EXHIBIT 4.8
XXXXXXXXX'X, INC.
and
U.S. BANK TRUST NATIONAL ASSOCIATION, as Collateral Agent, Custodial Agent and
Securities Intermediary
and
U.S. BANK TRUST NATIONAL ASSOCIATION, as Purchase Contract Agent
FORM OF PLEDGE AGREEMENT
Dated as of [ ], 2004
TABLE OF CONTENTS
Page
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ARTICLE 1
Definitions
Section 1.01 Definitions........................................................................1
ARTICLE 2
Pledge
Section 2.01 Pledge.............................................................................5
Section 2.02 Control............................................................................5
Section 2.03 Termination........................................................................5
ARTICLE 3
Distributions on Pledged Collateral
Section 3.01 Income and Distributions...........................................................6
Section 3.02 Principal Payments Following Termination Event.....................................6
Section 3.03 Principal Payments Prior to or on Purchase Contract Settlement Date................6
Section 3.04 Payments to Purchase Contract Agent................................................7
Section 3.05 Assets Not Properly Released.......................................................7
ARTICLE 4
Control
Section 4.01 Establishment of Collateral Account................................................7
Section 4.02 Treatment as Financial Assets......................................................8
Section 4.03 Sole Control by Collateral Agent...................................................8
Section 4.04 Securities Intermediary's Location.................................................8
Section 4.05 No Other Claims....................................................................8
Section 4.06 Investment and Release.............................................................8
Section 4.07 Statements and Confirmations.......................................................8
Section 4.08 Tax Allocations....................................................................9
Section 4.09 No Other Agreements................................................................9
Section 4.10 Powers Coupled with an Interest....................................................9
Section 4.11 Waiver of Lien; Waiver of Set-off..................................................9
ARTICLE 5
Initial Deposit; Creation Of Treasury Units And Recreation Of
Corporate Units
Section 5.01 Initial Deposit of Senior Notes....................................................9
Section 5.02 Creation of Treasury Units........................................................10
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Section 5.03 Recreation of Corporate Units.....................................................11
Section 5.04 Termination Event.................................................................12
Section 5.05 Cash Settlement...................................................................13
Section 5.06 Early Settlement and Cash Merger Early Settlement.................................14
Section 5.07 Application of Proceeds in Settlement of Purchase Contracts.......................15
Section 5.08 Special Event Redemption..........................................................17
ARTICLE 6
Voting Rights -- Pledged Senior Notes
Section 6.01 Voting Rights.....................................................................17
ARTICLE 7
Rights and Remedies
Section 7.01 Rights and Remedies of the Collateral Agent.......................................18
Section 7.02 Special Event Redemption..........................................................19
Section 7.03 Initial Remarketing...............................................................19
Section 7.04 Final Remarketing.................................................................19
Section 7.05 Successful Initial Remarketing....................................................19
Section 7.06 Substitutions.....................................................................20
ARTICLE 8
Representations and Warranties; Covenants
Section 8.01 Representations and Warranties....................................................20
Section 8.02 Covenants.........................................................................21
ARTICLE 9
The Collateral Agent, the Custodial Agent and the Securities
Intermediary
Section 9.01 Appointment, Powers and Immunities................................................21
Section 9.02 Instructions of the Company.......................................................22
Section 9.03 Reliance by Collateral Agent, Custodial Agent and Securities Intermediary.........22
Section 9.04 Certain Rights....................................................................23
Section 9.05 Merger, Conversion, Consolidation or Succession to Business.......................23
Section 9.06 Rights in Other Capacities........................................................23
Section 9.07 Non-reliance on Collateral Agent, the Custodial Agent and Securities Intermediary.24
Section 9.08 Compensation and Indemnity........................................................24
Section 9.09 Failure to Act....................................................................25
Section 9.10 Resignation of Collateral Agent, the Custodial Agent and Securities Intermediary..25
Section 9.11 Right to Appoint Agent or Advisor.................................................27
Section 9.12 Survival..........................................................................27
Section 9.13 Exculpation.......................................................................27
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ARTICLE 10
Amendment
Section 10.01 Amendment Without Consent of Holders..............................................27
Section 10.02 Amendment with Consent of Holders.................................................28
Section 10.03 Execution of Amendments...........................................................29
Section 10.04 Effect of Amendments..............................................................29
Section 10.05 Reference of Amendments...........................................................29
ARTICLE 11
Miscellaneous
Section 11.01 No Waiver.........................................................................29
Section 11.02 Governing Law; Submission to Jurisdiction.........................................30
Section 11.03 Notices...........................................................................30
Section 11.04 Successors and Assigns............................................................30
Section 11.05 Counterparts......................................................................30
Section 11.06 Severability......................................................................30
Section 11.07 Expenses, Etc.....................................................................31
Section 11.08 Security Interest Absolute........................................................31
Section 11.09 Notice of Special Event, Special Event Redemption and Termination Event...........32
EXHIBITS
Exhibit A - Instruction from Purchase Contract Agent to Collateral Agent
(Creation of Treasury Units)
Exhibit B - Instruction from Collateral Agent to Securities Intermediary
(Creation of Treasury Units)
Exhibit C - Instruction from Purchase Contract Agent to Collateral Agent
(Recreation of Corporate Units)
Exhibit D - Instruction from Collateral Agent to Securities Intermediary
(Recreation of Corporate Units)
Exhibit E - Notice of Cash Settlement from Collateral Agent to Purchase Contract
Agent
Exhibit F - Instruction to Custodial Agent Regarding Remarketing
Exhibit G - Instruction to Custodial Agent Regarding Withdrawal From Remarketing
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PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of [ ], 2004 between XXXXXXXXX'X, INC., a
Delaware corporation (the "COMPANY"), and U.S. BANK TRUST NATIONAL ASSOCIATION,
as collateral agent (in such capacity, together with its successors in such
capacity, the "COLLATERAL AGENT"), as custodial agent (in such capacity,
together with its successors in such capacity, the "CUSTODIAL AGENT"), and as
securities intermediary (as defined in Section 8-102(a)(14) of the UCC) with
respect to the Collateral Account (in such capacity, together with its
successors in such capacity, the "SECURITIES INTERMEDIARY"), and as purchase
contract agent and as attorney-in-fact of the Holders from time to time of the
Units (in such capacity, together with its successors in such capacity, the
"PURCHASE CONTRACT AGENT") under the Purchase Contract Agreement.
RECITALS
WHEREAS, the Company and the Purchase Contract Agent are parties to the
Purchase Contract Agreement dated as of the date hereof (as modified and
supplemented and in effect from time to time, the "PURCHASE CONTRACT
AGREEMENT"), pursuant to which 40,000,000 Corporate Units (or 46,000,000
Corporate Units if the underwriter's over-allotment option granted to the
Underwriters pursuant to the Underwriting Agreement is exercised) will be
issued.
WHEREAS, each Corporate Unit, at issuance, consists of a unit comprised of
(a) a stock purchase contract (a "PURCHASE CONTRACT") pursuant to which the
Holder will purchase from the Company on the Purchase Contract Settlement Date,
for an amount equal to $25 (the "STATED AMOUNT"), a number of shares of the
Company's common stock, par value $1.00 per share, ("COMMON STOCK"), equal to
the Settlement Rate and (b) a 1/40, or 2.5%, beneficial ownership interest in a
Senior Note.
WHEREAS, pursuant to the terms of the Purchase Contract Agreement and the
Purchase Contracts, the Holders of the Units have irrevocably authorized the
Purchase Contract Agent, as attorney-in-fact of such Holders, among other
things, to execute and deliver this Agreement on behalf of such Holders and to
grant the pledge provided herein of the Collateral to secure the Obligations.
NOW, THEREFORE, the Company, the Collateral Agent, the Custodial Agent,
the Securities Intermediary and the Purchase Contract Agent agree as follows:
ARTICLE 1
Definitions
Section 1.01 Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular, and
nouns and pronouns of the masculine gender include the feminine and neuter
genders;
(b) the words "HEREIN," "HEREOF" and "HEREUNDER" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section, Exhibit or other subdivision;
(c) the following terms which are defined in the UCC shall have the
meanings set forth therein: "CERTIFICATED SECURITY," "CONTROL," "FINANCIAL
ASSET," "ENTITLEMENT ORDER," "SECURITIES ACCOUNT" and "SECURITY
ENTITLEMENT";
(d) capitalized terms used herein and not defined herein have the
meanings assigned to them in the Purchase Contract Agreement; and
(e) the following terms have the meanings given to them in this
Section 1.01(e):
"AGREEMENT" means this Pledge Agreement, as the same may be amended,
modified or supplemented from time to time.
"CASH" means any coin or currency of the United States as at the
time shall be legal tender for payment of public and private debts.
"COLLATERAL" means the collective reference to:
(i) the Collateral Account and all investment property and
other financial assets from time to time credited to the Collateral
Account and all security entitlements with respect thereto,
including, without limitation, (A) the Senior Notes and security
entitlements relating thereto that are a component of the Corporate
Units from time to time, (B) the Applicable Ownership Interests (as
specified in clause (i) of the definition of such term) in the
Treasury Portfolio that are a component of the Corporate Units from
time to time, (C) any Treasury Securities and security entitlements
relating thereto delivered from time to time upon creation of
Treasury Units in accordance with Section 5.02 hereof and (D)
payments made by Holders pursuant to Section 5.05 hereof;
(ii) all Proceeds of any of the foregoing (whether such
Proceeds arise before or after the commencement of any proceeding
under any applicable bankruptcy, insolvency or other similar law, by
or against the pledgor or with respect to the pledgor); and
(iii) all powers and rights now owned or hereafter acquired
under or with respect to the Collateral.
"COLLATERAL ACCOUNT" means the securities account of U.S. Bank Trust
National Association, as Collateral Agent, maintained by the Securities
Intermediary and designated "U.S. Bank Trust National Association, as
Collateral Agent of Xxxxxxxxx'x, Inc., as pledgee of U.S. Bank Trust
National Association , as the Purchase Contract Agent on behalf of and as
attorney-in-fact for the Holders".
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"COMMON STOCK" has the meaning specified in the second paragraph of
the recitals of this Agreement.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Agreement until a successor shall have become such
pursuant to the applicable provisions of the Purchase Contract Agreement,
and thereafter "Company" shall mean such successor.
"OBLIGATIONS" means, with respect to each Holder, all obligations
and liabilities of such Holder under such Holder's Purchase Contract, the
Purchase Contract Agreement and this Agreement or any other document made,
delivered or given in connection herewith or therewith, in each case
whether on account of principal, interest (including, without limitation,
interest accruing before and after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to such Holder, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding),
fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Company or the
Collateral Agent or the Securities Intermediary that are required to be
paid by the Holder pursuant to the terms of any of the foregoing
agreements).
"PERMITTED INVESTMENTS" means any one of the following, in each case
maturing on the Business Day following the date of acquisition:
(1) any evidence of indebtedness with an original maturity of
365 days or less issued, or directly and fully guaranteed or
insured, by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of
the United States of America is pledged in support of the timely
payment thereof or such indebtedness constitutes a general
obligation of it);
(2) deposits, certificates of deposit or acceptances with an
original maturity of 365 days or less of any institution which is a
member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $500 million at the
time of deposit (and which may include the Collateral Agent);
(3) investments with an original maturity of 365 days or less
of any Person that are fully and unconditionally guaranteed by a
bank referred to in clause (2);
(4) repurchase agreements and reverse repurchase agreements
relating to marketable direct obligations issued or unconditionally
guaranteed by the United States of America or issued by any agency
thereof and backed as to timely payment by the full faith and credit
of the United States of America;
(5) investments in commercial paper, other than commercial
paper issued by the Company or its Affiliates, of any corporation
incorporated under the laws of the United States of America or any
State thereof, which commercial paper has a rating at the time of
purchase at least equal to "A-1" by Standard &
3
Poor's Ratings Services ("S&P") or at least equal to "P-1" by
Xxxxx'x Investors Service, Inc. ("MOODY'S"); and
(6) investments in money market funds (including, but not
limited to, money market funds managed by the Collateral Agent or an
affiliate of the Collateral Agent) registered under the Investment
Company Act of 1940, as amended, rated in the highest applicable
rating category by S&P or Moody's.
"PLEDGE" means the lien and security interest created by this
Agreement.
"PLEDGED APPLICABLE OWNERSHIP INTERESTS" means the Holder's
Applicable Ownership Interests (as specified in clause (i) of the
definition thereof) in the Treasury Portfolio and security entitlements
with respect thereto from time to time credited to the Collateral Account
and not then released from the Pledge.
"PLEDGED SENIOR NOTES" means Senior Notes and security entitlements
with respect thereto from time to time credited to the Collateral Account
and not then released from the Pledge.
"PLEDGED SECURITIES" means the Pledged Senior Notes, the Pledged
Applicable Ownership Interests and the Pledged Treasury Securities,
collectively.
"PLEDGED TREASURY SECURITIES" means Treasury Securities and security
entitlements with respect thereto from time to time credited to the
Collateral Account and not then released from the Pledge.
"PROCEEDS" has the meaning ascribed thereto in the UCC and includes,
without limitation, all interest, dividends, cash, instruments,
securities, financial assets and other property received, receivable or
otherwise distributed upon the sale (including, without limitation, the
Remarketing), exchange, collection or disposition of any financial assets
from time to time held in the Collateral Account.
"PURCHASE CONTRACT" has the meaning specified in the second
paragraph of the recitals of this Agreement.
"PURCHASE CONTRACT AGENT" has the meaning specified in the paragraph
preceding the recitals of this Agreement.
"PURCHASE CONTRACT AGREEMENT" has the meaning specified in the first
paragraph of the recitals of this Agreement.
"STATED AMOUNT" has the meaning specified in the second paragraph of
the recitals of this Agreement.
"TRADES" means the Treasury/Reserve Automated Debt Entry System
maintained by the Federal Reserve Bank of New York pursuant to the TRADES
Regulations.
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"TRADES REGULATIONS" means the regulations of the United States
Department of the Treasury, published at 31 C.F.R. Part 357, as amended
from time to time. Unless otherwise defined herein, all terms defined in
the TRADES Regulations are used herein as therein defined.
"TRANSFER" means (i) in the case of certificated securities in
registered form, delivery as provided in Section 8-301(a) of the UCC,
endorsed to the transferee or in blank by an effective endorsement, (ii)
in the case of Treasury Securities, registration of the transferee as the
owner of such Treasury Securities on TRADES and (iii) in the case of
security entitlements, including, without limitation, security
entitlements with respect to Treasury Securities, a securities
intermediary indicating by book entry that such security entitlement has
been credited to the transferee's securities account.
"TREASURY SECURITIES" means zero-coupon U.S. treasury securities
that mature on May 15, 2007 (CUSIP No. 000000XX0).
"UCC" means the Uniform Commercial Code as in effect in the State of
New York from time to time.
"VALUE" means, with respect to any item of Collateral on any date,
as to (1) Cash, the face amount thereof, (2) Treasury Securities or Senior
Notes, the aggregate principal amount thereof at maturity and (3)
Applicable Ownership Interests (as specified in clause (i) of the
definition of such term), the appropriate percentage of the aggregate
principal amount at maturity of the Treasury Portfolio.
ARTICLE 2
Pledge
Section 2.01 Pledge. Each Holder, acting through the Purchase Contract
Agent as such Holder's attorney-in-fact, and the Purchase Contract Agent, acting
solely as such attorney-in-fact, hereby pledges and grants to the Collateral
Agent, as agent of and for the benefit of the Company, a continuing first
priority security interest in and to, and a lien upon and right of set-off
against, all of such Person's right, title and interest in and to the Collateral
to secure the prompt and complete payment and performance when due (whether at
stated maturity, by acceleration or otherwise) of the Obligations. The
Collateral Agent shall have all of the rights, remedies and recourses with
respect to the Collateral afforded a secured party by the UCC, in addition to,
and not in limitation of, the other rights, remedies and recourses afforded to
the Collateral Agent by this Agreement.
Section 2.02 Control. The Collateral Agent shall have control of the
Collateral Account pursuant to the provisions of Article 4 of this Agreement.
Section 2.03 Termination. As to each Holder, this Agreement and the Pledge
created hereby shall terminate upon the satisfaction of such Holder's
Obligations. Upon such
5
termination, the Collateral Agent shall, except as otherwise provided herein,
instruct the Securities Intermediary to Transfer such Holder's portion of the
Collateral to the Purchase Contract Agent for distribution to such Holder, free
and clear of the Pledge created hereby.
ARTICLE 3
Distributions on Pledged Collateral
Section 3.01 Income and Distributions. The Collateral Agent shall transfer
all income and distributions received by the Collateral Agent on account of the
Pledged Senior Notes, the Pledged Applicable Ownership Interests or Permitted
Investments from time to time held in the Collateral Account (ABA No. [ ], A/C
No. [ ], Re: Xxxxxxxxx'x, Inc.) to the Purchase Contract Agent for distribution
to the applicable Holders as provided in the Purchase Contracts or Purchase
Contract Agreement.
Section 3.02 Principal Payments Following Termination Event. Following a
Termination Event, the Collateral Agent shall transfer all principal payments it
receives, if any, in respect of (1) the Pledged Senior Notes, (2) the Pledged
Applicable Ownership Interests and (3) the Pledged Treasury Securities, to the
Purchase Contract Agent for the benefit of the applicable Holders for
distribution to such Holders in accordance with their respective interests, free
and clear of the Pledge created hereby.
Section 3.03 Principal Payments Prior to or on Purchase Contract
Settlement Date.
(a) Subject to the provisions of Section 5.06 and 5.08, and except as
provided in Section 3.03(b) below, if no Termination Event shall have occurred,
all principal payments received by the Securities Intermediary in respect of (1)
the Pledged Senior Notes, (2) the Pledged Applicable Ownership Interests and (3)
the Pledged Treasury Securities, shall be held and invested in Permitted
Investments until the Purchase Contract Settlement Date, and transferred to the
Company on the Purchase Contract Settlement Date as provided in Section 5.07
hereof. Any balance remaining in the Collateral Account shall be released from
the Pledge and transferred to the Purchase Contract Agent for the benefit of the
applicable Holders for distribution to such Holders in accordance with their
respective interests, free and clear of the Pledge created thereby. The Company
shall instruct the Collateral Agent in writing as to the type of Permitted
Investments in which any payments made under this Section 3.03(a) shall be
invested; provided, however, that if the Company fails to deliver such
instructions by 10:30 a.m. (New York City time) on the day such payments are
received by the Collateral Agent, the Collateral Agent shall invest such
payments in the Permitted Investments as described in clause (6) of the
definition of Permitted Investments. The Collateral Agent shall have no
liability in respect of losses incurred as a result of the failure of the
Company to provide timely written investment direction.
(b) All principal payments received by the Securities Intermediary in
respect of (1) the Senior Notes, (2) the Applicable Ownership Interests (as
specified in clause (i) of the definition thereof) in the Treasury Portfolio and
(3) the Treasury Securities or security entitlements thereto, that, in each
case, have been released from the Pledge pursuant hereto shall
6
be transferred to the Purchase Contract Agent for the benefit of the applicable
Holders for distribution to such Holders in accordance with their respective
interests.
Section 3.04 Payments to Purchase Contract Agent. The Securities
Intermediary shall use commercially reasonable efforts to deliver payments to
the Purchase Contract Agent hereunder to the account designated by the Purchase
Contract Agent for such purpose not later than 12:00 p.m. (New York City time)
on the Business Day such payment is received by the Securities Intermediary;
provided, however, that if such payment is received on a day that is not a
Business Day or after 11:00 a.m. (New York City time) on a Business Day, then
the Securities Intermediary shall use commercially reasonable efforts to deliver
such payment to the Purchase Contract Agent no later than 10:30 a.m. (New York
City time) on the next succeeding Business Day.
Section 3.05 Assets Not Properly Released. If the Purchase Contract Agent
or any Holder shall receive any principal payments on account of financial
assets credited to the Collateral Account and not released therefrom in
accordance with this Agreement, the Purchase Contract Agent or such Holder shall
hold the same as trustee of an express trust for the benefit of the Company and,
upon receipt of an Officers' Certificate of the Company so directing, promptly
deliver the same to the Securities Intermediary for credit to the Collateral
Account or to the Company for application to the Obligations of the Holders, and
the Purchase Contract Agent and Holders shall acquire no right, title or
interest in any such payments of principal amounts so received. The Purchase
Contract Agent shall have no liability under this Section 3.05 unless and until
it has been notified in writing that such payment was delivered to it
erroneously and shall have no liability for any action taken, suffered or
omitted to be taken prior to its receipt of such notice.
ARTICLE 4
Control
Section 4.01 Establishment of Collateral Account. The Securities
Intermediary hereby confirms that:
(a) the Securities Intermediary has established the Collateral
Account;
(b) the Collateral Account is a securities account;
(c) subject to the terms of this Agreement, the Securities
Intermediary shall identify in its records the Collateral Agent as the
entitlement holder entitled to exercise the rights that comprise any
financial asset credited to the Collateral Account;
(d) all property delivered to the Securities Intermediary pursuant
to this Agreement or the Purchase Contract Agreement, including any
Applicable Ownership Interests (as specified in clause (i) of such
definition) in the Treasury Portfolio and any Permitted Investments, will
be credited promptly to the Collateral Account; and
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(e) all securities or other property underlying any financial assets
credited to the Collateral Account shall be (i) registered in the name of
the Purchase Contract Agent and endorsed to the Securities Intermediary or
in blank, (ii) registered in the name of the Securities Intermediary or
(iii) credited to another securities account maintained in the name of the
Securities Intermediary. In no case will any financial asset credited to
the Collateral Account be registered in the name of the Purchase Contract
Agent or any Holder or specially endorsed to the Purchase Contract Agent
or any Holder unless such financial asset has been further endorsed to the
Securities Intermediary or in blank.
Section 4.02 Treatment as Financial Assets. Each item of property (whether
investment property, financial asset, security, instrument or cash) credited to
the Collateral Account shall be treated as a financial asset.
Section 4.03 Sole Control by Collateral Agent. Except as provided in
Section 6.01, at all times prior to the termination of the Pledge, the
Collateral Agent shall have sole control of the Collateral Account, and the
Securities Intermediary shall take instructions and directions with respect to
the Collateral Account solely from the Collateral Agent. If at any time the
Securities Intermediary shall receive an entitlement order issued by the
Collateral Agent and relating to the Collateral Account, the Securities
Intermediary shall comply with such entitlement order without further consent by
the Purchase Contract Agent or any Holder or any other Person. Except as
otherwise permitted under this Agreement, until termination of the Pledge, the
Securities Intermediary will not comply with any entitlement orders issued by
the Purchase Contract Agent or any Holder.
Section 4.04 Securities Intermediary's Location. The Collateral Account,
and the rights and obligations of the Securities Intermediary, the Collateral
Agent, the Purchase Contract Agent and the Holders with respect thereto, shall
be governed by the laws of the State of New York. Regardless of any provision in
any other agreement, for purposes of the UCC, New York shall be deemed to be the
Securities Intermediary's jurisdiction.
Section 4.05 No Other Claims. Except for the claims and interest of the
Collateral Agent and of the Purchase Contract Agent and the Holders in the
Collateral Account, the Securities Intermediary (without having conducted any
investigation) does not know of any claim to, or interest in, the Collateral
Account or in any financial asset credited thereto. If any Person asserts any
lien, encumbrance or adverse claim (including any writ, garnishment, judgment,
warrant of attachment, execution or similar process) against the Collateral
Account or in any financial asset carried therein, the Securities Intermediary
will promptly notify the Collateral Agent and the Purchase Contract Agent.
Section 4.06 Investment and Release. All proceeds of financial assets from
time to time deposited in the Collateral Account shall be invested and
reinvested as provided in this Agreement. At no time prior to termination of the
Pledge with respect to any particular property shall such property be released
from the Collateral Account except in accordance with this Agreement or upon
written instructions of the Collateral Agent.
Section 4.07 Statements and Confirmations. The Securities Intermediary
will promptly send copies of all statements, confirmations and other
correspondence concerning the Collateral
8
Account and any financial assets credited thereto simultaneously to each of the
Purchase Contract Agent and the Collateral Agent at their addresses for notices
under this Agreement.
Section 4.08 Tax Allocations. The Purchase Contract Agent shall report all
items of income, gain, expense and loss recognized in the Collateral Account, to
the extent such reporting is required by law, to the Internal Revenue Service
authorities in the manner required by law. Neither the Securities Intermediary
nor the Collateral Agent shall have any tax reporting duties hereunder.
Section 4.09 No Other Agreements. The Securities Intermediary has not
entered into, and prior to the termination of the Pledge will not enter into,
any agreement with any other Person relating to the Collateral Account or any
financial assets credited thereto, including, without limitation, any agreement
to comply with entitlement orders of any Person other than the Collateral Agent.
Section 4.10 Powers Coupled with an Interest. The rights and powers
granted in this Article 4 to the Collateral Agent have been granted in order to
perfect its security interests in the Collateral Account, are powers coupled
with an interest and will be affected neither by the bankruptcy of the Purchase
Contract Agent or any Holder nor by the lapse of time. The obligations of the
Securities Intermediary under this Article 4 shall continue in effect until the
termination of the Pledge with respect to any and all Collateral.
Section 4.11 Waiver of Lien; Waiver of Set-off. The Securities
Intermediary waives any security interest, lien or right to make deductions or
set- offs that it may now have or hereafter acquire in or with respect to the
Collateral Account, any financial asset credited thereto or any security
entitlement in respect thereof. Neither the financial assets credited to the
Collateral Account nor the security entitlements in respect thereof will be
subject to deduction, set-off, banker's lien or any other right in favor of any
person other than the Company.
ARTICLE 5
Initial Deposit; Creation Of Treasury Units And Recreation Of
Corporate Units
Section 5.01 Initial Deposit of Senior Notes.
(a) Prior to or concurrently with the execution and delivery of this
Agreement, the Purchase Contract Agent, on behalf of the initial Holders of the
Corporate Units, shall Transfer to the Securities Intermediary, for credit to
the Collateral Account, the Senior Notes or security entitlements relating
thereto, and, in the case of security entitlements, the Securities Intermediary
shall indicate by book-entry that a securities entitlement to such Senior Notes
has been credited to the Collateral Account.
(b) The Collateral Agent may, at any time or from time to time, in its
sole discretion, cause any or all securities or other property underlying any
financial assets credited to the Collateral Account to be registered in the name
of the Securities Intermediary, the Collateral Agent or their respective
nominees; provided, however, that unless any Event of Default (as
9
defined in the Indenture) shall have occurred and be continuing, the Collateral
Agent agrees not to cause any Senior Notes to be so re-registered.
Section 5.02 Creation of Treasury Units.
(a) Unless the Treasury Portfolio has replaced the Senior Notes as a
component of the Corporate Units, a Holder of Corporate Units shall have the
right, at any time on or prior to 5:00 p.m. (New York City time) on the fifth
Business Day immediately preceding the Purchase Contract Settlement Date, to
create Treasury Units by substitution of Treasury Securities or security
entitlements with respect thereto for the Pledged Senior Notes comprising a part
of all or a portion of such Holder's Corporate Units, in integral multiples of
40 Corporate Units by:
(i) transferring to the Purchase Contract Agent, for credit to the
Collateral Account, Treasury Securities or security entitlements with
respect thereto having a Value equal to the aggregate principal amount of
the Pledged Senior Notes to be released, accompanied by a notice,
substantially in the form of Exhibit C to the Purchase Contract Agreement,
whereupon the Purchase Contract Agent shall deliver to the Collateral
Agent a notice, substantially in the form of Exhibit A hereto, (A) stating
that such Holder has notified the Purchase Contract Agent that such Holder
has Transferred Treasury Securities or security entitlements with respect
thereto to the Collateral Agent for credit to the Collateral Account, (B)
stating the Value of the Treasury Securities or security entitlements with
respect thereto Transferred by such Holder and (C) requesting that the
Collateral Agent release from the Pledge the Pledged Senior Notes that are
a component of such Corporate Units; and
(ii) delivering the related Corporate Units to the Purchase Contract
Agent.
Upon receipt of such notice and confirmation that Treasury Securities or
security entitlements with respect thereto have been credited to the Collateral
Account as described in such notice, the Collateral Agent shall instruct the
Securities Intermediary by a notice, substantially in the form of Exhibit B
hereto, to release such Pledged Senior Notes from the Pledge by Transfer to the
Purchase Contract Agent for distribution to such Holder, free and clear of the
Pledge created hereby.
If the Treasury Portfolio has replaced the Senior Notes as a component of
the Corporate Units and subject to the conditions of the Purchase Contract
Agreement, a Holder of Corporate Units may, at any time on or prior to the
second Business Day immediately preceding the Purchase Contract Settlement Date,
substitute Treasury Securities for the Applicable Ownership Interests in the
Treasury Portfolio with respect to such Corporate Units, but only in multiples
of [ ] Corporate Units. In such an event, the Holder shall transfer the required
amount of Treasury Securities to the Securities Intermediary, for credit to the
Collateral Account, and the Purchase Contract Agent shall request the Collateral
Agent to instruct the Securities Intermediary to release the Pledge of and
transfer to the Holder the appropriate Applicable Ownership Interests in the
Treasury Portfolio in the manner set forth above.
(b) Upon credit to the Collateral Account of Treasury Securities or
security entitlements with respect thereto delivered by a Holder of Corporate
Units and receipt of the
10
related instruction from the Collateral Agent, the Securities Intermediary shall
release such Pledged Senior Notes or Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, from the Pledge and shall promptly
Transfer the same to the Purchase Contract Agent for distribution to such
Holder, free and clear of the Pledge created hereby.
Section 5.03 Recreation of Corporate Units.
(a) Unless the Treasury Portfolio has replaced the Senior Notes as a
component of the Corporate Units, at any time on or prior to 5:00 p.m. (New York
City time) on the fifth Business Day immediately preceding the Purchase Contract
Settlement Date, a Holder of Treasury Units shall have the right to recreate
Corporate Units by substitution of Senior Notes or security entitlements with
respect thereto for Pledged Treasury Securities in integral multiples of 40
Treasury Units by:
(i) transferring to the Securities Intermediary, for credit to the
Collateral Account, Senior Notes or security entitlements with respect
thereto having a principal amount equal to the Value of the Pledged
Treasury Securities to be released, accompanied by a notice, substantially
in the form of Exhibit C to the Purchase Contract Agreement, whereupon the
Purchase Contract Agent shall deliver to the Collateral Agent a notice,
substantially in the form of Exhibit C hereto, stating that such Holder
has Transferred the Senior Notes or security entitlements with respect
thereto to the Collateral Account for credit to the Collateral Account and
requesting that the Collateral Agent release from the Pledge the Pledged
Treasury Securities related to such Treasury Units; and
(ii) delivering the related Treasury Units to the Purchase Contract
Agent.
Upon receipt of such notice and confirmation that Senior Notes or security
entitlements with respect thereto have been credited to the Collateral Account
as described in such notice, the Collateral Agent shall instruct the Securities
Intermediary by a notice substantially in the form of Exhibit D hereto to
release such Pledged Treasury Securities from the Pledge by Transfer to the
Purchase Contract Agent for distribution to such Holder, free and clear of the
Pledge created hereby.
If the Treasury Portfolio has replaced the Senior Notes as a component of
the Corporate Units, a Holder of Treasury Units may, at any time on or prior to
the second Business Day immediately preceding the Purchase Contract Settlement
Date, substitute the Applicable Ownership Interests in the Treasury Portfolio
for the Pledged Treasury Securities with respect to such Treasury Units, but
only in multiples of [ ] Treasury Units. In such an event, the Holder shall
Transfer the required Applicable Ownership Interests in the Treasury Portfolio
to the Securities Intermediary, for credit to the Collateral Account, and the
Purchase Contract Agent shall request the Collateral Agent to instruct the
Securities Intermediary to release and Transfer to the Holder the Pledged
Treasury Securities in the manner set forth above.
(b) Upon credit to the Collateral Account of Senior Notes or security
entitlements with respect thereto or Applicable Ownership Interests in the
Treasury Portfolio delivered by a Holder of Treasury Units and receipt of the
related instruction from the Collateral Agent, the
11
Securities Intermediary shall release such Pledged Treasury Securities from the
Pledge and shall promptly Transfer the same to the Purchase Contract Agent for
distribution to such Holder, free and clear of the Pledge created hereby.
Section 5.04 Termination Event.
(a) Upon receipt by the Collateral Agent of written notice from the
Company or the Purchase Contract Agent that a Termination Event has occurred,
the Collateral Agent shall release all Collateral from the Pledge and shall
promptly instruct the Securities Intermediary to Transfer:
(i) any Pledged Senior Notes or security entitlements with respect
thereto or Pledged Applicable Ownership Interests;
(ii) any Pledged Treasury Securities; and
(iii) any payments by Holders (or the Permitted Investments of such
payments) pursuant to Section 5.05 hereof,
to the Purchase Contract Agent for the benefit of the Holders for distribution
to such Holders, in accordance with their respective interests, free and clear
of the Pledge created hereby; provided, however, if any Holder shall be entitled
to receive less than $1,000 with respect to its interest in the Applicable
Ownership Interests (as specified in clause (i) of the definition of such term)
in the Treasury Portfolio, the Purchase Contract Agent shall dispose of such
interest for cash and deliver to such Holder cash in lieu of delivering the
Applicable Ownership Interests (as specified in clause (i) of the definition of
such term) in the Treasury Portfolio.
(b) If such Termination Event shall result from the Company's becoming a
debtor under the Bankruptcy Code, and if the Collateral Agent shall for any
reason fail promptly to effectuate the release and Transfer of all Pledged
Senior Notes, Pledged Applicable Ownership Interests, Pledged Treasury
Securities and payments by Holders (or the Permitted Investments of such
payments) pursuant to Section 5.05 and Proceeds of any of the foregoing, as the
case may be, as provided by this Section 5.04, the Purchase Contract Agent
shall:
(i) use its best efforts to obtain an opinion of a nationally
recognized law firm to the effect that, notwithstanding the Company being
the debtor in such a bankruptcy case, the Collateral Agent will not be
prohibited from releasing or Transferring the Collateral as provided in
this Section 5.04 and shall deliver or cause to be delivered such opinion
to the Collateral Agent within ten days after the occurrence of such
Termination Event, and if (A) the Purchase Contract Agent shall be unable
to obtain such opinion within ten days after the occurrence of such
Termination Event or (B) the Collateral Agent shall continue, after
delivery of such opinion, to refuse to effectuate the release and Transfer
of all Pledged Senior Notes, Pledged Applicable Ownership Interests,
Pledged Treasury Securities and the payments by Holders (or the Permitted
Investments of such payments) pursuant to Section 5.05 hereof and Proceeds
of any of the foregoing, as the case may be, as provided in this Section
5.04, then the Purchase Contract Agent shall within fifteen days after the
occurrence of such Termination Event commence an action or proceeding in
the court having jurisdiction of the Company's case under the
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Bankruptcy Code seeking an order requiring the Collateral Agent to
effectuate the release and transfer of all Pledged Senior Notes, Pledged
Applicable Ownership Interests, Pledged Treasury Securities and the
payments by Holders (or the Permitted Investments of such payments)
pursuant to Section 5.05 hereof and Proceeds of any of the foregoing, or
as the case may be, as provided by this Section 5.04; or
(ii) commence an action or proceeding like that described in Section
5.04(b)(i) hereof within ten days after the occurrence of such Termination
Event.
Section 5.05 Cash Settlement.
(a) Upon receipt by the Collateral Agent of (1) a notice from the Purchase
Contract Agent promptly after the receipt by the Purchase Contract Agent of a
notice from a Holder of Corporate Units or Treasury Units that such Holder has
elected, in accordance with the procedures specified in Section 5.02(b)(i) of
the Purchase Contract Agreement, to effect a Cash Settlement and (2) payment by
such Holder by deposit in the Collateral Account on or prior to 5:00 p.m. (New
York City time) on the fourth Business Day immediately preceding the Purchase
Contract Settlement Date of the Purchase Price in lawful money of the United
States by certified or cashier's check or wire transfer of immediately available
funds payable to or upon the order of the Securities Intermediary, then the
Collateral Agent shall:
(i) instruct the Securities Intermediary promptly to invest any such
Cash in Permitted Investments;
(ii) instruct the Securities Intermediary to release from the Pledge
such Holder's related Pledged Senior Notes or Pledged Applicable Ownership
Interests, as applicable, as to which such Holder has effected a Cash
Settlement pursuant to this Section 5.05(a); and
(iii) instruct the Securities Intermediary to Transfer all such
Pledged Senior Notes, Pledged Applicable Ownership Interests or the
Pledged Treasury Securities, as the case may be, to the Purchase Contract
Agent for distribution to such Holder, in each case free and clear of the
Pledge created hereby.
The Company shall instruct the Collateral Agent in writing as to the type
of Permitted Investments in which any such Cash shall be invested; provided,
however, that if the Company fails to deliver such written instructions by 10:30
a.m. (New York City time) on the day such Cash is received by the Collateral
Agent or to be reinvested by the Securities Intermediary, the Collateral Agent
shall instruct the Securities Intermediary to invest such Cash in the Permitted
Investments described in clause (6) of the definition of Permitted Investments.
In no event shall the Collateral Agent or Securities Intermediary be liable for
the selection of Permitted Investments or for investment losses incurred
thereon. The Collateral Agent and Securities Intermediary shall have no
liability with respect to losses incurred as a result of the failure of the
Company to provide timely written investment direction.
Upon receipt of Proceeds upon the maturity of the Permitted Investments on
the Purchase Contract Settlement Date, the Collateral Agent shall (A) instruct
the Securities Intermediary to pay the portion of such Proceeds and deliver any
certified or cashier's checks received, in an
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aggregate amount equal to the Purchase Price, to the Company on the Purchase
Contract Settlement Date, and (B) release any amounts in excess of the Purchase
Price earned from such Permitted Investments to the Purchase Contract Agent for
distribution to such Holder in accordance with the Purchase Contract Agreement.
(b) If a Holder of Corporate Units (unless the Treasury Portfolio has
replaced the Senior Notes as a component of such Corporate Units) (i) fails to
notify the Purchase Contract Agent of its intention to make a Cash Settlement as
provided in Section 5.02(b)(i) of the Purchase Contract Agreement or (ii) does
notify the Purchase Contract Agent of its intention to pay the Purchase Price in
cash, but fails to make such payment as required by Section 5.02(b)(ii) of the
Purchase Contract Agreement, such Holder shall be deemed to have consented to
the disposition of such Holder's Pledged Senior Notes in accordance with Section
5.02(b)(iii) of the Purchase Contract Agreement.
(c) As soon as practicable after 5:00 p.m. (New York City time) on the
fourth Business Day immediately preceding the Purchase Contract Settlement Date,
the Collateral Agent shall deliver to the Purchase Contract Agent a notice,
substantially in the form of Exhibit E hereto, stating (i) the amount of Cash
that it has received with respect to the Cash Settlement of Corporate Units,
(ii) the amount of Cash that it has received with respect to the Cash Settlement
of Treasury Units and (iii) the amount of Pledged Senior Notes to be remarketed
in the Final Remarketing pursuant to Section 5.02(c) of the Purchase Contract
Agreement.
(d) If there has been a Failed Final Remarketing, as soon as practicable
after 5:00 p.m. (New York City time) on the Business Day immediately preceding
the Purchase Contract Settlement Date, the Collateral Agent shall deliver to the
Purchase Contract Agent a notice, stating (i) the amount of Cash that it has
received with respect to the Cash Settlement of Corporate Units, (ii) the amount
of Cash that it has received with respect to the Cash Settlement of Treasury
Units and (iii) the amount of Pledged Senior Notes with respect to which an
automatic deemed exercise of the Put Right has occurred pursuant to Section
5.02(c) of the Purchase Contract Agreement.
Section 5.06 Early Settlement and Cash Merger Early Settlement. Upon
receipt by the Collateral Agent of a notice from the Purchase Contract Agent
that a Holder of Units has elected to effect either (i) Early Settlement of its
obligations under the Purchase Contracts forming a part of such Units in
accordance with the terms of the Purchase Contracts and Section 5.07 of the
Purchase Contract Agreement or (ii) Cash Merger Early Settlement of its
obligations under the Purchase Contracts forming a part of such Units in
accordance with the terms of the Purchase Contracts and Section 5.04(b)(ii) of
the Purchase Contract Agreement (which notice shall set forth the number of such
Purchase Contracts as to which such Holder has elected to effect Early
Settlement or Cash Merger Early Settlement), and that the Purchase Contract
Agent has received from such Holder, and paid to the Company as confirmed in
writing by the Company, the related Purchase Price pursuant to the terms of the
Purchase Contracts and the Purchase Contract Agreement and that all conditions
to such Early Settlement or Cash Merger Early Settlement, as the case may be,
have been satisfied, then the Collateral Agent shall release from the Pledge,
(1) Pledged Senior Notes or the Pledged Applicable Ownership Interests in the
case of a Holder of Corporate Units or (2) Pledged Treasury Securities, in the
case of a Holder of Treasury Units, in each case with a Value equal to the
product of (x) the Stated Amount times (y) the number of
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Purchase Contracts as to which such Holder has elected to effect Early
Settlement or Cash Merger Early Settlement, and shall instruct the Securities
Intermediary to Transfer all such Pledged Applicable Ownership Interests or
Pledged Senior Notes or Pledged Treasury Securities, as the case may be, to the
Purchase Contract Agent for distribution to such Holder, in each case free and
clear of the Pledge created hereby. A holder of Treasury Units may settle early
only in integral multiples of 40 Treasury Units, and a Holder of Corporate
Units, if the Treasury Portfolio has replaced the Senior Notes as a component of
such Corporate Units, may settle early only in integral multiples of [ ]
Corporate Units.
Section 5.07 Application of Proceeds in Settlement of Purchase Contracts.
(a) If a Holder of Corporate Units (unless the Treasury Portfolio has
replaced the Senior Notes as a component of such Corporate Units) has not
elected to make an effective Cash Settlement by notifying the Purchase Contract
Agent in the manner provided for in Section 5.02(b)(i) of the Purchase Contract
Agreement or does notify the Purchase Contract Agent as provided in paragraph
5.02(b)(i) of the Purchase Contract Agreement of its intention to pay the
Purchase Price in cash, but fails to make such payment as required by paragraph
5.02(b)(ii) of the Purchase Contract Agreement, such Holder shall be deemed to
have elected to pay for the shares of Common Stock to be issued under such
Purchase Contracts from the Proceeds of the Final Remarketing of the related
Pledged Senior Notes. In the event of a Successful Final Remarketing, the
Collateral Agent shall instruct the Securities Intermediary to Transfer the
related Pledged Senior Notes to the Remarketing Agent, upon confirmation of
deposit by the Remarketing Agent of the Proceeds of such Final Remarketing
(less, to the extent permitted by the Remarketing Agreement, the Remarketing
Fee) in the Collateral Account. The Collateral Agent shall instruct the
Securities Intermediary to invest the Proceeds of the Final Remarketing in
Permitted Investments set forth in clause (6) of the definition of Permitted
Investments. On the Purchase Contract Settlement Date, the Collateral Agent
shall, in consultation with the Purchase Contract Agent, instruct the Securities
Intermediary to remit a portion of the Proceeds from such Final Remarketing
equal to the aggregate principal amount of such Pledged Senior Notes to satisfy
in full such Holder's obligations to pay the Purchase Price to purchase the
shares of Common Stock under the related Purchase Contracts and to remit the
balance of the Proceeds from the Final Remarketing, if any, to the Purchase
Contract Agent for distribution to such Holder.
Upon a Failed Final Remarketing, each Holder of Corporate Units (unless
the Treasury Portfolio has replaced the Senior Notes represented by such
Corporate Units) that has not elected to make an effective Cash Settlement by
notifying the Purchase Contract Agent in the manner provided for in Section
5.02(e)(i) of the Purchase Contract Agreement or does notify the Purchase
Contract Agent as provided in paragraph 5.02(e)(i) of the Purchase Contract
Agreement of its intention to pay the Purchase Price in cash, but fails to make
such payment as required by paragraph 5.02(e)(ii) of the Purchase Contract
Agreement, shall be deemed to have exercised such Holder's Put Right with
respect to the Senior Notes that are a component of Corporate Units have elected
to have a portion of the Proceeds of the Put Right set-off against such Holder's
obligation to pay the aggregate Price for the shares of Common Stock to be
issued under the Purchase Contracts underlying such Corporate Units in full
satisfaction of such Holders' obligations under the Purchase Contracts.
Following such set-off, the Holder's obligations to pay the Purchase Price for
the shares of Common Stock will be deemed to be
15
satisfied in full, and the Collateral Agent shall cause the Securities
Intermediary to release the Pledged Senior Notes from the Collateral Account and
shall promptly transfer the Pledged Senior Notes to the Company. Thereafter, the
Collateral Agent shall promptly remit the remaining Proceeds of the Holder's
exercise of the Put Right in excess of the aggregate Purchase Price for the
shares of Common Stock to be issued under such Purchase Contracts to the
Purchase Contract Agent for payment to the Holder of the Corporate Units to
which such Senior Notes relate.
(b) A Holder of a Treasury Unit or a Corporate Unit (if the Treasury
Portfolio has replaced the Senior Notes as a component of such Corporate Unit)
shall be deemed to have elected to pay for the shares of Common Stock to be
issued under such Purchase Contracts from the Proceeds of the related Pledged
Treasury Securities or Pledged Applicable Ownership Interests, as the case may
be. Promptly, after 11:00 a.m. (New York City time) on the Business Day
immediately prior to the Purchase Contract Settlement Date, the Collateral Agent
shall invest the Proceeds in the Permitted Investments set forth in Clause (6)
of the definition of Permitted Investments, unless prior to 10:30 a.m. on such
date the Company shall otherwise instruct the Collateral Agent in writing as to
the type of Permitted Investments in which any Proceeds shall be invested. In no
event shall the Collateral Agent be liable for the selection of Permitted
Investments or for investment losses incurred thereon. The Collateral Agent
shall have no liability in respect of losses incurred as a result of the failure
of the Company to provide timely written investment direction. Without receiving
any instruction from any Holder, the Collateral Agent shall instruct the
Securities Intermediary to remit the Proceeds of the related Pledged Treasury
Securities or Pledged Applicable Ownership Interests, as the case may be, to the
Company in settlement of such Purchase Contracts on the Purchase Contract
Settlement Date. In the event the sum of the Proceeds from the related Pledged
Treasury Securities or Pledged Applicable Ownership Interests, as the case may
be, and the investment earnings from the investment in Permitted Investments
exceeds the aggregate Purchase Price of the Purchase Contracts being settled
thereby, the Collateral Agent shall instruct the Securities Intermediary to
transfer such excess, when received, to the Purchase Contract Agent for
distribution to Holders.
(c) On or prior to 5:00 p.m. (New York City time) on the fifth Business
Day immediately preceding the applicable Remarketing Date, but no earlier than
the Payment Date immediately preceding such date, Holders of Separate Senior
Notes may elect to have their Separate Senior Notes remarketed under the
Remarketing Agreement, by delivering their Separate Senior Notes along with a
notice of such election, substantially in the form of Exhibit F hereto, to the
Collateral Agent. The Collateral Agent, acting as Custodial Agent, shall hold
Separate Senior Notes in an account separate from the Collateral Account in
which the Pledged Securities shall be held. Holders of Separate Senior Notes
electing to have their Separate Senior Notes remarketed will also have the right
to withdraw that election by written notice to the Collateral Agent,
substantially in the form of Exhibit G hereto, on or prior to 5:00 p.m. (New
York City time) on the fifth Business Day immediately preceding the applicable
Remarketing Date, upon which notice the Custodial Agent shall return such
Separate Senior Notes to such Holder. After such time, such election shall
become an irrevocable election to have such Separate Senior Notes remarketed in
such Remarketing.
By 11:00 a.m. (New York City time) on the Business Day immediately
preceding the applicable Remarketing Date, the Custodial Agent shall notify the
Remarketing Agent of the
16
aggregate principal amount of the Separate Senior Notes to be remarketed and
deliver to the Remarketing Agent for remarketing all Separate Senior Notes
delivered to the Custodial Agent pursuant to this Section 5.07(c) and not
validly withdrawn prior to such date. In the event of a Successful Remarketing,
after deducting the Remarketing Fee, the Remarketing Agent will remit to the
Custodial Agent the remaining portion of the proceeds of such Remarketing for
payment to the Holders of the remarketed Separate Senior Notes, in accordance
with their respective interests. In the event of a Failed Remarketing, the
Remarketing Agent will promptly return such Separate Senior Notes to the
Custodial Agent for distribution to the appropriate Holders.
Section 5.08 Special Event Redemption. If the Collateral Agent receives
written notice that a Special Event Redemption has occurred while Senior Notes
are still credited to the Collateral Account, the Collateral Agent shall apply
the Redemption Amount to purchase the Treasury Portfolio, and the Collateral
Agent shall credit the Applicable Ownership Interests (as specified in clause
(i) of the definition of such term) in the Treasury Portfolio to the Collateral
Account and shall transfer the Applicable Ownership Interests (as specified in
clause (ii) of the definition of such term) in the Treasury Portfolio to the
Purchase Contract Agent for distribution to the Holders of the Corporate Units.
Upon credit to the Collateral Account of the Applicable Ownership Interests (as
specified in clause (i) of the definition of such term) in the Treasury
Portfolio having a Value equal to the aggregate principal amount of the Pledged
Senior Notes, the Collateral Agent shall cause the Securities Intermediary to
release the Pledged Senior Notes from the Collateral Account and shall promptly
transfer the Pledged Senior Notes to the Company.
ARTICLE 6
Voting Rights -- Pledged Senior Notes
Section 6.01 Voting Rights. Subject to the terms of Section 4.02 of the
Purchase Contract Agreement, the Purchase Contract Agent may exercise, or
refrain from exercising, any and all voting and other consensual rights
pertaining to the Pledged Senior Notes or any part thereof for any purpose not
inconsistent with the terms of this Agreement and in accordance with the terms
of the Purchase Contract Agreement; provided, that the Purchase Contract Agent
shall not exercise or shall not refrain from exercising such right, as the case
may be, if, in the reasonable judgment of the Purchase Contract Agent, such
action would impair or otherwise have a material adverse effect on the value of
all or any of the Pledged Senior Notes; and provided, further, that the Purchase
Contract Agent shall give the Company and the Collateral Agent at least five
Business Days' prior written notice of the manner in which it intends to
exercise, or its reasons for refraining from exercising, any such right. Upon
receipt of any notices and other communications in respect of any Pledged Senior
Notes, including notice of any meeting at which holders of the Senior Notes are
entitled to vote or solicitation of consents, waivers or proxies of holders of
the Senior Notes, the Collateral Agent shall use reasonable efforts to send
promptly to the Purchase Contract Agent such notice or communication, and as
soon as reasonably practicable after receipt of a written request therefor from
the Purchase Contract Agent, execute and deliver to the Purchase Contract Agent
such proxies and other instruments in respect of such Pledged Senior Notes (in
form and substance satisfactory to the
17
Collateral Agent) as are prepared by the Company and delivered to the Purchase
Contract Agent with respect to the Pledged Senior Notes.
ARTICLE 7
Rights and Remedies
Section 7.01 Rights and Remedies of the Collateral Agent.
(a) In addition to the rights and remedies specified in Section 5.07
hereof or otherwise available at law or in equity, after an event of default (as
specified in Section 7.01(b) below) hereunder, the Collateral Agent shall have
all of the rights and remedies with respect to the Collateral of a secured party
under the UCC (whether or not the UCC is in effect in the jurisdiction where the
rights and remedies are asserted) and the TRADES Regulations and such additional
rights and remedies to which a secured party is entitled under the laws in
effect in any jurisdiction where any rights and remedies hereunder may be
asserted. Without limiting the generality of the foregoing, such remedies may
include, to the extent permitted by applicable law, (1) retention of the Pledged
Senior Notes, Pledged Treasury Securities or the applicable Pledged Applicable
Ownership Interests in full satisfaction of the Holders' obligations under the
Purchase Contracts and the Purchase Contract Agreement or (2) sale of the
Pledged Senior Notes, Pledged Treasury Securities or the applicable Pledged
Applicable Ownership Interests in one or more public or private sales.
(b) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, in the event the Collateral Agent is unable
to make payments to the Company on account of the applicable Pledged Applicable
Ownership Interests, or on account of principal payments of any Pledged Treasury
Securities as provided in Article 3 hereof, in satisfaction of the Obligations
of the Holder of the Units of which such applicable Pledged Applicable Ownership
Interests or such Pledged Treasury Securities, as applicable, are a part under
the related Purchase Contracts, the inability to make such payments shall
constitute an event of default hereunder and the Collateral Agent shall have and
may exercise, with reference to such Pledged Treasury Securities or Pledged
Applicable Ownership Interests, as applicable, any and all of the rights and
remedies available to a secured party under the UCC and the TRADES Regulations
after default by a debtor, and as otherwise granted herein or under any other
law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
authorized to receive and collect all payments of (i) the principal amount of
the Pledged Senior Notes, (ii) the principal amount of the Pledged Treasury
Securities and (iii) the principal amount of the Pledged Applicable Ownership
Interests, subject, in each case, to the provisions of Article 3 hereof, and as
otherwise granted herein.
(d) The Purchase Contract Agent and each Holder of Units agrees that, from
time to time, upon the written request of the Collateral Agent or the Purchase
Contract Agent, such Holder shall execute and deliver such further documents and
do such other acts and things as the Collateral Agent may reasonably request in
order to maintain the Pledge, and the perfection and priority thereof, and to
confirm the rights of the Collateral Agent hereunder. The Purchase
18
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 acts, its own negligent failure to act or its
own willful misconduct.
Section 7.02 Special Event Redemption. Upon the occurrence of a Special
Event Redemption while Senior Notes are still credited to the Collateral
Account, the Collateral Agent is hereby authorized to present the Pledged Senior
Notes for payment as may be required by their respective terms and to direct the
Indenture Trustee to remit the Redemption Price to the Securities Intermediary
for credit to the Collateral Account on or prior to 12:30 p.m., New York City
time on such Special Event Redemption Date, by federal funds check or wire
transfer of immediately available funds. Upon receipt of such funds, the Pledged
Senior Notes shall be released from the Collateral Account and promptly
transferred to the Company. Upon the crediting of such funds to the Collateral
Account, the Collateral Agent, at the written direction of the Company, shall
instruct the Securities Intermediary to (a) apply an amount of such funds equal
to the Redemption Amount to purchase the Treasury Portfolio from the Quotation
Agent, (b) credit to the Collateral Account the Applicable Ownership Interests
(specified in clause (i) of the definition of such term) in the Treasury
Portfolio and (c) promptly remit the remaining portion of such funds, if any, to
the Purchase Contract Agent for payment to the Holders of Corporate Units, in
accordance with their respective interests and the Purchase Contract Agreement.
Section 7.03 Initial Remarketing. Unless a Special Event Redemptions has
occurred prior to the Initial Remarketing Date, the Collateral Agent shall, by
11:00 a.m., New York City time, on the Business Day immediately preceding the
Initial Remarketing Date, without any instruction from any Holder of Corporate
Units, present the related Pledged Senior Notes to the Remarketing Agent for
Initial Remarketing. In the event of a Failed Initial Remarketing, the Senior
Notes presented to the Remarketing Agent pursuant to this Section 7.03 for
Remarketing shall be redeposited into the Collateral Account.
Section 7.04 Final Remarketing. Unless a Special Event Redemption has
occurred prior to the Final Remarketing Date, if a Failed Initial Remarketing
has occurred, the Collateral Agent shall, by 11:00 a.m., New York City time, on
the Business Day immediately preceding the Final Remarketing Date, without any
instruction from any Holder of Corporate Units, present the related Pledged
Senior Notes to the Remarketing Agent for Final Remarketing. In the event of a
Failed Final Remarketing, the Senior Notes presented to the Remarketing Agent
pursuant to this Section 7.04 for Remarketing shall be redeposited into the
Collateral Account.
Section 7.05 Successful Initial Remarketing. In the event of a Successful
Initial Remarketing prior to the Final Remarketing Date, the Collateral Agent
shall, at the direction of the Company, instruct the Securities Intermediary to
(i) Transfer the Pledged Senior Notes to the Remarketing Agent upon confirmation
of deposit by the Remarketing Agent of the Proceeds of such Successful Initial
Remarketing (after deducting any Remarketing Fee in accordance with the
Remarketing Agreement) in the Collateral Account, (ii) apply an amount equal to
the Treasury Portfolio Purchase Price to purchase from the Quotation Agent the
Treasury Portfolio, (iii) credit the Applicable Ownership Interests (specified
in clause (i) of the definition of such term) in the Treasury Portfolio to the
Collateral Account, and (iv) promptly remit the remaining portion of such
Proceeds to the Purchase Contract Agent for payment to the Holders of
19
Corporate Units, in accordance with their respective interests and the Purchase
Contract Agreement. With respect to Separate Senior Notes, any Proceeds of such
Initial Remarketing (after deducting any Remarketing Fee in accordance with the
Remarketing Agreement) attributable to the Separate Senior Notes will be
remitted to the Custodial Agent for payment to the holders of Separate Senior
Notes. The Pledged Applicable Ownership Interests thus credited to the
Collateral Account will secure the obligation of all Holders of Corporate Units
to purchase Common Stock of the Company under the Purchase Contracts
constituting a part of such Corporate Units, in substitution for the Pledged
Senior Notes, which shall be released from the Collateral Account. In the event
of a Failed Final Remarketing, the Pledged Senior Notes shall remain credited to
the Collateral Account and Section 5.07 shall apply.
Section 7.06 Substitutions. Whenever a Holder has the right to substitute
Treasury Securities, Senior Notes or security entitlements for any of them or
the appropriate Applicable Ownership Interest (as defined in clause (i) of the
definition of such term) in the Treasury Portfolio, as the case may be, for
financial assets held in the Collateral Account, such substitution shall not
constitute a novation of the security interest created hereby.
ARTICLE 8
Representations and Warranties; Covenants
Section 8.01 Representations and Warranties. Each Holder from time to
time, acting through the Purchase Contract Agent as attorney-in-fact (it being
understood that the Purchase Contract Agent shall not be liable for any
representation or warranty made by or on behalf of a Holder), hereby represents
and warrants to the Collateral Agent (with respect to such Holder's interest in
the Collateral), which representations and warranties shall be deemed repeated
on each day a Holder Transfers Collateral, that:
(a) such Holder has the power to grant a security interest in and
lien on the Collateral;
(b) such Holder is the sole beneficial owner of the Collateral and,
in the case of Collateral delivered in physical form, is the sole holder
of such Collateral and is the sole beneficial owner of, or has the right
to Transfer, the Collateral it Transfers to the Collateral Agent for
credit to the Collateral Account, free and clear of any security interest,
lien, encumbrance, call, liability to pay money or other restriction other
than the security interest and lien granted under Article 2 hereof;
(c) upon the Transfer of the Collateral to the Collateral Agent for
credit to the Collateral Account, the Collateral Agent, for the benefit of
the Company, will have a valid and perfected first priority security
interest therein (assuming that any central clearing operation or any
securities intermediary or other entity not within the control of the
Holder involved in the Transfer of the Collateral, including the
Collateral Agent and the Securities Intermediary, gives the notices and
takes the action required of it hereunder and under applicable law for
perfection of that interest and assuming the establishment and exercise of
control pursuant to Article 4 hereof); and
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(d) the execution and performance by the Holder of its
obligations under this Agreement will not result in the creation of any
security interest, lien or other encumbrance on the Collateral other
than the security interest and lien granted under Article 2 hereof or
violate any provision of any existing law or regulation applicable to
it or of any mortgage, charge, pledge, indenture, contract or
undertaking to which it is a party or which is binding on it or any of
its assets.
Section 8.02 Covenants. The Holders from time to time, acting through
the Purchase Contract Agent as their attorney-in-fact (it being understood that
the Purchase Contract Agent shall not be liable for any covenant made by or on
behalf of a Holder), hereby covenant to the Collateral Agent that for so long as
the Collateral remains subject to the Pledge:
(a) neither the Purchase Contract Agent nor such Holders will
create or purport to create or allow to subsist any mortgage, charge,
lien, pledge or any other security interest whatsoever over the
Collateral or any part of it other than pursuant to this Agreement; and
(b) neither the Purchase Contract Agent nor such Holders will
sell or otherwise dispose (or attempt to dispose) of the Collateral or
any part of it except for the beneficial interest therein, subject to
the Pledge hereunder, transferred in connection with the Transfer of
the Units.
ARTICLE 9
THE COLLATERAL AGENT, THE CUSTODIAL AGENT AND THE SECURITIES
INTERMEDIARY
It is hereby agreed as follows:
Section 9.01 Appointment, Powers and Immunities. The Collateral Agent,
the Custodial Agent or the Securities Intermediary shall act as agent for the
Company hereunder with such powers as are specifically vested in the Collateral
Agent, the Custodial Agent or the Securities Intermediary, as the case may be,
by the terms of this Agreement. The Collateral Agent, the Custodial Agent and
Securities Intermediary shall:
(a) have no duties or responsibilities except those expressly
set forth in this Agreement and no implied covenants or obligations
shall be inferred from this Agreement against the Collateral Agent, the
Custodial Agent and the Securities Intermediary, nor shall the
Collateral Agent, the Custodial Agent and the Securities Intermediary
be bound by the provisions of any agreement by any party hereto beyond
the specific terms hereof;
(b) not be responsible for any recitals contained in this
Agreement, or in any certificate or other document referred to or
provided for in, or received by it under, this Agreement, the Units or
the Purchase Contract Agreement, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement (other than as against the Collateral Agent, the Custodial
Agent or the Securities Intermediary, as the
21
case may be), the Units, any Collateral or the Purchase Contract
Agreement or any other document referred to or provided for herein or
therein or for any failure by the Company or any other Person (except
the Collateral Agent, the Custodial Agent or the Securities
Intermediary, as the case may be) to perform any of its obligations
hereunder or thereunder or for the perfection, priority or, except as
expressly required hereby, maintenance of any security interest created
hereunder;
(c) not be required to initiate or conduct any litigation or
collection proceedings hereunder (except pursuant to directions
furnished under Section 9.02 hereof, subject to Section 9.08 hereof);
(d) not be responsible for any action taken or omitted to be
taken by it hereunder or under any other document or instrument
referred to or provided for herein or in connection herewith or
therewith, except for its own negligence or willful misconduct; and
(e) not be required to advise any party as to selling or
retaining, or taking or refraining from taking any action with respect
to, any securities or other property deposited hereunder.
Subject to the foregoing, during the term of this Agreement, the
Collateral Agent, the Custodial Agent and the Securities Intermediary shall take
all reasonable action in connection with the safekeeping and preservation of the
Collateral hereunder as determined by industry standards.
No provision of this Agreement shall require the Collateral Agent,
Custodial Agent or the Securities Intermediary to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder. In no event shall the Collateral Agent, Custodial Agent or the
Securities Intermediary be liable for any amount in excess of the Value of the
Collateral.
Section 9.02 Instructions of the Company. The Company shall have the
right, by one or more written instruments executed and delivered to the
Collateral Agent, to direct the time, method and place of conducting any
proceeding for the realization of any right or remedy available to the
Collateral Agent, or of exercising any power conferred on the Collateral Agent,
or to direct the taking or refraining from taking of any action authorized by
this Agreement; provided, however, that (i) such direction shall not conflict
with the provisions of any law or of this Agreement or involve the Collateral
Agent in personal liability and (ii) the Collateral Agent shall be indemnified
to its satisfaction as provided herein. Nothing contained in this Section 9.02
shall impair the right of the Collateral Agent in its discretion to take any
action or omit to take any action which it deems proper and which is not
inconsistent with such direction. None of the Collateral Agent, the Custodial
Agent or the Securities Intermediary has any obligation or responsibility to
file UCC financing statements.
Section 9.03 Reliance by Collateral Agent, Custodial Agent and
Securities Intermediary. Each of the Collateral Agent, the Custodial Agent and
the Securities Intermediary shall be entitled, in the absence of bad faith, to
rely conclusively upon any certification, order,
22
judgment, opinion, notice or other written communication (including, without
limitation, any thereof by e-mail or similar electronic means, telecopy, telex
or facsimile) believed by it to be genuine and correct and to have been signed
or sent by or on behalf of the proper Person or Persons (without being required
to determine the correctness of any fact stated therein) and consult with and
conclusively rely upon advice, opinions and statements of legal counsel and
other experts selected by the Collateral Agent, the Custodial Agent or the
Securities Intermediary, as the case may be. As to any matters not expressly
provided for by this Agreement, the Collateral Agent, the Custodial Agent and
the Securities Intermediary shall in all cases be fully protected in acting, or
in refraining from acting, hereunder in accordance with instructions given by
the Company in accordance with this Agreement.
Section 9.04 Certain Rights.
(a) Whenever in the administration of the provisions of this Agreement
the Collateral Agent, the Custodial Agent or the Securities Intermediary shall
deem it necessary or desirable that a matter be proved or established prior to
taking or suffering any action to be taken hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Collateral Agent, the
Custodial Agent or the Securities Intermediary, be deemed to be conclusively
proved and established by a certificate signed by one of the Company's officers,
and delivered to the Collateral Agent, the Custodial Agent or the Securities
Intermediary and such certificate, in the absence of negligence or bad faith on
the part of the Collateral Agent, the Custodial Agent or the Securities
Intermediary, shall be full warrant to the Collateral Agent, the Custodial Agent
or the Securities Intermediary for any action taken, suffered or omitted by it
under the provisions of this Agreement upon the faith thereof.
(b) The Collateral Agent, the Custodial Agent or the Securities
Intermediary shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, entitlement order, approval or other paper or
document.
Section 9.05 Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Collateral Agent, the Custodial Agent
or the Securities Intermediary may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Collateral Agent, the Custodial Agent or the
Securities Intermediary shall be a party, or any corporation succeeding to all
or substantially all of the corporate trust business of the Collateral Agent,
the Custodial Agent or the Securities Intermediary shall be the successor of the
Collateral Agent, the Custodial Agent or the Securities Intermediary hereunder
without the execution or filing of any paper with any party hereto or any
further act on the part of any of the parties hereto except where an instrument
of transfer or assignment is required by law to effect such succession, anything
herein to the contrary notwithstanding.
Section 9.06 Rights in Other Capacities. The Collateral Agent, the
Custodial Agent and the Securities Intermediary and their affiliates may
(without having to account therefor to the Company) accept deposits from, lend
money to, make their investments in and generally engage in any kind of banking,
trust or other business with the Purchase Contract Agent, any other
23
Person interested herein and any Holder of Units (and any of their respective
subsidiaries or affiliates) as if it were not acting as the Collateral Agent,
the Custodial Agent or the Securities Intermediary, as the case may be, and the
Collateral Agent, the Custodial Agent, the Securities Intermediary and their
affiliates may accept fees and other consideration from the Purchase Contract
Agent and any Holder of Units without having to account for the same to the
Company; provided that each of the Securities Intermediary, the Custodial Agent
and the Collateral Agent covenants and agrees with the Company that it shall not
accept, receive or permit there to be created in favor of itself and shall take
no affirmative action to permit there to be created in favor of any other
Person, any security interest, lien or other encumbrance of any kind in or upon
the Collateral other than the lien created by the Pledge.
Section 9.07 Non-reliance on Collateral Agent, the Custodial Agent and
Securities Intermediary. None of the Securities Intermediary, the Custodial
Agent or the Collateral Agent shall be required to keep itself informed as to
the performance or observance by the Purchase Contract Agent or any Holder of
Units of this Agreement, the Purchase Contract Agreement, the Units or any other
document referred to or provided for herein or therein or to inspect the
properties or books of the Purchase Contract Agent or any Holder of Units. None
of the Collateral Agent, the Custodial Agent or the Securities Intermediary
shall have any duty or responsibility to provide the Company with any credit or
other information concerning the affairs, financial condition or business of the
Purchase Contract Agent or any Holder of Units (or any of their respective
affiliates) that may come into the possession of the Collateral Agent, the
Custodial Agent or the Securities Intermediary or any of their respective
affiliates.
Section 9.08 Compensation and Indemnity. The Company agrees to:
(a) pay the Collateral Agent, the Custodial Agent and the
Securities Intermediary from time to time such compensation as shall be
agreed in writing between the Company and the Collateral Agent, the
Custodial Agent or the Securities Intermediary, as the case may be, for
all services rendered by them hereunder;
(b) indemnify and hold harmless the Collateral Agent, the
Custodial Agent, the Securities Intermediary and each of their
respective directors, officers, agents and employees (collectively, the
"INDEMNITEES"), from and against any and all claims, liabilities,
losses, damages, fines, penalties and expenses (including reasonable
fees and expenses of counsel) and taxes (other than those based upon,
determined by or measured by the income of the Collateral Agent, the
Custodial Agent and Securities Intermediary) (collectively, "LOSSES"
and individually, a "LOSS") that may be imposed on, incurred by, or
asserted against, the Indemnitees or any of them for following any
instructions or other directions upon which either the Collateral
Agent, the Custodial Agent or the Securities Intermediary is entitled
to rely pursuant to the terms of this Agreement, provided that the
Collateral Agent, the Custodial Agent or the Securities Intermediary
has not acted with negligence or engaged in willful misconduct or bad
faith with respect to the specific Loss against which indemnification
is sought; and
(c) in addition to and not in limitation of paragraph (b)
immediately above, indemnify and hold the Indemnitees and each of them
harmless from and against any and all Losses that may be imposed on,
incurred by or asserted against, the Indemnitees or
24
any of them in connection with or arising out of the Collateral
Agent's, the Custodial Agent's or the Securities Intermediary's
acceptance or performance of its powers and duties under this
Agreement, provided that the Collateral Agent, the Custodial Agent or
the Securities Intermediary has not acted with negligence or engaged in
willful misconduct or bad faith with respect to the specific Loss
against which indemnification is sought.
The provisions of this Section and Section 11.07 shall survive the
resignation or removal of the Collateral Agent, Custodial Agent or Securities
Intermediary and the termination of this Agreement.
Section 9.09 Failure to Act. In the event of any ambiguity in the
provisions of this Agreement or any dispute between or conflicting claims by or
among the parties hereto or any other Person with respect to any funds or
property deposited hereunder, then at its sole option, each of the Collateral
Agent, the Custodial Agent and the Securities Intermediary shall be entitled,
after prompt notice to the Company and the Purchase Contract Agent, to refuse to
comply with any and all claims, demands or instructions with respect to such
property or funds so long as such dispute or conflict shall continue, and the
Collateral Agent, the Custodial Agent and the Securities Intermediary shall not
be or become liable in any way to any of the parties hereto for its failure or
refusal to comply with such conflicting claims, demands or instructions. The
Collateral Agent, the Custodial Agent and the Securities Intermediary shall be
entitled to refuse to act until either:
(a) such conflicting or adverse claims or demands shall have
been finally determined by a court of competent jurisdiction or settled
by agreement between the conflicting parties as evidenced in a writing
satisfactory to the Collateral Agent, the Custodial Agent or the
Securities Intermediary; or
(b) the Collateral Agent, the Custodial Agent or the
Securities Intermediary shall have received security or an indemnity
satisfactory to it sufficient to save it harmless from and against any
and all loss, liability or reasonable out-of-pocket expense which it
may incur by reason of its acting.
The Collateral Agent, the Custodial Agent and the Securities
Intermediary may in addition elect to commence an interpleader action or seek
other judicial relief or orders as the Collateral Agent, the Custodial Agent or
the Securities Intermediary may deem necessary. Notwithstanding anything
contained herein to the contrary, none of the Collateral Agent, the Custodial
Agent or the Securities Intermediary shall be required to take any action that
is in its opinion contrary to law or to the terms of this Agreement, or which
would in its opinion subject it or any of its officers, employees or directors
to liability.
Section 9.10 Resignation of Collateral Agent, the Custodial Agent and
Securities Intermediary.
(a) Subject to the appointment and acceptance of a successor Collateral
Agent, Custodial Agent or Securities Intermediary as provided below:
25
(i) the Collateral Agent, the Custodial Agent and the
Securities Intermediary may resign at any time by giving notice thereof
to the Company and the Purchase Contract Agent as attorney-in-fact for
the Holders of Units;
(ii) the Collateral Agent, the Custodial Agent and the
Securities Intermediary may be removed at any time by the Company; and
(iii) if the Collateral Agent, the Custodial Agent or the
Securities Intermediary fails to perform any of its material
obligations hereunder in any material respect for a period of not less
than 20 days after receiving written notice of such failure by the
Purchase Contract Agent and such failure shall be continuing, the
Collateral Agent, the Custodial Agent and the Securities Intermediary
may be removed by the Purchase Contract Agent, acting at the direction
of the Holders of Units.
The Purchase Contract Agent shall promptly notify the Company of any
removal of the Collateral Agent, the Custodial Agent or the Securities
Intermediary pursuant to clause (iii) of this Section 9.10. Upon any such
resignation or removal, the Company shall have the right to appoint a successor
Collateral Agent, Custodial Agent or Securities Intermediary, as the case may
be, which shall not be an Affiliate of the Purchase Contract Agent. If no
successor Collateral Agent, Custodial Agent or Securities Intermediary shall
have been so appointed and shall have accepted such appointment within 30 days
after the retiring Collateral Agent's, Custodial Agent's or Securities
Intermediary's giving of notice of resignation or the Company's or the Purchase
Contract Agent's giving notice of such removal, then the retiring or removed
Collateral Agent, Custodial Agent or Securities Intermediary may petition any
court of competent jurisdiction, at the expense of the Company, for the
appointment of a successor Collateral Agent, Custodial Agent or Securities
Intermediary. The Collateral Agent, the Custodial Agent and the Securities
Intermediary shall each be a bank or a national banking association which has an
office (or an agency office) in New York City with a combined capital and
surplus of at least $50,000,000. Upon the acceptance of any appointment as
Collateral Agent, Custodial Agent or Securities Intermediary hereunder by a
successor Collateral Agent, Custodial Agent or Securities Intermediary, as the
case may be, such successor Collateral Agent, Custodial Agent or Securities
Intermediary, as the case may be, shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Collateral
Agent, Custodial Agent or Securities Intermediary, as the case may be, and the
retiring Collateral Agent, Custodial Agent or Securities Intermediary, as the
case may be, shall take all appropriate action, subject to payment of any
amounts then due and payable to it hereunder, to transfer any money and property
held by it hereunder (including the Collateral) to such successor. The retiring
Collateral Agent, Custodial Agent or Securities Intermediary shall, upon such
succession, be discharged from its duties and obligations as Collateral Agent,
Custodial Agent or Securities Intermediary hereunder. After any retiring
Collateral Agent's, Custodial Agent's or Securities Intermediary's resignation
hereunder as Collateral Agent, Custodial Agent or Securities Intermediary, the
provisions of this Article 9 shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was acting as the
Collateral Agent, Custodial Agent or Securities Intermediary. Any resignation or
removal of the Collateral Agent, Custodial Agent or Securities Intermediary
hereunder, at a time when such Person is acting as the Collateral Agent,
Custodial Agent or Securities Intermediary, shall be deemed for all
26
purposes of this Agreement as the simultaneous resignation or removal of the
Collateral Agent, Securities Intermediary or Custodial Agent, as the case may
be.
(b) Because U.S. Bank Trust National Association is serving as the
Collateral Agent hereunder and the Purchase Contract Agent under the Purchase
Contract Agreement, if an event of default (other than an event of default
occurring as a result of a Failed Final Remarketing) occurs hereunder or under
the Purchase Contract Agreement, U.S. Bank Trust National Association will
resign as the Collateral Agent, but continue to act as the Purchase Contract
Agent. A successor Collateral Agent will be appointed in accordance with the
terms hereof. If any such event of default is cured or waived prior to the
appointment of a successor Collateral Agent, the duty of U.S. Bank Trust
National Association to resign in respect of such event of default shall cease.
Section 9.11 Right to Appoint Agent or Advisor. The Collateral Agent
shall have the right to appoint agents or advisors in connection with any of its
duties hereunder, and the Collateral Agent shall not be liable for any action
taken or omitted by, or in reliance upon the advice of, such agents or advisors
selected in good faith. The appointment of agents pursuant to Section 9.11 shall
be subject to prior written consent of the Company, which consent shall not be
unreasonably withheld.
Section 9.12 Survival. The provisions of this Article 9 shall survive
termination of this Agreement and the resignation or removal of the Collateral
Agent, the Custodial Agent or the Securities Intermediary.
Section 9.13 Exculpation. Anything contained in this Agreement to the
contrary notwithstanding, in no event shall the Collateral Agent, the Custodial
Agent or the Securities Intermediary or their officers, directors, employees or
agents be liable under this Agreement to any third party for indirect, special,
punitive, or consequential loss or damage of any kind whatsoever, including, but
not limited to, lost profits, whether or not the likelihood of such loss or
damage was known to the Collateral Agent, the Custodial Agent or the Securities
Intermediary, or any of them 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 10
AMENDMENT
Section 10.01 Amendment Without Consent of Holders. Without the consent
of any Holders, the Company, when duly authorized, the Collateral Agent, the
Custodial Agent, the Securities Intermediary and the Purchase Contract Agent, at
any time and from time to time, may amend this Agreement, in form satisfactory
to the Company, the Collateral Agent, the Custodial Agent, the Securities
Intermediary and the Purchase Contract Agent, to:
(a) evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company;
27
(b) evidence and provide for the acceptance of appointment
hereunder by a successor Collateral Agent, Custodial Agent, Securities
Intermediary or Purchase Contract Agent;
(c) add to the covenants of the Company for the benefit of the
Holders, or surrender any right or power herein conferred upon the
Company, provided that such covenants or such surrender do not
adversely affect the validity, perfection or priority of the Pledge
created hereunder;
(d) cure any ambiguity (or formal defect), correct or
supplement any provisions herein which may be inconsistent with any
other such provisions herein; or
(e) make any other provisions with respect to such matters or
questions arising under this Agreement, provided that such action shall
not adversely affect the interests of the Holders in any material
respect.
Section 10.02 Amendment with Consent of Holders. With the consent of
the Holders of not less than a majority of the Purchase Contracts at the time
outstanding, including without limitation the consent of the Holders obtained in
connection with a tender or an exchange offer, by Act of such Holders delivered
to the Company, the Purchase Contract Agent, the Custodial Agent, the Securities
Intermediary and the Collateral Agent, as the case may be, the Company, when
duly authorized by a Board Resolution, the Purchase Contract Agent, the
Collateral Agent, the Securities Intermediary and the Collateral Agent may amend
this Agreement for the purpose of modifying in any manner the provisions of this
Agreement or the rights of the Holders in respect of the Units; provided,
however, that no such supplemental agreement shall, without the unanimous
consent of the Holders of each Outstanding Unit adversely affected thereby in
any material respect:
(a) change the amount or type of Collateral underlying a Unit
(except for the rights of holders of Corporate Units to substitute the
Treasury Securities for the Pledged Senior Notes or the Pledged
Applicable Ownership Interests, as the case may be, or the rights of
Holders of Treasury Units to substitute Senior Notes or the Applicable
Ownership Interests (as specified in clause (i) of the definition of
such term) in the Treasury Portfolio, as applicable, for the Pledged
Treasury Securities), unless such change is not adverse to the Holders,
impair the right of the Holder of any Unit to receive distributions on
the underlying Collateral or otherwise adversely affect the Holder's
rights in or to such Collateral; or
(b) otherwise effect any action that would require the consent
of the Holder of each Outstanding Unit affected thereby pursuant to the
Purchase Contract Agreement if such action were effected by a
modification or amendment of the provisions of the Purchase Contract
Agreement; or
(c) reduce the percentage of Purchase Contracts the consent of
whose Holders is required for the modification or amendment of the
provisions of this Agreement;
provided that if any amendment or proposal referred to above would adversely
affect only the Corporate Units or only the Treasury Units, then only the
affected class of Holders as of the
28
record date for the Holders entitled to vote thereon will be entitled to vote on
such amendment or proposal, and such amendment or proposal shall not be
effective except with the consent of Holders of not less than a majority of such
class; provided, further, that the unanimous consent of the Holders of each
outstanding Purchase Contract of such class affected thereby shall be required
to approve any amendment or proposal specified in clauses (a) through (c) above.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed amendment, but it shall be
sufficient if such Act shall approve the substance thereof.
Section 10.03 Execution of Amendments. In executing any amendment
permitted by this Article, the Collateral Agent, the Custodial Agent, the
Securities Intermediary and the Purchase Contract Agent shall be entitled to
receive and (subject to Section 7.01 of the Purchase Contract Agreement with
respect to the Purchase Contract Agent) shall be fully authorized and protected
in relying upon, an Opinion of Counsel and an officers' certificate stating that
the execution of such amendment is authorized or permitted by this Agreement and
that all conditions precedent, if any, to the execution and delivery of such
amendment have been satisfied. The Collateral Agent, Custodial Agent, Securities
Intermediary and Purchase Contract Agent may, but shall not be obligated to,
enter into any such amendment which affects their own respective rights, duties
or immunities under this Agreement or otherwise.
Section 10.04 Effect of Amendments. Upon the execution of any amendment
under this Article, this Agreement shall be modified in accordance therewith,
and such amendment shall form a part of this Agreement for all purposes; and
every Holder of Certificates theretofore or thereafter authenticated, executed
on behalf of the Holders and delivered under the Purchase Contract Agreement
shall be bound thereby.
Section 10.05 Reference of Amendments. Certificates authenticated,
executed on behalf of the Holders and delivered after the execution of any
amendment pursuant to this Section may, and shall if required by the Collateral
Agent or the Purchase Contract Agent, bear a notation in form approved by the
Purchase Contract Agent and the Collateral Agent as to any matter provided for
in such amendment. If the Company shall so determine, new Certificates so
modified as to conform, in the opinion of the Collateral Agent, the Purchase
Contract Agent and the Company, to any such amendment may be prepared and
executed by the Company and authenticated, executed on behalf of the Holders and
delivered by the Purchase Contract Agent in accordance with the Purchase
Contract Agreement in exchange for Certificates representing Outstanding Units.
ARTICLE 11
MISCELLANEOUS
Section 11.01 No Waiver. No failure on the part of the Company, the
Collateral Agent, the Custodial Agent, the Securities Intermediary or any of
their respective agents to exercise, and no course of dealing with respect to,
and no delay in exercising, any right, power or remedy hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise by the Company,
the Collateral Agent, the Custodial Agent, the Securities Intermediary or any of
their
29
respective agents of any right, power or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
Section 11.02 Governing Law; Submission to Jurisdiction. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK. The Company, the Collateral Agent, the Custodial Agent, the Securities
Intermediary and the Holders from time to time of the Units, acting through the
Purchase Contract Agent as their attorney-in-fact, hereby submit to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York state court sitting in New York City
for the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The Company, the Collateral
Agent, the Custodial Agent, the Securities Intermediary and the Holders from
time to time of the Units, acting through the Purchase Contract Agent as their
attorney-in-fact, irrevocably waive, to the fullest extent permitted by
applicable law, any objection that they may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum.
Section 11.03 Notices. All notices, requests, consents and other
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, by telecopy) delivered to the
intended recipient at the "ADDRESS FOR NOTICES" specified below its name on the
signature pages hereof or, as to any party, at such other address as shall be
designated by such party in a notice to the other parties. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
Section 11.04 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of the
Company, the Collateral Agent, the Custodial Agent, the Securities Intermediary
and the Purchase Contract Agent, and the Holders from time to time of the Units,
by their acceptance of the same, shall be deemed to have agreed to be bound by
the provisions hereof and to have ratified the agreements of, and the grant of
the Pledge hereunder by, the Purchase Contract Agent.
Section 11.05 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument, and any of the parties hereto may execute this Agreement by
signing any such counterpart.
Section 11.06 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision hereof in any jurisdiction shall
not affect the validity or enforceability of such provision in any other
jurisdiction.
30
Section 11.07 Expenses, Etc. The Company agrees to reimburse the
Collateral Agent, the Custodial Agent and the Securities Intermediary for:
(a) all reasonable costs and expenses of the Collateral Agent,
the Custodial Agent and the Securities Intermediary (including, without
limitation, the reasonable fees and expenses of counsel to the
Collateral Agent, the Custodial Agent and the Securities Intermediary),
in connection with (i) the negotiation, preparation, execution and
delivery or performance of this Agreement and (ii) any modification,
supplement or waiver of any of the terms of this Agreement;
(b) all reasonable costs and expenses of the Collateral Agent,
the Custodial Agent and the Securities Intermediary (including, without
limitation, reasonable fees and expenses of counsel) in connection with
(i) any enforcement or proceedings resulting or incurred in connection
with causing any Holder of Units to satisfy its obligations under the
Purchase Contracts forming a part of the Units and (ii) the enforcement
of this Section 11.07;
(c) all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority
in respect of this Agreement or any other document referred to herein
and all costs, expenses, taxes, assessments and other charges incurred
in connection with any filing, registration, recording or perfection of
any security interest contemplated hereby;
(d) all reasonable fees and expenses of any agent or advisor
appointed by the Collateral Agent and consented to by the Company under
Section 9.11 of this Agreement; and
(e) any other out-of-pocket costs and expenses reasonably
incurred by the Collateral Agent, the Custodial Agent and the
Securities Intermediary in connection with the performance of their
duties hereunder.
Section 11.08 Security Interest Absolute. All rights of the Collateral
Agent and security interests hereunder, and all obligations of the Holders from
time to time hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any provision of
the Purchase Contracts or the Units or any other agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
any other term of, or any increase in the amount of, all or any of the
obligations of Holders of the Units under the related Purchase
Contracts, or any other amendment or waiver of any term of, or any
consent to any departure from any requirement of, the Purchase Contract
Agreement or any Purchase Contract or any other agreement or instrument
relating thereto; or
(c) any other circumstance which might otherwise constitute a
defense available to, or discharge of, a borrower, a guarantor or a
pledgor.
31
Section 11.09 Notice of Special Event, Special Event Redemption and
Termination Event. Upon the occurrence of a Special Event, a Special Event
Redemption or a Termination Event, the Company shall deliver written notice to
the Purchase Contract Agent, the Collateral Agent and the Securities
Intermediary. Upon the written request of the Collateral Agent or the Securities
Intermediary, the Company shall inform such party whether or not a Special
Event, a Special Event Redemption or a Termination Event has occurred.
[SIGNATURES ON THE FOLLOWING PAGE]
32
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
ALBERTSON'S, INC. U.S. Bank Trust National Association, as
Purchase Contract Agent and as
attorney-in-fact of the Holders from time
to time of the Units
By: By:
-------------------------------- -------------------------------------
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
Xxxxxxxxx'x, Inc. U.S. Bank Trust National Association
000 Xxxxxxxxxx Xxxxxxxxx, 000 Xxxx Xxxxxx
X.X. Xxx 00, Xxx Xxxx, XX 00000
Xxxxx, Xxxxx 00000 Telecopier No.: (000) 000-0000
Telecopier No.: (000) 000-0000 Attention: Xxxxxxx X. Xxxxxxx
Attention: General Counsel
U.S. Bank Trust National Association,
as Collateral Agent, Custodial Agent
and Securities Intermediary
By:
--------------------------------
Name:
Title:
Address for Notices:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
EXHIBIT A
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Creation of Treasury Units)
U.S. Bank Trust National Association
The Purchase Contract Agent
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
Re: ___________ Corporate Units of Albertson's, Inc. (the "COMPANY")
The securities account of U.S. Bank Trust National Association, as
Collateral Agent, maintained by the Securities Intermediary and
designated "U.S. Bank Trust National Association, as Collateral Agent
of Albertson's, Inc., as pledgee of U.S. Bank Trust National
Association, as the Purchase Contract Agent on behalf of and as
attorney-in-fact for the Holders" (the "COLLATERAL ACCOUNT")
Please refer to the Pledge Agreement, dated as of [ ], 2004 (the
"PLEDGE AGREEMENT"), among the Company, you, as Collateral Agent, as Securities
Intermediary and as Custodial Agent and the undersigned, as Purchase Contract
Agent and as attorney-in-fact for the holders of Corporate Units from time to
time. Capitalized terms used herein but not defined shall have the meaning set
forth in the Pledge Agreement.
We hereby notify you in accordance with Section 5.02 of the Pledge
Agreement that the holder of securities named below (the "HOLDER") has elected
to substitute $ Value of Treasury Securities or security entitlements with
respect thereto in exchange for an equal Value of Pledged Senior Notes relating
to Corporate Units and has delivered to the undersigned a notice stating that
the Holder has Transferred such Treasury Securities or security entitlements
with respect thereto to the Securities Intermediary, for credit to the
Collateral Account.
We hereby request that you instruct the Securities Intermediary, upon
confirmation that such Treasury Securities or security entitlements thereto have
been credited to the Collateral Account, to release to the undersigned an equal
Value of Pledged Senior Notes in accordance with Section 5.02 of the Pledge
Agreement.
A-1
Date:_________________________
U.S. Bank Trust National Association, as Purchase
Contract Agent and as attorney-in-fact of the
Holders from time to time of the Units
By:
_____________________________________________
Name:
Title:
A-2
Please print name and address of Holder electing to substitute Treasury
Securities or security entitlements with respect thereto for the Pledged Senior
Notes:
___________________________ ________________________________________
Name Social Security or other Taxpayer
Identification Number, if any
___________________________
Address
___________________________
___________________________
A-3
EXHIBIT B
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Creation of Treasury Units)
U.S. Bank Trust National Association
as Securities Intermediary
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
Re: __________ Corporate Units of Albertson's, Inc. (the "COMPANY")
The securities account of U.S. Bank Trust National Association, as
Collateral Agent, maintained by the Securities Intermediary and
designated "U.S. Bank Trust National Association, as Collateral Agent
of Albertson's, Inc. as pledgee of U.S. Bank Trust National
Association, as the Purchase Contract Agent on behalf of and as
attorney-in-fact for the Holders" (the "COLLATERAL ACCOUNT")
Please refer to the Pledge Agreement, dated as of [ ], 2004 (the
"PLEDGE AGREEMENT"), among the Company, you, as Collateral Agent, as Securities
Intermediary and as Custodial Agent and the undersigned, as Purchase Contract
Agent and as attorney-in-fact for the holders of Corporate Units from time to
time. Capitalized terms used herein but not defined shall have the meanings set
forth in the Pledge Agreement.
When you have confirmed that $ Value of Treasury Securities or
security entitlements thereto has been credited to the Collateral Account by or
for the benefit of , as Holder of Corporate Units (the "HOLDER"), you are hereby
instructed to release from the Collateral Account an equal Value of Pledged
Senior Notes or security entitlements with respect thereto relating to Corporate
Units of the Holder by Transfer to the Purchase Contract Agent.
B-1
Dated:______________________
U.S. Bank Trust National Association, as
Collateral Agent
By:
____________________________________________
Name:
Title:
B-2
Please print name and address of Holder:
___________________________ ________________________________________
Name Social Security or other Taxpayer
Identification Number, if any
___________________________
Address
___________________________
___________________________
B-3
EXHIBIT C
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Recreation of Corporate Units)
U.S. Bank Trust National Association
The Purchase Contract Agent
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
Re: __________ Treasury Units of Albertson's, Inc. (the "COMPANY")
Please refer to the Pledge Agreement dated as of [ ], 2004 (the "PLEDGE
AGREEMENT"), among the Company, you, as Collateral Agent, as Securities
Intermediary, as Custodial Agent and the undersigned, as Purchase Contract Agent
and as attorney-in-fact for the holders of Treasury Units from time to time.
Capitalized terms used herein but not defined shall have the meaning set forth
in the Pledge Agreement.
We hereby notify you in accordance with Section 5.03 of the Pledge
Agreement that the holder of securities named below (the "HOLDER") has elected
to substitute $__________ Value of Senior Notes or security entitlements with
respect thereto in exchange for $__________ an equal Value of Pledged Treasury
Securities with respect to _______ Treasury Units and has delivered to the
undersigned a notice stating that the holder has Transferred such Senior Notes
or security entitlements with respect thereto to the Securities Intermediary,
for credit to the Collateral Account.
C-1
We hereby request that you instruct the Securities Intermediary, upon
confirmation that such Senior Notes or security entitlements with respect
thereto have been credited to the Collateral Account, to release to the
undersigned $__________ an equal Value of Treasury Securities in accordance with
Section 5.03 of the Pledge Agreement.
U.S. Bank Trust National Association, as
Purchase Contract Agent
Dated: By:
----------------------------- ------------------------------------
Name:
Title:
C-2
Please print name and address of Holder electing to substitute Senior Notes or
security entitlements with respect thereto for Pledged Treasury Securities:
___________________________ ________________________________________
Name Social Security or other Taxpayer
Identification Number, if any
___________________________
Address
___________________________
___________________________
C-3
EXHIBIT D
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Recreation of Corporate Units)
U.S. Bank Trust National Association
as Securities Intermediary
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
Re: [ ] Treasury Units of Albertson's, Inc. (the "COMPANY")
The securities account of U.S. Bank Trust National Association, as
Collateral Agent, maintained by the Securities Intermediary and
designated "U.S. Bank Trust National Association, as Collateral Agent
of Albertson's, Inc., as pledgee of U.S. Bank Trust National
Association, as the Purchase Contract Agent on behalf of and as
attorney-in-fact for the Holders" (the "COLLATERAL ACCOUNT")
Please refer to the Pledge Agreement dated as of [ ], 2004 (the "PLEDGE
AGREEMENT"), among the Company, you, as Securities Intermediary, Custodial Agent
and Collateral Agent and U.S. Bank Trust National Association, as Purchase
Contract Agent and as attorney-in-fact for the holders of Corporate Units from
time to time. Capitalized terms used herein but not defined shall have the
meanings set forth in the Pledge Agreement.
When you have confirmed that $___________ Value of Senior Notes or
security entitlements with respect thereto has been credited to the Collateral
Account by or for the benefit of _______________, as Holder of Treasury Units
(the "HOLDER"), you are hereby instructed to release from the Collateral Account
an equal Value of Treasury Securities or security entitlements with respect
thereto relating to ____ treasury Units of the Holder by Transfer to the
Purchase Contract Agent.
D-1
U.S. Bank Trust National Association, as
Collateral Agent
Dated: By:
_________________________ _____________________________________
Name:
Title:
Please print name and address of Holder:
___________________________ ________________________________________
Name Social Security or other Taxpayer
Identification Number, if any
___________________________
Address
___________________________
___________________________
D-2
EXHIBIT E
NOTICE OF CASH SETTLEMENT FROM COLLATERAL
AGENT TO PURCHASE CONTRACT AGENT
(Cash Settlement Amounts)
U.S. Bank Trust National Association
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
Re: __________ Corporate Units of Xxxxxxxxx'x, Inc. (the "COMPANY")
__________ Treasury Units of the Company
Please refer to the Pledge Agreement dated as of [ ], 2004 (the "PLEDGE
AGREEMENT"), by and among you, the Company, and U.S. Bank Trust National
Association, as Collateral Agent, Custodial Agent and Securities Intermediary.
Unless otherwise defined herein, terms defined in the Pledge Agreement are used
herein as defined therein.
In accordance with Section 5.05(c) of the Pledge Agreement, we hereby
notify you that as of 5:00 p.m. (New York City time) on the fourth Business Day
immediately preceding [ ] (the "PURCHASE CONTRACT SETTLEMENT DATE"), we have
received (i) $___________ in immediately available funds paid in an aggregate
amount equal to the Purchase Price due to the Company on the Purchase Contract
Settlement Date with respect to ___________ Corporate Units, and (ii) based on
the funds received set forth in clause (i) above, an aggregate principal amount
of $___________ of Pledged Senior Notes are to be tendered for purchase in the
Final Remarketing.
U.S. Bank Trust National Association, as
Collateral Agent
Dated: By:
______________________ _______________________________________
Name:
Title:
E-1
EXHIBIT F
INSTRUCTION TO CUSTODIAL AGENT REGARDING
REMARKETING
U.S. Bank Trust National Association
The Custodial Agent
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
Re: Senior Notes Due [ ] of Xxxxxxxxx'x, Inc. (the "COMPANY")
The undersigned hereby notifies you in accordance with Section 5.07(c)
of the Pledge Agreement, dated as of [ ], 2004 (the "PLEDGE AGREEMENT"), among
the Company, you, as Collateral Agent, Custodial Agent and Securities
Intermediary and U.S. Bank Trust National Association, as the Purchase Contract
Agent and as attorney-in-fact for the holders of Corporate Units from time to
time, that the undersigned elects to deliver $__________ aggregate principal
amount of Separate Senior Notes for delivery to the Remarketing Agent on or
prior to 5:00 p.m. (New York City time) on the fifth Business Day immediately
preceding the Initial Remarketing Date for remarketing pursuant to Section
5.07(c) of the Pledge Agreement. The undersigned will, upon request of the
Remarketing Agent, execute and deliver any additional documents deemed by the
Remarketing Agent or by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Separate Senior Notes tendered hereby.
Capitalized terms used herein but not defined shall have the meaning set forth
in the Pledge Agreement.
The undersigned hereby instructs you, upon receipt of the Proceeds of
such remarketing from the Remarketing Agent, to deliver such Proceeds to the
undersigned in accordance with the instructions indicated herein under "A.
Payment Instructions." The undersigned hereby instructs you, in the event of a
Failed Final Remarketing, upon receipt of the Separate Senior Notes tendered
herewith from the Remarketing Agent, to deliver such Separate Senior Notes to
the person(s) and the address(es) indicated herein under "B. Delivery
Instructions."
With this notice, the undersigned hereby (i) represents and warrants
that the undersigned has full power and authority to tender, sell, assign and
transfer the Separate Senior Notes tendered hereby and that the undersigned is
the record owner of any Senior Notes tendered herewith in physical form or a
participant in The Depository Trust Company ("DTC") and the beneficial owner of
any Senior Notes tendered herewith by book-entry transfer to your account at
DTC, (ii) agrees to be bound by the terms and conditions of Section 5.07(c) of
the Pledge Agreement and (iii) acknowledges and agrees that after 5:00 p.m. (New
York City time) on the fifth Business Day immediately preceding the Remarketing
Date, such election shall become an irrevocable election to have such Separate
Senior Notes remarketed in the Remarketing. In the case of a Failed Remarketing,
such Separate Senior Notes shall be returned to the undersigned.
F-1
Dated: By:
____________________ ____________________________________
Name:
Title:
Signature Guarantee:________________
___________________________ ________________________________________
Name Social Security or other Taxpayer
Identification Number, if any
___________________________
Address
___________________________
___________________________
F-2
A. PAYMENT INSTRUCTIONS
Proceeds of the remarketing should be paid by check in the name of the person(s)
set forth below and mailed to the address set forth below.
Name(s)
(Please Print)
Address
(Please Print)
(Zip Code)
(Taxpayer Identification or Social Security Number)
B. DELIVERY INSTRUCTIONS
In the event of a Failed Final Remarketing, Senior Notes that are in physical
form should be delivered to the person(s) set forth below and mailed to the
address set forth below.
Name(s)
(Please Print)
Address
(Please Print)
(Zip Code)
F-3
(Tax Identification or Social Security Number)
In the event of a failed final remarketing, Senior Notes that 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:
________________________________________________
F-4
EXHIBIT G
INSTRUCTION TO CUSTODIAL AGENT REGARDING
WITHDRAWAL FROM REMARKETING
U.S. Bank Trust National Association
The Custodial Agent
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
Re: Senior Notes due [ ] of Xxxxxxxxx'x, Inc. (the "COMPANY")
The undersigned hereby notifies you in accordance with Section 5.07(c)
of the Pledge Agreement, dated as of [ ], 2004 (the "PLEDGE AGREEMENT"), among
the Company and you, as Collateral Agent, Custodial Agent and Securities
Intermediary, and U.S. Bank Trust National Association, as Purchase Contract
Agent and as attorney-in-fact for the holders of Corporate Units from time to
time, that the undersigned elects to withdraw the $__________ aggregate
principal amount of Separate Senior Notes delivered to the Collateral Agent on
__________, 200_ for remarketing pursuant to Section 5.07(c) of the Pledge
Agreement. The undersigned hereby instructs you to return such Senior Notes to
the undersigned in accordance with the undersigned's instructions. With this
notice, the Undersigned hereby agrees to be bound by the terms and conditions of
Section 5.07(c) of the Pledge Agreement. Capitalized terms used herein but not
defined shall have the meaning set forth in the Pledge Agreement.
Dated: By:
_____________________ _____________________________________
Name:
Title:
Signature Guarantee:________________
___________________________ ________________________________________
Name Social Security or other Taxpayer
Identification Number, if any
___________________________
Address
___________________________
___________________________
G-1
