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EXHIBIT 4(f)
THE SEAGRAM COMPANY LTD.
AND
CITIBANK, N.A.
as Collateral Agent and Securities Intermediary
AND
THE BANK OF NEW YORK
as Purchase Contract Agent and as Attorney-In-Fact
PLEDGE AGREEMENT
Dated as of June -, 1999
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PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of June -, 1999, between THE SEAGRAM COMPANY
LTD., a Canadian corporation (the "Company", as such term is more fully defined
in the Purchase Contract Agreement referred to below); CITIBANK, N.A., as
Collateral Agent, in its capacity as a "securities intermediary" as defined in
Section 8- 102(a)(14) of the Code (as defined herein) (in such capacity, the
"Securities Intermediary"), and THE BANK OF NEW YORK as Purchase Contract Agent
and as attorney-in-fact of the Holders from time to time of the Units.
RECITALS
The Company and the Purchase Contract Agent are parties to the Purchase
Contract Agreement, dated as of the date hereof (as the same may be supplemented
or amended from time to time in accordance with the terms thereof, the "Purchase
Contract Agreement"). The Purchase Contract Agreement contemplates that the
Notes or Treasury Securities that from time to time underlie the Units be
pledged to the Collateral Agent to secure the obligations of the Holders of
Units under the Purchase Contracts that underlie such Units.
Pursuant to the terms of the Principal Agreements and the Purchase
Contract Certificates, the Holders from time to time of the Units irrevocably
authorize the Purchase Contract Agent, as attorney-in-fact of such Holders, to
execute and deliver this Agreement on behalf of such Holders and to grant the
pledge provided hereby of the Pledged Securities underlying such Units as
provided herein and subject to the terms hereof.
Accordingly, the Company, the Collateral Agent and the Purchase
Contract Agent, in its capacity as Purchase Contract Agent and as
attorney-in-fact of the Holders from time to time of the Units, agree as
follows:
SECTION 1. Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) capitalized terms used but not defined herein are used
herein as defined in the Purchase Contract Agreement;
(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; and
(c) all other terms contained herein shall, unless the context
indicates otherwise, have the meanings assigned to such terms by the
Code (as defined herein) to the extent the same are defined therein.
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"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.
"Applicable Treasury Regulations" means Part 357 of Title 31 of the
Code of Federal Regulations (31 CFR Sections 357 et seq.) and any other
regulations of the United States Treasury Department from time to time
applicable to the transfer or pledge of book-entry Treasury Securities.
"Code" has the meaning specified in Section 2 hereof.
"Collateral" has the meaning specified in Section 2 hereof.
"Collateral Account" means the trust account (number -) maintained at -
in the name of "Citibank, N.A., as Collateral Agent".
"Pledged Securities" means all Notes constituting a part of the Units
and any Treasury Consideration delivered in exchange for Notes in accordance
with Section 5(b) hereof (or securities entitlements thereto) in each case that
have been delivered to the Collateral Agent and not released by the Collateral
Agent to the Purchase Contract Agent under the provisions of this Agreement.
"Proceeds" means all interest, dividends, cash, instruments,
securities, financial assets (as defined in Article 8 of the Code) and other
property and proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Pledged
Securities.
SECTION 2. The Pledge. The Holders from time to time of the Units
acting through the Purchase Contract Agent, as their attorney-in-fact, hereby
pledge to the Collateral Agent (for the benefit of the Company), and grant to
the Collateral Agent, for the benefit of the Company a security interest in all
of the right, title and interest of such Holders in and to (i) the Pledged
Securities, (ii) the Collateral Account and all securities, financial assets and
other property credited thereto and all security entitlements related thereto
and (iii) all proceeds from each of the foregoing (collectively, the
"Collateral"), as collateral security to ensure the performance when due by such
Holders of their respective obligations under the Purchase Contracts underlying
such Units. Concurrently with the execution of this Agreement, the initial
Holders of the first - Units issued under the Purchase Contract Agreement, the
Purchase Contract Agent and the Collateral Agent are causing $- aggregate
principal amount of Notes to be delivered to, and registered in the name of, the
Collateral Agent, and such Notes will thereupon constitute Pledged Securities
forming a part of such Units. As used in this Section 2, the term "delivery"
shall have the meaning ascribed to it in the Uniform Commercial Code as in
effect in the State of New York (the "Code"). In addition, the execution hereof
by the Purchase Contract Agent and the Collateral Agent shall constitute an
acknowledgment by the Collateral Agent and Securities Intermediary of the
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Pledge and of the Securities Intermediary's holding of such Notes or other
Pledged Securities substituted therefor in accordance with the provisions hereof
subject to the Pledge and of the Securities Intermediary's crediting such Notes
or other Pledged Securities to the Collateral Account for purposes of perfecting
the Pledge under applicable law, including, to the extent applicable, the
Uniform Commercial Code as adopted and in effect in any applicable jurisdiction
and the Applicable Treasury Regulations. Subject to the Pledge, the Holders from
time to time of the Units shall have full beneficial ownership of the Pledged
Securities underlying such Units, and shall be entitled (directly or through the
Collateral Agent) to all of the rights provided by such Pledged Securities, and
the Company shall have no rights with respect to such Pledged Securities other
than its security interest therein.
SECTION 3. Payments in Respect of the Pledged Securities. Any payment
received by the Collateral Agent in respect of the Pledged Securities underlying
any Unit shall be paid by the Collateral Agent, by wire transfer in same day
funds no later than 1:00 p.m., New York City time, on the date of receipt (or,
if the date of receipt is not a Business Day or if such payment is received by
the Collateral Agent after noon, New York City time, on the date of receipt,
then such payment shall be made by the Collateral Agent no later than 10:00
a.m., New York City time, on the next succeeding Business Day), as follows:
(a) in the case of payments not scheduled to fall on and that are not
in respect of amounts due on the Stock Purchase Date or Early Settlement Date,
as applicable, to the Purchase Contract Agent, to the account designated by it
for payments in respect of Units; and
(b) in the case of payments scheduled to fall on or that are in respect
of amounts due on the Stock Purchase Date, the Early Settlement Date, or
the Merger Early Settlement Date, in accordance with written instructions
issued to the Collateral Agent by the Purchase Contract Agent,
(i) first, to the Company, to the account designated by it for
such purpose, in an amount equal to the aggregate amount payable to the
Company in respect of Units, and
(ii) second, to the extent of any amount remaining after the
payment (if any) referred to in (i) above, to the Purchase Contract
Agent, to the account designated by it for payments in respect of
Units.
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.
SECTION 4. [intentionally left blank]
SECTION 5. Release and Substitution of Pledged Securities. (a) Upon
written notice to the Collateral Agent by the Company or the Purchase Contract
Agent that there has
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occurred a Termination Event, the Collateral Agent shall release all Pledged
Securities from the Pledge and shall transfer, without recourse, such released
Pledged Securities, free and clear of any lien, pledge or security interest
created hereby, to the Purchase Contract Agent for delivery by the Purchase
Contract Agent pursuant to the provisions of the Purchase Contract Agreement.
(b) In connection with a Collateral Substitution, subject to receipt by
the Collateral Agent of the Treasury Consideration required by Section 405 of
the Purchase Contract Agreement, the Collateral Agent shall release upon written
instruction from the Purchase Contract Agent, substantially in the form of
Exhibit A hereto, the Pledged Securities underlying the number of Units
indicated in such instruction from the Pledge and transfer, without recourse,
such released Pledged Securities, free and clear of any lien, pledge or security
interest created hereby, to the Purchase Contract Agent for delivery by the
Purchase Contract Agent pursuant to the provisions of the Purchase Contract
Agreement. The Treasury Securities received by the Collateral Agent in
connection with the Collateral Substitution shall be subject to the Pledge and
constitute the Pledged Securities in respect of the Units.
(c) In connection with an Early Settlement, no later than the third
Business Day after the applicable Early Settlement Date, the Collateral Agent
shall release the Pledged Securities relating to Units with respect to which
payment in full under Section 511 of the Purchase Contract Agreement has been
received by the Purchase Contract Agent, upon written notice to that effect to
the Collateral Agent by the Purchase Contract Agent, from the Pledge and
transfer, without recourse, such released Pledged Securities, free and clear of
any lien, pledge or security interest created hereby, to the Purchase Contract
Agent for delivery to such Holders pursuant to the provisions of the Purchase
Contract Agreement.
(d) In connection with a successful remarketing of the Notes pursuant
to the provisions of the Purchase Contract Agreement and the Remarketing
Agreement, upon written notice, substantially in the form of Exhibit B hereto,
by the Purchase Contract Agent to the Collateral Agent of the aggregate
principal amount of Notes that have been remarketed, the Collateral Agent shall
release and transfer, without recourse, such Notes, free and clear of any lien,
pledge or security interest created hereby, to the Remarketing Agent for the
purpose of settling the sales and purchases effected in the remarketing.
(e) In connection with a Merger Early Settlement, the Collateral Agent
shall release and transfer to the Company the Pledged Securities with respect to
all Units which have been presented for payment on the Merger Early Settlement
Date, upon written notice by the Company substantially in the form of Exhibit C
hereto to that effect.
SECTION 6. Rights and Remedies. (a) The Collateral Agent shall have all
of the rights and remedies with respect to the Collateral of a secured party
under the Code (whether or not said Code is in effect in the jurisdiction where
the rights and remedies are asserted) and, with respect to Pledged Securities
which are Treasury Securities, the Applicable
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Treasury 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.
(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 Purchase Contract Agent, which payments are due to the
Company pursuant to the Purchase Contracts underlying any Units, or in the event
of a Failed Remarketing, the Collateral Agent shall have and shall exercise,
upon the written direction of the Company, with reference to the Pledged
Securities underlying such Units and the obligations of the Holders of such
Units, any and all of the rights and remedies available to a secured party
under the Code and the Applicable Treasury Regulations after default by a
debtor, and as otherwise granted herein or under any other law, including, but
not limited to, the right to retain the Pledged Securities in full satisfaction
of the Holders' obligations under the Purchase Contracts or to sell the Pledged
Securities in one or more private or public sales.
(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 principal of or distributions
or interest on the Pledged Securities, in each case subject to the provisions
hereof.
(d) The Purchase Contract Agent agrees that, from time to time, upon
the written request of the Collateral Agent to the Purchase Contract Agent, the
Purchase Contract Agent 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.
SECTION 7. The Collateral Agent. The Collateral Agent and the Company
hereby agree among themselves as follows (it being understood and agreed that,
except as provided in Section 7.08, neither the Purchase Contract Agent nor any
Holder of Units shall have any rights or duties under this Section 7):
7.01 Appointment, Powers and Immunities. The Collateral Agent shall act
hereunder as agent for the Company, 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. The Collateral Agent: (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 the Collateral Agent, nor shall the Collateral Agent be bound
by the provisions of any agreement by any party hereto beyond the specific terms
hereof; (b) shall not be responsible to the Company for any recitals contained
in this Agreement, or in any certificate or other document referred to or
provided for in, or received by it under, this Agreement, the Units, the
Purchase Contract Agreement or for the value,
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validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement (other than as against the Collateral Agent), the Units, 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) to perform any of its obligations hereunder or thereunder; (c)
shall not be required to initiate or conduct any litigation or collection
proceedings hereunder (except pursuant to directions furnished under Section
7.02 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 or wilful misconduct; and (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, any Units or any property deposited hereunder. 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 Pledged Securities hereunder.
No provision of this Agreement shall require the Collateral Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder. In no event shall the Collateral
Agent be liable for any amount in excess of the value of the Pledged Securities.
7.02 Instructions of the Company. The Company shall have the right, by
one or more instruments in writing executed and delivered to the Collateral
Agent, to direct the time, method and place of conducting any proceeding for any
right or remedy available to the Collateral Agent, or of exercising any power
conferred on the Collateral Agent, or to direct the taking or refraining from
taking of any action authorized by this Agreement; provided, however, that (a)
such direction shall not conflict with the provisions of any law or of this
Agreement and (b) the Collateral Agent shall receive indemnity reasonably
satisfactory to it. Nothing in this Section 7.02 shall impair the right of the
Collateral Agent in its discretion to take any action or omit to take any action
which it deems proper and which is not inconsistent with such direction.
7.03 Reliance by Collateral Agent. The Collateral Agent shall be
entitled to conclusively rely upon any certification, order, judgment, opinion,
notice or other communication or document (including, without limitation, any
thereof by telephone, telecopy, telex, telegram or cable) 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. As to any matters not expressly
provided for by this Agreement, the Collateral Agent 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.
Upon written request by the Collateral Agent, the Company or the
Purchase Contract Agent, as the case may be, shall provide the Collateral Agent
from time to time with a
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certificate of the Company or the Purchase Contract Agent certifying the
incumbency of representatives of the Company or the Purchase Contract Agent
authorized to instruct, direct and give notice to, the Collateral Agent under
this Agreement. Until the Collateral Agent receives a subsequent incumbency
certificate, the Collateral Agent shall be entitled to rely on the last such
certificate delivered to it under this Agreement.
7.04 Rights in Other Capacities. The Collateral Agent and its
affiliates may (without having to account therefor to the Company) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Company, the Purchase Contract
Agent and any Holder of Units as if it were not acting as the Collateral Agent,
and the Collateral Agent and its affiliates may accept fees and other
consideration from the Company, the Purchase Contract Agent and any Holder of
Units without having to account for the same to the Company, provided that the
Collateral Agent covenants and agrees with the Company that the Collateral Agent
shall not accept, receive or permit there to be created in its favor any
security interest, lien or other encumbrance of any kind in or upon the Pledged
Securities, except as contemplated by the terms hereof.
7.05 Non-Reliance on Collateral Agent. The Collateral Agent shall not
be required to keep itself informed as to the performance or observance by the
Purchase Contract Agent or any Holder of Units of this Agreement, the Purchase
Contract Agreement, the Units or any other document referred to or provided for
herein or therein or to inspect the properties or books of the Purchase Contract
Agent or any Holder of Units. The Collateral Agent shall not have any duty or
responsibility to provide the Company with any credit or other information
concerning the affairs, financial condition or business of the Purchase Contract
Agent or any Holder of Units that may come into the possession of the Collateral
Agent or any of its affiliates.
7.06 Compensation and Indemnity. The Company agrees: (a) to pay the
Collateral Agent from time to time reasonable compensation as agreed upon for
all services rendered by it hereunder and (b) to indemnify the Collateral Agent
and its officers, directors, employees and agents for, and to hold them harmless
against, any loss, liability or expense including taxes (other than taxes based
upon, measured by or determined by the income of the Collateral Agent) incurred
without gross negligence 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 costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of such powers
and duties. The provisions of this Section 7.06 shall survive the resignation or
removal of the Collateral Agent and the termination of this Agreement.
In order to effect a Collateral Substitution, the Collateral Agent may
charge reasonable fees and expenses for its services as Collateral Agent in
respect of such substitution. Such fees and expenses shall be borne by the
Holder substituting such collateral but shall not be the responsibility of the
Company.
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7.07 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
undersigned and/or any other Person with respect to any funds or property
deposited hereunder, the Collateral Agent shall be entitled, 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 the Collateral Agent shall not be or become liable in any way to
any of the undersigned for its failure or refusal to comply with such
conflicting claims, demands or instructions. The Collateral Agent shall be
entitled to refuse to act until either (a) such conflicting or adverse claims or
demands shall have been finally determined by a court of competent jurisdiction
or settled by agreement between the conflicting parties as evidenced in a
writing satisfactory to the Collateral Agent or (b) the Collateral Agent shall
have received security or an indemnity satisfactory to the Collateral Agent
sufficient to save the Collateral Agent harmless from and against any and all
loss, liability or expense which the Collateral Agent may incur by reason of its
acting. The Collateral Agent may in addition elect to commence an interpleader
action or seek other judicial relief or orders as the Collateral Agent may deem
necessary. Notwithstanding anything contained herein to the contrary, the
Collateral Agent shall not 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.
7.08 Resignation of Collateral Agent. Subject to the appointment and
acceptance of a successor Collateral Agent as provided below, (a) the Collateral
Agent may resign at any time by giving notice thereof to the Company and the
Purchase Contract Agent, (b) the Collateral Agent may be removed at any time by
written notice from the Company, and (c) if the Collateral Agent 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 may be removed by the Purchase Contract Agent. The Purchase
Contract Agent shall promptly notify the Company of any removal of the
Collateral Agent 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. If no successor Collateral Agent shall
have been so appointed and shall have accepted such appointment within 30 days
after the retiring Collateral Agent's giving of notice of resignation or such
removal, then the retiring Collateral Agent may petition any court of competent
jurisdiction for the appointment of a successor Collateral Agent. The Collateral
Agent shall be a bank which has an office in New York, New York with a combined
capital and surplus of at least $50,000,000. Upon the acceptance of any
appointment as Collateral Agent hereunder by a successor Collateral Agent, such
successor Collateral Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Collateral Agent, and
the retiring Collateral Agent shall take all appropriate action to transfer any
money and property held by it hereunder (including the Pledged Securities) to
such successor Collateral Agent. The retiring Collateral Agent shall, upon such
succession, be discharged from its duties and obligations as Collateral Agent
hereunder. After any retiring Collateral Agent's resignation hereunder as
Collateral Agent, the provisions of this Section 7 shall continue in effect for
its
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benefit in respect of any actions taken or omitted to be taken by it while it
was acting as the Collateral Agent.
7.09 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 such agents or advisors selected in good faith.
7.10 Survival. The provisions of this Section 7 shall survive
termination of this Agreement and the resignation or removal of the Collateral
Agent.
SECTION 8. Miscellaneous.
8.01 Amendments. This Agreement may be amended in the manner set forth
in Section 801 of the Purchase Contract Agreement for supplemental agreements.
In executing any amendment permitted by this Section, the Collateral Agent shall
be entitled to receive and (subject to Section 7.01 hereof) 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 is for a purpose
set forth in Section 801 of the Purchase Contract Agreement, and that all
conditions precedent herein and in the Principal Agreements related to such
amendment have been satisfied.
8.02 No Waiver. No failure on the part of the Collateral Agent 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 the Collateral Agent
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.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
8.03 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF. The Company, the Collateral Agent and the
Holders from time to time of the Units, acting through the Purchase Contract
Agent as their attorney-in-fact, hereby submit to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
any New York 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 Units, 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.
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8.04 Legal Holidays. In any case where any Quarterly Payment Date or
the Stock Purchase Date shall not be a Business Day, then (notwithstanding any
other provision of this Agreement or of the Units) the actions required by this
Agreement to occur on such date shall not occur on such date, but instead shall
occur on the next succeeding Business Day with the same force and effect as if
they had occurred on such Quarterly Payment Date or Stock Purchase Date, as the
case may be; except that if such next succeeding Business Day is in the next
calendar year, such actions shall occur on the immediately preceding Business
Day with the same force and effect as if made on such Quarterly Payment Date or
Stock Purchase Date.
8.05 Notices. All notices, requests, consents and other communications
provided for herein (including, without limitation, any modifications of, or
waivers or consents under, this Agreement) shall be given or made in writing
(including, without limitation, by telecopy) delivered to the intended recipient
at the "Address for Notices" specified below its name on the signature pages
hereof or, as to any party, at such other address as shall be designated by such
party in a notice to the other parties. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given when
transmitted by telecopier or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as aforesaid.
8.06 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 and the Purchase Contract Agent, and the Holders from time
to time of the Units, by their acceptance of the same, shall be deemed to have
agreed to be bound by the provisions hereof and to have ratified the agreements
of, and the grant of the Pledge hereunder by, the Purchase Contract Agent, as
their attorney-in-fact.
8.07 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.
8.08 Severability. If any provision hereof is invalid or unenforceable
in any jurisdiction, then, to the fullest extent permitted by law, (a) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in order to carry out the intentions of the parties
hereto as nearly as may be possible and (b) 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.
8.09 Expenses, etc. The Company agrees to reimburse the Collateral
Agent for: (a) all reasonable out-of-pocket costs and expenses of the Collateral
Agent (including, without limitation, the reasonable fees and expenses of
counsel to the Collateral Agent), 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 the Collateral Agent (including,
without
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limitation, reasonable fees and expenses of counsel) in connection with (i) any
enforcement or proceedings resulting or incurred in connection with causing any
Holder of Units to satisfy its obligations under the Purchase Contracts forming
a part of the Units and (ii) the enforcement of this Section 8.09; 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.
8.10 Security Interest Absolute. All rights of the Collateral Agent and
security interests hereunder, and all obligations of the Holders from time to
time of the Units here under, shall be absolute and unconditional irrespective
of:
(a) any lack of validity or enforceability of any provision of
the Units or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
any other term of, or any increase in the amount of, all or any of the
obligations of Holders of Units under the related Purchase Contracts or
any other amendment or waiver of any term of, or any consent to any
departure from any requirement of, the Purchase Contract Agreement or
any Units 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.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
THE SEAGRAM COMPANY LTD.
By:
Name:
Title:
THE BANK OF NEW YORK,
as Purchase Contract Agent and as attorney-in-fact
of the Holders from time to time of the Units
By:
Name:
Title:
Address for Notices:
-
Citibank, N.A.,
as Collateral Agent
By:
Name:
Title:
Address for Notices:
Global Agency & Trust Services
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
14
EXHIBIT A
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
Citibank, N.A.
Global Agency & Trust Services
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: -% Adjustable Conversion-rate Equity Security Units of The
Seagram Company Ltd. (the "Company)
Please refer to the Pledge Agreement dated as of June -, 1999 (the
"Pledge Agreement"), among the Company, you, as Collateral Agent and Securities
Intermediary, and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of Units from time to time. Capitalized terms
used herein but not defined shall have the meaning set forth in the Pledge
Agreement.
We hereby notify you in accordance with Section 5(b) of the Pledge
Agreement that the Holder named below has elected to substitute Treasury
Consideration as required under Section 405 of the Purchase Contract Agreement
in exchange for $_________ principal amount of Notes and has delivered to the
undersigned a notice stating that the Holder has transferred such Treasury
Consideration to the Securities Intermediary, for credit to the Collateral
Account.
We hereby request that you, as the Securities Intermediary, upon
confirmation that such Treasury Securities or security entitlements thereto have
been credited to the Collateral Account, release to the undersigned an equal
principal amount of Notes in accordance with Section 5(b) of the Pledge
Agreement.
THE BANK OF NEW YORK
Date: ___________________ By: __________________________
Name:
Title:
15
Please print name and address of Holder electing to substitute Treasury
Securities or security entitlements thereto for the Notes:
____________________________ ___________________________
Name Social Security or other Taxpayer
Identification Number, if any
____________________________
Address
____________________________
____________________________
16
EXHIBIT B
NOTICE
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
Citibank, N.A.
Global Agency & Trust Services
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: -% Adjustable Conversion-rate Equity Security Units of The
Seagram Company Ltd. (the "Company)
Please refer to the Pledge Agreement dated as of June -, 1999 (the
"Pledge Agreement"), among the Company, you, as Collateral Agent and Securities
Intermediary, and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of Units from time to time. Capitalized terms
used herein but not defined shall have the meaning set forth in the Pledge
Agreement.
We hereby notify you in accordance with Section 5(d) of the Pledge
Agreement that Notes in an aggregate principal amount of $_________ have been
remarketed in accordance with the Purchase Contract Agreement and the
Remarketing Agreement.
We hereby request that you, as the Securities Intermediary, release to
[_________], as the Remarketing Agent, [wiring and DTC account information],
an equal principal amount of Notes in accordance with Section 5(d) of the Pledge
Agreement.
[add name of remarketing agent account info]
DTC-account no.
THE BANK OF NEW YORK
Date: ___________________ By: __________________________
Name:
Title:
17
EXHIBIT C
NOTICE
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
Citibank, N.A.
Global Agency & Trust Services
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: -% Adjustable Conversion-rate Equity Security Units of The
Seagram Company Ltd. (the "Company)
Please refer to the Pledge Agreement dated as of June -, 1999 (the
"Pledge Agreement"), among the Company, you, as Collateral Agent and Securities
Intermediary, and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of Units from time to time. Capitalized terms
used herein but not defined shall have the meaning set forth in the Pledge
Agreement.
We hereby notify you in accordance with Section 5(e) of the Pledge
Agreement that Holders have presented [_______] Units for payment on the Merger
Early Settlement Date.
We hereby request that you, as the Securities Intermediary, release to
the undersigned [$_________] aggregate amount of [specify security], Pledged
Securities related to such Units, in accordance with Section 5(e) of the Pledge
Agreement.
THE BANK OF NEW YORK
Date: ___________________ By: __________________________
Name:
Title: