Exhibit 4.13
CENDANT CORPORATION,
THE CHASE MANHATTAN BANK,
as Collateral Agent
AND
THE FIRST NATIONAL BANK OF CHICAGO,
as Purchase Contract Agent
FORM OF PLEDGE AGREEMENT
Dated as of
TABLE OF CONTENTS
Page
Section 1. Definitions . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2. Pledge; Control and Perfection . . . . . . . . . . . . . . 7
Section 2.1 The Pledge . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.2 Control and Perfection . . . . . . . . . . . . . . . . . . 8
Section 3. Distributions on Pledged Collateral . . . . . . . . . . . 9
Section 4. Substitution, Release, Repledge and Settlement of
Preferred Securities . . . . . . . . . . . . . . . . . 11
Section 4.1 Substitution of Preferred Securities and the
Creation of Growth PRIDES or Income PRIDES . . . . . . 11
Section 4.2 Pledge of Preferred Securities and Reestablishment
of Income PRIDES or Growth PRIDES . . . . . . . . . . . 13
Section 4.3 Termination Event . . . . . . . . . . . . . . . . . . . . 14
Section 4.4 Cash Settlement . . . . . . . . . . . . . . . . . . . . . 15
Section 4.5 Early Settlement . . . . . . . . . . . . . . . . . . . . 17
Section 4.6 Application of Proceeds Settlement . . . . . . . . . . . . 17
Section 5. Voting Rights -- Preferred Securities . . . . . . . . . . 20
Section 6. Rights and Remedies; Distribution of the Debentures;
Tax Event Redemption . . . . . . . . . . . . . . . . . . 21
Section 6.1 Rights and Remedies of the Collateral Agent . . . . . . . 21
Section 6.2 Distribution of the Debentures; Tax Event
Redemption . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.3 Substitutions . . . . . . . . . . . . . . . . . . . . . . 23
Section 7. Representations and Warranties, Covenants . . . . . . . . 23
Section 7.1 Representations and Warranties . . . . . . . . . . . . . . 23
Section 7.2 Covenants . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 8. The Collateral Agent . . . . . . . . . . . . . . . . . . . 24
Section 8.1 Appointment, Powers and Immunities . . . . . . . . . . . . 24
Section 8.2 Instructions of the Company . . . . . . . . . . . . . . . 25
Section 8.3 Reliance by Collateral Agent . . . . . . . . . . . . . . . 26
Section 8.4 Rights in Other Capacities . . . . . . . . . . . . . . . . 26
Section 8.5 Non-Reliance on Collateral Agent . . . . . . . . . . . . . 26
Section 8.6 Compensation and Indemnity . . . . . . . . . . . . . . . . 27
Section 8.7 Failure to Act . . . . . . . . . . . . . . . . . . . . . . 27
Section 8.8 Resignation of Collateral Agent . . . . . . . . . . . . . 28
Section 8.9 Right to Appoint Agent or Advisor . . . . . . . . . . . . 28
Section 8.10 Survival . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8.11 Exculpation . . . . . . . . . . . . . . . . . . . . . . . 29
Section 9. Amendment . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 9.1 Amendment Without Consent of Holders . . . . . . . . . . . 29
Section 9.2 Amendment with Consent of Holders . . . . . . . . . . . . 30
Section 9.3 Execution of Amendments . . . . . . . . . . . . . . . . . 30
Section 9.4 Effect of Amendments . . . . . . . . . . . . . . . . . . . 31
Section 9.5 Reference to Amendments . . . . . . . . . . . . . . . . . 31
Section 10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . 31
Section 10.1 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 10.2 Governing Law . . . . . . . . . . . . . . . . . . . . . . 31
Section 10.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 10.4 Successors and Assigns . . . . . . . . . . . . . . . . . . 32
Section 10.5 Counterparts . . . . . . . . . . . . . . . . . . . . . . . 32
Section 10.6 Severability . . . . . . . . . . . . . . . . . . . . . . . 33
Section 10.7 Expenses, etc. . . . . . . . . . . . . . . . . . . . . . 33
Section 10.8 Security Interest Absolute . . . . . . . . . . . . . . . . 33
EXHIBIT A INSTRUCTIONS TO COLLATERAL AGENT
EXHIBIT B INSTRUCTIONS TO PURCHASE CONTRACT AGENT
PLEDGE AGREEMENT
FORM OF PLEDGE AGREEMENT, dated as of ________ (this "Agreement"),
among Cendant Corporation, a Delaware corporation (the "Company"), The
Chase Manhattan Bank, a New York banking corporation, not individually but
solely as collateral agent (in such capacity, together with its successors
in such capacity, the "Collateral Agent") and in its capacity as a
"securities intermediary" as defined in Section 8-102(a)(14) of the Code
(as defined herein) (in such capacity, together with its successors in
such capacity, the "Securities Intermediary"), and The First National Bank
of Chicago, not individually but solely as purchase contract agent and as
attorney-in-fact of the Holders (as defined in the Purchase Contract
Agreement) from time to time of the Securities (as hereinafter defined)
(in such capacity, together with its successors in such capacity, the
"Purchase Contract Agent") under the Purchase Contract Agreement (as
hereinafter defined).
RECITALS
The Company and the Purchase Contract Agent are parties to the
Purchase Contract Agreement, dated as of the date hereof (as modified and
supplemented and in effect from time to time, the "Purchase Contract
Agreement"), pursuant to which there may be issued up to FELINE PRIDES
and ___% Trust Originated Preferred Securities (the "Preferred Securities"
and, together with the FELINE PRIDES, the "Securities").
The FELINE PRIDES will initially consist of (A) _______ units
(referred to as "Income PRIDES") with a Stated Amount, per Income
PRIDES, of $50 (the "Stated Amount") and (B) at least ________ units
(referred to as "Growth PRIDES") with a face amount, per Growth PRIDES,
equal to the Stated Amount. Each Income PRIDES will initially consist of
a unit comprised of (a) a stock purchase contract (a "Purchase Contract")
under which (i) the holder will purchase from the Company on _______, 2001
(the "Purchase Contract Settlement Date"), for an amount of cash equal
to the Stated Amount, a number of newly issued shares of common stock,
$0.01 par value per share (the "Common Stock"), of the Company equal to
the Settlement Rate and (ii) the Company will pay the holder Contract
Adjustment Payments at the rate of ___% of the Stated Amount per annum and
(b) either beneficial ownership of a Trust Preferred Security or upon the
occurrence of a Tax Event Redemption the Applicable Ownership Interest of
the Treasury Portfolio. Each Growth PRIDES will initially consist of a
unit comprised of (a) a Purchase Contract under which (i) the holder will
purchase from the Company on the Purchase Contract Settlement Date, for an
amount in cash equal to the Stated Amount, a number of newly issued shares
of Common Stock of the Company, equal to the Settlement Rate, and (ii) the
Company will pay the holder Contract Adjustment Payments, at the rate of
___% of the Stated Amount per annum, and (b) a 1/20 undivided beneficial
interest in a ___% zero-coupon U.S. Treasury Security (CUSIP No. _____)
having a principal amount equal to $1,000 and maturing on __________, 2001
(the "Treasury Securities").
Pursuant to the terms of the Purchase Contract Agreement and the
Purchase Contracts, the Holders, from time to time, of the Securities have
irrevocably authorized the Purchase Contract Agent, as attorney-in-fact of
such Holders, among other things, to execute and deliver this Agreement on
behalf of such Holders and to grant the pledge provided hereby of the
Preferred Securities and any Treasury Securities delivered in exchange
therefor to secure each Holder's obligations under the related Purchase
Contract, as provided herein and subject to the terms hereof. Upon such
pledge, the Preferred Securities will be beneficially owned by the Holders
but will be owned of record by the Purchase Contract Agent subject to the
Pledge hereunder.
Accordingly, the Company, the Collateral Agent, the Securities
Intermediary and the Purchase Contract Agent, on its own behalf and as
attorney-in-fact of the Holders from time to time of the Securities, agree
as follows:
Section 1. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(b) the words "herein," "hereof' and "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision;
(c) the following terms have the meanings assigned to them in the
Purchase Contract Agreement: (i) Act, (ii) Agent, (iii) Board Resolution,
(iv) Cash Settlement, (v) Certificate, (vi) Common Stock, (vii) Contract
Adjustment Payments, (viii) Debentures, (ix) Early Settlement, (x) Early
Settlement Amount, (xi) Early Settlement Date, (xii) Failed Remarketing,
(xiii) Holder, (xiv) Opinion of Counsel, (xv) Outstanding Securities,
(xvi) Purchase Agreement, (xvii) Purchase Contract, (xviii) Purchase
Contract Settlement Date, (xix) Purchase Price, (xx) Remarketing Agent,
(xxi) Remarketing Agreement, (xxii) Remarketing Underwriting Agreement,
(xxiii) Settlement Rate, and (xxiv) Termination Event; and
(d) the following terms have the meanings assigned to them in
the Declaration: (i) Applicable Ownership Interest (ii) Applicable
Principal Amount, (iii) Institutional Trustee, (iv) Investment Company
Event,(v) Primary Treasury Dealer, (vi) Quotation Agent, (vii) Redemption
Amount, (viii) Redemption Price, (ix) Tax Event, (x) Tax Event Redemption,
(xi) Tax Event Redemption Date, (xii) Treasury Portfolio, (xiii) Treasury
Portfolio Purchase Price.
"Agreement" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions
hereof.
"Bankruptcy Code" means title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform
system of bankruptcy laws.
"Business Day" means any day other than a Saturday, a Sunday or
any other day on which banking institutions in The City of New York (in the
State of New York) are permitted or required by any applicable law to
close.
"Cash" means any coin or currency of the United States as at the
time shall be legal tender for payment of public and private debts.
"Code" has the meaning specified in Section 6.1 hereof.
"Collateral" has the meaning specified in Section 2.1 hereof.
"Collateral Account" means the trust account (number _________)
maintained at The Chase Manhattan Bank in the name "The First National Bank
of Chicago", as Purchase Contract Agent on behalf of the holders of certain
securities of Cendant Capital III, Cendant Capital IV and Cendant Capital
V, Collateral Account subject to the security interest of The Chase
Manhattan Bank, as Collateral Agent, for the benefit of Cendant
Corporation, as pledgee and any successor account.
"Collateral Agent" has the meaning specified in the first
paragraph of this instrument.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Debenture Trustee" means The Bank of Nova Scotia Trust Company of
New York, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Declaration" means the Amended and Restated Declaration of Trust,
dated as of ______________, among the Company as sponsor, the trustees
named therein and the holders from time to time of undivided beneficial
interests in the assets of the Trust.
"Intermediary" means any entity that in the ordinary course of its
business maintains securities accounts for others and is acting in that
capacity.
"Permitted Investments" means any one of the following which shall
mature not later than the next succeeding Business Day (i) any evidence of
indebtedness with an original maturity of 365 days or less issued, or
directly and fully guaranteed or insured, by the United States of America
or any agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof or
such indebtedness constitutes a general obligation of it); (ii) deposits,
certificates of deposit or acceptances with an original maturity of 365
days or less of any institution which is a member of the Federal Reserve
System having combined capital and surplus and undivided profits of not
less than US$ 200.0 million at the time of deposit; (iii) investments with
an original maturity of 365 days or less of any Person that is fully and
unconditionally guaranteed by a bank referred to in clause (ii); (iv)
repurchase agreements and reverse repurchase agreements relating to
marketable direct obligations issued or unconditionally guaranteed by the
United States Government or issued by any agency thereof and backed by the
full faith and credit of the United States Government; (v) investments in
commercial paper, other than commercial paper issued by the Company or its
affiliates, of any corporation incorporated under the laws of the United
States or any State thereof, which commercial paper has a rating at the
time of purchase at least equal to "A-1" by Standard & Poor's Ratings
Services or at least equal to "P-1" by Xxxxx'x Investors Service, Inc.; and
(vi) investments in money market funds registered under the Investment
Company Act of 1940, as amended, rated in the highest applicable rating
category by S&P or Moody's.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Pledge" has the meaning specified in Section 2.1 hereof.
"Pledged Preferred Securities" has the meaning specified in
Section 2.1 hereof.
"Pledged Treasury Securities" has the meaning specified in Section
2.1 hereof.
"Preferred Securities" has the meaning specified in the Recitals.
"Proceeds" means all interest, dividends, cash, instruments,
securities, financial assets (as defined in ss. 8-102(a)(9) of the Code)
and other property from time to time received, receivable or otherwise
distributed upon the sale, exchange, collection or disposition of the
Collateral or any proceeds thereof.
"Purchase Contract" has the meaning specified in the Recitals.
"Purchase Contract Agent" has the meaning specified in the first
paragraph of this Agreement.
"Purchase Contract Agreement" has the meaning specified in the
Recitals.
"Securities" has the meaning specified in the Recitals.
"Securities Intermediary" has the meaning specified in the first
paragraph of this Agreement.
"Security Entitlement" has the meaning set forth in Section
8-102(a)(17) of the Code.
"Stated Amount" has the meaning specified in the Recitals.
"TRADES" means the Treasury/Reserve Automated Debt Entry System
maintained by the Federal Reserve Bank of New York pursuant to the TRADES
Regulations.
"TRADES Regulations" means the regulations of the United States
Department of the Treasury, published at 31 C.F.R. Part 357, as amended
from time to time. Unless otherwise defined herein, all terms defined in
the TRADES Regulations are used herein as therein defined.
"Transfer" means, with respect to the Collateral and in accordance
with the instructions of the Collateral Agent, the Purchase Contract Agent
or the Holder, as applicable:
(i) in the case of Collateral consisting of securities
which cannot be delivered by book-entry or which the parties agree
are to be delivered in physical form, delivery in appropriate
physical form to the recipient accompanied by any duly executed
instruments of transfer, assignments in blank, transfer tax stamps
and any other documents necessary to constitute a legally valid
transfer to the recipient;
(ii) in the case of Collateral consisting of securities
maintained in book-entry form by causing a "securities intermediary"
(as defined in Section 8-102(a)(14) of the Code) to (i) credit a
"securities entitlement" (as defined in Section 8-102(a)(17) of the
Code) with respect to such securities to a "securities account" (as
defined in Section 8-501 (a) of the Code) maintained by or on behalf
of the recipient and (ii) to issue a confirmation to the recipient
with respect to such credit.
"Treasury Security" means a 1/20 undivided beneficial interest in
a zero-coupon U.S. Treasury Security (Cusip Number ________) with a
principal amount at maturity equal to $1,000 which mature on February 15,
2001.
"Trust" has the meaning specified in the Recitals.
"Value" with respect to any item of Collateral on any date means,
as to (i) a Preferred Security, the Stated Amount, (ii) Cash, the face
amount thereof and (iii) Treasury Securities, the aggregate principal
amount thereof at maturity.
Section 2. Pledge; Control and Perfection.
Section 2.1 The Pledge. The Holders from time to time acting
through the Purchase Contract Agent, as their attorney-in-fact, hereby
pledge and grant to the Collateral Agent, for the benefit of the Company,
as collateral security for the performance when due by such Holders of
their respective obligations under the related Purchase Contracts, a
security interest in (i) all of the right, title and interest of such
Holders (a) in the Preferred Securities constituting a part of the
Securities and all Proceeds thereof and any Treasury Securities delivered
in exchange for such Preferred Securities in accordance with Section 4
hereof, in each case that have been Transferred to or received by the
Collateral Agent and not released by the Collateral Agent to such Holders
under the provisions of this Agreement (the "Collateral"); (b) in payments
made by Holders pursuant to Section 4.4; (c) in the Collateral Account and
all securities, financial assets and other property credited thereto and
all Security Entitlements related thereto; (d) in any Debentures delivered
to the Collateral Agent upon the occurrence of an Investment Company Event
or a liquidation of the Trust as provided in Section 6.2; (e) in the
Treasury Portfolio purchased on behalf of the Holders of Income PRIDES by
the Collateral Agent upon the occurrence of a Tax Event Redemption as
provided in Section 6.2 and (f) all proceeds of the foregoing. Prior to or
concurrently with the execution and delivery of this Agreement, the
Purchase Contract Agent, on behalf of the initial Holders of the Income
PRIDES, shall cause the Preferred Securities comprising a part of the
Income PRIDES to be delivered to the Collateral Agent for the benefit of
the Company by physically delivering such securities to the Collateral
Agent endorsed in blank and the Collateral Agent delivering such securities
to the Securities Intermediary and causing the Securities Intermediary to
credit the Collateral Account with such securities and send the Collateral
Agent a confirmation of the deposit of such securities. In the event a
Holder of Income PRIDES so elects, such Holder may Transfer Treasury
Securities to the Collateral Agent for the benefit of the Company in
exchange for the release by the Collateral Agent on behalf of the Company
of Preferred Securities or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be, with an aggregate stated
liquidation amount equal to the aggregate principal amount of the Treasury
Securities so Transferred, in the case of Preferred Securities, or with an
appropriate Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio equal to the
aggregate principal amount of the Treasury Securities so transferred, in
the event that a Tax Event Redemption has occurred, to the Purchase
Contract Agent on behalf of such Holder. Treasury Securities and the
Treasury Portfolio, as applicable, shall be Transferred to the Collateral
Account maintained by the Collateral Agent at the Securities Intermediary
by book-entry transfer to the Collateral Account in accordance with the
TRADES Regulations and other applicable law and by the notation by the
Securities Intermediary on its books that a Security Entitlement with
respect to such Treasury Securities or Treasury Portfolio, has been
credited to the Collateral Account. For purposes of perfecting the Pledge
under applicable law, including, to the extent applicable, the TRADES
Regulations or the Uniform Commercial Code as adopted and in effect in any
applicable jurisdiction, the Collateral Agent shall be the agent of the
Company as provided herein. The pledge provided in this Section 2.1 is
herein referred to as the "Pledge" and the Preferred Securities (or the
Debentures that are delivered pursuant to Section 6.2 hereof) or Treasury
Securities subject to the Pledge, excluding any Preferred Securities (or
the Debentures that are delivered pursuant to Section 6.2 hereof) or
Treasury Securities released from the Pledge as provided in Section 4
hereof, are hereinafter referred to as "Pledged Preferred Securities" or
the "Pledged Treasury Securities," respectively. Subject to the Pledge and
the provisions of Section 2.2 hereof, the Holders from time to time shall
have full beneficial ownership of the Collateral. Whenever directed by the
Collateral Agent acting on behalf of the Company, the Securities
Intermediary shall have the right to reregister the Preferred Securities or
any other securities held in physical form in its name.
Except as may be required in order to release Preferred Securities
in connection with a Holder's election to convert its investment from an
Income PRIDES to a Growth PRIDES, or except as otherwise required to
release securities as specified herein, neither the Collateral Agent nor
the Securities Intermediary shall relinquish physical possession of any
certificate evidencing a Preferred Security prior to the termination of
this Agreement. If it becomes necessary for the Securities Intermediary to
relinquish physical possession of a certificate in order to release a
portion of the Preferred Securities evidenced thereby from the Pledge, the
Securities Intermediary shall use its best efforts to obtain physical
possession of a replacement certificate evidencing any Preferred Securities
remaining subject to the Pledge hereunder registered to it or endorsed in
blank within fifteen days of the date it relinquished possession. The
Securities Intermediary shall promptly notify the Company and the
Collateral Agent of the Securities Intermediary's failure to obtain
possession of any such replacement certificate as required hereby.
Section 2.2 Control and Perfection. In connection with the
Pledge granted in Section 2.1, and subject to the other provisions of this
Agreement, the Holders from time to time acting through the Purchase
Contract Agent, as their attorney-in-fact, hereby authorize and direct the
Securities Intermediary (without the necessity of obtaining the further
consent of the Purchase Contract Agent or any of the Holders), and the
Securities Intermediary agrees, to comply with and follow any instructions
and entitlement orders (as defined in ss. 8-102(a)(8) of the Code) that the
Collateral Agent on behalf of the Company may give in writing with respect
to the Collateral Account, the Collateral credited thereto and any security
entitlements with respect to any thereof. Such instructions and
entitlement orders may, without limitation, direct the Securities
Intermediary to transfer, redeem, sell, liquidate, assign, deliver or
otherwise dispose of the Preferred Securities, the Treasury Securities, the
Treasury Portfolio, and any Security Entitlements with respect thereto and
to pay and deliver any income, proceeds or other funds derived therefrom to
the Company. The Holders from time to time acting through the Purchase
Contract Agent hereby further authorize and direct the Collateral Agent, as
agent of the Company, to itself issue instructions and entitlement orders,
and to otherwise take action, with respect to the Collateral Account, the
Collateral credited thereto and any security entitlements with respect
thereto, pursuant to the terms and provisions hereof, all without the
necessity of obtaining the further consent of the Purchase Contract Agent
or any of the Holders. The Collateral Agent shall be the Agent of the
Company and shall act as directed in writing by the Company. Without
limiting the generality of the foregoing, the Collateral Agent shall issue
entitlement orders to the Securities Intermediary when and as directed by
the Company.
Section 3. Distributions on Pledged Collateral. So long as the
Purchase Contract Agent is the registered owner of the Pledged Preferred
Securities, it shall receive all payments thereon. If the Pledged
Preferred Securities are reregistered, such that the Collateral Agent
becomes the registered holder, all payments of the Stated Amount of or, if
applicable, the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio, or
cash distributions on, the Pledged Preferred Securities or on the
appropriate Applicable Ownership Interest (as specified in clause (B) of
the definition of such term) of the Treasury Portfolio, as the case may be,
and all payments of the principal of, or cash distributions on, any Pledged
Treasury Securities received by the Collateral Agent that are properly
payable hereunder shall be paid by the Collateral Agent by wire transfer in
same day funds:
(i) In the case of (A) cash distributions with respect to
the Pledged Preferred Securities or the appropriate Applicable
Ownership Interest (as specified in clause (B) of the definition of
such term) of the Treasury Portfolio, as the case may be, and (B) any
payments of the Stated Amount or, if applicable, the appropriate
Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio with respect to any
Preferred Securities or the appropriate Applicable Ownership Interest
of the Treasury Portfolio, as the case may be, that have been released
from the Pledge pursuant to Section 4.3 hereof, to the Purchase
Contract Agent, for the benefit of the relevant Holders of Securities,
to the account designated by the Purchase Contract Agent for such
purpose, no later than 2:00 p.m., New York City time, on the Business
Day such payment is received by the Collateral Agent (provided that in
the event such payment is received by the Collateral Agent on a day
that is not a Business Day or after 12:30 p.m., New York City time, on
a Business Day, then such payment shall be made no later than 10:30
a.m., New York City time, on the next succeeding Business Day);
(ii) In the case of any principal payments with respect to
any Treasury Securities that have been released from the Pledge
pursuant to Section 4.3 hereof, to the Holders of the Growth PRIDES to
the accounts designated by them in writing for such purpose no later
than 2:00 p.m., New York City time, on the Business Day such payment
is received by the Collateral Agent (provided that in the event such
payment is received by the Collateral Agent on a day that is not a
Business Day or after 12:30 p.m., New York City time, on a Business
Day, then such payment shall be made no later than 10:30 a.m., New
York City time, on the next succeeding Business Day); and
(iii) In the case of payments of the Stated Amount of
any Pledged Preferred Securities or the appropriate Applicable
Ownership Interest (as specified in clause (A) of the definition of
such term) of the Treasury Portfolio, as the case may be, or the
principal of any Pledged Treasury Securities, to the Company on the
Purchase Contract Settlement Date in accordance with the procedure set
forth in Section 4.6(a) or 4.6(b) hereof, in full satisfaction of the
respective obligations of the Holders under the related Purchase
Contracts.
All payments received by the Purchase Contract Agent as provided herein
shall be applied by the Purchase Contract Agent pursuant to the provisions
of the Purchase Contract Agreement. If, notwithstanding the foregoing, the
Purchase Contract Agent shall receive any payments of the Stated Amount or,
if applicable, the appropriate Applicable Ownership Interest (as specified
in clause (A) of the definition of such term) on account of any Preferred
Security or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as applicable that, at the time of such payment, is a Pledged
Preferred Security or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, or a Holder of a Growth PRIDES
shall receive any payments of principal on account of any Treasury
Securities that, at the time of such payment, are Pledged Treasury
Securities, the Purchase Contract Agent or such Holder shall hold the same
as trustee of an express trust for the benefit of the Company (and promptly
deliver the same over to the Company) for application to the obligations of
the Holders under the related Purchase Contracts, and the Holders shall
acquire no right, title or interest in any such payments of Stated Amount
or principal so received.
Section 4. Substitution, Release, Repledge and Settlement of
Preferred Securities.
Section 4.1 Substitution of Preferred Securities and the Creation
of Growth PRIDES or Income PRIDES.
(a) At any time on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date (unless a Tax
Event Redemption has occurred), a Holder of Income PRIDES shall have the
right to substitute Treasury Securities for the Pledged Preferred
Securities securing such Holder's obligations under the Purchase
Contract(s) comprising a part of its Income PRIDES in integral multiples of
20 Income PRIDES by (a) Transferring to the Collateral Agent Treasury
Securities having a Value equal to the Stated Amount of the Pledged
Preferred Securities to be released and (b)(i) in the event that Contract
Adjustment Payments are at a higher rate for Growth PRIDES than for Income
PRIDES, delivering cash in an amount equal to the excess of the Contract
Adjustment Payments that would have accrued since the last Payment Date
through the date of substitution on the Growth PRIDES being created by the
holder, over the Contract Adjustment Payments that have accrued over the
same time period on the related Income PRIDES, which amount the Purchase
Contract Agent shall promptly remit to the Company, and (ii) delivering the
related Income PRIDES to the Purchase Contract Agent, accompanied by a
notice, substantially in the form of Exhibit B hereto, to the Purchase
Contract Agent stating that such Holder has Transferred Treasury Securities
to the Collateral Agent pursuant to clause (a) above (stating the Value of
the Treasury Securities Transferred by such Holder) and requesting that the
Purchase Contract Agent instruct the Collateral Agent to release from the
Pledge the Pledged Preferred Securities related to such Income PRIDES. The
Purchase Contract Agent shall instruct the Collateral Agent in the form
provided in Exhibit A; provided, however, that if a Tax Event Redemption
has occurred and the Treasury Portfolio has become a component of the
Income PRIDES, Holders of Income PRIDES may make such substitution only in
integral multiples of 160,000 Income PRIDES at any time on or prior to the
second Business Day immediately preceding the Purchase Contract Settlement
Date. Upon receipt of Treasury Securities from a Holder of Income PRIDES
and the related instruction from the Purchase Contract Agent, the
Collateral Agent shall release the Pledged Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, and shall promptly Transfer such Pledged Preferred Securities
or the appropriate Applicable Ownership Interest of the Treasury Portfolio,
as the case may be, free and clear of any lien, pledge or security interest
created hereby, to the Purchase Contract Agent.
(b) At any time on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date (unless a Tax
Event Redemption has occurred), a Holder of Growth PRIDES shall have the
right to establish or reestablish Income PRIDES consisting of the Purchase
Contracts and Preferred Securities in integral multiples of 20 Income
PRIDES by (a) Transferring to the Collateral Agent Preferred Securities
having a Stated Amount equal to the Stated Amount of the Pledged Treasury
Securities to be released and (b)(i) in the event that Contract Adjustment
Payments are at a higher rate for Income PRIDES than for Growth PRIDES,
holders of Growth PRIDES wishing to recreate Income PRIDES will also be
required to deliver cash in an amount equal to the excess of the Contract
Adjustment Payments that would have accrued since the last payment date
through the date of substitution on the Income PRIDES being recreated by
such holders, over the Contract Adjustment Payments that have accrued over
the same time period on the related Growth PRIDES and (ii) delivering the
related Growth PRIDES to the Purchase Contract Agent, accompanied by a
notice, substantially in the form of Exhibit B hereto, to the Purchase
Contract Agent stating that such Holder has transferred Preferred
Securities to the Collateral Agent pursuant to clause (a) above and
requesting that the Purchase Contract Agent instruct the Collateral Agent
to release from the Pledge the Pledged Treasury Securities related to such
Growth PRIDES. The Purchase Contract Agent shall instruct the Collateral
Agent in the form provided in Exhibit A; provided, however, that if a Tax
Event Redemption has occurred and the Treasury Portfolio has become a
component of the Income PRIDES, Holders of Growth PRIDES may make such
substitution only in integral multiples of 160,000 Growth PRIDES, at any
time on or prior to the Business Day immediately preceding the Purchase
Contract Settlement Date. Upon receipt of the Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, from such Holder and the instruction from the Purchase
Contract Agent, the Collateral Agent shall release the Treasury Securities
and shall promptly Transfer such Treasury Securities, free and clear of any
lien, pledge or security interest created hereby, to the Purchase Contract
Agent.
Section 4.2 Pledge of Preferred Securities and Reestablishment of
Income PRIDES or Growth PRIDES.
(a) At any time on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date (unless a Tax
Event Redemption has occurred), a Holder of Income PRIDES shall have the
right to substitute Treasury Securities for the Pledged Preferred
Securities securing such Holder's obligations under the Purchase
Contract(s) comprising a part of its Income PRIDES in integral multiples of
20 Income PRIDES by (a) Transferring to the Collateral Agent Treasury
Securities having a Value equal to the Stated Amount of the Pledged
Preferred Securities to be released and (b)(i) in the event that Contract
Adjustment Payments are at a higher rate for Growth PRIDES than for Income
PRIDES, delivering cash in an amount equal to the excess of the Contract
Adjustment Payments that would have accrued since the last Payment Date
through the date of substitution on the Growth PRIDES being created by the
holder, over the Contract Adjustment Payments that have accrued over the
same time period on the related Income PRIDES, which amount the Purchase
Contract Agent shall promptly remit to the Company, and (ii) delivering the
related Income PRIDES to the Purchase Contract Agent, accompanied by a
notice, substantially in the form of Exhibit B hereto, to the Purchase
Contract Agent stating that such Holder has Transferred Treasury Securities
to the Collateral Agent pursuant to clause (a) above (stating the Value of
the Treasury Securities Transferred by such Holder) and requesting that the
Purchase Contract Agent instruct the Collateral Agent to release from the
Pledge the Pledged Preferred Securities related to such Income PRIDES. The
Purchase Contract Agent shall instruct the Collateral Agent in the form
provided in Exhibit A; provided, however, that if a Tax Event Redemption
has occurred and the Treasury Portfolio has become a component of the
Income PRIDES, Holders of Income PRIDES may make such substitution only in
integral multiples of 160,000 Income PRIDES at any time on or prior to the
second Business Day immediately preceding the Purchase Contract Settlement
Date. Upon receipt of Treasury Securities from a Holder of Income PRIDES
and the related instruction from the Purchase Contract Agent, the
Collateral Agent shall release the Pledged Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, and shall promptly Transfer such Pledged Preferred Securities
or the appropriate Applicable Ownership Interest of the Treasury Portfolio,
as the case may be, free and clear of any lien, pledge or security interest
created hereby, to the Purchase Contract Agent.
(b) At any time on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date (unless a Tax
Event Redemption has occurred), a Holder of Growth PRIDES shall have the
right to establish or reestablish Income PRIDES consisting of the Purchase
Contracts and Preferred Securities in integral multiples of 20 Income
PRIDES by (a) Transferring to the Collateral Agent Preferred Securities
having a Stated Amount equal to the Stated Amount of the Pledged Treasury
Securities to be released and (b)(i) in the event that Contract Adjustment
Payments are at a higher rate for Income PRIDES than for Growth PRIDES,
holders of Growth PRIDES wishing to recreate Income PRIDES will also be
required to deliver cash in an amount equal to the excess of the Contract
Adjustment Payments that would have accrued since the last payment date
through the date of substitution on the Income PRIDES being recreated by
such holders, over the Contract Adjustment Payments that have accrued over
the same time period on the related Growth PRIDES and (ii) delivering the
related Growth PRIDES to the Purchase Contract Agent, accompanied by a
notice, substantially in the form of Exhibit B hereto, to the Purchase
Contract Agent stating that such Holder has transferred Preferred
Securities to the Collateral Agent pursuant to clause (a) above and
requesting that the Purchase Contract Agent instruct the Collateral Agent
to release from the Pledge the Pledged Treasury Securities related to such
Growth PRIDES. The Purchase Contract Agent shall instruct the Collateral
Agent in the form provided in Exhibit A; provided, however, that if a Tax
Event Redemption has occurred and the Treasury Portfolio has become a
component of the Income PRIDES, Holders of Growth PRIDES may make such
substitution only in integral multiples of 160,000 Growth PRIDES, at any
time on or prior to the Business Day immediately preceding the Purchase
Contract Settlement Date. Upon receipt of the Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, from such Holder and the instruction from the Purchase
Contract Agent, the Collateral Agent shall release the Treasury Securities
and shall promptly Transfer such Treasury Securities, free and clear of any
lien, pledge or security interest created hereby, to the Purchase Contract
Agent.
Section 4.3 Termination Event. Upon receipt by the Collateral
Agent of written notice from the Company or the Purchase Contract Agent
that there has occurred a Termination Event, the Collateral Agent shall
release all Collateral from the Pledge and shall promptly Transfer any
Pledged Preferred Securities (or the Applicable Ownership Interest of the
Treasury Portfolio if a Tax Event Redemption has occurred) and Pledged
Treasury Securities to the Purchase Contract Agent for the benefit of the
Holders of the Income PRIDES and the Growth PRIDES, respectively, free and
clear of any lien, pledge or security interest or other interest created
hereby.
If such Termination Event shall result from the Company's becoming
a debtor under the Bankruptcy Code, and if the Collateral Agent shall for
any reason fail promptly to effectuate the release and Transfer of all
Pledged Preferred Securities, the Treasury Portfolio or of the Pledged
Treasury Securities, as the case may be, as provided by this Section 4.3,
the Purchase Contract Agent shall (i) use its best efforts to obtain an
opinion of a nationally recognized law firm reasonably acceptable to the
Collateral Agent to the effect that, as a result of the Company's being the
debtor in such a bankruptcy case, the Collateral Agent will not be
prohibited from releasing or Transferring the Collateral as provided in
this Section 4.3, and shall deliver such opinion to the Collateral Agent
within ten days after the occurrence of such Termination Event, and if (y)
the Purchase Contract Agent shall be unable to obtain such opinion within
ten days after the occurrence of such Termination Event or (z) the
Collateral Agent shall continue, after delivery of such opinion, to refuse
to effectuate the release and Transfer of all Pledged Preferred Securities,
of the Treasury Portfolio or of the Pledged Treasury Securities, as the
case may be, as provided in this Section 4.3, then the Purchase Contract
Agent shall within fifteen days after the occurrence of such Termination
Event commence an action or proceeding in the court with jurisdiction of
the Company's case under the Bankruptcy Code seeking an order requiring the
Collateral Agent to effectuate the release and transfer of all Pledged
Preferred Securities, of the Treasury Portfolio or of the Pledged Treasury
Securities, as the case may be, as provided by this Section 4.3 or (ii)
commence an action or proceeding like that described in subsection (i)(z)
hereof within ten days after the occurrence of such Termination Event.
Section 4.4 Cash Settlement. (a) Upon receipt by the Collateral
Agent of (i) a notice from the Purchase Contract Agent promptly after the
receipt by the Purchase Contract Agent of such notice that a Holder of an
Income PRIDES or Growth PRIDES has elected, in accordance with the
procedures specified in Section 5.4(a)(i) or (d)(i) of the Purchase
Contract Agreement, respectively, to settle its Purchase Contract with cash
and (ii) payment by such Holder on or prior to 11:00 a.m., New York City
time, on the Business Day immediately preceding the Purchase Contract
Settlement Date in lawftil money of the United States by certified or
cashiers' check or wire transfer in immediately available funds payable to
or upon the order of the Company, then the Collateral Agent shall, upon the
written direction of the Purchase Contract Agent, promptly invest any Cash
received from a Holder in connection with a Cash Settlement in Permitted
Investments. Upon receipt of the proceeds upon the maturity of the
Permitted Investments on the Purchase Contract Settlement Date, the
Collateral Agent shall pay the portion of such proceeds and deliver any
certified or cashiers' checks received, in an aggregate amount equal to the
Purchase Price, to the Company on the Purchase Contract Settlement Date,
and shall distribute any funds in respect of the interest earned from the
Permitted Investments to the Purchase Contract Agent for payment to the
relevant Holders.
(b) If a Holder of an Income PRIDES fails to notify the Agent of
its intention to make a Cash Settlement in accordance with paragraph
5.4(a)(i) of the Purchase Contract Agreement, such failure shall constitute
an event of default under the Purchase Contract Agreement and hereunder,
and the Holder shall be deemed to have consented to the disposition of the
pledged Preferred Securities pursuant to the remarketing as described in
paragraph 5.4(b) of the Purchase Contract Agreement, which is incorporated
herein by reference. If a Holder of an Income PRIDES does notify the Agent
as provided in paragraph 5.4(a)(i) of the Purchase Contract Agreement of
its intention to pay the Purchase Price in cash, but fails to make such
payment as required by paragraph 5.4(a)(ii) of the Purchase Contract
Agreement, the Preferred Securities of such a Holder will not be remarketed
but instead the Collateral Agent, for the benefit of the Company, will
exercise its rights as a secured party with respect to such Preferred
Securities at the direction of the Company to retain or dispose of the
Collateral in accordance with applicable law. In addition, in the event of
a Failed Remarketing as described in paragraph 5.4(b) of the Purchase
Contract Agreement, such Failed Remarketing shall constitute an event of
default hereunder by such Holder and the Collateral Agent, for the benefit
of the Company, will also exercise its rights as a secured party with
respect to such Preferred Securities at the direction of the Company to
retain or dispose of the Collateral in accordance with applicable law.
(c) If a Holder of a Growth PRIDES fails to notify the Purchase
Contract Agent of such Holder's intention to make a Cash Settlement in
accordance with paragraph 5.4(d)(i) of the Purchase Contract Agreement, or
if a Holder of an Income PRIDES does notify the Agent as provided in
paragraph (d)(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 5.4(d)(ii) of the Purchase Contract Agreement, such failure shall
constitute an event of default hereunder by such Holder and upon the
maturity of any Pledged Treasury Securities or the Treasury Portfolio, if
any, held by the Collateral Agent on the Business Day immediately preceding
the Purchase Contract Settlement Date, the principal amount of the Pledged
Treasury Securities or the Treasury Portfolio received by the Collateral
Agent shall, upon written direction of the Purchase Contract Agent, be
invested promptly in Permitted Investments. On the Purchase Contract
Settlement Date, an amount equal to the Purchase Price will be remitted to
the Company as payment thereof. In the event the sum of the proceeds from
the related Pledged Treasury Securities or the Treasury Portfolio, as the
case may be, and the investment earnings earned from such investments is in
excess of the aggregate Purchase Price of the Purchase Contracts being
settled thereby, the Collateral Agent will distribute such excess to the
Purchase Contract Agent for the benefit of the Holder of the related Growth
PRIDES or Income PRIDES when received.
Section 4.5 Early Settlement. Upon written notice to the
Collateral Agent by the Purchase Contract Agent that one or more Holders of
Securities have elected to effect Early Settlement of their respective
obligations under the Purchase Contracts forming a part of such Securities
in accordance with the terms of the Purchase Contracts and the Purchase
Contract Agreement (setting forth the number of such Purchase Contracts as
to which such Holders have elected to effect Early Settlement), and that
the Purchase Contract Agent has received from such Holders, and paid to the
Company as confirmed in writing by the Company, the related Early
Settlement Amounts pursuant to the terms of the Purchase Contracts and the
Purchase Contract Agreement and that all conditions to such Early
Settlement have been satisfied, then the Collateral Agent shall release
from the Pledge, (a) Pledged Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio in the case of a
Holder of Income PRIDES or (b) Pledged Treasury Securities in the case of a
Holder of Growth PRIDES, as the case may be, with a principal amount equal
to the product of (i) the Stated Amount times (ii) the number of such
Purchase Contracts as to which such Holders have elected to effect Early
Settlement and shall Transfer all such Pledged Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio or
Pledged Treasury Securities, as the case may be, free and clear of the
Pledge created hereby, to the Purchase Contract Agent for the benefit of
the Holders.
Section 4.6 Application of Proceeds Settlement. (a) In the
event a Holder of Income PRIDES (if a Tax Event Redemption has not
occurred) has not elected to make an effective Cash Settlement by notifying
the Purchase Contract Agent in the manner provided for in paragraph
5.4(a)(i) in the Purchase Contract Agreement or has not made an Early
Settlement of the Purchase Contract(s) underlying its Income PRIDES, such
Holder shall be deemed to have elected to pay for the shares of Common
Stock to be issued under such Purchase Contract(s) from the Proceeds of the
related Pledged Preferred Securities. The Collateral Agent shall, by 10:00
a.m., New York City time, on the fourth Business Day immediately preceding
the Purchase Contract Settlement Date, without any instruction from such
Holder of Income PRIDES, present the related Pledged Preferred Securities
to the Remarketing Agent for remarketing. Upon receiving such Pledged
Preferred Securities, the Remarketing Agent, pursuant to the terms of the
Remarketing Agreement and the Remarketing Underwriting Agreement, will use
its reasonable efforts to remarket such Pledged Preferred Securities on
such date at a price not less than approximately 100.5% of the aggregate
Stated Amount of such Pledged Preferred Securities, plus accrued and unpaid
distributions (including deferred distributions), if any, thereon. After
deducting as the Remarketing Fee an amount not exceeding 25 basis points
(.25%) of the aggregate Stated Amount of the Pledged Preferred Securities
from any amount of such Proceeds in excess of the aggregate Stated Amount,
plus such accrued and unpaid distributions (including deferred
distributions) of the remarketed Pledged Preferred Securities, the
Remarketing Agent will remit the entire amount of the Proceeds of such
remarketing to the Collateral Agent. On the Purchase Contract Settlement
Date, the Collateral Agent shall apply that portion of the Proceeds from
such remarketing equal to the aggregate Stated Amount, plus such accrued
and unpaid distributions (including deferred distributions) of such Pledged
Preferred Securities, to satisfy in full the obligations of such Holders of
Income PRIDES to pay the Purchase Price to purchase the Common Stock under
the related Purchase Contracts. The remaining portion of such Proceeds, if
any, shall be distributed by the Collateral Agent to the Purchase Contract
Agent for payment to the Holders. If the Remarketing Agent advises the
Collateral Agent in writing that it cannot remarket the related Pledged
Preferred Securities of such Holders of Income PRIDES at a price not less
than 100% of the aggregate Stated Amount of such Pledged Preferred
Securities plus any accrued and unpaid distributions (including deferred
distributions), thus resulting in a Failed Remarketing and an event of
default under the Purchase Contract Agreement and hereunder, the Collateral
Agent, for the benefit of the Company will, at the written direction of the
Company, retain or dispose of the Pledged Preferred Securities in
accordance with applicable law and satisfy in full, from any such
disposition or retention, such Holder's obligation to pay the Purchase
Price for the Common Stock.
(b) In the event a Holder of Growth PRIDES or Income PRIDES (if
a Tax Event Redemption has occurred) has not made an Early Settlement of
the Purchase Contract(s) underlying its Growth PRIDES or Income PRIDES,
such Holder shall be deemed to have elected to pay for the shares of Common
Stock to be issued under such Purchase Contract(s) from the Proceeds of the
related Pledged Treasury Securities or the Treasury Portfolio, as the case
may be. On the Business Day immediately prior to the Purchase Contract
Settlement Date, the Collateral Agent shall, at the written direction of
the Purchase Contract Agent, invest the Cash proceeds of the maturing
Pledged Treasury Securities or the Treasury Portfolio, as the case may be,
in overnight Permitted Investments. Without receiving any instruction from
any such Holder of Growth PRIDES or Income PRIDES, the Collateral Agent
shall apply the Proceeds of the related Pledged Treasury Securities or
Treasury Portfolio to the 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 Treasury Portfolio and the investment earnings from
the investment in overnight Permitted Investments is in excess of the
aggregate Purchase Price of the Purchase Contracts being settled thereby,
the Collateral Agent shall distribute such excess, when received, to the
Purchase Contract Agent for the benefit of the Holders.
(c) Pursuant to the Remarketing Agreement and subject to the
terms of the Remarketing Underwriting Agreement, on or prior to the
Business Day immediately preceding the Purchase Contract Settlement Date,
but no earlier than the Business Day immediately preceding the Purchase
Contract Settlement Date, holders of separate Preferred Securities which
are not components of Income PRIDES may elect to have their Preferred
Securities remarketed by delivering their Preferred Securities along with a
notice of such election to the Collateral Agent. The Collateral Agent will
hold such Preferred Securities in an account separate from the collateral
account in which the Pledged Securities will be held. Holders of Preferred
Securities electing to have their Preferred Securities remarketed will also
have the right to withdraw such election by written notice to the
Collateral Agent on or prior to the Business Day immediately preceding the
Purchase Contract Settlement Date, upon which notice the Collateral Agent
will return such Preferred Securities to such holders. On the fourth
Business Day immediately preceding the Purchase Contract Settlement Date,
the Collateral Agent will deliver the Preferred Securities to the
Remarketing Agent for remarketing. The Remarketing Agent will use its
reasonable efforts to remarket such Preferred Securities on such date at a
price of approximately 100.5% of the aggregate stated liquidation amount of
such Preferred Securities, plus accrued and unpaid distributions (including
deferred distributions), if any, thereon. The portion of the proceeds from
such remarketing equal to the aggregate stated liquidation amount of such
Preferred Securities will automatically be remitted by the Remarketing
Agent to the Collateral Agent for the benefit of such Preferred Securities
holders. In addition, after deducting as the Remarketing Fee an amount not
exceeding 25 basis points (.25%) of the aggregate stated liquidation amount
of the remarketed securities, from any amount of such proceeds in excess of
the aggregate stated liquidation amount of the remarketed Trust Preferred
Securities plus any accrued and unpaid distributions (including deferred
distributions, if any), the Remarketing Agent will remit to the Collateral
Agent the remaining portion of the proceeds, if any, for the benefit of
such holder. If, despite using its reasonable efforts, the Remarketing
Agent advises the Collateral Agent in writing that it cannot remarket the
related Preferred Securities of such holders at a price not less than 100%
of the aggregate stated liquidation amount of such Preferred Securities
plus accrued and unpaid distributions (including deferred distributions)
and thus resulting in a Failed Remarketing, the Remarketing Agent will
promptly return such Trust Preferred Securities to the Collateral Agent to
release to such holders.
Section 5. Voting Rights Preferred Securities. The Purchase
Contract Agent may exercise, or refrain from exercising, any and all voting
and other consensual rights pertaining to the Pledged Preferred Securities
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, as the case may be, shall not refrain from exercising such right if, in
the judgment of the Company, such action would impair or otherwise have a
material adverse effect on the value of all or any of the Pledged Preferred
Securities; and provided, further, that the Purchase Contract Agent shall
give the Company and the Collateral Agent at least five days' prior written
notice of the manner in which it intends to exercise, or its reasons for
refraining from exercising, any such right. Upon receipt of any notices
and other communications in respect of any Pledged Preferred Securities,
including notice of any meeting at which holders of Preferred Securities
are entitled to vote or solicitation of consents, waivers or proxies of
holders of Preferred Securities, 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 Preferred Securities (in form and substance
satisfactory to the Collateral Agent) as are prepared by the Purchase
Contract Agent with respect to the Pledged Preferred Securities.
Section 6. Rights and Remedies; Distribution of the Debentures;
Tax Event Redemption.
Section 6.1 Rights and Remedies of the Collateral Agent. (a) In
addition to the rights and remedies specified in Section 4.4 hereof or
otherwise available at law or in equity, after an event of default
hereunder, the Collateral Agent shall have all of the rights and remedies
with respect to the Collateral of a secured party under the Uniform
Commercial Code as in effect in the State of New York (the "Code") (whether
or not the Code is in effect in the jurisdiction where the rights and
remedies are asserted) and the TRADES Regulations and such additional
rights and remedies to which a secured party is entitled under the laws in
effect in any jurisdiction where any rights and remedies hereunder may be
asserted. Without limiting the generality of the foregoing, such remedies
may include, to the extent permitted by applicable law, (i) retention of
the Pledged Preferred Securities or other Collateral in full satisfaction
of the Holders obligations under the Purchase Contracts or (ii) sale of the
Pledged Preferred Securities or other Collateral in one or more public or
private sales.
(b) Without limiting any rights or powers otherwise granted by
this Agreement to the Collateral Agent, in the event the Collateral Agent
is unable to make payments to the Company on account of the appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio or on account of principal payments
of any Pledged Treasury Securities as provided in Section 3 hereof in
satisfaction of the obligations of the Holder of the Securities of which
such Pledged Treasury Securities, or the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio, as applicable, is a part under the related Purchase
Contracts, the inability to make such payments shall constitute an event of
default hereunder and the Collateral Agent shall have and may exercise,
with reference to such Pledged Treasury Securities, or such appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio, as applicable, and such
obligations of such Holder, any and all of the rights and remedies
available to a secured party under the Code and the TRADES Regulations
after default by a debtor, and as otherwise granted herein or under any
other law.
(c) Without limiting any rights or powers otherwise granted by
this Agreement to the Collateral Agent, the Collateral Agent is hereby
irrevocably authorized to receive and collect all payments of (i) the
Stated Amount of or, cash distributions on, the Pledged Preferred
Securities, (ii) the principal amount of the Pledged Treasury Securities,
or (iii) the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio,
subject, in each case, to the provisions of Section 3, and as otherwise
granted herein.
(d) The Purchase Contract Agent and each Holder of Securities,
in the event such Holder becomes the Holder of a Growth PRIDES, agrees
that, from time to time, upon the written request of the Collateral Agent,
the Purchase Contract Agent or such Holder shall execute and deliver such
further documents and do such other acts and things as the Collateral Agent
may reasonably request in order to maintain the Pledge, and the perfection
and priority thereof, and to confirm the rights of the Collateral Agent
hereunder. The Purchase Contract Agent shall have no liability to any
Holder for executing any documents or taking any such acts requested by the
Collateral Agent hereunder, except for liability for its own negligent act,
its own negligent failure to act or its own willful misconduct.
Section 6.2 Distribution of the Debentures; Tax Event Redemption.
Upon the occurrence of an Investment Company Event or a liquidation of the
Trust, a principal amount of the Debentures constituting the assets of the
Trust and underlying the Preferred Securities equal to the aggregate Stated
Amount of the Pledged Preferred Securities shall be delivered to the
Collateral Agent in exchange for the Pledged Preferred Securities. In the
event the Collateral Agent receives such Debentures in respect of Pledged
Preferred Securities upon the occurrence of an Investment Company Event or
liquidation of the Trust, the Collateral Agent shall Transfer the
Debentures to the Collateral Account in the manner specified herein for
Pledged Preferred Securities to secure the obligations of the Holders of
Income PRIDES to purchase the Company's Common Stock under the related
Purchase Contracts. Thereafter, the Collateral Agent shall have such
security interests, rights and obligations with respect to the Debentures
as it had in respect of the Pledged Preferred Securities as provided in
Articles II, III, IV, V and VI hereof, and any reference herein to the
Pledged Preferred Securities shall be deemed to be referring to such
Debentures.
Upon the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date, the Redemption Price payable on the Tax
Event Redemption Date with respect to the Applicable Principal Amount of
Debentures shall be delivered to the Collateral Agent by the Institutional
Trustee or upon a dissolution of the Trust and the distribution of the
related Debentures by the Debenture Trustee on or prior to 12:30 p.m., New
York City time, by check or wire transfer in immediately available funds at
such place and at such account as may be designated by the Collateral Agent
in exchange for the Pledged Preferred Securities or Debentures, as the case
may be. In the event the Collateral Agent receives such Redemption Price,
the Collateral Agent will, at the written direction of the Company, apply
an amount equal to the Redemption Amount of such Redemption Price to
purchase from the Quotation Agent, the Treasury Portfolio and promptly
remit the remaining portion of such Redemption Price to the Purchase
Contract Agent for payment to the Holders of Income PRIDES. The Collateral
Agent shall Transfer the Treasury Portfolio to the Collateral Account in
the manner specified herein for Pledged Preferred Securities to secure the
obligation of all Holders of Income PRIDES to purchase Common Stock of the
Company under the Purchase Contracts constituting a part of such Income
PRIDES, in substitution for the Pledged Preferred Securities. Thereafter
the Collateral Agent shall have such security interests, rights and
obligations with respect to the Treasury Portfolio as it had in respect of
the Pledged Preferred Securities or Debentures, as the case may be, as
provided in Articles II, III, IV, V, and VI, and any reference herein to
the Pledged Preferred Securities or the Debentures shall be deemed to be
reference to such Treasury Portfolio.
Section 6.3 Substitutions. Whenever a Holder has the right to
substitute Treasury Securities, Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be, for Collateral held by the Collateral Agent, such substitution shall
not constitute a novation of the security interest created hereby.
Section 7. Representations and Warranties, Covenants.
Section 7.1 Representations and Warranties. The Holders from
time to time, acting through the Purchase Contract Agent as their attorney-
in-fact (it being understood that the Purchase Contract Agent shall not be
liable for any representation or warranty made by or on behalf of a
Holder), hereby represent and warrant to the Collateral Agent, which
representations and warranties shall be deemed repeated on each day a
Holder Transfers Collateral that:
(a) such Holder has the power to grant a security interest in
and lien on the Collateral;
(b) such Holder is the sole beneficial owner of the Collateral
and, in the case of Collateral delivered in physical form, is the sole
holder of such Collateral and is the sole beneficial owner of, or has the
right to Transfer, the Collateral it Transfers to the Collateral Agent,
free and clear of any security interest, lien, encumbrance, call, liability
to pay money or other restriction other than the security interest and lien
granted under Section 2 hereof;
(c) upon the Transfer of the Collateral to the Collateral
Account, the Collateral Agent, for the benefit of the Company, will have a
valid and perfected first priority security interest therein (assuming that
any central clearing operation or any Intermediary or other entity not
within the control of the Holder involved in the Transfer of the
Collateral, including the Collateral Agent, gives the notices and takes the
action required of it hereunder and under applicable law for perfection of
that interest and assuming the establishment and exercise of control
pursuant to Section 2.2 hereof); and
(d) the execution and performance by the Holder of its
obligations under this Agreement will not result in the creation of any
security interest, lien or other encumbrance on the Collateral other than
the security interest and lien granted under Section 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 7.2 Covenants. The Holders from time to time, acting
through the Purchase Contract Agent as their attorney-in-fact (it being
understood that the Purchase Contract Agent shall not be liable for any
covenant made by or on behalf of a Holder), hereby covenant to the
Collateral Agent that for so long as the Collateral remains subject to the
Pledge:
(a) neither the Purchase Contract Agent nor such Holders will
create or purport to create or allow to subsist any mortgage, charge, lien,
pledge or any other security interest whatsoever over the Collateral or any
part of it other than pursuant to this Agreement; and
(b) neither the Purchase Contract Agent nor such Holders will
sell or otherwise dispose (or attempt to dispose) of the Collateral or any
part of it except for the beneficial interest therein, subject to the
pledge hereunder, transferred in connection with the Transfer of the
Securities.
Section 8. The Collateral Agent. It is hereby agreed as follows:
Section 8.1 Appointment, Powers and Immunities. The Collateral
Agent shall act as agent for the Company hereunder with such powers as are
specifically vested in the Collateral Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto. The
Collateral Agent: (a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and no implied covenants or
obligations shall be infeffed from this Agreement against the Collateral
Agent, nor shall the Collateral Agent be bound by the provisions of any
agreement by any party hereto beyond the specific terms hereof; (b) shall
not be responsible for any recitals contained in this Agreement, or in any
certificate or other document refeffed to or provided for in, or received
by it under, this Agreement, the Securities or the Purchase Contract
Agreement, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement (other than as against the
Collateral Agent), the Securities or the Purchase Contract Agreement or any
other document refeffed to or provided for herein or therein or for any
failure by the Company or any other Person (except the Collateral Agent) to
perform any of its obligations hereunder or thereunder or for the
perfection, priority or, except as expressly required hereby, maintenance
of any security interest created hereunder; (c) shall not be required to
initiate or conduct any litigation or collection proceedings hereunder
(except pursuant to directions furnished under Section 8.2 hereof, subject
to Section 8.6 hereof); (d) shall not be responsible for any action taken
or omitted to be taken by it hereunder or under any other document or
instrument referred to or provided for herein or in connection herewith or
therewith, except for its own negligence or willful misconduct; and (e)
shall not be required to advise any party as to selling or retaining, or
taking or refraining from taking any action with respect to, any securities
or other property deposited hereunder. Subject to the foregoing, during
the term of this Agreement, the Collateral Agent shall take all reasonable
action in connection with the safekeeping and preservation of the
Collateral hereunder.
No provision of this Agreement shall require the Collateral Agent
to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder. In no event shall the
Collateral Agent be liable for any amount in excess of the Value of the
Collateral. Notwithstanding the foregoing, the Collateral Agent and
Securities Intermediary in its individual capacity hereby waive any right
of setoff, bankers lien, liens or perfection rights as securities
intermediary or any counterclaim with respect to any of the Collateral.
Section 8.2 Instructions of the Company. The Company shall have
the right, by one or more instruments in writing executed and delivered to
the Collateral Agent, 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 and
(ii) the Collateral Agent shall be adequately indemnified as provided
herein. Nothing in this Section 8.2 shall impair the right of the
Collateral Agent in its discretion to take any action or omit to take any
action which it deems proper and which is not inconsistent with such
direction.
Section 8.3 Reliance by Collateral Agent. Each of the Securities
Intermediary and the Collateral Agent shall be entitled to rely upon any
certification, order, judgment, opinion, notice or other communication
(including, without limitation, any thereof by telephone, telecopy, telex
or facsimile) believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons (without
being required to determine the correctness of any fact stated therein),
and upon advice and statements of legal counsel and other experts selected
by the Collateral Agent and the Securities Intermediary. As to any matters
not expressly provided for by this Agreement, the Collateral Agent and the
Securities Intermediary shall in all cases be fully protected in acting, or
in refraining from acting, hereunder in accordance with instructions given
by the Company in accordance with this Agreement.
Section 8.4 Rights in Other Capacities. The Collateral Agent 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 and any Holder of
Securities (and any of their respective subsidiaries or affiliates) as if
it were not acting as the Collateral Agent, and the Collateral Agent and
its affiliates may accept fees and other consideration from the Purchase
Contract Agent and any Holder of Securities without having to account for
the same to the Company; provided that each of the Securities Intermediary
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.
Section 8.5 Non-Reliance on Collateral Agent. Neither the
Securities Intermediary nor 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 Securities of this Agreement, the Purchase
Contract Agreement, the Securities or any other document referred to or
provided for herein or therein or to inspect the properties or books of the
Purchase Contract Agent or any Holder of Securities. The Collateral Agent
shall not have any duty or responsibility to provide the Company with any
credit or other information concerning the affairs, financial condition or
business of the Purchase Contract Agent or any Holder of Securities (or any
of their respective affiliates) that may come into the possession of the
Collateral Agent or the Securities Intermediary or any of their respective
affiliates.
Section 8.6 Compensation and Indemnity. The Company agrees:
(i) to pay the Collateral Agent from time to time such compensation as
shall be agreed in writing between the Company and the Collateral Agent
for all services rendered by it hereunder and (ii) to indemnify the
Collateral Agent and the Securities Intermediary for, and to hold each
of them harmless from and against, any loss, liability or reasonable
out-of-pocket expense incurred without negligence, willful misconduct
or bad faith on its part, arising out of or in connection with the
acceptance or administration of its powers and duties under this
Agreement, including the reasonable out-of-pocket costs and expenses
(including reasonable fees and expenses of counsel) of defending itself
against any claim or liability in connection with the exercise or
performance of such powers and duties.
Section 8.7 Failure to Act. In the event of any ambiguity in the
provisions of this Agreement or any dispute between or conflicting claims
by or among the parties hereto or any other Person with respect to any
funds or property deposited hereunder, the Collateral Agent shall be
entitled, after prompt notice to the Company and the Purchase Contract
Agent, at its sole option, to refuse to comply with any and all claims,
demands or instructions with respect to such property or funds so long as
such dispute or conflict shall continue, and the Collateral Agent 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 shall be entitled to refuse to act until either (i)
such conflicting or adverse claims or demands shall have been finally
determined by a court of competent jurisdiction or settled by agreement
between the conflicting parties as evidenced in a writing, satisfactory to
the Collateral Agent or (ii) the Collateral Agent shall have received
security or an indemnity satisfactory to the Collateral Agent sufficient to
save the Collateral Agent harmless from and against any and all loss,
liability or reasonable out-of-pocket expense which the Collateral Agent
may incur by reason of its acting. The Collateral Agent may in addition
elect to commence an interpleader action or seek other judicial relief or
orders as the Collateral Agent may deem necessary. Notwithstanding
anything contained herein to the contrary, the Collateral Agent shall not
be required to take any action that is in its opinion contrary to law or to
the terms of this Agreement, or which would in its opinion subject it or
any of its officers, employees or directors to liability.
Section 8.8 Resignation of Collateral Agent. Subject to the
appointment and acceptance of a successor Collateral Agent as provided
below, (a) the Collateral Agent may resign at any time by giving notice
thereof to the Company and the Purchase Contract Agent as attorney-in-fact
for the Holders of Securities, (b) the Collateral Agent may be removed at
any time by the Company and (c) if the Collateral Agent fails to perform
any of its material obligations hereunder in any material respect for a
period of not less than 20 days after receiving written notice of such
failure by the Purchase Contract Agent and such failure shall be
continuing, the Collateral Agent may be removed by the Purchase Contract
Agent. The Purchase Contract Agent shall promptly notify the Company of
any removal of the Collateral Agent pursuant to clause (c) of the
immediately preceding sentence. Upon any such resignation or removal, the
Company shall have the right to appoint a successor Collateral Agent. If
no successor Collateral Agent shall have been so appointed and shall have
accepted such appointment within 30 days after the retiring Collateral
Agent's giving of notice of resignation or such removal, then the retiring
Collateral Agent may petition any court of competent jurisdiction for the
appointment of a successor Collateral Agent. The Collateral Agent shall be
a bank which has an office in New York, New York with a combined capital
and surplus of at least $750,000,000. Upon the acceptance of any
appointment as Collateral Agent hereunder by a successor Collateral Agent,
such successor Collateral Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Collateral Agent, and the retiring Collateral Agent shall take all
appropriate action to transfer any money and property held by it hereunder
(including the Collateral) to such successor Collateral Agent. The
retiring Collateral Agent shall, upon such succession, be discharged from
its duties and obligations as Collateral Agent hereunder. After any
retiring Collateral Agent's resignation hereunder as Collateral Agent, the
provisions of this Section 8 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.
Section 8.9 Right to Appoint Agent or Advisor. The Collateral
Agent shall have the right to appoint agents or advisors in connection with
any of its duties hereunder, and the Collateral Agent shall not be liable
for any action taken or omitted by, or in reliance upon the advice of, such
agents or advisors selected in good faith. The appointment of agents
pursuant to this Section 8.9 shall be subject to prior consent of the
Company, which consent shall not be unreasonably withheld.
Section 8.10 Survival. The provisions of this Section 8 shall
survive termination of this Agreement and the resignation or removal of the
Collateral Agent.
Section 8.11 Exculpation. Anything in this Agreement to the
contrary notwithstanding, in no event shall the Collateral Agent or the
Securities Intermediary or their officers, employees or agents be liable
under this Agreement to any third party for indirect, special, punitive, or
consequential loss or damage of any kind whatsoever, including lost
profits, whether or not the likelihood of such loss or damage was known to
the Collateral Agent 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 or the
Securities Intermediary.
Section 9. Amendment.
Section 9.1 Amendment Without Consent of Holders. Without the
consent of any Holders, the Company, the Collateral Agent 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 and
the Purchase Contract Agent, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants
of the Company; or
(2) to add to the covenants of the Company for the benefit
of the Holders, or to surrender any right or power herein conferred
upon the Company so long as such covenants or such surrender do not
adversely affect the validity, perfection or priority of the security
interests granted or created hereunder; or
(3) to evidence and provide for the acceptance of
appointment hereunder by a successor Collateral Agent, Securities
Intermediary or Purchase Contract Agent; or
(4) provisions herein which may be inconsistent with any
other such provisions herein, or to make any other provisions with
respect to such matters or questions arising under this Agreement,
provided such action shall not adversely affect the interests of the
Holders.
Section 9.2 Amendment with Consent of Holders. With the consent
of the Holders of not less than a majority of the Purchase Contracts at the
time outstanding, by Act of said Holders delivered to the Company, the
Purchase Contract Agent or the Collateral Agent, as the case may be, the
Company, when duly authorized, the Purchase Contract Agent 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 Securities; provided, however, that no such supplemental
agreement shall, without the consent of the Holder of each Outstanding
Security adversely affected thereby,
(1) change the amount or type of Collateral underlying a
Security (except for the rights of holders of Income PRIDES to
substitute the Treasury Securities for the Pledged Preferred
Securities or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, or the rights of Holders of
Growth PRIDES to substitute Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as
applicable, for the Pledged Treasury Securities), impair the right
of the Holder of any Security to receive distributions on the
underlying Collateral or otherwise adversely affect the Holder's
rights in or to such Collateral; or
(2) otherwise effect any action that would require the
consent of the Holder of each Outstanding Security affected thereby
pursuant to the Purchase Contract Agreement if such action were
effected by an agreement supplemental thereto; or
(3) reduce the percentage of Purchase Contracts the consent
of whose Holders is required for any such amendment.
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 9.3 Execution of Amendments. In executing any amendment
permitted by this Section, the Collateral Agent and the Purchase Contract
Agent shall be entitled to receive and (subject to Section 6.1 hereof, with
respect to the Collateral Agent, and Section 7.1 of the Purchase Contract
Agreement, with respect to the Purchase Contract Agent) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution
of such amendment is authorized or permitted by this Agreement and that all
conditions precedent, if any, to the execution and delivery of such
amendment have been satisfied.
Section 9.4 Effect of Amendments. Upon the execution of any
amendment under this Section, this Agreement shall be modified in
accordance therewith, and such amendment shall form a part of this
Agreement for all purposes; and every Holder of Certificates theretofore or
thereafter authenticated, executed on behalf of the Holders and delivered
under the Purchase Contract Agreement shall be bound thereby.
Section 9.5 Reference to Amendments. Security Certificates
authenticated, executed on behalf of the Holders and delivered after the
execution of any amendment pursuant to this 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 Security Certificates so modified as to conform, in
the opinion of the Collateral Agent, the Purchase Contract Agent and the
Company, to any such amendment may be prepared and executed by the Company
and authenticated, executed on behalf of the Holders and delivered by the
Purchase Contract Agent in accordance with the Purchase Contract Agreement
in exchange for Outstanding Security Certificates.
Section 10. Miscellaneous.
Section 10.1 No Waiver. No failure on the part of the Collateral
Agent or any of its agents to exercise, and no course of dealing with
respect to, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise by the Collateral Agent or any of its agents of any right,
power or remedy hereunder preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. The remedies herein are
cumulative and are not exclusive of any remedies provided by law.
Section 10.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Without limiting the foregoing, the above choice of law is expressly agreed
to by the Securities Intermediary, the Collateral Agent and the Holders
from time to time acting through the Purchase Contract Agent, as their
attorney-in-fact, in connection with the establishment and maintenance of
the Collateral Account. The Company, the Collateral Agent and the Holders
from time to time of the Securities, acting through the Purchase Contract
Agent as their attorney-in-fact, hereby submit to the nonexclusive
jurisdiction of the United States District Court for the Southern District
of New York and of any New York state court sitting in New York City for
the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The Company, the
Collateral Agent and the Holders from time to time of the Securities,
acting through the Purchase Contract Agent as their attorney-in-fact,
irrevocably waive, to the fullest extent permitted by applicable law, any
objection which they may now or hereafter have to the laying of the venue
of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient
forum.
Section 10.3 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 10.4 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective successors and
assigns of the Company, the Collateral Agent and the Purchase Contract
Agent, and the Holders from time to time of the Securities, by their
acceptance of the same, shall be deemed to have agreed to be bound by the
provisions hereof and to have ratified the agreements of, and the grant of
the Pledge hereunder by, the Purchase Contract Agent.
Section 10.5 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one
and the same instrument, and any of the parties hereto may execute this
Agreement by signing any such counterpart.
Section 10.6 Severability. If any provision hereof is invalid
and unenforceable in any jurisdiction, then, to the fullest extent
permitted by law, (i) the other provisions hereof shall remain in full
force and effect in such jurisdiction and shall be 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.
Section 10.7 Expenses, etc. The Company agrees to reimburse the
Collateral Agent for: (a) all reasonable out-of-pocket costs and expenses
of the Collateral Agent (including, without limitation, the reasonable fees
and expenses of counsel to the Collateral Agent), in connection with (i)
the negotiation, preparation, execution and delivery or performance of this
Agreement and (ii) any modification, supplement or waiver of any of the
terms of this Agreement; (b) all reasonable costs and expenses of the
Collateral Agent (including, without limitation, reasonable fees and
expenses of counsel) in connection with (i) any enforcement or proceedings
resulting or incurred in connection with causing any Holder of Securities
to satisfy its obligations under the Purchase Contracts forming a part of
the Securities and (ii) the enforcement of this Section 10.7; and (c) all
transfer, stamp, documentary or other similar taxes, assessments or charges
levied by any governmental or revenue authority in respect of this
Agreement or any other document referred to herein and all costs, expenses,
taxes, assessments and other charges incurred in connection with any
filing, registration, recording or perfection of any security interest
contemplated hereby.
Section 10.8 Security Interest Absolute. All rights of the
Collateral Agent and security interests hereunder, and all obligations of
the Holders from time to time hereunder, shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of any provision of
the Purchase Contracts or the Securities or any other agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
any other term of, or any increase in the amount of, all or any of the
obligations of Holders of Securities under the related Purchase Contracts,
or any other amendment or waiver of any term of, or any consent to any
departure from any requirement of, the Purchase Contract Agreement or any
Purchase Contract or any other agreement or instrument relating thereto; or
(c) any other circumstance which might otherwise constitute a
defense available to, or discharge of, a borrower, a guarantor or a
pledgor.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
CENDANT CORPORATION
By:__________________________________
Name:
Title:
Address for Notices:
CENDANT CORPORATION
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
Telecopy:
THE FIRST NATIONAL BANK OF CHICAGO,
as Purchase Contract Agent and as
attorney-in-fact of the Holders from
time to time of the Securities
By:_________________________________
Name:
Title:
Address for Notices:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention:
Corporate Trust Administration
Telecopy:
(000) 000-0000
THE CHASE MANHATTAN BANK,
as Collateral Agent and as
Securities Intermediary
By:__________________________________
Name:
Title:
Address for Notices:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Corporate Trust
Administration Department
Telecopy:
(000) 000-0000
EXHIBIT A
INSTRUCTION FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Corporate Trust Administration Department
Re: FELINE PRIDES of Cendant Corporation (the "Company"),
and Cendant Capital III, Cendant Capital IV and
Cendant Capital V
We hereby notify you in accordance with Section 4.1 of the Pledge
Agreement, dated as of ________, ________, (the "Pledge Agreement") among
the Company, yourselves, as Collateral Agent, and ourselves, as Purchase
Contract Agent and as attorney-in-fact for the holders of [Income PRIDES]
[Growth PRIDES] from time to time, that the holder of securities listed
below (the "Holder") has elected to substitute [$_________ aggregate
principal amount of Treasury Securities] [$__________ Stated Amount of
Preferred Securities or the appropriate Applicable Ownership Interest of
the Treasury Portfolio] in exchange for an equal Value of [Pledged
Preferred Securities or the appropriate Applicable Ownership Interest of
the Treasury Portfolio] [Pledged Treasury Securities] held by you in
accordance with the Pledge Agreement and has delivered to us a notice
stating that the Holder has Transferred [Treasury Securities] [Preferred
Securities or the appropriate Applicable Ownership Interest of the Treasury
Portfolio] to you, as Collateral Agent. We hereby instruct you, upon
receipt of such [Pledged Treasury Securities] [Pledged Preferred Securities
or the appropriate Applicable Ownership Interest of the Treasury
Portfolio], to release the [Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio) [Treasury
Securities] related to such [Income PRIDES] [Growth PRIDES] to us in
accordance with the Holder's instructions. Capitalized terms used herein
but not defined shall have the meaning set forth in the Pledge Agreement.
Date: ___________________ _________________________________________
By: _____________________________________
Name:
Title:
Signature Guarantee: ________________
Please print name and address of Registered Holder electing to substitute
[Treasury Securities] [Preferred Securities or the appropriate Applicable
Ownership Interest of the Treasury Portfolio] for the [Pledged Preferred
Securities or the Treasury Portfolio] [Pledged Treasury Securities]:
__________________________ _______________________________________
Name Social Security or other
Taxpayer Identification Number, if any
__________________________
Address
__________________________
__________________________
EXHIBIT B
INSTRUCTION TO PURCHASE CONTRACT AGENT
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Corporate Trust Services Division
Re: FELINE PRIDES of Cendant Corporation (the "Company"),
and Cendant Capital III, Cendant Capital IV and
Cendant Capital V
The undersigned Holder hereby notifies you that it has delivered to
The Chase Manhattan Bank, as Collateral Agent, [$________ aggregate
principal amount of Treasury Securities] [$ aggregate Stated Amount of
Preferred Securities or the appropriate Applicable Ownership Interest of
the Treasury Portfolio of the appropriate Applicable Ownership Interest of
the Treasury Portfolio] in exchange for an equal Value of [Pledged
Preferred Securities or the appropriate Applicable Ownership Interest of
the Treasury Portfolio] [Pledged Treasury Securities] held by the
Collateral Agent (the "Pledge Agreement"), in accordance with Section 4.1
of the Pledge Agreement, dated ___________, ________, between you, the
Company and the Collateral Agent. The undersigned Holder hereby instructs
you to instruct the Collateral Agent to release to you on behalf of the
undersigned Holder the [Pledged Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio] [Pledged Treasury
Securities] related to such [Income PRIDES] [Growth PRIDES]. Capitalized
terms used herein but not defined shall have the meaning set forth in the
Pledge Agreement.
Dated: ____________________ _______________________________________
Signature
Signature Guarantee: __________________
Please print name and address of Registered Holder:
__________________________ _______________________________________
Name Social Security or other
Taxpayer Identification Number, if any
__________________________
Address
__________________________
__________________________
