Exhibit 2.k.(iv)
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Draft
COLLATERAL AGREEMENT
Among
Banc One Capital Holdings Corporation, As Pledgor,
The Bank of New York, As Collateral Agent
and
MANDATORY COMMON EXCHANGE TRUST
Dated as of
_____________, 1997
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The following Table of Contents has been inserted for
convenience of reference only and does not constitute a part of the Collateral
Agreement.
TABLE OF CONTENTS
SECTION PAGE
1. The Security Interests............................................1
2. Definitions.......................................................2
3. Representations and Warranties of the Pledgor.....................7
4. Representations and Warranties of the
Collateral Agent..................................................8
5. Certain Covenants of the Pledgor..................................8
6. Administration of the Collateral and Valuation
of the Securities................................................10
7. Income and Voting Rights on Collateral...........................16
8. Remedies upon Events of Default..................................17
9. The Collateral Agent.............................................21
10. Miscellaneous....................................................24
11. Termination of Collateral Agreement..............................26
12. No Personal Liability of Trustees................................26
Exhibit A - Certificate for Substituted Collateral
Exhibit B - Certificate for Additional Collateral
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COLLATERAL AGREEMENT
THIS COLLATERAL AGREEMENT (the "Agreement"), dated as of
September ___, 1997, among Banc One Capital Holdings Corporation, an Ohio
corporation, ("Pledgor"), The Bank of New York, a New York banking corporation,
as collateral agent (the "Collateral Agent") hereunder for the benefit of
Mandatory Common Exchange Trust, a trust duly created under the laws of the
State of Delaware (such trust and the trustees thereof acting in their capacity
as such being referred to herein as the "Trust" or "Purchaser"), and the Trust;
W I T N E S S E T H :
WHEREAS, pursuant to the Purchase Agreement (the "Purchase
Agreement"), dated as of September ___, 1997, between the Pledgor and Purchaser,
the Pledgor has agreed to sell and Purchaser has agreed to purchase voting
common stock, $.01 par value per share (the "Common Stock"), of FIRSTPLUS
Financial Group, Inc., a Nevada corporation (the "Company"), subject to the
terms and conditions of the Purchase Agreement; and
NOW, THEREFORE, to secure the performance by the Pledgor of
its obligations under the Purchase Agreement and to secure the observance and
performance of the covenants and agreements contained herein and in the Purchase
Agreement, the parties hereto agree as follows:
1. THE SECURITY INTERESTS.
In order to secure the observance and performance of the
covenants and agreements contained herein and in the Purchase Agreement:
(a) Effective upon and subject to the receipt by the Pledgor
of the Firm Purchase Price on the Firm Payment Date, the Pledgor hereby grants,
sells, conveys, assigns, transfers and pledges unto the Collateral Agent, as
agent of and for the benefit of the Trust, a security interest in and to, and a
lien upon and right of set-off against, all of its right, title and interest in
and to (i) the Pledged Items described in paragraph (b); (ii) all additions to
and substitutions for such Pledged Items; (iii) all income, proceeds and
collections received
or to be received, or derived or to be derived, now or any time hereafter
from or in connection with the Pledged Items; and (iv) all powers and rights now
owned or hereafter acquired under or with respect to the Pledged Items (such
Pledged Items, additions, substitutions, proceeds, collections, powers and
rights being herein collectively called the "Collateral"). The Collateral Agent
shall have all of the rights, remedies and recourses with respect to the
Collateral afforded a secured party by the New York Uniform Commercial Code, in
addition to, and not in limitation of, the other rights, remedies and recourses
afforded to the Collateral Agent by this Agreement.
(b) On the Firm Payment Date, the Pledge shall deliver to the
Collateral Agent in pledge hereunder Eligible Collateral having a Pledge Value
equal to or greater than the Pledge Value Requirement on such date.
(c) Effective upon and subject to the receipt by the Pledgor
of the Additional Purchase Price, on the Option Closing Date, the Pledgor shall
deliver to the Collateral Agent and pledge hereunder additional Eligible
Collateral such that the Pledge Value of all Collateral pledged hereunder is
equal to or greater than the Pledge Value Requirement on such date.
2. DEFINITIONS.
Capitalized terms used and not otherwise defined herein shall
have the meanings ascribed to them in the Purchase Agreement. Capitalized terms
used herein shall have the meanings as follows:
"Authorized Representative" of the Pledgor means any officer
of the Pledgor as to whom the Pledgor shall have delivered notice to the
Collateral Agent that such officer or other representative is authorized to act
hereunder on behalf of the Pledgor.
"Business Day" means any day except a Saturday, Sunday or
other day on which banking institutions in New York City are authorized or
obligated by law or regulation to close or a day on which the New York Stock
Exchange is closed.
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"Cash Delivery Obligations" means, at any time (A) if no
Reorganization Event shall have occurred prior to such time, zero, and (B) from
and after any Reorganization Event, the Dilution Adjustment that shall have been
applied to the Exchange Rate pursuant to Section 6.1 of the Purchase Agreement
at or prior to the Reorganization Event, times the product of: (i) the Firm
Share Base Amount plus the Additional Share Base Amount (if any); and (ii) the
Transaction Value of any property other than Marketable Securities received by
the Pledgor in such Reorganization Event.
"Collateral" has the meaning specified in Section 1(a).
"Collateral Agent" means the financial institution identified
as such in the preliminary paragraph hereof, or any successor appointed in
accordance with Section 9.
"Collateral Agreement" means this Collateral Agreement and any
exhibits hereto.
"Collateral Event of Default" has the meaning specified in
Section 6(e).
"Collateral Requirement" means, as of any date and with
respect to: (i) any Common Stock or Nonvoting Common, 100%; (ii) any Marketable
Securities, 100%; (iii) any U.S. Government Securities pledged in respect of
Cash Delivery Obligations, 105%; and (iv) any other U.S. Government Securities,
150%, provided that upon and after any failure to cure an Insufficiency
Determination by 4:00 p.m. New York City time on the tenth Business Day
following telephonic notice of such Insufficiency Determination as described in
Section 6(e), which insufficiency shall be continuing on such tenth business
day, the Collateral Requirement relating to any U.S. Government Securities
(other than in respect of Cash Delivery Obligations) shall be 200%. The portion
of any pledged U.S. Government Securities that shall be deemed at any time to be
in respect of Cash Delivery Obligations shall be as provided in Section 6(e).
"Eligible Collateral" means (i) Common Stock, (ii) Nonvoting
Common, (iii) U.S. Government Securities, and (iv) from and after any
Reorganization Event, Marketable
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Securities, provided, in each case, that the Pledgor has good and
marketable title thereto, free of all Liens (other than the Liens created by
this Collateral Agreement) and Transfer Restrictions and that the Collateral
Agent has a valid, first priority perfected security interest therein and first
lien thereon, and provided further that to the extent the number of shares of
Marketable Securities pledged hereunder exceeds at any time the Maximum
Deliverable Number thereof, such excess shares shall not be Eligible Collateral.
"Event of Default" means the occurrence of: (i) an event
described in clause (a) or (b) of Article VII of the Purchase Agreement, (ii) a
Collateral Event of Default, (iii) a failure by Pledgor to have caused the
Collateral to meet the requirements described in Section 5(d) on the Exchange
Date or (iv) if a Reorganization Event shall have occurred prior to the Exchange
Date, failure by Pledgor to cause to be delivered to Purchaser on the Exchange
Date the consideration then required to be delivered pursuant to Section 6.2 of
the Purchase Agreement.
"Ineligible Collateral" means Collateral that does not
constitute "Eligible Collateral".
"Insufficiency Determination" has the meaning specified in
Section 6(e)(1).
"Lien" means any lien, mortgage, security interest, pledge,
charge or encumbrance of any kind.
"Market Value" means, as of any date: (a) with respect to any
Common Stock or Nonvoting Common (except as otherwise provided in Section
6(e)(2)), the Closing Price of the Common Stock on such date; (b) with respect
to any U.S. Government Security, the product of (x)(i) the average unit bid
price for such security as published on the Trading Day prior to such date in
the New York edition of The Wall Street Journal or The New York Times or, if not
so published, (ii) the lower bid price quoted (which quotation shall be
evidenced in writing) on the Trading Day prior to such date by either of two
nationally recognized dealers making a market in such security which are members
of the National Association of Securities Dealers, Inc. and (y) the number of
such units comprised in the outstanding principal amount of such
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security; and (c) with respect to any share of Marketable Securities, the
Closing Price thereof on the Trading Day prior to such date; provided that the
"Market Value" of any Ineligible Collateral shall be zero.
"Maximum Deliverable Number" means, on any date, with respect
to the Common Stock, the product of the Firm Share Base Amount plus the
Additional Share Base Amount (if any), multiplied successively by each number by
which the Exchange Rate shall have been multiplied on or prior to such date
pursuant to the adjustments provided for under Section 6.1 of the Purchase
Agreement. The Maximum Deliverable Number of Marketable Securities means, on any
date, the product of (i) the Firm Share Base Amount plus the Additional Share
Base Amount (if any) and (ii) the number of Marketable Securities received by
the Pledgor in the Reorganization Event for each share of Common Stock,
multiplied successively by each number by which the Exchange Rate shall have
been multiplied on or prior to such date and after the date of such
Reorganization Event pursuant to the adjustments provided for under Article VI
of the Purchase Agreement.
"Nonvoting Common" means shares of nonvoting common stock,
$.01 par value per share, of the Company.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Pledge Value" means, as of any date and with respect to any
particular type of Collateral, an amount equal to the aggregate Market Value of
such Collateral divided by the Collateral Requirement for such Collateral.
"Pledge Value Requirement" means, as of any date, (a) the
aggregate Market Value on such date of the Maximum Deliverable Number of shares
of Common Stock on such date or, from and after a Reorganization Event,
Marketable Securities, plus (b) from and after a Reorganization Event, the Cash
Delivery Obligations.
"Pledged Items" means, as of any date, any and all securities
and instruments delivered by the Pledgor to be held by the Collateral Agent
under this Collateral
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Agreement as Collateral, whether Eligible Collateral or Ineligible Collateral.
"Prior Collateral" has the meaning specified in Section
6(b)(1).
"Responsible Officer" means, when used with respect to the
Collateral Agent, any vice president, assistant vice president, assistant
treasurer or assistant secretary located in the division or department of the
Collateral Agent responsible for performing the obligations of the Collateral
Agent under this Collateral Agreement, or in any other division or department of
the Collateral Agent performing operations substantially equivalent to those
performed by such division or department pursuant hereto, or any other officer
of the Collateral Agent or any successor Collateral Agent customarily performing
functions similar to those performed by any of the aforesaid officers, and also
means, with respect to any matter relating to this Collateral Agreement or the
Collateral, any other officer to whom such matter is referred because of its
knowledge of and familiarity with the particular subject.
"Transfer Restriction" means, with respect to any item of
Collateral, any condition to or restriction on the ability of the holder thereof
to sell, assign or otherwise transfer such item of Collateral or to enforce the
provisions thereof or of any document related thereto whether set forth in such
item of Collateral itself or in any document related thereto, including, without
limitation, (i) any requirement that any sale, assignment or other transfer or
enforcement of such item of Collateral be consented to or approved by any
Person, including, without limitation, the issuer thereof or any other obligor
thereon, (ii) any limitations on the type or status, financial or otherwise, of
any purchaser, pledgee, assignee or transferee of such item of Collateral, (iii)
any requirement of the delivery of any certificate, consent, agreement, opinion
of counsel, notice or any other document of any Person to the issuer of, any
other obligor on or any registrar or transfer agent for, such item of
Collateral, prior to the sale, pledge, assignment or other transfer or
enforcement of such item of Collateral and (iv) any registration or
qualification requirement for such item of Collateral pursuant to any federal or
state securities law; provided that (x) the required
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delivery of any assignment from the seller, pledgor, assignor or transferor of
such item of Collateral, together with any evidence of the corporate or other
authority of such Person, or (y) any registration or qualification requirement
for such item of Collateral pursuant to any Federal or state securities law
which is generally applicable to all holders of such item of Collateral shall
not constitute a "Transfer Restriction."
"Trustee" or "Trustees" means any trustee or trustees of the
Trust identified on the signature pages hereto, or any successor as such trustee
or trustees.
"UCC" means the Uniform Commercial Code as in effect in the
State of New York.
"U.S. Government Securities" means direct obligations of the
United States of America that mature on a date that is one year or less from the
date such obligations are pledged hereunder, but in any event prior to the
Exchange Date.
3. REPRESENTATIONS AND WARRANTIES OF THE PLEDGOR.
The Pledgor hereby represents and warrants to the Collateral
Agent and the Trust that:
(a) No Transfer Restrictions. No Transfer Restrictions exist
with respect to or otherwise apply to the assignment of, or transfer by the
Pledgor of possession of, any items of Collateral to the Collateral Agent
hereunder, or the subsequent sale or transfer of such items of Collateral by the
Collateral Agent pursuant to the terms hereof.
(b) Title to Collateral; Perfected Security Interest. The
Pledgor has good and marketable title to the Pledged Items, free of all Liens
(other than the Lien created by this Collateral Agreement) and Transfer
Restrictions. Upon delivery of the Collateral to the Collateral Agent hereunder,
the Collateral Agent will obtain a valid, first priority perfected security
interest in, and a first lien upon, such Collateral subject to no other Lien;
none of such Collateral is or shall be pledged by the Pledgor as collateral for
any other purpose.
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4. REPRESENTATIONS AND WARRANTIES OF THE
COLLATERAL AGENT.
The Collateral Agent represents and warrants to the Pledgor
and the Trust that:
(a) Corporate Existence and Power. The Collateral Agent is a
trust company, duly incorporated, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, and has all corporate
powers and all material governmental licenses, authorizations, consents and
approvals required to enter into, and perform its obligations under, this
Collateral Agreement.
(b) Authorization and Non-Contravention. The execution,
delivery and performance by the Collateral Agent of this Collateral Agreement
have been duly authorized by all necessary corporate action on the part of the
Collateral Agent (no action by the shareholders of the Collateral Agent being
required) and do not and will not violate, contravene or constitute a default
under any provision of applicable law or regulation or of the charter or by-laws
of the Collateral Agent or of any material agreement, judgment, injunction,
order, decree or other instrument binding upon the Collateral Agent.
(c) Binding Effect. This Collateral Agreement constitutes a
legal, valid and binding agreement of the Collateral Agent enforceable against
the Collateral Agent in accordance with its terms.
5. CERTAIN COVENANTS OF THE PLEDGOR.
The Pledgor agrees that, so long as any of its obligations
under the Purchase Agreement remain outstanding:
(a) Title to Collateral. The Pledgor shall at all times
hereafter have good and marketable title to the Collateral pledged by him, free
of all Liens (other than the Liens created by this Collateral Agreement) and
Transfer Restrictions, and, subject to the terms of this Collateral Agreement,
will at all times hereafter have good, right and lawful authority to assign,
transfer and pledge such Collateral and all such additions thereto and
substitutions therefor under this Collateral Agreement.
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(b) Convertibility of Nonvoting Common. The Pledgor shall
cause all shares of Nonvoting Common held by the Collateral Agent as Collateral
to be convertible upon any delivery or disposition by the Collateral Agent to
any other Person (other than the Pledgon and its affiliates or Farm Bureau Life
Insurance Company and its Affiliate) into shares of Common Stock on a
share-for-share basis without payment of any consideration, fee or cost of any
kind and shall, in connection with any such delivery or disposition, take any
action requested by the Collateral Agent so that such other person shall receive
shares of Common Stock subject to no Transfer Restrictions.
(c) Pledge Value Requirement. The Pledgor shall cause the
aggregate Pledge Value of the Collateral to be equal to or greater than the
Pledge Value Requirement at all times, and shall pledge additional Collateral in
the manner described in Section 6(d) as necessary to cause such requirement to
be met.
(d) Pledge upon Reorganization Event. Upon the occurrence of a
Reorganization Event, the Pledgor shall immediately cause to be delivered to the
Collateral Agent, in the manner provided in Section 6(d): (i) U.S. Government
Securities having an aggregate Market Value at least equal to 105% of the Cash
Delivery Obligations; and (ii) Marketable Securities in an amount at least equal
to the Maximum Deliverable Number thereof, or, at Pledgor's election, U.S.
Government Securities having an aggregate Market Value at least equal to 150% of
such Maximum Deliverable Number of Marketable Securities; in each case to be
held as substitute Collateral hereunder.
(e) Pledge of Purchase Agreement Consideration.
Notwithstanding the Pledgor's right to substitute Collateral pursuant to Section
6(b), the Pledgor shall cause the Collateral to include, on the Exchange Date,
unless a Reorganization Event shall have occurred or unless the Pledgor shall
have elected the Cash Settlement Alternative, a number of shares of any
Combination of Common Stock and Nonvoting Common at least equal to the number of
shares of Common Stock required to be delivered under the Purchase Agreement on
the Exchange Date. If the Pledgor shall have elected the Cash Settlement
Alternative, the Pledgor shall cause the Collateral to include, on the Exchange
Date, cash in an amount at least equal to 105% of the Then-Reference Market
Price of the Contract Shares.
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(f) Further Assurances. The Pledgor shall, at its expense and
in such manner and form as the Trust or the Collateral Agent may require, give,
execute, deliver, file and record any financing statement, notice, instrument,
document, agreement or other papers that may be necessary or desirable in order
to create, preserve, perfect, substantiate or validate any security interest
granted pursuant hereto or to enable the Collateral Agent to exercise and
enforce its rights and the rights of the Trust hereunder with respect to such
security interest. To the extent permitted by applicable law, the Pledgor hereby
authorizes the Collateral Agent to execute and file, in the name of the Pledgor
or otherwise, Uniform Commercial Code financing or continuation statements
(which may be carbon, photographic, photostatic or other reproductions of this
Agreement or of a financing statement relating to this Agreement) which the
Collateral Agent in its sole discretion may deem necessary or appropriate to
further perfect, or maintain the perfection of the security interests granted
hereby.
6. ADMINISTRATION OF THE COLLATERAL AND VALUATION OF
THE SECURITIES.
(a) Valuation of Collateral. The Collateral Agent shall
determine on each Business Day whether the Pledge Value is at least equal to the
Pledge Value Requirement and whether an Insufficiency Determination or
Collateral Event of Default shall have occurred and, from and after any
substitution of U.S. Government Securities for pledged Common Stock, Nonvoting
Common or Marketable Securities pursuant to paragraph (b) of this Section 6,
shall determine the Pledge Value on each Business Day and shall provide written
notice of the Pledge Value to the Pledgor.
(b) Substitution of Collateral. The Pledgor may substitute
Collateral in accordance with the following provisions:
(1) Unless an Event of Default or a failure by the
Pledgor to meet any of its obligations under Section 5(b), (c) or (d)
hereof has occurred and is continuing, the Pledgor shall have the right
at any time and from time to time to deposit Eligible Collateral with
the Collateral Agent in substitution for Pledged Items previously
deposited
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hereunder ("Prior Collateral") and to obtain the release from the Lien
hereof of such Prior Collateral.
(2) If the Pledgor wishes to deposit Eligible
Collateral with the Collateral Agent in substitution for Prior
Collateral, it shall (i) give written notice to the Collateral Agent
identifying the Prior Collateral to be released from the Lien hereof,
(ii) deliver to the Collateral Agent concurrently with such Eligible
Collateral a certificate of an Authorized Officer of the Pledgor
substantially in the form of Exhibit A and dated the date of such
delivery, (A) identifying the items of Eligible Collateral being
substituted for the Prior Collateral and the Prior Collateral that is
to be transferred to the Pledgor and (B) certifying that the
representations and warranties contained in such Exhibit A are true and
correct on and as of the date thereof and (iii) deliver to the
Collateral Agent concurrently with such Eligible Collateral an opinion
(dated the date of such delivery) of counsel (who may be an employee of
the Pledgor) addressed to the Collateral Agent confirming the
representations contained in the second sentence of paragraph 3(b) of
Exhibit A. The Pledgor hereby covenants and agrees to take all actions
required under Section 6(d) and any other actions necessary to create
for the benefit of the Collateral Agent a valid, first priority
perfected security interest in, and a first lien upon, such Eligible
Collateral deposited with the Collateral Agent in substitution for
Prior Collateral.
(3) No such substitution shall be made unless and
until the Collateral Agent shall have determined that the aggregate
Pledge Value of all of the Collateral at the time of such proposed
substitution, after giving effect to the proposed substitution, shall
at least equal the Pledge Value Requirement.
(c) Additional Collateral. The Pledgor may pledge additional
Collateral hereunder at any time. Concurrently with the delivery of any
additional Eligible Collateral, the Pledgor shall deliver (i) a certificate of
an Authorized Officer of the Pledgor substantially in the form of Exhibit B and
dated the date of such delivery,
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(A) identifying the additional items of Eligible Collateral being pledged
and (B) certifying that with respect to such items of additional Eligible
Collateral the representations and warranties contained in such Exhibit B are
true and correct on and as of the date thereof and (ii) an opinion (dated the
date of such delivery) of counsel (who may be an employee of the Pledgor)
addressed to the Collateral Agent confirming the representations contained in
the second sentence of paragraph 2(b) of Exhibit B. The Pledgor hereby covenants
and agrees to take all actions required under Section 6(d) and any other actions
necessary to create for the benefit of the Collateral Agent a valid, first
priority perfected security interest in, and a first lien upon, such additional
Eligible Collateral.
(d) Delivery of Collateral. The Pledgor shall deliver the
Collateral to the Collateral Agent in accordance with the following
provisions:
(1) Pledged Common Stock. In the case of Collateral
consisting of Common Stock or Nonvoting Common, by delivery to the
Collateral Agent of Common Stock or Nonvoting Common, as the case may
be, registered in the name of the Collateral Agent or its nominee;
(2) Pledged U.S. Government Securities. In the case
of Collateral consisting of U.S. Government Securities, by transfer
thereof through the Book Entry System of the Federal Reserve System to
the account of the Collateral Agent or to an account (other than an
account of the Pledgor) designated by the Collateral Agent; and
(3) Pledged Marketable Securities. In the case of
Collateral consisting of Marketable Securities, by delivery of
certificates evidencing such Marketable Securities, registered in the
name of the Collateral Agent or its nominee or, if such Marketable
Securities are not issuable in certificated form but are held in book
entry form by The Depository Trust Company, by transfer to an account
of the Collateral Agent or to an account (other than an account of the
Pledgor) designated by the Collateral Agent with The Depository Trust
Company. Each such delivery of Marketable Securities shall be
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accompanied by an opinion of counsel (who may be an employee of the
Pledgor) that the Collateral Agent has obtained a valid, first priority
perfected security interest in, and a first lien upon, such Marketable
Securities.
Upon delivery of any Pledged Item under this Collateral
Agreement, the Collateral Agent shall examine such Pledged Item and any opinions
and certificates delivered pursuant to Sections 6(b) or (c) or otherwise
pursuant to the terms hereof in connection therewith to determine that they
comply as to form with the requirements for Eligible Collateral. The Pledgor
hereby designates the Collateral Agent as the person in whose name any
Collateral held in book entry form in the Federal Reserve System shall be
registered.
(e) Insufficiency Determination.
(1) If on any Business Day the Collateral Agent
determines that the aggregate Pledge Value of the Collateral is less
than the Pledge Value Requirement (any such determination, an
"Insufficiency Determination"), the Collateral Agent shall promptly
notify the Pledgor of such determination by telephone call to an
Authorized Representative of the Pledgor followed by a written
confirmation of such call.
(2) If, by 4:00 p.m., New York City time on the tenth
Business Day following the day on which telephonic notice shall have
been given pursuant to the preceding paragraph (e)(1), the Pledgor
shall have failed to deliver, in the manner set forth in paragraphs (c)
and (d) of this Section 6, sufficient additional Eligible Collateral so
that, after giving effect to such delivery, the aggregate Pledge Value
of the Collateral, as of such tenth Business Day, is at least equal to
the Pledge Value Requirement, then (x) the Collateral Requirement with
respect to any U.S. Government Securities pledged hereunder (other than
in respect of Cash Delivery Obligations) shall be increased from 150%
to 200%, and (y) unless a Collateral Event of Default shall have
occurred and be continuing, the Collateral Agent shall:
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(i) commence sales, in the manner described in paragraph (3)
below, of such portion of the Collateral consisting of U.S. Government
Securities as may be required to be sold in order to generate proceeds
sufficient to purchase Common Stock or, after a Reorganization Event, Marketable
Securities, as described in the following clause (ii); and (ii) commence
purchases, in the manner described in paragraph (3) below, of Common Stock or,
after a Reorganization Event, Marketable Securities, in an amount sufficient to
cause the aggregate Pledge Value of the Collateral to be at least equal to the
Pledge Value Requirement.
Notwithstanding the foregoing, the Collateral Agent shall
discontinue sales and purchases pursuant to the preceding clauses (i) and (ii),
respectively, if at any time a Collateral Event of Default shall have occurred
and be continuing. The Collateral Agent shall determine the Market Value and the
Pledge Value of the Collateral after each purchase of Common Stock or Marketable
Securities pursuant to the preceding clause (ii) in order to determine whether
the Pledge Value Requirement is met and whether a Collateral Event of Default
has occurred. Solely for purposes of such calculation, the Market Value of the
Common Stock or Marketable Securities shall be: (A) the most recent sales price
as reported in the composite transactions for the principal securities exchange
on which the Common Stock or Marketable Securities, as the case may be, are then
listed or, if such securities are not so listed, the last quoted ask price for
such securities in the over-the-counter market as reported by The NASDAQ
National Market or, if not so reported, by the National Quotation Bureau or a
similar organization; or (B) if higher, in the case of Common Stock, the most
recent available Closing Price.
A "Collateral Event of Default" shall mean, at any time, the
occurrence of any of the following: (A) failure of the aggregate Market Value of
the Collateral to equal or exceed the Pledge Value Requirement; (B) failure of
the Market Value of any U.S. Government Securities pledged at such time (not
including any U.S. Government Securities pledged in respect of Cash Delivery
Obligations at such time) to have an aggregate Market Value of at least 105% of
the Market Value of a number of shares of Common Stock (or, from and after any
Reorganization Event, Marketable Securities) equal to (x) the
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Maximum Deliverable Number thereof minus (y) the number thereof pledged as
Collateral hereunder at such time; or (C) from and after any Reorganization
Event, failure of the U.S. Government Securities pledged in respect of Cash
Delivery Obligations to have an aggregate Market Value at least equal to 105% of
the Cash Delivery Obligations at such time, if, in the case of a failure
described in this clause (C), such failure shall continue to be in effect at
4:00 p.m., New York City time, on the tenth Business Day following the day on
which telephonic notice in respect thereof shall have been given pursuant to
paragraph (e)(1) above. For purposes of this Agreement, the portion of any
pledged U.S. Government Securities that shall be deemed to be in respect of Cash
Delivery Obligations at any time shall be a portion having a Market Value equal
to 105% of the Cash Delivery Obligations at such time (or, if less, the
aggregate Market Value of all U.S. Government Securities pledged at such time).
(3) Collateral sold and Common Stock or shares of
Marketable Securities purchased by the Collateral Agent pursuant to the
preceding paragraphs (e)(i) and (ii) may be sold and purchased on any
securities exchange or in any over-the-counter market or in any private
purchase transaction, and at such price or prices, in each case as the
Collateral Agent may deem satisfactory. The Pledgor covenants and
agrees that it will execute and deliver such documents and take such
other action as the Collateral Agent deems necessary or advisable in
order that any such sales and purchases may be made in compliance with
law.
(f) Release of Excess Collateral. If on any Business Day the
Collateral Agent determines that the aggregate Pledge Value of the Pledgor's
Eligible Collateral exceeds the Pledge Value Requirement and no Event of Default
or failure by the Pledgor to meet any of its obligations under Sections 5 or 6
hereof has occurred and is continuing, the Pledgor may obtain the release from
the Lien hereof of any Collateral having an aggregate Pledge Value on such
Business Day less than or equal to such excess, upon delivery to the Collateral
Agent of a written notice from an Authorized Representative of the Pledgor
indicating the items of Collateral to be released. Such Collateral shall be
released only after the Collateral Agent shall have determined that the
aggregate
15
Pledge Value of all of the Collateral remaining after such release as determined
on such Business Day is at least equal to the Pledge Value Requirement.
(g) Delivery of Purchase Agreement Consideration. On the
Exchange Date, unless a Reorganization Event shall have occurred prior thereto
or the Pledgor shall have elected the Cash Settlement Alternative, the
Collateral Agent shall deliver to the Trust Common Stock then held by it
hereunder representing the number of shares of Common Stock then required to be
delivered under the Purchase Agreement. If a Reorganization Event shall have
occurred prior to the Exchange Date, then, if so instructed by the Pledgor by
the close of business on the Business Day preceding the Exchange Date, the
Collateral Agent shall deliver to the Trust, to the extent permitted to be
delivered in lieu of cash required to be delivered on such date under Section
6.2 of the Purchase Agreement, the Marketable Securities then held by the
Collateral Agent hereunder. Upon such delivery, the Trust shall hold such Common
Stock or Marketable Securities, as the case may be, absolutely and free from any
claim or right whatsoever. If the Pledgor shall have elected the Cash Settlement
Alternative and shall have delivered Collateral to the Collateral Agent as
required by Section 6(e), the Collateral Agent shall deliver to the Trust the
amount of cash required to satisfy the Pledgor's obligations under the Cash
Settlement Alternative.
7. INCOME AND VOTING RIGHTS ON COLLATERAL.
(a) Unless an Event of Default or failure by the Pledgor to
meet any of its obligations under Section 5(b) or (c) has occurred and is
continuing, the Pledgor shall be entitled to receive for its own account all
dividends, interest and, if any, principal and premium relating to all of the
Collateral, unless the payment thereof to the Pledgor would reduce the aggregate
Pledge Value of the Collateral below the Pledge Value Requirement. The
Collateral Agent agrees to remit to the Pledgor on the Business Day received or
the first Business Day thereafter all such payments received by it. If an Event
of Default or failure by the Pledgor to meet any of its obligations under
Section 5(b) or (c) has occurred and is continuing, all such payments made or
accrued after and during the continuance of such default or failure shall
16
be retained by the Collateral Agent, and any such payments which are received by
the Pledgor shall be received in trust for the benefit of the Trust, shall be
segregated from other funds of the Pledgor and shall forthwith be paid over to
the Collateral Agent. Any such payments so retained by, or paid over to, the
Collateral Agent shall be held by the Collateral Agent as Collateral hereunder.
(b) Unless an Event of Default has occurred and is continuing,
the Pledgor shall have the right, from time to time, to vote and to give
consents, ratifications and waivers with respect to the Collateral, and the
Collateral Agent shall, upon receiving a written request from the Pledgor,
deliver to the Pledgor or as specified in such request such proxies, powers of
attorney, consents, ratifications and waivers in respect of any of the
Collateral which is registered in the name of the Collateral Agent or its
nominee as shall be specified in such request and be in form and substance
satisfactory to the Collateral Agent.
If an Event of Default shall have occurred and be continuing,
the Collateral Agent shall have the right to the extent permitted by law, and
the Pledgor shall take all such action as may be necessary or appropriate to
give effect to such right, to vote and to give consents, ratifications and
waivers, and take any other action with respect to any or all of the Collateral
with the same force and effect as if the Collateral Agent were the absolute and
sole owner thereof.
8. REMEDIES UPON EVENTS OF DEFAULT.
(a) If any Event of Default shall have occurred and be
continuing, the Collateral Agent may exercise on behalf of the Trust all the
rights of a secured party under the Uniform Commercial Code (whether or not in
effect in the jurisdiction where such rights are exercised) and, in addition,
without being required to give any notice, except as herein provided or as may
be required by mandatory provisions of law, shall: (i) deliver all Collateral
consisting of Common Stock, Nonvoting Common (which shall become Common Stock
upon such delivery) or Marketable Securities (but not, in either case, in excess
of the number of shares thereof deliverable under the Purchase Agreement at such
time) to the Trust on the date of the Acceleration Notice relating to
17
such Event of Default (or, in the case of an Event of Default described in
clause (iii) or (iv) of the definition thereof, on the Exchange Date) (in either
case, the "Delivery Date"), whereupon the Trust shall hold such Common Stock or
Marketable Securities absolutely free from any claim or right of whatsoever
kind, including any equity or right of redemption of the Pledgor which may be
waived, and the Pledgor, to the extent permitted by law, hereby specifically
waives all rights of redemption, stay or appraisal which it has or may have
under any law now existing or hereafter adopted; and (ii) if such delivery shall
be insufficient to satisfy in full all of the obligations of Pledgor under the
Purchase Agreement, sell all of the remaining Collateral, or such lesser portion
thereof as may be necessary to generate proceeds sufficient to satisfy in full
all of the obligations of Pledgor under the Purchase Agreement, at public or
private sale or at any broker's board or on any securities exchange, for cash,
upon credit or for future delivery, and at such price or prices as the
Collateral Agent may deem satisfactory. The Pledgor covenants and agrees that it
will execute and deliver such documents and take such other action as the
Collateral Agent deems necessary or advisable in order that any such sale may be
made in compliance with law. Upon any such sale the Collateral Agent shall have
the right to deliver, assign and transfer to the purchaser thereof the
Collateral so sold. Each purchaser at any such sale shall hold the Collateral so
sold absolutely and free from any claim or right of whatsoever kind, including
any equity or right of redemption of the Pledgor which may be waived, and the
Pledgor, to the extent permitted by law, hereby specifically waives all rights
of redemption, stay or appraisal which it has or may have under any law now
existing or hereafter adopted. The notice (if any) of such sale required by
Section 9 of the UCC shall (1) in case of a public sale, state the time and
place fixed for such sale, (2) in case of sale at a broker's board or on a
securities exchange, state the board or exchange at which such sale is to be
made and the day on which the Collateral, or the portion thereof so being sold,
will first be offered for sale at such board or exchange, and (3) in the case of
a private sale, state the day after which such sale may be consummated. Any such
public sale shall be held at such time or times within ordinary business hours
and at such place or places as the Collateral Agent may fix in the notice of
such sale. At any such sale the Collateral may
18
be sold in one lot as an entirety or in separate parcels, as the Collateral
Agent may determine. The Collateral Agent shall not be obligated to make any
such sale pursuant to any such notice. The Collateral Agent may, without notice
or publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for the
sale, and such sale may be made at any time or place to which the same may be so
adjourned. In case of any sale of all or any part of the Collateral on credit or
for future delivery, the Collateral so sold may be retained by the Collateral
Agent until the selling price is paid by the purchaser thereof, but the
Collateral Agent shall not incur any liability in case of the failure of such
purchaser to take up and pay for the Collateral so sold and, in case of any such
failure, such Collateral may again be sold upon like notice. The Collateral
Agent, instead of exercising the power of sale herein conferred upon it, may
proceed by a suit or suits at law or in equity to foreclose the security
interests and sell the Collateral, or any portion thereof, under a judgment or
decree of a court or courts of competent jurisdiction.
(b) Power of Attorney. Upon any delivery or sale of all or any
part of any Collateral made either under the power of delivery or sale given
hereunder or under judgment or decree in any judicial proceedings for
foreclosure or otherwise for the enforcement of this Collateral Agreement, the
Collateral Agent is hereby irrevocably appointed the true and lawful attorney of
the Pledgor, in the name and stead of the Pledgor, to make all necessary deeds,
bills of sale and instruments of assignment, transfer or conveyance of the
property thus delivered or sold. For that purpose the Collateral Agent may
execute all such documents and instruments. This power of attorney shall be
deemed coupled with an interest, and the Pledgor hereby ratifies and confirms
all that its attorneys acting under such power, or such attorneys' successors or
agents, shall lawfully do by virtue of this Collateral Agreement. If so
requested by the Collateral Agent, by the Trustees or by any purchaser of the
Collateral or a portion thereof, the Pledgor shall further ratify and confirm
any such delivery or sale by executing and delivering to the Collateral Agent,
to the Trustees or to such purchaser or purchasers at the expense of the Pledgor
all proper deeds, bills of sale,
19
instruments of assignment, conveyance of transfer and releases as may be
designated in any such request.
(c) Application of Collateral and Proceeds. In the case of an
Event of Default, the Collateral Agent may proceed to realize upon the security
interest in the Collateral against any one or more of the types of Collateral,
at any one time, as the Collateral Agent shall determine in its sole discretion
subject to the foregoing provisions of this Section 8. The proceeds of any sale
of, or other realization upon, or other receipt from, any of the remaining
Collateral shall be applied by the Collateral Agent in the following order of
priorities:
first, to the payment to the Trust of an amount equal
to: (A) the aggregate Market Value of a number of shares of Common
Stock equal to (1) the number of shares of Common Stock required to be
delivered under the Purchase Agreement on the Delivery Date minus (2)
the number of shares of Common Stock delivered by the Collateral Agent
to the Trust on the Delivery Date as described above; or (B) from and
after a Reorganization Event, the sum of (1) the Cash Delivery
Obligations on the Delivery Date and (2) the aggregate Market Value on
the Delivery Date of a number of Marketable Securities equal to (x) the
number thereof permitted to be delivered on the Delivery Date under
Section 6(b) of the Purchase Agreement minus (y) the number thereof
delivered by the Collateral Agent to the Trust on the Delivery Date as
described above;
second, to the payment to the Collateral Agent of the
expenses of such sale or other realization, including reasonable
compensation to the Collateral Agent and its agents and counsel, and
all expenses, liabilities and advances incurred or made by the
Collateral Agent in connection therewith, including brokerage fees in
connection with the sale by the Collateral Agent of any Pledged Item;
and
finally, if all of the obligations of the Pledgor
hereunder and under the Purchase Agreement have been fully discharged
or sufficient funds have been set aside by the Collateral Agent at the
request of the Pledgor for the discharge thereof, any remaining
proceeds shall be released to the Pledgor.
20
9. THE COLLATERAL AGENT.
The Collateral Agent accepts its duties and responsibilities
hereunder as agent for the Trust, on and subject to the following terms and
conditions:
(a) Performance of Duties. The Collateral Agent undertakes to
perform such duties and only such duties as are expressly set forth herein and,
beyond the exercise of reasonable care in the performance of such duties, no
implied covenants or obligations shall be read into this Collateral Agreement
against the Collateral Agent. No provision hereof shall be construed to relieve
the Collateral Agent from liability for its own grossly negligent action,
grossly negligent failure to act or its own wilful misconduct, subject to the
following:
(1) The Collateral Agent may consult with counsel,
and the advice or opinion of such counsel shall be full and complete
authorization and protection in respect of an action taken or suffered
hereunder in good faith and in accordance with such advice or opinion
of counsel.
(2) The Collateral Agent shall not be liable with
respect to any action taken, suffered or omitted by it in good faith
(i) reasonably believed by it to be authorized or within the discretion
or rights or powers conferred on it by this Collateral Agreement or
(ii) in accordance with any direction or request of the Trustees.
(3) The Collateral Agent shall not be liable for any
error of judgment made in good faith by any of its officers, unless the
Collateral Agent was grossly negligent in ascertaining the pertinent
facts.
(4) In the absence of bad faith on its part, the
Collateral Agent may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any note, notice, resolution, consent, certificate, affidavit, letter,
telegram, teletype message, statement, order or other document
reasonably believed by it to be genuine and correct and to have been
signed or sent by the proper Person or Persons.
21
(5) No provision of this Collateral Agreement shall
require the Collateral Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(6) The Collateral Agent may perform any duties
hereunder either directly or by or through agents or attorneys,
provided that the Collateral Agent shall remain liable to fulfill all
of such duties to the same extent, and with the same protections, as if
the Collateral Agent was performing them itself. In furtherance
thereof, any subsidiary owned or controlled by the Collateral Agent, or
its successors, as agent for the Collateral Agent, may perform any or
all of the duties of the Collateral Agent relating to the valuation of
securities and other instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be
personally liable for any taxes or other governmental charges imposed
upon or in respect of (i) the Collateral or (ii) the income or other
distributions thereon.
(8) Unless and until the Collateral Agent shall have
received notice from the Pledgor, or unless and until a Responsible
Officer of the Collateral Agent shall have actual knowledge to the
contrary, the Collateral Agent shall be entitled to deem and treat all
Collateral delivered to it hereunder as Eligible Collateral hereunder,
provided that the Collateral Agent has carried out the duties specified
in Section 6 with respect to such Collateral at the time of delivery
thereof.
The Collateral Agent shall not be responsible for the correctness of the
recitals and statements herein which are made by the Pledgor or for any
statement or certificate delivered by the Pledgor pursuant hereto. Except as
specifically provided herein, the Collateral Agent shall not be responsible for
the validity, sufficiency, collectibility or marketability of any Collateral
given
22
to or held by it hereunder or for the validity or sufficiency of the Purchase
Agreement or the Lien on the Collateral purported to be created hereby.
(b) Knowledge. The Collateral Agent shall not be deemed to
have knowledge of any Event of Default (except a Collateral Event of Default),
unless and until a Responsible Officer of the Collateral Agent shall have actual
knowledge thereof or shall have received written notice thereof.
(c) Merger. Any corporation or association into which the
Collateral Agent may be converted or merged, or with which it may be
consolidated, or to which it may sell or transfer its agency business and assets
as a whole or substantially as a whole, or any corporation or association
resulting from any such conversion, sale, merger, consolidation or transfer to
which it is a party, shall, subject to the prior written consent of the Trust,
be and become a successor Collateral Agent hereunder and vested with all of the
title to the Collateral and all of the powers, discretions, immunities,
privileges and other matters as was its predecessor without, except as provided
above, the execution or filing of any instrument or any further act, deed or
conveyance on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
(d) Resignation. The Collateral Agent and any successor
Collateral Agent may at any time resign by giving thirty days' written notice by
registered or certified mail to the Pledgor and notice to the Trust in
accordance with the provisions of Section 10(d) hereof. Such resignation shall
take effect upon the appointment of a successor Collateral Agent by the Trust.
(e) Removal. The Collateral Agent may be removed at any time
by an instrument or concurrent instruments in writing delivered to the
Collateral Agent and to the Pledgor and signed by the Trust.
(f) Appointment of Successor. (1) If the Collateral Agent
hereunder shall resign or be removed, or be dissolved or shall be in the course
of dissolution or liquidation or otherwise become incapable of action hereunder,
or if it shall be taken under the control of any public officer or officers or
of a receiver appointed
23
by a court, a successor may be appointed by the Trust by an instrument or
concurrent instruments in writing signed by the Trust or by its attorneys in
fact fully authorized. A copy of such instrument or concurrent instruments shall
be sent by registered mail to the Pledgor.
(2) Every such temporary or permanent successor Collateral
Agent appointed pursuant to the provisions hereof shall be a trust company or
bank in good standing, having a reported capital and surplus of not less than
$100,000,000 and capable of holding the Collateral in the State of New York, if
there be such an institution willing, qualified and able to accept the duties of
the Collateral Agent hereunder upon customary terms.
(g) Acceptance by Successor. Every temporary or permanent
successor Collateral Agent appointed hereunder shall execute, acknowledge and
deliver to its predecessor and also to the Pledgor and the Trust an instrument
in writing accepting such appointment hereunder, whereupon such successor,
without any further act, deed or conveyance, shall become fully vested with all
the estates, properties, rights, powers, duties and obligations of its
predecessors. Such predecessor shall, nevertheless, on the written request of
its successor or the Pledgor, execute and deliver an instrument transferring to
such successor all the estates, properties, rights and powers of such
predecessor hereunder. Every predecessor Collateral Agent shall deliver all
Collateral held by it as the Collateral Agent hereunder to its successor. Should
any instrument in writing from the Pledgor be required by a successor Collateral
Agent for more fully and certainly vesting in such successor the estates,
properties, rights, powers, duties and obligations hereby vested or intended to
be vested in the predecessor, any and all such instruments in writing shall, at
the request of the temporary or permanent successor Collateral Agent, be
forthwith executed, acknowledged and delivered by the Pledgor.
10. MISCELLANEOUS.
(a) Benefit of Agreement; Successors and Assigns. Whenever
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party. All the covenants and
agreements herein contained by or on behalf of the
24
Pledgor and the Collateral Agent shall bind, and inure to the benefit of, their
respective successors and assigns whether so expressed or not, and shall be
enforceable by and inure to the benefit of the Trust and its successors and
assigns.
(b) Separability. To the extent permitted by law, the
unenforceability or invalidity of any provision or provisions of this Collateral
Agreement shall not render any other provision or provisions herein contained
unenforceable or invalid.
(c) Amendments and Waivers. Any term, covenant, agreement or
condition of this Collateral Agreement may be amended or compliance therewith
may be waived (either generally or in a particular instance and either
retrospectively or prospectively) but only by a writing signed by the Collateral
Agent, the Pledgor and the Trust.
(d) Notices. (1) Any notice provided for herein, unless
otherwise specified, shall be in writing (including transmittals by telex or
telecopier) and shall be given to a party at the address set forth opposite such
party's name on the signature pages hereto or at such other address as may be
designated by notice duly given in accordance with this Section 10(d) to each
other party hereto.
(2) Each such notice given pursuant to paragraph (1) shall be
effective (i) if sent by certified mail (return receipt requested), 72 hours
after being deposited in the United States mail, postage prepaid; (ii) if given
by telex or telecopier, when such telex or telecopied notice is transmitted, or
(iii) if given by any other means, when delivered at the address specified in
this Section 10(d).
(e) Governing Law. This Collateral Agreement shall be governed
by and construed in accordance with the laws of the State of New York; provided
that as to Pledged Items located in any jurisdiction other than the State of New
York, the Collateral Agent on behalf of the Trust shall have all of the rights
to which a secured party is entitled under the laws of such other jurisdiction.
25
(f) Counterparts. This Collateral Agreement may be executed,
acknowledged and delivered in any number of counterparts and such counterparts
taken together shall constitute one and the same instrument.
11. TERMINATION OF COLLATERAL AGREEMENT.
This Collateral Agreement and the rights hereby granted by the
Pledgor in the Collateral shall cease, terminate and be void upon fulfillment of
all of the obligations of the Pledgor under the Purchase Agreement, and the
Pledgor shall have no further liability hereunder upon such termination. Any
Collateral remaining at the time of such termination shall be fully released and
discharged from the Lien hereof and delivered to the Pledgor by the Collateral
Agent, all at the expense of the Pledgor.
12. NO PERSONAL LIABILITY OF TRUSTEES.
By executing this Collateral Agreement none of the Trustees
assumes any personal liability hereunder.
26
IN WITNESS WHEREOF, the Pledgor has caused this Collateral
Agreement to be duly executed on its behalf, and the Collateral Agent has caused
this Collateral Agreement to be duly executed on its behalf, as of the date
hereof.
PLEDGOR:
BANC ONE CAPITAL HOLDINGS
CORPORATION
By_____________________________
Name:
Title:
Address for Notices:
________________________________
________________________________
________________________________
Attention:______________________
COLLATERAL AGENT:
[_________________],
as Collateral Agent
By_____________________________
Name:
Title:
Address for Notices:
[_________________ ]
Attention: [______________]
27
THE TRUST:
MANDATORY COMMON EXCHANGE TRUST
--------------------------------
as Trustee
Address for Notices:
_________________________________
_________________________________
_________________________________
Attention:______________________
28
Exhibit A
to
Collateral Agreement
CERTIFICATE FOR SUBSTITUTED COLLATERAL
The undersigned, Banc One Capital Holdings Corporation (the
"Pledgor"), hereby certifies, pursuant to Section 6(b) of the Collateral
Agreement dated as of September __, 1997 among the Pledgor, The Bank of New
York, as Collateral Agent, and MANDATORY COMMON EXCHANGE TRUST (the "Collateral
Agreement"; terms defined in the Collateral Agreement being used herein as
defined therein), that:
1. The Pledgor is delivering the following securities to the
Collateral Agent to be held by the Collateral Agent as substituted Collateral
(the "Substituted Collateral"):
2. The Pledgor requests that the Collateral Agent transfer to
the Pledgor the following Prior Collateral, pursuant to Section 6(b) of the
Collateral Agreement:
3. The Pledgor hereby represents and warrants to the
Collateral Agent and the Trust that:
(a) Consents to Transfer. No Transfer Restrictions exist with
respect to or otherwise apply to the assignment of, or transfer by the Pledgor
of possession of, any items of Substituted Collateral to the Collateral Agent
under the Collateral Agreement, or the subsequent sale or transfer of such items
of Substituted Collateral by the Collateral Agent pursuant to the terms of the
Collateral Agreement.
(b) Title to Collateral; Perfected Security Interest. The
Pledgor has good and marketable title to the Substituted Collateral, free of all
Liens (other than the Lien created by the Collateral Agreement) and Transfer
Restrictions. Upon delivery of the Substituted Collateral to the Collateral
Agent, the Collateral Agent will obtain a valid, first priority perfected
security interest in, and a first lien upon, such Substituted Collateral subject
to no other Lien. None of such
29
Substituted Collateral is or shall be pledged by the Pledgor as collateral for
any other purpose.
This Certificate may be relied upon by the Trust as fully and
to the same extent as if this Certificate had been specifically addressed to the
Trust.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate this _______ day of _______________ , ______________.
-------------------------------
Name:
Title:
30
Exhibit B
to
Collateral Agreement
CERTIFICATE FOR ADDITIONAL COLLATERAL
The undersigned, Banc One Capital Holdings Corporation (the
"Pledgor"), hereby certifies, pursuant to Section 6(c) of the Collateral
Agreement, dated as of September __, 1997, among the Pledgor, The Bank of New
York, as Collateral Agent and MANDATORY COMMON EXCHANGE TRUST (the "Collateral
Agreement"; terms defined in the Collateral Agreement being used herein as
defined therein), that:
1. The Pledgor is delivering the following securities to the
Collateral Agent to be held by the Collateral Agent as additional Collateral
(the "Additional Collateral"):
2. The Pledgor hereby represents and warrants to the
Collateral Agent that:
(a) Consents to Transfer. No Transfer Restrictions exist with
respect to or otherwise apply to the assignment of, or transfer by the Pledgor
of possession of, any items of Additional Collateral to the Collateral Agent
under the Collateral Agreement, or the subsequent sale or transfer of such items
of Additional Collateral by the Collateral Agent pursuant to the terms of the
Collateral Agreement.
(b) Title to Collateral; Perfected Security Interest. The
Pledgor has good and marketable title to the Additional Collateral, free of all
Liens (other than the Lien created by the Collateral Agreement) and Transfer
Restrictions. Upon delivery of the Additional Collateral to the Collateral
Agent, the Collateral Agent will obtain a valid, first priority perfected
security interest in, and a first lien upon, such Additional Collateral subject
to no other Lien. None of such Additional Collateral is or shall be pledged by
the Pledgor as collateral for any other purpose.
31
This Certificate may be relied upon by the Trust as fully and
to the same extent as if this Certificate had been specifically addressed to the
Trust.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate this ____ day of ______________ , .
-------------------------------
Name:
Title:
32
