being settled thereby, the
Collateral Agent shall remit such excess, when received, to the Purchase
Contract Agent for the benefit of the Holders.
(c) Pursuant to the Remarketing Agreement and subject to the terms
of the Supplemental Remarketing Agreement, on or prior to the second
Business Day immediately preceding the Initial Remarketing Date or the
Secondary Remarketing Date, as applicable, but no earlier than the Payment
Date immediately preceding such date, holders of Separate Notes may elect
to have their Separate Notes remarketed by delivering their Separate Notes,
together with a notice of such election, substantially in the form of
Exhibit C hereto, to the Custodial Agent. The Custodial Agent shall hold
such Separate Notes in an account separate from the Collateral Account. A
holder of Separate Notes electing to have its Separate Notes remarketed
will also have the right to withdraw such election by written notice to the
Custodial Agent, substantially in the form of Exhibit D hereto, on or prior
to the second Business Day immediately preceding the Initial Remarketing
Date or the Secondary Remarketing Date, as applicable, upon which notice
the Custodial Agent shall return such Separate Notes to such holder.
On the Business Day immediately preceding the Initial Remarketing
Date or the Secondary Remarketing Date, as applicable, the Custodial Agent
shall notify the Remarketing Agent of the aggregate principal amount of the
Separate Notes to be remarketed and will deliver to the Remarketing Agent
for remarketing all Separate Notes delivered to the Custodial Agent
pursuant to this Section 4.6(c) and not withdrawn pursuant to the terms
hereof prior to such date. After deducting the Remarketing Fee to the
extent permitted under the terms of the Remarketing Agreement, the
Remarketing Agent will remit to the Custodial Agent the remaining portion
of the proceeds for the benefit of such holders. In the event of a Failed
Initial Remarketing or a Failed Secondary Remarketing, as applicable, the
Remarketing Agent will promptly return such Separate Notes to the Custodial
Agent for redelivery to such holders.
Article V
VOTING RIGHTS - NOTES
The Purchase Contract Agent may exercise, or refrain from
exercising, any and all voting and other consensual rights pertaining to
the Pledged 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 give the Company and the Collateral Agent at least five 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 Notes, including
notice of any meeting at which holders of Notes are entitled to vote or
solicitation of consents, waivers or proxies of holders of Notes, the
Collateral Agent shall use reasonable efforts to send promptly to the
Purchase Contract Agent such notice or communication, and as soon as
reasonably practicable after receipt of a written request therefor from the
Purchase Contract Agent, execute and deliver to the Purchase Contract Agent
such proxies and other instruments in respect of such Pledged Notes (in
form and substance satisfactory to the Collateral Agent) as are prepared by
the Purchase Contract Agent with respect to the Pledged Notes.
Article VI
RIGHTS AND REMEDIES; TAX EVENT REDEMPTION
Section 6.1 Rights and Remedies of the Collateral Agent. (a) In
addition to the rights and remedies specified in Section 4.4 hereof or
otherwise available at law or in equity, after an event of default
hereunder, the Collateral Agent shall have all of the rights and remedies
with respect to the Collateral of a secured party under the Uniform
Commercial Code (or any successor thereto) as in effect in the State of New
York from time to time (the "Code") (whether or not, to the extent
permitted by law, the Code 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. Wherever reference is made in this Agreement to
any section of the Code, such reference shall be deemed to include a
reference to any provision of the Code, which is a successor to, or
amendment of, such section. Without limiting the generality of the
foregoing, such remedies may include, to the extent permitted by applicable
law, (i) retention of the Pledged Notes or other Collateral in full
satisfaction of the Holders obligations under the Purchase Contracts or
(ii) sale of the Pledged Notes or other Collateral 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 appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio or on account of principal payments
of any Pledged Treasury Securities as provided in Article III hereof in
satisfaction of the obligations of the Holder of the Securities of which
such Pledged Treasury Securities, or the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio, as applicable, is 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 such appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio, as applicable, and such
obligations of such Holder, any and all of the rights and remedies
available to a secured party under the Code 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) principal
and interest on the Pledged Notes, (ii) the principal amount of the Pledged
Treasury Securities, or (iii) the appropriate Applicable Ownership Interest
of the Treasury Portfolio, subject, in each case, to the provisions of
Article III, and as otherwise granted herein.
(d) The Purchase Contract Agent, individually and as
attorney-in-fact for each Holder of Securities, agrees that, from time to
time, upon the written request of the Collateral Agent, the Purchase
Contract Agent or 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 negligent act,
its own negligent failure to act or its own willful misconduct.
Section 6.2 Tax Event Redemption. Upon the occurrence of a Tax
Event Redemption prior to the Purchase Contract Settlement Date, the
aggregate Redemption Price payable on the Tax Event Redemption Date with
respect to the Pledged Notes shall be delivered to the Collateral Agent by
the Note Trustee on or prior to 12:00 p.m., New York City time, by check or
wire transfer in immediately available funds at such place and at such
account as may be designated by the Collateral Agent in exchange for the
Pledged Notes. In the event the Collateral Agent receives such Redemption
Price, the Collateral Agent will, at the written direction of the Company,
apply an amount, out of such Redemption Price, equal to the aggregate
Redemption Amount with respect to the Pledged Notes to purchase from the
Quotation Agent the Treasury Portfolio and promptly remit the remaining
portion of such Redemption Price to the Purchase Contract Agent for payment
to the Holders of Income PRIDES. The Collateral Agent shall Transfer the
Treasury Portfolio to the Collateral Account to secure the obligation of
all Holders of Income PRIDES to purchase Common Stock of the Company under
the Purchase Contracts constituting a part of such Income PRIDES, in
substitution for the Pledged Notes. Thereafter the Collateral Agent shall
have such security interests, rights and obligations with respect to the
Treasury Portfolio as it had in respect of the Pledged Notes as provided in
Articles II, III, IV, V and VI, and any reference herein to the Notes shall
be deemed to be reference to such Treasury Portfolio, and any reference
herein to interest on the Notes shall be deemed to be a reference to
distributions on such Treasury Portfolio.
Section 6.3 Initial Remarketing. The Collateral Agent shall, by
10:00 a.m., New York City time, on the fourth Business Day immediately
preceding November 17, 2004, without any instruction from any Holder of
Income PRIDES, present the related Pledged Notes to the Remarketing Agent
for remarketing. Upon receiving such Pledged Notes, the Remarketing Agent,
pursuant to the terms of the Remarketing Agreement, will use its reasonable
efforts to remarket such Pledged Notes on such date at a price of
approximately 100.5% (but not less than 100%) of the Treasury Portfolio
Purchase Price. After deducting as the Remarketing Fee an amount not
exceeding 25 basis points (.25%) of the Treasury Portfolio Purchase Price
from any amount of such Proceeds in excess of the Treasury Portfolio
Purchase Price, the Remarketing Agent will remit the entire amount of the
Proceeds of such remarketing to the Collateral Agent on or prior to 12:00
p.m., New York City time on November 17, 2004, by check or wire transfer in
immediately available funds at such place and at such account as may be
designated by the Collateral Agent in exchange for the Pledged Notes. In
the event the Collateral Agent receives such Proceeds, the Collateral Agent
will, at the written direction of the Company, apply an amount equal to the
Treasury Portfolio Purchase Price to purchase from the Quotation Agent the
Treasury Portfolio and promptly remit the remaining portion of such
Proceeds to the Purchase Contract Agent for payment to the Holders of
Income PRIDES. The Collateral Agent shall Transfer the Treasury Portfolio
to the Collateral Account to secure the obligation of all Holders of Income
PRIDES to purchase Common Stock of the Company under the Purchase Contracts
constituting a part of such Income PRIDES, in substitution for the Pledged
Notes. Thereafter the Collateral Agent shall have such security interests,
rights and obligations with respect to the Treasury Portfolio as it had in
respect of the Pledged Notes as provided in Articles II, III, IV, V and VI,
and any reference herein to the Notes shall be deemed to be reference to
such Treasury Portfolio, and any reference herein to interest on the Notes
shall be deemed to be a reference to distributions on such Treasury
Portfolio.
Section 6.4 Substitutions. Whenever a Holder has the right to
substitute Treasury Securities, Notes or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, for
Collateral held by the Collateral Agent, such substitution shall not
constitute a novation of the security interest created hereby.
Article VII
REPRESENTATIONS AND WARRANTIES; COVENANTS
Section 7.1 Representations and Warranties. 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 representation or warranty made by or on behalf
of a Holder), hereby represent and warrant to the Collateral Agent, 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,
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 II hereof;
(c) upon the Transfer of the Collateral 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 Intermediary or other entity not within
the control of the Holder involved in the Transfer of the Collateral,
including the Collateral Agent, 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
Section 2.2 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 II 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 7.2 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 Securities.
Article VIII
THE COLLATERAL AGENT
It is hereby agreed as follows:
Section 8.1 Appointment, Powers and Immunities. The Collateral
Agent shall act as Agent for the Company hereunder with such powers as are
specifically vested in the Collateral Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto. Each
of the Collateral Agent, the Custodial Agent and the Securities
Intermediary: (a) shall 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 any of them, nor
shall any of them be bound by the provisions of any agreement beyond the
specific terms hereof; (b) shall 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 Securities or the Purchase Contract Agreement, or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement (other than as against the Collateral Agent), the Securities 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 (it being acknowledged and agreed that the Collateral
Agent shall have no duty to file or record any documents in any
jurisdiction for purposes of perfecting or maintaining the security
interest in the Collateral except those that it shall be directed in
writing to execute and cause to be filed by the Company or the Purchase
Contract Agent); (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder (except in the case of the
Collateral Agent, pursuant to directions furnished under Section 8.2
hereof, subject to Section 8.6 hereof); (d) shall 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, bad faith or
willful misconduct; (e) shall not be required to advise any party as to
selling or retaining, or taking or refraining from taking any action with
respect to, the Securities or other property deposited hereunder; and (f)
shall not be responsible for the acts or omissions of any clearing
corporation with whom collateral is deposited. Notwithstanding anything to
the contrary contained herein, none of the Collateral Agent, the Custodial
Agent or the Securities Intermediary shall have any obligation, duty or
responsibility to take any action unless such action is non-discretionary
and explicitly required hereunder or in a written direction from the
Company or the Purchase Contract Agent given in accordance with the terms
hereof. Subject to the foregoing, during the term of this Agreement, the
Collateral Agent shall take all reasonable action in connection with the
safekeeping and preservation of the Collateral hereunder.
No provision of this Agreement shall require the Collateral Agent,
the 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, the
Custodial Agent or the Securities Intermediary be liable for any amount in
excess of the Value of the Collateral. Notwithstanding the foregoing, the
Collateral Agent, the Custodial Agent, the Purchase Contract Agent and
Securities Intermediary, each in its individual capacity, hereby waive any
right of setoff, bankers lien, liens or perfection rights as securities
intermediary or any counterclaim with respect to any of the Collateral.
Section 8.2 Instructions of the Company. The Company shall have
the right, by one or more instruments in writing executed and delivered to
the Collateral Agent, the Custodial Agent or the Securities Intermediary,
as the case may be, 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, the Custodial Agent or the Securities Intermediary, as the case may
be, 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 and
(ii) the Collateral Agent, the Custodial Agent and the Securities
Intermediary shall be adequately indemnified as provided herein.
Nothing in this Section 8.2 shall impair the right of the
Collateral Agent in its discretion to take any action or omit to take any
action which it deems proper and which is not inconsistent with such
direction.
Section 8.3 Reliance. Each of the Securities Intermediary, the
Custodial Agent and the Collateral Agent shall be entitled conclusively to
rely upon any certification, order, judgment, opinion, notice or other
communication (including, without limitation, any thereof by telephone,
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 upon advice 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 8.4 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
Holder of Securities and any holder of Separate Notes (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 and the
Securities Intermediary and their affiliates may accept fees and other
consideration from the Purchase Contract Agent, any Holder of Securities or
any holder of Separate Notes 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 and the Collateral shall
be segregated or the books and records of the Collateral Agent and not
commingled with any other assets of any such Person.
Section 8.5 Non-Reliance. 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 Company, the Purchase
Contract Agent, the Remarketing Agent or any Holder of Securities of this
Agreement, the Purchase Contract Agreement, the Securities 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
Securities. The Collateral Agent, the Custodial Agent and the Securities
Intermediary shall not have any duty or responsibility to provide the
Company or the Remarketing Agent with any credit or other information
concerning the affairs, financial condition or business of the Purchase
Contract Agent, any Holder of Securities or any holder of separate Notes
(or any of their respective subsidiaries or 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 8.6 Compensation and Indemnity. The Company agrees: (i) to
pay JPMorgan Chase Bank from time to time such reasonable compensation as
shall be agreed in writing between the Company and JPMorgan Chase Bank for
all services rendered by JPMorgan Chase Bank as Collateral Agent, Custodial
Agent and Securities Intermediary hereunder and (ii) to indemnify the
Collateral Agent, the Custodial Agent and the Securities Intermediary for,
and to hold each of them harmless from and against, any loss, liability or
reasonable out-of-pocket expense incurred without gross negligence, willful
misconduct or bad faith on its part, arising out of or in connection with
the acceptance or administration of its powers and duties under this
Agreement, including the reasonable out-of-pocket costs and expenses
(including reasonable fees and expenses of counsel) of defending itself
against any claim or liability in connection with the exercise or
performance of such powers and duties. The Collateral Agent, the Custodial
Agent and the Securities Intermediary shall each promptly notify the
Company of any third party claim which may give rise to the indemnity
hereunder and give the Company the opportunity to participate in the
defense of such claim with counsel reasonably satisfactory to the
indemnified party, and no such claim shall be settled without the written
consent of the Company, which consent shall not be unreasonably withheld.
Section 8.7 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, the Collateral Agent, the Custodial
Agent and the Securities Intermediary shall be entitled, after notice to
the Company and the Purchase Contract Agent, at its sole option, 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 none of the Collateral Agent, the Custodial Agent or the Securities
Intermediary shall 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 (i)
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,
as the case may be, or (ii) the Collateral Agent, the Custodial Agent or
the Securities Intermediary, as the case may be, shall have received
security or an indemnity reasonably satisfactory to the Collateral Agent,
the Custodial Agent or the Securities Intermediary, as the case may be,
sufficient to save the Collateral Agent, the Custodial Agent or the
Securities Intermediary, as the case may be, harmless from and against any
and all loss, liability or reasonable out-of-pocket expense which the
Collateral Agent, the Custodial Agent or the Securities Intermediary, as
the case may be, may incur by reason of its acting without bad faith,
willful misconduct or gross negligence. The Collateral Agent, the Custodial
Agent or 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, as
the case may be, 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 8.8 Resignation. Subject to the appointment and acceptance
of a successor Collateral Agent, Custodial Agent or Securities Intermediary
as provided below, (a) 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 Securities, (b) the Collateral Agent, the Custodial Agent and
the Securities Intermediary may be removed at any time by the Company and
(c) 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 or
the Securities Intermediary may be removed by the Purchase Contract Agent.
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 (c) of the immediately preceding sentence.
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. If no successor Collateral Agent,
Custodial Agent or Securities Intermediary, as the case may be, 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 such removal, then the
retiring Collateral Agent, Custodial Agent or Securities Intermediary, as
the case may be, may petition any court of competent jurisdiction for the
appointment of a successor Collateral Agent, Custodial Agent or Securities
Intermediary, as the case may be. Each of the Collateral Agent, the
Custodial Agent and the Securities Intermediary shall be a bank with a
combined capital and surplus of at least $75,000,000, which directly or
through an affiliate maintains an office in New York, New York. Upon the
acceptance of any appointment as Collateral Agent, Custodial Agent or
Securities Intermediary, as the case may be, hereunder by a successor
Collateral Agent, Custodial Agent or Securities Intermediary, as the case
may be, such successor 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 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
VIII 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 hereunder shall be deemed for all purposes
of this Agreement as the simultaneous resignation or removal of the
Custodial Agent and the Securities Intermediary.
Section 8.9 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 8.9 shall be subject to prior consent of the
Company, which consent shall not be unreasonably withheld.
Section 8.10 Survival. The provisions of this Article VIII shall
survive termination of this Agreement and the resignation or removal of the
Collateral Agent or the Custodial Agent.
Section 8.11 Exculpation. Anything in this Agreement to the
contrary notwithstanding, in no event shall any of the Collateral Agent,
the Custodial Agent or the Securities Intermediary or their officers,
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 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, incurred without any act or
deed that is found to be attributable to gross negligence or willful
misconduct on the part of the Collateral Agent, the Custodial Agent or the
Securities Intermediary.
Article IX
AMENDMENT
Section 9.1 Amendment Without Consent of Holders. Without the
consent of any Holders or the holders of any Separate Notes, the Company,
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, for any of the following purposes:
(a) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the covenants of the Company;
or
(b) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company so long as such covenants or such surrender do not adversely affect
the validity, perfection or priority of the security interests granted or
created hereunder; or
(c) to evidence and provide for the acceptance of appointment
hereunder by a successor Collateral Agent, Securities Intermediary or
Purchase Contract Agent; or
(d) to cure any ambiguity, to correct or supplement any provisions
herein which may be inconsistent with any other such provisions herein, or
to make any other provisions with respect to such matters or questions
arising under this Agreement, provided such action shall not adversely
affect the interests of the Holders.
Section 9.2 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, by Act of said Holders delivered to the Company, the
Purchase Contract Agent or the Collateral Agent, as the case may be, the
Company, when duly authorized, the Purchase Contract Agent, the Collateral
Agent, the Custodial Agent and the Securities Intermediary 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 Securities;
provided, however, that no such supplemental agreement shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(a) change the amount or type of Collateral underlying a
Security (except for the rights of holders of Income PRIDES to
substitute the Treasury Securities for the Pledged Notes or the
appropriate Applicable Ownership Interest of the Treasury Portfolio,
as the case may be, or the rights of Holders of Growth PRIDES to
substitute Notes or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as applicable, for the Pledged Treasury
Securities), impair the right of the Holder of any Security 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 Security affected thereby pursuant
to the Purchase Contract Agreement if such action were effected by an
agreement supplemental thereto;
(c) reduce the amount payable or distributable to Holders upon
the remarketing of Notes; or
(d) reduce the percentage of Purchase Contracts the consent of
whose Holders is required for any such amendment.
If any amendment referred to above would adversely affect only the
Income PRIDES or the Growth PRIDES, then only the affected class of Holders
shall be entitled to vote on the amendment and the amendment shall not be
effective except with the consent of the Holders of not less than a
majority of the affected class. It shall not be necessary for any Act of
Holders under this Article IX to approve the particular form of any
proposed amendment, but it shall be sufficient if such Act shall approve
the substance thereof.
Section 9.3 Execution of Amendments. In executing any amendment
permitted by this Section, the Collateral Agent, the Custodial Agent, the
Securities Intermediary and the Purchase Contract Agent shall be entitled
to receive and (subject to Section 8.1 hereof, with respect to the
Collateral Agent, and Section 7.1 of the Purchase Contract Agreement, with
respect to the Purchase Contract Agent) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions
precedent, if any, to the execution and delivery of such amendment have
been satisfied. All amendments must be in writing, signed by all parties to
this Agreement.
Section 9.4 Effect of Amendments. Upon the execution of any
amendment under this Article IX, 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 9.5 Reference to Amendments. Security Certificates
authenticated, executed on behalf of the Holders and delivered after the
execution of any amendment pursuant to this Article IX may, and shall if
required by the Company, the Collateral Agent or the Purchase Contract
Agent, bear a notation in form approved by the Company, the Purchase
Contract Agent and the Collateral Agent as to any matter provided for in
such amendment. If the Company shall so determine, new Security
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 and without charge or
expense to Holders in exchange for Outstanding Security Certificates.
Article X
MISCELLANEOUS
Section 10.1 No Waiver. To the extent permitted by law, no failure
on the part of any party hereto or any of its 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 any party hereto or any of its 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. To the extent
permitted by law, the remedies herein are cumulative and are not exclusive
of any remedies provided by law.
Section 10.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Without
limiting the foregoing, the above choice of law is expressly agreed to by
the Securities Intermediary, the Collateral Agent and the Holders from time
to time acting through the Purchase Contract Agent, as their
attorney-in-fact, in connection with the establishment and maintenance of
the Collateral Account. The Company, the Collateral Agent and the Holders
from time to time of the Securities, acting through the Purchase Contract
Agent as their attorney-in-fact, hereby submit to the nonexclusive
jurisdiction of the United States District Court for the Southern District
of New York and of any New York state court sitting in New York City for
the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The Company, the
Collateral Agent and the Holders from time to time of the Securities,
acting through the Purchase Contract Agent as their attorney-in-fact,
irrevocably waive, to the fullest extent permitted by applicable law, any
objection which they may now or hereafter have to the laying of the venue
of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient
forum, as well as to trial by jury.
Section 10.3 Notices. All notices, requests, directions, 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 10.4 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 Securities, 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 10.5 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 10.6 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 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 10.7 Expenses, etc. The Company agrees to reimburse
JPMorgan Chase Bank for: (a) all reasonable out-of-pocket costs and
expenses of JPMorgan Chase Bank (including, without limitation, the
reasonable fees and expenses of counsel to JPMorgan Chase Bank), in
connection with (i) the negotiation, preparation, execution and delivery or
performance of this Agreement and (ii) any modification, supplement or
waiver of any of the terms of this Agreement; (b) all reasonable costs and
expenses of JPMorgan Chase Bank as Collateral Agent hereunder (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 Securities to satisfy its obligations under the
Purchase Contracts forming a part of the Securities and (ii) the
enforcement of this Section 10.7; and (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.
Section 10.8 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 Securities 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 Securities 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 10.9 Incorporation by Reference. Each of the Company, the
Collateral Agent, the Custodial Agent and the Securities Intermediary
agrees that the Purchase Contract Agent is, in acting hereunder with
respect to the Company, entitled to all rights, privileges, benefits,
protections, immunities and indemnities provided to it under the Purchase
Contract Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
GABELLI ASSET MANAGEMENT INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx
Vice President and Chief Financial Officer
Address for Notices:
Gabelli Asset Management Inc.
Xxx Xxxxxxxxx Xxxxxx
Xxx, Xxx Xxxx 00000
Attention: Xxxxx X. XxXxx
Telephone: (000) 000-0000
THE BANK OF NEW YORK,
as Purchase Contract
Agent and as
attorney-in-fact of
the Holders from time
to time of the
Securities
By: /s/ Xxxxxxx Xxxx
---------------------------------
Xxxxxxx Xxxx
Assistant Vice President
Address for Notices:
The Bank of New York,
0 Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
JPMorgan Chase Bank,
as Collateral Agent, Custodial Agent
and as Securities Intermediary
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Address for Notices:
JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Institutional Trust Services
Conventional Deal Administration
Telecopy: (000) 000-0000
EXHIBIT A
INSTRUCTION FROM PURCHASE CONTRACT AGENT TO COLLATERAL AGENT
JPMorgan Chase Bank, as Collateral Agent
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Institutional Trust Services
Re: Gabelli Asset Management Inc. (the "Company")
We hereby notify you in accordance with Section [4.1] [4.2] of the
Pledge Agreement, dated as of February 6, 2002 (the "Pledge Agreement"),
among the Company, yourselves, as Collateral Agent, Custodial Agent and
Securities Intermediary, and ourselves, as Purchase Contract Agent and as
attorney-in-fact for the holders of [INCOME PRIDES] [GROWTH PRIDES] from
time to time, that the holder of the Securities listed below (the "Holder")
has elected to substitute $_____ [aggregate principal amount of Treasury
Securities] [aggregate principal amount of Notes or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be,] in exchange for an equal Value of [Pledged Notes or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be,] [Pledged Treasury Securities] held by you in accordance with the
Pledge Agreement and has delivered to us a notice stating that the Holder
has Transferred [Treasury Securities] [Notes or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be,] to you,
as Collateral Agent. We hereby instruct you, upon receipt of such [Pledged
Treasury Securities] [Pledged Notes or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be,], and upon the
payment by such Holder of any applicable fees, to release the [Notes or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be,] [Treasury Securities] related to such [Income PRIDES] [Growth
PRIDES] to us in accordance with the Holder's instructions. Capitalized
terms used herein but not defined shall have the meaning set forth in the
Pledge Agreement.
Date:_____________ The Bank of New York
By:________________________________
Name:
Title:
Signature Guarantee:_______________
Please print name and address of Registered Holder electing to substitute
[Treasury Securities] [Notes or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be,] for the [Pledged
Notes or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be,] [Pledged Treasury Securities]:
___________________________ ___________________________________
Name Social Security or other Taxpayer
Identification Number, if any
___________________________
Address
___________________________
___________________________
EXHIBIT B
INSTRUCTION TO PURCHASE CONTRACT AGENT
The Bank of New York
0 Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: FELINE PRIDES of Gabelli Asset Management Inc. (the "Company")
The undersigned Holder hereby notifies you that it has delivered
to [JPMorgan Chase Bank], as Collateral Agent, [$_______ aggregate
principal amount of Treasury Securities] [$_____aggregate principal amount
of Notes or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, the case may be,] in exchange for an equal Value of [Pledged
Notes or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be,] [Pledged Treasury Securities] held by the
Collateral Agent, in accordance with Section [4.1][4.2] of the Pledge
Agreement, dated February 6, 2002 (the "Pledge Agreement"), among you, the
Company and the Collateral Agent. The undersigned Holder has paid the
Collateral Agent all applicable fees relating to such exchange. The
undersigned Holder hereby instructs you to instruct the Collateral Agent to
release to you on behalf of the undersigned Holder the [Pledged Notes or
the appropriate Applicable Ownership Interest of the Treasury Portfolio]
[Pledged Treasury Securities] related to such [Income PRIDES] [Growth
PRIDES]. Capitalized terms used herein but not defined shall have the
meaning set forth in the Pledge Agreement.
Dated:_____________ __________________________________
Signature
Signature Guarantee:________________
Please print name and address of Registered Holder:
___________________________ ___________________________________
Name Social Security or other Taxpayer
Identification Number, if any
___________________________
Address
___________________________
___________________________
EXHIBIT C
INSTRUCTION TO CUSTODIAL AGENT REGARDING REMARKETING
JPMorgan Chase Bank, as Custodial Agent
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Institutional Trust Services
Re: Notes of Gabelli Asset Management Inc. (the "Company")
The undersigned hereby notifies you in accordance with Section
4.6(c) of the Pledge Agreement, dated as of February 6, 2006 (the "Pledge
Agreement"), among the Company, yourselves, as Collateral Agent, Securities
Intermediary and Custodial Agent, and The Bank of New York, as Purchase
Contract Agent and as attorney-in-fact for the Holders of Income PRIDES and
Growth PRIDES from time to time, that the undersigned elects to deliver $
aggregate principal amount of Notes for delivery to the Remarketing Agent
on the Business Day immediately preceding the [Initial Remarketing Date]
[Secondary Remarketing Date] for remarketing pursuant to Section 4.6(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 Notes tendered hereby.
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 Failed [Initial] [Secondary] Remarketing, upon receipt of the
Notes tendered herewith from the Remarketing Agent, to be delivered to the
person(s) and the address(es) indicated herein under "B. Delivery
Instructions."
With this notice, the undersigned hereby (i) represents and
warrants that the undersigned has full power and authority to tender, sell,
assign and transfer the Notes tendered hereby and that the undersigned is
the record owner of any Notes tendered herewith in physical form or a
participant in The Depository Trust Company ("DTC") and the beneficial
owner of any Notes tendered herewith by book-entry transfer to your account
at DTC and (ii) agrees to be bound by the terms and conditions of Section
4.6(c) of the Pledge Agreement. Capitalized terms used herein but not
defined shall have the meaning set forth in the Pledge Agreement.
Date:_____________ _______________________________________
By:____________________________________
Name:
Title:
Signature Guarantee:_________________
___________________________ ___________________________________
Name Social Security or other Taxpayer
Identification Number, if any
___________________________
Address
___________________________
___________________________
______________________________________________________________________________
A. PAYMENT INSTRUCTIONS
______________________________________________________________________________
Proceeds of the remarketing should be paid by check in the name of the
person(s) set forth below and mailed to the address set forth below.
______________________________________________________________________________
Name(s)
______________________________________________________________________________
(Please Print)
Address
(Please Print)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Zip Code)
______________________________________________________________________________
(Tax Identification or Social Security Number)
______________________________________________________________________________
B. DELIVERY INSTRUCTIONS
______________________________________________________________________________
In the event of a failed remarketing, Notes which are in physical form
should be delivered to the person(s) set forth below and mailed to the
address set forth below.
Name(s)
______________________________________________________________________________
(Please Print)
Address
(Please Print)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Zip Code)
______________________________________________________________________________
(Tax Identification or Social Security Number)
In the event of a failed remarketing, Notes which are in book-entry form
should be credited to the account at The Depository Trust Company set forth
below.
_________________
DTC Account Number
Name of Account Party: _________________________________
EXHIBIT D
INSTRUCTION TO CUSTODIAL AGENT REGARDING
WITHDRAWAL FROM REMARKETING
JPMorgan Chase Bank, as Custodial Agent
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Institutional Trust Services
Re: Notes of Gabelli Asset Management Inc. (the "Company")
The undersigned hereby notifies you in accordance with Section
4.6(c) of the Pledge Agreement, dated as of February 6, 2002 (the "Pledge
Agreement") among the Company, yourselves, as Collateral Agent, Securities
Intermediary and Custodial Agent and The Bank of New York, as Purchase
Contract Agent and as attorney-in-fact for the Holders of Income PRIDES and
Growth PRIDES from time to time, that the undersigned elects to withdraw
the $_____ aggregate principal amount of Notes delivered to the Custodial
Agent on o for remarketing pursuant to Section 4.6(c) of the Pledge
Agreement. The undersigned hereby instructs you to return such 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 4.6(c) of the Pledge Agreement. Capitalized terms
used herein but not defined shall have the meaning set forth in the Pledge
Agreement.
Date:_____________ _______________________________________
By:____________________________________
Name:
Title:
Signature Guarantee:_________________
___________________________ ___________________________________
Name Social Security or other Taxpayer
Identification Number, if any
___________________________
Address
___________________________
___________________________
