Exhibit 99.5
MOTOROLA, INC.
THE CHASE MANHATTAN BANK
as Collateral Agent, Custodial Agent
and Securities Intermediary
AND
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION
as Purchase Contract Agent
PLEDGE AGREEMENT
Dated as of October 31, 2001
TABLE OF CONTENTS
ARTICLE I DEFINITIONS....................................................... 2
SECTION 1.1 Definitions..................................................... 2
ARTICLE II PLEDGE; CONTROL AND PERFECTION................................... 4
SECTION 2.1 The Pledge...................................................... 4
SECTION 2.2 Control and Perfection.......................................... 6
ARTICLE III PAYMENTS ON PLEDGED COLLATERAL.................................. 8
SECTION 3.1 Payments........................................................ 8
SECTION 3.2 Application of Payments......................................... 9
ARTICLE IV SUBSTITUTION, RELEASE, REPLEDGE AND SETTLEMENT OF NOTES.......... 10
SECTION 4.1 Collateral Substitution and the Creation of Stripped Units...... 10
SECTION 4.2 Collateral Substitution and the Re-Creation of Normal Units..... 11
SECTION 4.3 Termination Event............................................... 11
SECTION 4.4 Early Settlement; Merger Early Settlement; Cash Settlement...... 12
SECTION 4.5 Remarketing; Application of Proceeds; Settlement................ 13
ARTICLE V VOTING RIGHTS -- NOTES............................................ 15
SECTION 5.1 Exercise by Purchase Contract Agent............................. 15
ARTICLE VI RIGHTS AND REMEDIES; TAX EVENT REDEMPTION........................ 16
SECTION 6.1 Rights and Remedies of the Collateral Agent..................... 16
SECTION 6.2 Substitutions................................................... 17
SECTION 6.3 Tax Event Redemption............................................ 17
ARTICLE VII REPRESENTATIONS AND WARRANTIES; COVENANTS....................... 18
SECTION 7.1 Representations and Warranties.................................. 18
SECTION 7.2 Covenants....................................................... 19
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ARTICLE VIII THE COLLATERAL AGENT........................................... 19
SECTION 8.1 Appointment, Powers and Immunities.............................. 19
SECTION 8.2 Instructions of the Company..................................... 21
SECTION 8.3 Reliance........................................................ 21
SECTION 8.4 Rights in Other Capacities...................................... 21
SECTION 8.5 Non-Reliance on Collateral Agent................................ 22
SECTION 8.6 Compensation and Indemnity...................................... 22
SECTION 8.7 Failure to Act.................................................. 23
SECTION 8.8 Resignation..................................................... 23
SECTION 8.9 Right to Appoint Agent or Advisor............................... 24
SECTION 8.10 Survival....................................................... 25
SECTION 8.11 Exculpation.................................................... 25
ARTICLE IX AMENDMENT........................................................ 25
SECTION 9.1 Amendment Without Consent of Holders............................ 25
SECTION 9.2 Amendment with Consent of Holders............................... 26
SECTION 9.3 Execution of Amendments......................................... 26
SECTION 9.4 Effect of Amendments............................................ 27
SECTION 9.5 Reference to Amendments......................................... 27
ARTICLE X MISCELLANEOUS..................................................... 27
SECTION 10.1 No Waiver...................................................... 27
SECTION 10.2 GOVERNING LAW.................................................. 28
SECTION 10.3 Notices........................................................ 28
SECTION 10.4 Successors and Assigns......................................... 28
SECTION 10.5 Counterparts................................................... 29
SECTION 10.6 Severability................................................... 29
SECTION 10.7 Expenses, Etc.................................................. 29
SECTION 10.8 Security Interest Absolute..................................... 29
SECTION 10.9 Waiver of Jury Trial........................................... 30
EXHIBIT A Instruction from Purchase Contract Agent to Collateral Agent
EXHIBIT B Instruction to Purchase Contract Agent
EXHIBIT C Instruction to Custodial Agent Regarding Remarketing
EXHIBIT D Instruction to Custodial Agent Regarding Withdrawal from
Remarketing
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PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of October 31, 2001 (this "Agreement"), among
Motorola, Inc., 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"), as custodial agent (in such capacity, together with its
successors in such capacity, the "Custodial Agent") and as "securities
intermediary" as defined in Section 8-102(a)(14) of the Code (as defined herein)
(in such capacity, together with its successors in such capacity, the
"Securities Intermediary"), and First Union Trust Company, National Association,
a national banking association, not individually but solely as purchase contract
agent and as attorney-in-fact of the Holders from time to time of the Units (in
such capacity, together with its successors in such capacity, the "Purchase
Contract Agent") under the Purchase Contract Agreement (as defined herein).
RECITALS
WHEREAS, the Company and the Purchase Contract Agent are parties to the
Purchase Contract Agreement, dated as of the date hereof (as modified and
supplemented and in effect from time to time, the "Purchase Contract
Agreement"), pursuant to which there may be issued Units having a Stated Amount
of $50 per Unit, all of which will initially be Normal Units.
WHEREAS, each Normal Unit will be comprised of (a) a Purchase Contract and
(b) either beneficial ownership of (i) a Note, (ii) following the successful
remarketing of the Notes in accordance with the Purchase Contract Agreement and
the Remarketing Agreement, the appropriate Treasury Consideration or (iii)
following a Tax Event Redemption in accordance with the Purchase Contract
Agreement, any Applicable Ownership Interest in the Treasury Portfolio.
WHEREAS, in accordance with the terms of the Purchase Contract Agreement, a
holder of Normal Units may separate the Notes or the appropriate Treasury
Consideration or Applicable Ownership Interest in the Treasury Portfolio, as the
case may be, from the related Purchase Contracts by substituting for such Notes
or the appropriate Treasury Consideration or Applicable Ownership Interest in
the Treasury Portfolio, as the case may be, Treasury Securities that will pay in
the aggregate an amount equal to the aggregate principal amount of such Normal
Units. Upon such separation, the Normal Units will become Stripped Units. Each
Stripped Unit will be comprised of (a) a Purchase Contract and (b) a 1/20
undivided beneficial interest in a Treasury Security.
WHEREAS, pursuant to the terms of the Purchase Contract Agreement and the
Purchase Contracts, the Holders, from time to time, of the Units have
irrevocably authorized the Purchase Contract Agent, as attorney-in-fact of such
Holders, among other
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things, to execute and deliver this Agreement on behalf of such Holders and to
grant the pledge provided hereby of the Notes, any Treasury Consideration, any
Treasury Securities and any Applicable Ownership Interest in the Treasury
Portfolio delivered in exchange therefor to secure each Holder's obligations
under the related Purchase Contract, as provided herein and subject to the terms
hereof.
NOW, THEREFORE, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Company, the Collateral
Agent, the Securities Intermediary, the Custodial Agent and the Purchase
Contract Agent, on its own behalf and as attorney-in-fact of the Holders from
time to time of the Units, agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
For all purposes of this agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) capitalized terms used but not defined herein are used as defined in
the Purchase Contract Agreement;
(b) the defined terms in this Agreement have the meanings assigned to them
in this Article and include the plural as well as the singular; and
(c) 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.
"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.
"Code" has the meaning specified in Section 6.1 hereof.
"Collateral" has the meaning specified in Section 2.1 hereof.
"Collateral Account" means the securities account (number 160949.1)
maintained at The Chase Manhattan Bank in the name "First Union Trust Company,
National Association, as Purchase Contract Agent on behalf of the holders of
certain securities of Motorola, Inc., Collateral Account subject to the security
interest of The Chase Manhattan Bank, as Collateral Agent, for the benefit of
Motorola, Inc., as pledgee" and any successor account.
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"Collateral Agent" has the meaning specified in the first paragraph of this
Agreement.
"Company" means the Person named as the "Company" in the first paragraph of
this Agreement until a successor shall have become such, and thereafter
"Company" shall mean such successor.
"Custodial Agent" has the meaning specified in the first paragraph of this
Agreement.
"Intermediary" means any entity that in the ordinary course of its business
maintains securities accounts for others and is acting in that capacity.
"Pledge" has the meaning specified in Section 2.1 hereof.
"Pledged Applicable Ownership Interest in the Treasury Portfolio" has the
meaning specified in Section 2.1 hereof.
"Pledged Notes" has the meaning specified in Section 2.1 hereof.
"Pledged Treasury Consideration" has the meaning specified in Section 2.1
hereof.
"Pledged Treasury Securities" has the meaning specified in Section 2.1
hereof.
"Proceeds" means all interest, dividends, cash, instruments, securities,
financial assets (as defined in Section 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 Agent" has the meaning specified in the first paragraph
of this Agreement.
"Purchase Contract Agreement" has the meaning specified in the Recitals.
"Securities Intermediary" has the meaning specified in the first paragraph
of this Agreement.
"Security Entitlement" has the meaning set forth in Section 8-102(a) (17)
of the Code.
"Separate Notes" means any Notes that are not Pledged Notes.
"Tax Event Redemption Date" means the date upon which a Tax Event
Redemption is to occur.
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"TRADES Regulations" means the regulations of the United States Department
of the Treasury, published at 31 C.F.R. Part 357, as amended from time to time.
Unless otherwise defined herein, all terms defined in the TRADES Regulations are
used herein as therein defined.
"Transfer" means, 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 (a) credit a "security entitlement" (as defined in
Section 8-102(a)(17) of the Code) with respect to such securities to a
"securities account" (as defined in Section 8-501(a) of the Code) maintained
by or on behalf of the recipient and (b) to issue a confirmation to the
recipient with respect to such credit. In the case of Collateral to be
delivered to the Collateral Agent, the securities intermediary shall be the
Securities Intermediary and the securities account shall be the Collateral
Account. In addition, any Transfer of Treasury Securities and Treasury
Consideration hereunder shall be made in accordance with the TRADES
Regulations and other applicable law.
ARTICLE II
PLEDGE; CONTROL AND PERFECTION
SECTION 2.1 The Pledge.
(a) The Holders from time to time acting through the Purchase Contract
Agent, as their attorney-in-fact, and the Purchase Contract Agent, as such
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 all of the right, title and interest of the
Purchase Contract Agent and such Holders in:
(i) (A) the Notes, Treasury Consideration, Treasury Securities and any
Applicable Ownership Interest in the Treasury Portfolio constituting a
part of the Units, (B) any Treasury Securities delivered in exchange
for any
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Notes, Treasury Consideration or any Applicable Ownership Interest in
the Treasury Portfolio, as applicable, in accordance with Section 4.1
hereof, and (C) any Notes, Treasury Consideration or any Applicable
Ownership Interest in the Treasury Portfolio, as applicable, delivered
in exchange for any Treasury Securities in accordance with Section 4.2
hereof, in each case that have been Transferred to or otherwise
received by the Collateral Agent and not released by the Collateral
Agent to such Holders under the provisions of this Agreement;
(ii) the Collateral Account and all securities, financial assets, security
entitlements, cash and other property credited thereto and all
Security Entitlements related thereto; and
(iii) all Proceeds of the foregoing (all of the foregoing, collectively, the
"Collateral").
(b) Prior to or concurrently with the execution and delivery of this
Agreement, the Purchase Contract Agent, on behalf of the initial Holders of the
Units, shall cause the Notes comprising a part of the Normal Units to be
Transferred to the Collateral Agent for the benefit of the Company.
(c) The pledge provided in this Section 2.1 is herein referred to as the
"Pledge" and the Notes (or the Notes that are delivered pursuant to Section 6.2
hereof), Treasury Consideration, Treasury Securities or Applicable Ownership
Interest in the Treasury Portfolio subject to the Pledge, excluding any Notes,
Treasury Consideration, Treasury Securities or Applicable Ownership Interest in
the Treasury Portfolio released from the Pledge as provided in Sections 4.1 and
4.2 hereof, respectively, are hereinafter referred to as "Pledged Notes,"
"Pledged Treasury Consideration," "Pledged Treasury Securities" or "Pledged
Applicable Ownership Interest in the Treasury Portfolio," 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. 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. Whenever directed by the Collateral Agent acting on
behalf of the Company, the Securities Intermediary shall have the right to re-
register in its name the Notes or any other securities held in physical form.
(d) Except as may be required in order to release Notes or Treasury
Consideration, as applicable, in connection with a Tax Event Redemption or with
a Holder's election to convert its investment from a Normal Unit to a Stripped
Unit, or except as otherwise required to release Notes as specified herein,
neither the Collateral Agent, the Custodial Agent nor the Securities
Intermediary shall relinquish physical
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possession of any certificate evidencing a Note 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 Notes
evidenced thereby from the Pledge, the Securities Intermediary shall use its
best efforts to obtain physical possession of a replacement certificate
evidencing any Notes 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.
(a) 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 Section 8-102(a)(8) of the Code) that the
Collateral Agent may deliver with respect to the Collateral Account, the
Collateral credited thereto and any Security Entitlements with respect to any
thereof. In the event the Securities Intermediary receives from the Holders or
the Purchase Contract Agent entitlement orders which conflict with entitlement
orders received from the Collateral Agent, the Securities Intermediary shall
follow the entitlement orders received from the Collateral Agent. Such
instructions and entitlement orders may, without limitation, direct the
Securities Intermediary to transfer, redeem, assign, or otherwise deliver the
Notes, the Treasury Consideration, the Treasury Securities, any Applicable
Ownership Interest in the Treasury Portfolio and any Security Entitlements with
respect thereto or sell, liquidate or dispose of such assets through a broker
designated by the Company, 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 only in accordance with the terms hereof or as otherwise 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
required and as otherwise directed in writing by the Company.
(b) The Securities Intermediary hereby confirms and agrees that:
(i) all securities or other property underlying any financial assets
credited to the Collateral Account shall be registered in the name of
the Securities Intermediary, or its
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nominee, indorsed to the Securities Intermediary, or its nominee, or
in blank or credited to another Collateral Account maintained in the
name of the Securities Intermediary and in no case will any financial
asset credited to the Collateral Account be registered in the name of
the Purchase Contract Agent, the Collateral Agent, the Company or any
Holder, payable to the order of, or specially indorsed to, the
Purchase Contract Agent, the Collateral Agent, the Company or any
Holder except to the extent the foregoing have been specially indorsed
to the Securities Intermediary or in blank;
(ii) all property delivered to the Securities Intermediary pursuant to this
Pledge Agreement (including, without limitation, any Notes, Treasury
Consideration, Treasury Securities or any Applicable Ownership
Interest in the Treasury Portfolio) will be promptly credited to the
Collateral Account;
(iii) the Collateral Account is an account to which financial assets are or
may be credited, and the Securities Intermediary shall, subject to the
terms of this Agreement, treat the Purchase Contract Agent as entitled
to exercise the rights of any financial asset credited to the
Collateral Account;
(iv) the Securities Intermediary has not entered into, and until the
termination of this Agreement will not enter into, any agreement with
any other Person relating to the Collateral Account and/or any
financial assets credited thereto pursuant to which it has agreed to
comply with entitlement orders (as defined in Section 8-102(a)(8) of
the Code) of such other Person; and
(v) the Securities Intermediary has not entered into, and until the
termination of this Agreement will not enter into, any agreement with
the Company, the Collateral Agent or the Purchase Contract Agent
purporting to limit or condition the obligation of the Securities
Intermediary to comply with entitlement orders as set forth in this
Section 2.2 hereof.
(c) The Securities Intermediary hereby agrees that each item of property
(whether investment property, financial asset, security, instrument or cash)
credited to the Collateral Account shall be treated as a "financial asset"
within the meaning of Section 8-102(a)(9) of the Code.
(d) In the event of any conflict between this Agreement (or any portion
thereof) and any other agreement now existing or hereafter entered into, the
terms of this Agreement shall prevail.
(e) The Purchase Contract Agent hereby irrevocably constitutes and appoints
the Collateral Agent and the Company, with full power of substitution, as the
Purchase Contract Agent's attorney-in-fact to take on behalf of, and in the
name, place and stead of, the Purchase Contract Agent and the Holders, any
action necessary or desirable to
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perfect and to keep perfected the security interest in the Collateral referred
to in Section 2.1. The grant of such power-of-attorney shall not be deemed to
require of the Collateral Agent any specific duties or obligations not otherwise
assumed by the Collateral Agent hereunder. Notwithstanding the foregoing, in no
event shall the Collateral Agent or Securities Intermediary be responsible for
the preparation or filing of any financing or continuation statements in the
appropriate jurisdictions or responsible for maintenance or perfection of any
Security Interest hereunder.
ARTICLE III
PAYMENTS ON PLEDGED COLLATERAL
SECTION 3.1 Payments.
So long as the Purchase Contract Agent is the registered owner of the
Pledged Notes, Pledged Treasury Consideration, Pledged Applicable Ownership
Interest in the Treasury Portfolio or Pledged Treasury Securities, it shall
receive all payments thereon. If the Pledged Notes are reregistered, such that
the Collateral Agent becomes the registered holder, all payments of the
principal of, or interest on, the Pledged Notes and all payments of the
principal of, or cash distributions on, any Pledged Treasury Consideration,
Pledged Treasury Securities or any Pledged Applicable Ownership Interest in the
Treasury Portfolio, that are received by the Collateral Agent and 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) quarterly cash distributions on Normal Units which
include Pledged Notes, Pledged Treasury Consideration or any Pledged
Applicable Ownership Interest in the Treasury Portfolio, any interest
payments with respect to the Pledged Notes or the appropriate Pledged
Applicable Ownership Interest (as specified in clause (B) of the
definition of such term) of the Treasury Portfolio, as the case may
be, and (C) any payments of principal or, if applicable, the
appropriate Applicable Ownership Interest (as specified in clause (A)
of the definition of such term) of the Treasury Portfolio with respect
to any Notes, Treasury Consideration 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 the Normal Units, to the account designated by the Purchase
Contract Agent for such purpose, no later than 10:00 a.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
9:00 a.m., New York City time, on a Business Day, then such
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payment shall be made no later than 9:30 a.m., New York City time, on
the next succeeding Business Day);
(ii) in the case of any 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 Stripped Units 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 10 a.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 in respect of any Pledged Notes, Pledged
Treasury Consideration, Pledged Treasury Securities or the appropriate
Pledged Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio, as the case
may be, to be paid upon settlement of such Holder's obligations to
purchase Common Stock under the Purchase Contract, to the Company on
the Stock Purchase Date in accordance with the procedure set forth in
Section 4.5(a) or 4.5(b) hereof, in full satisfaction of the
respective obligations of the Holders under the related Purchase
Contracts.
SECTION 3.2 Application of Payments.
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 principal on account of any Note,
Treasury Consideration or the appropriate Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio, as applicable, that, at the time of such payment, is a Pledged Note,
Treasury Consideration 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 a Holder of a Stripped Unit shall receive any
payments of principal on account of any Treasury Securities that, at the time of
such payment, are Pledged Treasury Securities, the Purchase Contract Agent or
such Holder shall hold the same as trustee of an express trust for the benefit
of the Company (and promptly deliver the same over to the Company) for
application to the obligations of the Holders under the related Purchase
Contracts, and the Holders shall acquire no right, title or interest in any such
payments of principal so received.
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ARTICLE IV
SUBSTITUTION, RELEASE, REPLEDGE AND SETTLEMENT OF NOTES
SECTION 4.1 Collateral Substitution and the Creation of Stripped Units.
At any time on or prior to the second Business Day immediately preceding
the Stock Purchase Date, a Holder of Normal Units shall have the right to
substitute Treasury Securities for the Pledged Notes, Pledged Treasury
Consideration or Pledged Applicable Ownership Interest in the Treasury
Portfolio, as the case may be, securing such Holder's obligations under the
Purchase Contracts comprising a part of such Normal Units, in integral multiples
of 20 Normal Units, or after a remarketing of the Notes pursuant to the Purchase
Contract Agreement, in integral multiples of Normal Units such that Treasury
Securities to be deposited and the applicable Treasury Consideration to be
released are in integral multiples of $1,000, by (a) Transferring to the
Collateral Agent Treasury Securities having an aggregate principal amount equal
to the aggregate Stated Amount of such Normal Units and (b) delivering such
Normal Units 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 principal amount, the maturities
and the CUSIP numbers of the Treasury Securities Transferred by such Holder) and
requesting that the Purchase Contract Agent instruct the Collateral Agent to
release from the Pledge the Pledged Notes, Pledged Treasury Consideration or
Pledged Applicable Ownership Interest in the Treasury Portfolio, as the case may
be, related to such Normal Units, whereupon the Purchase Contract Agent shall
promptly give such instruction to the Collateral Agent in the form provided in
Exhibit A; provided that, such Holder may not substitute such Treasury
Securities for such Pledged Notes, Pledged Treasury Consideration or Pledged
Applicable Ownership Interest in the Treasury Portfolio pursuant to this Section
4.1 during the period from four Business Days prior to any Remarketing Period
until the expiration of three Business Days after the end of such Remarketing
Period. Upon receipt of Treasury Securities from a Holder of Normal Units and
the related instruction from the Purchase Contract Agent, the Collateral Agent
shall release the Pledged Notes, Pledged Treasury Consideration or the Pledged
Applicable Ownership Interest in the Treasury Portfolio, as the case may be, and
shall promptly Transfer such Pledged Notes, Pledged Treasury Consideration or
Pledged Applicable Ownership Interest in 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. All items Transferred and/or substituted by any
Holder pursuant to this Section 4.1, Section 4.2 or any other Section of this
Agreement shall be Transferred and/or substituted free and clear of all liens,
claims and encumbrances.
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SECTION 4.2 Collateral Substitution and the Re-Creation of Normal Units.
At any time on or prior to the second Business Day immediately preceding
the Stock Purchase Date, a Holder of Stripped Units shall have the right to
reestablish Normal Units (a) consisting of the Purchase Contracts and Notes in
integral multiples of 20 Normal Units, or (b) after a remarketing of the Notes
pursuant to the Purchase Contract Agreement or a Tax Event Redemption,
consisting of the Purchase Contracts and the appropriate Treasury Consideration
(identified and calculated by reference to the Treasury Consideration then
comprising Normal Units) or the appropriate portion of the Treasury Portfolio in
integral multiples of Stripped Units such that the Treasury Consideration or
Applicable Ownership Interest in the Treasury Portfolio to be deposited and the
Treasury Securities to be released are in integral multiples of $1,000, by (x)
Transferring to the Collateral Agent Notes or the appropriate Treasury
Consideration the Applicable Ownership Interest (as defined in clause (A) of the
definition of such term) of the Treasury Portfolio, as the case may be, then
comprising such number of Normal Units as is equal to such Stripped Units and
(y) delivering such Stripped Units 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 Notes, Treasury
Consideration or Applicable Ownership Interest in the Treasury Portfolio 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 Stripped Units, whereupon the
Purchase Contract Agent shall give such instruction to the Collateral Agent in
the form provided in Exhibit A; provided that, such Holder of Stripped Units
shall not have the right to reestablish Normal Units pursuant to this Section
4.2 during the period from four Business Days prior to any Remarketing Period
until the expiration of three Business Days after the end of such Remarketing
Period. Upon receipt of the Notes or the appropriate Treasury Consideration or
Applicable Ownership Interest in 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 Pledged Treasury Securities and shall
promptly Transfer such Pledged Treasury Securities, free and clear of any lien,
pledge or security interest created hereby, to the Purchase Contract Agent.
SECTION 4.3 Termination Event.
(a) Upon receipt by the Collateral Agent of written notice from the
Company or the Purchase Contract Agent that there has occurred a Termination
Event, the Collateral Agent shall release all Collateral from the Pledge and
shall promptly Transfer any Pledged Notes, Pledged Treasury Consideration or
Pledged Applicable Ownership Interest in the Treasury Portfolio, as the case may
be, and Pledged Treasury Securities to the Purchase Contract Agent for the
benefit of the Holders of the Normal Units and the Stripped Units, respectively,
free and clear of any lien, pledge or security interest or other interest
created hereby.
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(b) If such Termination Event shall result from the Company's becoming a
debtor under the Bankruptcy Code, and if the Collateral Agent shall for any
reason fail promptly to effectuate the release and Transfer of all Pledged
Notes, Pledged Treasury Consideration, Pledged Applicable Ownership Interest in
the Treasury Portfolio, or 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 Notes,
Pledged Treasury Consideration, Pledged Applicable Ownership Interest
in the Treasury Portfolio or Pledged Treasury Securities, as the case
may be, as provided in this Section 4.3, then the Purchase Contract
Agent shall within fifteen days after the occurrence of such
Termination Event commence an action or proceeding in the court with
jurisdiction of the Company's case under the Bankruptcy Code seeking
an order requiring the Collateral Agent to effectuate the release and
transfer of all Pledged Notes, Pledged Treasury Consideration, Pledged
Applicable Ownership Interest in the Treasury Portfolio or 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 Early Settlement; Merger Early Settlement; Cash Settlement.
Upon written notice to the Collateral Agent by the Purchase Contract Agent
that one or more Holders of Units have elected to effect Early Settlement,
Merger Early Settlement or Cash Settlement of their respective obligations under
the Purchase Contracts forming a part of such Units 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, Merger Early Settlement or Cash Settlement), and that
the Purchase Contract Agent has received from such Holders, and paid to the
Company, as confirmed to the Collateral Agent in writing by the Company, the
related Early Settlement Amounts, Merger Early Settlement Amounts or Cash
Settlement Amounts, as the case may be, pursuant to the
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terms of the Purchase Contracts and the Purchase Contract Agreement and that all
conditions to such Early Settlement, Merger Early Settlement or Cash Settlement,
as the case may be, have been satisfied, then the Collateral Agent shall release
from the Pledge (a) Pledged Notes, Pledged Treasury Consideration or Pledged
Applicable Ownership Interest in the Treasury Portfolio, as the case may be, in
the case of a Holder of Normal Units or (b) Pledged Treasury Securities, in the
case of a Holder of Stripped Units, relating to such Purchase Contracts as to
which such Holders have elected to effect Early Settlement, Merger Early
Settlement or Cash Settlement, and shall Transfer all such Pledged Notes,
Pledged Treasury Consideration, Pledged Applicable Ownership Interest in 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 such Holders.
SECTION 4.5 Remarketing; Application of Proceeds; Settlement.
(a) Pursuant to the Purchase Contract Agreement, the Purchase Contract
Agent shall notify, by 10:00 a.m., New York City time, on the third Business Day
preceding the Remarketing Date or any Subsequent Remarketing Date, as the case
may be, the Remarketing Agent and the Collateral Agent of the aggregate
principal amount of Notes comprising part of Normal Units to be remarketed. The
Collateral Agent shall, by 10:00 a.m., New York City time, on the Business Day
immediately preceding the first day of any Remarketing Period or any Subsequent
Remarketing Period, as the case may be, without any instruction from Holders of
Normal Units, deliver the Pledged Notes to be remarketed to the Remarketing
Agent for remarketing. After deducting as the remarketing fee an amount not
exceeding 25 basis points (.25%) of the total proceeds of such remarketing of
Pledged Notes, the Remarketing Agent will deliver the Agent-purchased Treasury
Consideration (as defined in the Purchase Contract Agreement) purchased from the
proceeds of the remarketing to the Purchase Contract Agent, which shall
thereupon deliver such Agent-purchased Treasury Consideration to the Collateral
Agent. Upon receipt of the Agent-purchased Treasury Consideration from the
Purchase Contract Agent following a successful remarketing, (i) the Collateral
Agent, for the benefit of the Company, shall thereupon hold such Agent-Purchased
Treasury Consideration to secure such Normal Units Holders' obligations under
the Purchase Contracts and to fund the quarterly interest payment due to Normal
Units Holders on the Stock Purchase Date, and (ii) the remaining portion, if
any, of the proceeds of such successful remarketing shall be distributed by the
Remarketing Agent to the Purchase Contract Agent for payment to such Normal
Units Holders participating in such remarketing. On the Stock Purchase Date, the
Collateral Agent shall apply that portion of the payments received in respect of
the Pledged Treasury Consideration equal to the aggregate Stated Amount of the
related Normal Units to satisfy in full the obligations of such Normal Units
Holders to pay the Purchase Price
13
under the related Purchase Contracts and to pay the quarterly interest payment
due to Normal Units Holders on such Stock Purchase Date, which such quarterly
interest payment shall be paid on the Pledged Notes in an amount equal to the
Coupon Rate for such quarterly interest payment.
(b) Within three Business Days following a Failed Remarketing, the Notes
delivered to the Remarketing Agent pursuant to Section 4.5(a) shall be returned
to the Collateral Agent, together with written notice from the Remarketing Agent
of the Failed Remarketing. The Collateral Agent, for the benefit of the Company,
shall thereupon hold such Notes to secure the Normal Units Holders' obligations
under the Purchase Contracts. The Remarketing Agent shall make one or more
attempts to remarket the Notes in accordance with the procedures set forth in
the Purchase Contract Agreement and the Remarketing Agreement, provided that the
requirements of Section 5.4(b)(ii) of the Purchase Contract Agreement have been
met. If by 4:00 p.m., New York City time, on the Business Day immediately
preceding the Stock Purchase Date, the Remarketing Agent has failed to remarket
the Notes at 100.5% of the Remarketing Value (as described in the Purchase
Contract Agreement), the Last Failed Remarketing shall be deemed to have
occurred. In this case, the Remarketing Agent shall advise the Collateral Agent
in writing that it cannot remarket the related Pledged Notes of such Holders of
Normal Units. The Collateral Agent, for the benefit of the Company will, at the
written direction of the Company, retain or dispose of the Pledged Notes in
accordance with applicable law and satisfy in full, from any such disposition or
retention, such Holders' obligations to pay the Purchase Price for the Common
Stock; provided, that if upon a Failed Remarketing, the Collateral Agent
exercises such rights for the benefit of the Company with respect to such Notes,
any accrued and unpaid interest on such Notes will become payable by the Company
to the Purchase Contract Agent for payment to the Holder of the Normal Units to
which such Notes relate in accordance with the Purchase Contract Agreement.
(c) In the event a Holder of Stripped Units has not made a Cash
Settlement, Early Settlement or Merger Early Settlement of the Purchase
Contracts underlying its Stripped Units, such Holder shall be deemed to have
elected to pay for the shares of Common Stock to be issued under such Purchase
Contracts from the payments received in respect of the related Pledged Treasury
Securities. Without receiving any instruction from any such Holder, the
Collateral Agent shall apply such payments to the settlement of such Purchase
Contracts on the Stock Purchase Date. In the event the payments received in
respect of the related Pledged Treasury Securities are 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 such Holders of Stripped Units.
(d) Pursuant to the Remarketing Agreement and the Purchase Contract
Agreement, on or prior to the fourth Business Day preceding the first day of any
Remarketing Period, but no earlier than the Payment Date immediately preceding
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August 16, 2004, holders of Separate Notes may elect to have their Separate
Notes remarketed by delivering their Separate Notes, together with a notice of
such election, substantially in the form of Exhibit C hereto, to the Custodial
Agent. On the third Business Day prior to the first day of any Remarketing
Period, by 10:00 a.m., New York City time, the Custodial Agent shall notify the
Remarketing Agent of the number of such Separate Notes to be remarketed. The
Custodial Agent will hold such Separate Notes in an account separate from the
Collateral Account. A holder of Separate Notes electing to have its Separate
Notes remarketed will also have the right to withdraw such election by written
notice to the Custodial Agent, substantially in the form of Exhibit D hereto, on
or prior to the fifth Business Day immediately preceding the first day of any
Remarketing Period and any Subsequent Remarketing Period, upon which notice the
Custodial Agent will return such Separate Notes to such holder. On the third
Business Day immediately preceding the first day of any Remarketing Period and
any Subsequent Remarketing Period, the Custodial Agent will deliver to the
Remarketing Agent for remarketing all Separate Notes delivered to the Custodial
Agent pursuant to this Section 4.5(d) and not withdrawn pursuant to the terms
hereof prior to such date. The portion of the proceeds from such remarketing
equal to the amount calculated in respect of such Separate Notes as set forth in
Section 5.4(b) of the Purchase Contract Agreement will automatically be remitted
by the Remarketing Agent to the Custodial Agent for the benefit of the holders
of such Separate Notes. In addition, after deducting as the remarketing fee an
amount not exceeding 25 basis points (.25%) of the total proceeds of such
remarketing of such Separate Notes, the Remarketing Agent will remit to the
Custodial Agent the remaining portion of the proceeds, if any, for the benefit
of such holders of such Separate Notes. If, despite using its reasonable best
efforts, the Remarketing Agent advises the Custodial Agent in writing that there
has been a Failed Remarketing, the Remarketing Agent will promptly return such
Separate Notes to the Custodial Agent for redelivery to such holders of such
Separate Notes.
ARTICLE V
VOTING RIGHTS -- NOTES
SECTION 5.1 Exercise by Purchase Contract Agent.
The Purchase Contract Agent may exercise, or refrain from exercising, any
and all voting and other consensual rights pertaining to the Pledged Notes or
any part thereof for any purpose not inconsistent with the terms of this
Agreement and in accordance with the terms of the Purchase Contract Agreement;
provided, that the Purchase Contract Agent shall 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 Notes; 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
15
communications in respect of any Pledged Notes, including notice of any meeting
at which holders of Notes are entitled to vote or solicitation of consents,
waivers or proxies of holders of Notes, the Collateral Agent shall use
reasonable efforts to send promptly to the Purchase Contract Agent such notice
or communication, and as soon as reasonably practicable after receipt of a
written request therefor from the Purchase Contract Agent, execute and deliver
to the Purchase Contract Agent such proxies and other instruments in respect of
such Pledged Notes (in form and substance satisfactory to the Collateral Agent)
as are prepared by the Purchase Contract Agent with respect to the Pledged
Notes.
ARTICLE VI
RIGHTS AND REMEDIES; TAX EVENT REDEMPTION
SECTION 6.1 Rights and Remedies of the Collateral Agent.
(a) In addition to the rights and remedies available at law or in equity,
after an event of default under the Purchase Contracts, the Collateral Agent
shall have all of the rights and remedies with respect to the Collateral of a
secured party under the Uniform Commercial Code (or any successor thereto) as in
effect in the State of New York from time to time (the "Code") (whether or not
the Code is in effect in the jurisdiction where the rights and remedies are
asserted) and the TRADES Regulations and such additional rights and remedies to
which a secured party is entitled under the laws in effect in any jurisdiction
where any rights and remedies hereunder may be asserted. Wherever reference is
made in this Agreement to any section of the Code, such reference shall be
deemed to include a reference to any provision of the Code which is a successor
to, or amendment of, such section. Without limiting the generality of the
foregoing, such remedies may include, to the extent permitted by applicable law,
(i) retention of the Pledged Notes or other Collateral in full satisfaction of
the Holders' obligations under the Purchase Contracts or (ii) sale of the
Pledged Notes or other Collateral in one or more public or private sales, in
each case at the written direction of the Company.
(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 any Pledged Treasury
Consideration, Pledged Applicable Ownership Interest of the Treasury Portfolio
or Pledged Treasury Securities as provided in Article III hereof in satisfaction
of the obligations of the Holder of the Units of which such Pledged Treasury
Consideration or Pledged Treasury Securities, as applicable, is a part under the
related Purchase Contracts, the inability to make such payments shall constitute
an event of default under the Purchase Contracts and the Collateral Agent shall
have and may exercise, with reference to such Pledged Treasury Securities,
Pledged Applicable Ownership Interest of the Treasury Portfolio or Pledged
Treasury Consideration, 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
16
Regulations after default by a debtor, and as otherwise granted herein or under
any other law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
authorized to receive and collect all payments of (i) the principal amount of,
or interest on, the Pledged Notes, or (ii) the principal amount of, or interest
(if any) on, the Pledged Treasury Consideration, Pledged Applicable Ownership
Interest of the Treasury Portfolio or Pledged Treasury Securities, subject, in
each case, to the provisions of Article III, and as otherwise granted herein.
(d) The Purchase Contract Agent, individually and as attorney-in-fact for
each Holder of Units, agrees that, from time to time, upon the written request
of the Company or the Collateral Agent (acting upon the written request of the
Company), the Purchase Contract Agent or such Holder shall execute and deliver
such further documents and do such other acts and things as the Company or the
Collateral Agent (acting upon the written request of the Company) 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 Company or the Collateral
Agent (acting upon the written request of the Company) hereunder, except for
liability for its own negligent act, its own negligent failure to act, its bad
faith or its own willful misconduct.
SECTION 6.2 Substitutions.
Whenever a Holder has the right to substitute Treasury Securities, Notes,
Treasury Consideration 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 6.3 Tax Event Redemption.
Upon the occurrence of a Tax Event Redemption prior to a successful
remarketing of the Pledged Notes, the aggregate Redemption Price payable on the
Tax Event Redemption Date with respect to such Pledged Notes shall be delivered
to the Collateral Agent by the Trustee on or prior to 12:00 p.m., New York City
time, by wire transfer in immediately available funds at such place and at such
account as may be designated by the Collateral Agent in exchange for the Pledged
Notes. In the event the Collateral Agent receives such Redemption Price, the
Collateral Agent will, at the written direction of the Company, apply an amount,
out of such Redemption Price, equal to the aggregate Redemption Amount with
respect to the Pledged Notes to purchase from the Quotation Agent the Treasury
Portfolio and promptly remit the remaining portion of such Redemption Price to
the Purchase Contract Agent for payment to the Holders of Normal Units. The
Collateral Agent shall Transfer the Treasury Portfolio to the Collateral Account
to secure the
17
obligation of all Holders of Normal Units to purchase Common Stock of the
Company under the Purchase Contracts constituting a part of such Normal Units,
in substitution for the Pledged Notes. Thereafter the Collateral Agent shall
have such security interests, rights and obligations with respect to the
Treasury Portfolio as it had in respect of the Pledged Notes as provided in
Articles II, III, IV, V and VI, and any reference herein to the Notes shall be
deemed to be reference to such Treasury Portfolio, and any reference herein to
interest on the Notes shall be deemed to be a reference to distributions on such
Treasury Portfolio.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES; COVENANTS
SECTION 7.1 Representations and Warranties.
The Holders from time to time, acting through the Purchase Contract Agent
as their attorney-in-fact (it being understood that the Purchase Contract Agent
shall not be liable for any representation or warranty made by or on behalf of a
Holder), hereby represent and warrant to the Collateral Agent, which
representations and warranties shall be deemed repeated on each day a Holder
Transfers Collateral that:
(a) such Holder has the power to grant a security interest in and lien on
the Collateral;
(b) such Holder is the sole beneficial owner of the Collateral and, in the
case of Collateral delivered in physical form, is the sole holder of such
Collateral and is the sole beneficial owner of, or has the right to Transfer,
the Collateral it Transfers to the Collateral Agent, free and clear of any
security interest, lien, encumbrance, call, liability to pay money or other
restriction other than the security interest and lien granted under Section 2.1;
(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); 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 2.1 or violate any provision of any existing law or
regulation applicable to it or of
18
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 Units.
ARTICLE VIII
THE COLLATERAL AGENT
SECTION 8.1 Appointment, Powers and Immunities.
(a) The Collateral Agent shall act as agent for the Company hereunder with
such powers as are specifically vested in the Collateral Agent by the terms of
this Agreement, together with such other powers as are reasonably incidental
thereto. Each of the Collateral Agent, the Custodial Agent and the Securities
Intermediary:
(i) shall have no duties or responsibilities except those expressly set
forth in this Agreement and no implied covenants or obligations shall
be inferred from this Agreement against any of them, nor shall any of
them be bound by the provisions of any agreement by any party hereto
beyond the specific terms hereof;
(ii) shall not be responsible for any recitals contained in this Agreement,
or in any certificate or other document referred to or provided for
in, or received by it under, this Agreement, the Units or the Purchase
Contract Agreement, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement (other
than as against the Collateral Agent), the Units or the Purchase
Contract Agreement or any other document referred to or provided for
herein or therein or for any failure by the Company or any other
Person (except the Collateral Agent,
19
the Custodial Agent or the Securities Intermediary, as the case may
be) to perform any of its obligations hereunder or thereunder or for
the perfection, priority or, except as expressly required hereby,
existence, validity, perfection or maintenance of any security
interest created hereunder;
(iii) shall not be required to initiate or conduct any litigation or
collection proceedings hereunder (except in the case of the Collateral
Agent, pursuant to directions furnished under Section 8.2, subject to
Section 8.6);
(iv) 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, bad faith or willful misconduct; and
(v) shall not be required to advise any party as to selling or retaining,
or taking or refraining from taking any action with respect to, the
Units 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.
(b) No provision of this Agreement shall require the Collateral Agent, the
Custodial Agent or the Securities Intermediary to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder. In no event shall the Collateral Agent, the Custodial Agent or
the Securities Intermediary be liable for any amount in excess of the value of
the Collateral or for any special, indirect, individual, consequential damages
or lost profits or loss of business, arising in connection with this Agreement.
Notwithstanding the foregoing, the Collateral Agent, the Custodial Agent, the
Purchase Contract Agent and Securities Intermediary, each in its individual
capacity, hereby waive any right of setoff, bankers lien, liens or perfection
rights as securities intermediary or any counterclaim with respect to any of the
Collateral.
(c) The Collateral Agent, Custodial Agent and Securities Intermediary
shall have no liability whatsoever for the action or inaction of any Clearing
Agency or any book-entry system thereof. In no event shall any Clearing Agency
or any book-entry system thereof be deemed an agent or subcustodian of the
Collateral Agent, Custodial Agent and Securities Intermediary. The Collateral
Agent, Custodial Agent and Securities Intermediary shall not be responsible or
liable for any failure or delay in the performance of its obligations under this
Agreement arising out of or caused, directly or indirectly, by circumstances
beyond its reasonable control, including, without limitation, acts of God;
earthquakes; fires; floods; wars; civil or military disturbances; sabotage;
epidemics; riots; interruptions, loss or malfunctions of utilities, computer
(hardware or software) or
20
communications service; accidents; labor disputes; acts of civil or military
authority; governmental actions; or inability to obtain labor, material,
equipment or transportation.
SECTION 8.2 Instructions of the Company.
The Company shall have the right, by one or more instruments in writing
executed and delivered to the Collateral Agent, the Custodial Agent or the
Securities Intermediary, as the case may be, to direct the time, method and
place of conducting any proceeding for the realization of any right or remedy
available to the Collateral Agent, or of exercising any power conferred on the
Collateral Agent, the Custodial Agent or the Securities Intermediary, as the
case may be, or to direct the taking or refraining from taking of any action
authorized by this Agreement; provided, however, that (i) such direction shall
not conflict with the provisions of any law or of this Agreement and (ii) the
Collateral Agent, the Custodial Agent and the Securities Intermediary shall each
receive indemnity reasonably satisfactory to it as provided herein. Nothing in
this Section 8.2 shall impair the right of the Collateral Agent in its
discretion to take any action or omit to take any action which it deems proper
and which is not inconsistent with such direction.
SECTION 8.3 Reliance.
Each of the Securities Intermediary, the Custodial Agent and the Collateral
Agent shall be entitled conclusively to rely upon any certification, order,
judgment, opinion, notice or other communication (including, without limitation,
any thereof by telephone or facsimile) reasonably believed by it to be genuine
and correct and to have been signed or sent by or on behalf of the proper Person
or Persons (without being required to determine the correctness of any fact
stated therein), and upon advice and statements of legal counsel and other
experts selected by the Collateral Agent, the Custodial Agent or the Securities
Intermediary, as the case may be. As to any matters not expressly provided for
by this Agreement, the Collateral Agent, the Custodial Agent and the Securities
Intermediary shall in all cases be fully protected in acting, or in refraining
from acting, hereunder in accordance with instructions given by the Company in
accordance with this Agreement.
SECTION 8.4 Rights in Other Capacities.
The Collateral Agent, the Custodial Agent and the Securities Intermediary
and their affiliates may (without having to account therefor to the Company)
accept deposits from, lend money to, make their investments in and generally
engage in any kind of banking, trust or other business with the Purchase
Contract Agent, any Holder of Units and any holder of Separate Notes (and any of
their respective subsidiaries or affiliates) as if it were not acting as the
Collateral Agent, the Custodial Agent or the Securities Intermediary, as the
case may be, and the Collateral Agent, the Custodial Agent and the Securities
Intermediary and their affiliates may accept fees and other consideration from
the Purchase Contract Agent, any Holder of Units or any holder of Separate Notes
21
without having to account for the same to the Company; provided that each of the
Securities Intermediary, the Custodial Agent and the Collateral Agent covenants
and agrees with the Company that, except as provided in this Agreement, it shall
not accept, receive or permit there to be created in favor of itself (and waives
any right of set-off or banker's lien with respect to) and shall take no
affirmative action to permit there to be created in favor of any other Person,
any security interest, lien or other encumbrance of any kind in or upon the
Collateral and the Collateral shall not be commingled with any other assets of
any such Person.
SECTION 8.5 Non-Reliance on Collateral Agent.
None of the Securities Intermediary, the Custodial Agent or the Collateral
Agent shall be required to keep itself informed as to the performance or
observance by the Purchase Contract Agent or any Holder of Units of this
Agreement, the Purchase Contract Agreement, the Units or any other document
referred to or provided for herein or therein or to inspect the properties or
books of the Purchase Contract Agent or any Holder of Units. The Collateral
Agent, the Custodial Agent and the Securities Intermediary shall not have any
duty or responsibility to provide the Company or the Remarketing Agent with any
credit or other information concerning the affairs, financial condition or
business of the Purchase Contract Agent, any Holder of Units or any holder of
Separate Notes (or any of their respective subsidiaries or affiliates) that may
come into the possession of the Collateral Agent, the Custodial Agent or the
Securities Intermediary or any of their respective affiliates.
SECTION 8.6 Compensation and Indemnity.
The Company agrees:
(a) to pay each of the Collateral Agent, the Custodial Agent and the
Securities Intermediary from time to time such compensation as shall be agreed
in writing between the Company and the Collateral Agent, Custodial Agent or the
Securities Intermediary, as the case may be, for all services rendered by each
of them hereunder, and
(b) to indemnify the Collateral Agent, the Custodial Agent and the
Securities Intermediary for, and to hold each of them harmless from and against,
any loss, liability or reasonable out-of-pocket expense incurred without
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 or collecting such amounts. The Collateral Agent, the
Custodial Agent and the Securities Intermediary shall each promptly notify the
Company of any third party claim which may give rise to the indemnity hereunder
and give the Company the opportunity to participate in the defense of such claim
with counsel reasonably
22
satisfactory to the indemnified party, and no such claim shall be settled
without the written consent of the Company, which consent shall not be
unreasonably withheld.
SECTION 8.7 Failure to Act.
In the event of any ambiguity in the provisions of this Agreement or any
dispute between or conflicting claims by or among the parties hereto or any
other Person with respect to any funds or property deposited hereunder, the
Collateral Agent, Custodial Agent and the Securities Intermediary 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 none of the Collateral Agent, Custodial Agent or
the Securities Intermediary shall be or become liable in any way to any of the
parties hereto for its failure or refusal to comply with such conflicting
claims, demands or instructions. The Collateral Agent, Custodial Agent and the
Securities Intermediary shall be entitled to refuse to act until either (i) such
conflicting or adverse claims or demands shall have been finally determined by a
court of competent jurisdiction or settled by agreement between the conflicting
parties as evidenced in a writing, reasonably satisfactory to the Collateral
Agent, Custodial Agent or the Securities Intermediary, as the case may be, or
(ii) the Collateral Agent, the Custodial Agent or the Securities Intermediary,
as the case may be, shall have received security or an indemnity reasonably
satisfactory to the Collateral Agent, Custodial Agent or the Securities
Intermediary, as the case may be, sufficient to save the Collateral Agent,
Custodial Agent or the Securities Intermediary, as the case may be, harmless
from and against any and all loss, liability or reasonable out-of-pocket expense
which the Collateral Agent, Custodial Agent or the Securities Intermediary, as
the case may be, may incur by reason of its acting without bad faith, willful
misconduct or negligence. The Collateral Agent, Custodial Agent or the
Securities Intermediary may in addition elect to commence an interpleader action
or seek other judicial relief or orders as the Collateral Agent, Custodial Agent
or the Securities Intermediary, as the case may be, may deem necessary.
Notwithstanding anything contained herein to the contrary, none of the
Collateral Agent, Custodial Agent or the Securities Intermediary shall be
required to take any action that is in its opinion contrary to law or to the
terms of this Agreement, or which would in its opinion subject it or any of its
officers, employees or directors to liability.
SECTION 8.8 Resignation.
Subject to the appointment and acceptance of a successor Collateral Agent,
Custodial Agent or Securities Intermediary, as provided below, (a) the
Collateral Agent, Custodial Agent and the Securities Intermediary may resign at
any time by giving notice thereof to the Company and the Purchase Contract Agent
as attorney-in-fact for the Holders of Units, (b) the Collateral Agent,
Custodial Agent and the Securities Intermediary may be removed at any time by
the Company and (c) if the Collateral Agent, Custodial Agent or the Securities
Intermediary fails to perform any of its material
23
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, Custodial
Agent or the Securities Intermediary may be removed by the Purchase Contract
Agent. The Purchase Contract Agent shall promptly notify the Company of any
removal of the Collateral Agent, the Custodial Agent or the Securities
Intermediary pursuant to clause (c) of the immediately preceding sentence. Upon
any such resignation or removal, the Company shall have the right to appoint a
successor Collateral Agent, Custodial Agent or Securities Intermediary, as the
case may be. If no successor Collateral Agent, Custodial Agent or Securities
Intermediary, as the case may be, shall have been so appointed and shall have
accepted such appointment within 30 days after the retiring Collateral Agent's,
Custodial Agent's or Securities Intermediary's giving of notice of resignation
or such removal, then the retiring Collateral Agent, Custodial Agent or
Securities Intermediary, as the case may be, may at the Company's expense
petition any court of competent jurisdiction for the appointment of a successor
Collateral Agent, Custodial Agent or Securities Intermediary, as the case may
be. Each of the Collateral Agent, Custodial Agent and the Securities
Intermediary shall be a bank which has an office in New York, New York with a
combined capital and surplus of at least $50,000,000. Upon the acceptance of any
appointment as Collateral Agent, Custodial Agent or Securities Intermediary, as
the case may be, hereunder by a successor Collateral Agent, Custodial Agent or
Securities Intermediary, as the case may be, such successor shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Collateral Agent, Custodial Agent or Securities Intermediary, as
the case may be, and the retiring Collateral Agent, Custodial Agent or
Securities Intermediary, as the case may be, shall take all appropriate action
to transfer any money and property held by it hereunder (including the
Collateral) to such successor. The retiring Collateral Agent, Custodial Agent or
Securities Intermediary shall, upon such succession, be discharged from its
duties and obligations as Collateral Agent, Custodial Agent or Securities
Intermediary hereunder. After any retiring Collateral Agent's, Custodial Agent's
or Securities Intermediary's resignation hereunder as Collateral Agent,
Custodial Agent or Securities Intermediary, the provisions of this Section 8.8
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, Custodial
Agent or Securities Intermediary. Any resignation or removal of the Collateral
Agent hereunder shall be deemed for all purposes of this Agreement as the
simultaneous resignation or removal of the Custodial Agent and the Securities
Intermediary hereunder.
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
(other than legal counsel) pursuant to this Section 8.9 shall be subject to
prior consent of the Company, which consent shall not be unreasonably withheld.
24
SECTION 8.10 Survival.
The provisions of this Article VIII shall survive termination of this
Agreement and the resignation or removal of the Collateral Agent, the Custodial
Agent or the Securities Intermediary.
SECTION 8.11 Exculpation.
Anything in this Agreement to the contrary notwithstanding, in no event
shall any of the Collateral Agent, the Custodial Agent or the Securities
Intermediary or their officers, employees or agents be liable under this
Agreement to any third party for indirect, special, punitive or consequential
loss or damage of any kind whatsoever, including lost profits, whether or not
the likelihood of such loss or damage was known to the Collateral Agent, the
Custodial Agent or the Securities Intermediary, or any of them, incurred without
any act or deed that is found to be attributable to negligence, bad faith or
willful misconduct on the part of the Collateral Agent, the Custodial Agent or
the Securities Intermediary.
ARTICLE IX
AMENDMENT
SECTION 9.1 Amendment Without Consent of Holders.
Without the consent of any Holders or the holders of any Separate Notes,
the Company, the Collateral Agent, the Custodial Agent, the Securities
Intermediary and the Purchase Contract Agent, at any time and from time to time,
may amend this Agreement, in form satisfactory to the Company, the Collateral
Agent, the Custodial Agent, the Securities Intermediary and the Purchase
Contract Agent, for any of the following purposes:
(i) to evidence the succession of another Person to the Company, and the
assumption by any such successor of the covenants of the Company; or
(ii) 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
(iii) to evidence and provide for the acceptance of appointment hereunder by
a successor Collateral Agent, Securities Intermediary or Purchase
Contract Agent; or
25
(iv) to cure any ambiguity, to correct or supplement any provisions herein
which may be inconsistent with any other such provisions herein, or to
make any other provisions with respect to such matters or questions
arising under this Agreement, provided such action shall not adversely
affect the interests of the Holders.
SECTION 9.2 Amendment with Consent of Holders.
With the consent of the Holders of not less than a majority of the Purchase
Contracts at the time outstanding, by Act of said Holders delivered to the
Company, the Purchase Contract Agent or the Collateral Agent, as the case may
be, the Company, when duly authorized, the Purchase Contract Agent, the
Collateral Agent, the Custodial Agent and the Securities Intermediary may amend
this Agreement for the purpose of modifying in any manner the provisions of this
Agreement or the rights of the Holders in respect of the Units; provided,
however, that no such supplemental agreement shall, without the consent of the
Holder of each Outstanding Unit adversely affected thereby,
(i) change the amount or type of Collateral underlying a Unit (except for
the rights of holders of Normal Units to substitute the Treasury
Securities for the Pledged Notes, Pledged Treasury Consideration or
the appropriate Pledged Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, or the rights of Holders of Stripped
Units to substitute Notes or the appropriate Treasury Consideration 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 Unit to receive distributions on the
underlying Collateral or otherwise adversely affect the Holder's
rights in or to such Collateral; or
(ii) otherwise effect any action that would require the consent of the
Holder of each Outstanding Unit affected thereby pursuant to the
Purchase Contract Agreement if such action were effected by an
agreement supplemental thereto; or
(iii) 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,
the Custodial Agent, the Securities Intermediary and the Purchase Contract Agent
shall receive and (subject to Section 6.1 hereof, with respect to the Collateral
Agent, and
26
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 and, in the case of an amendment
pursuant to Section 9.1, that such amendment does not adversely affect the
validity, perfection or priority of the security interests granted or created
hereunder.
SECTION 9.4 Effect of Amendments.
Upon the execution of any amendment under this Article IX, this Agreement
shall be modified in accordance therewith, and such amendment shall form a part
of this Agreement for all purposes; and every Holder of Certificates theretofore
or thereafter authenticated, executed on behalf of the Holders and delivered
under the Purchase Contract Agreement shall be bound thereby.
SECTION 9.5 Reference to Amendments.
Certificates authenticated, executed on behalf of the Holders and delivered
after the execution of any amendment pursuant to this Section may, and shall if
required by the Collateral Agent or the Purchase Contract Agent, bear a notation
in form approved by the Purchase Contract Agent and the Collateral Agent as to
any matter provided for in such amendment. If the Company shall so determine,
new Certificates so modified as to conform, in the opinion of the Collateral
Agent, the Purchase Contract Agent and the Company, to any such amendment may be
prepared and executed by the Company and authenticated, executed on behalf of
the Holders and delivered by the Purchase Contract Agent in accordance with the
Purchase Contract Agreement in exchange for outstanding Certificates.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 No Waiver.
No failure on the part of any party hereto or any of its agents to
exercise, and no course of dealing with respect to, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise by any party hereto or any of its agents of
any right, power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The remedies herein
are cumulative and are not exclusive of any remedies provided by law.
27
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 REGARD TO ITS PRINCIPLES OF CONFLICTS OF
LAWS. Without limiting the foregoing, the above choice of law is expressly
agreed to by the Securities Intermediary, the Collateral Agent, the Custodial
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, which law, for purposes of the Code,
shall be deemed to be the law governing all Security Entitlements related
thereto. In addition, such parties agree that, for purposes of the Code, New
York shall be the Securities Intermediary's jurisdiction. The Company, the
Collateral Agent and the Holders from time to time of the Units, acting through
the Purchase Contract Agent as their attorney-in-fact, hereby submit to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York state court sitting in New York City
for the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The Company, the Collateral
Agent and the Holders from time to time of the Units, acting through the
Purchase Contract Agent as their attorney-in-fact, irrevocably waive, to the
fullest extent permitted by applicable law, any objection which they may now or
hereafter have to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
SECTION 10.3 Notices.
Unless otherwise stated herein, 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 personally delivered or, in the case of a mailed notice or
notice transmitted by telecopier, upon receipt, in each case given or addressed
as aforesaid.
SECTION 10.4 Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the Company, the Collateral Agent, the
Custodial Agent, the Securities Intermediary and the Purchase Contract Agent,
and the Holders from time to time of the Units, by their acceptance of the same,
shall be deemed to have agreed to be bound by the provisions hereof and to have
ratified the agreements of, and the grant of the Pledge hereunder by, the
Purchase Contract Agent.
28
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, the Securities
Intermediary and the Custodial Agent for:
(a) all reasonable out-of-pocket costs and all reasonable expenses of the
Collateral Agent, the Custodial Agent and the Securities Intermediary
(including, without limitation, the reasonable fees and expenses of counsel to
the Collateral Agent, the Custodial Agent and the Securities Intermediary), in
connection with (i) the negotiation, preparation, execution and delivery or
performance of this Agreement and (ii) any modification, supplement or waiver of
any of the terms of this Agreement;
(b) all reasonable costs and expenses of the Collateral Agent (including,
without limitation, reasonable fees and expenses of counsel) in connection with
(i) any enforcement or proceedings resulting or incurred in connection with
causing any Holder of Units to satisfy its obligations under the Purchase
Contracts forming a part of the Units and (ii) the enforcement of this Section
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:
29
(a) any lack of validity or enforceability of any provision of the Purchase
Contracts or the Units or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or any other
term of, or any increase in the amount of, all or any of the obligations of
Holders of Units under the related Purchase Contracts, or any other amendment or
waiver of any term of, or any consent to any departure from any requirement of,
the Purchase Contract Agreement or any Purchase Contract or any other agreement
or instrument relating thereto; or
(c) any other circumstance which might otherwise constitute a defense
available to, or discharge of, a borrower, a guarantor or a pledgor.
SECTION 10.9 Waiver of Jury Trial.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
30
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
MOTOROLA, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
and Treasurer
Address for Notices:
Motorola, Inc.
0000 Xxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000
First Union Trust Company, National
Association, as Purchase Contract Agent
and as attorney-in-fact of the Holders
from time to time of the Units
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
Address for Notices:
First Union Trust Company, National
Association
Xxx Xxxxxx Xxxxxx, Xxxxx 000
000 Xxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx, 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
The Chase Manhattan Bank, as Collateral
Agent, Custodial Agent and Securities
Intermediary
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
31
Address for Notices:
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Institutional Trust Services
Telecopy: (000) 000-0000
32
EXHIBIT A
INSTRUCTION FROM PURCHASE CONTRACT
AGENT TO COLLATERAL AGENT
The Chase Manhattan Bank,
as Collateral Agent
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Institutional Trust Services
Telecopy: (000) 000-0000
Re: Equity Security Units of Motorola, Inc. (the "Company")
_______________________________________________________
We hereby notify you in accordance with Section [4.1] [4.2] of the Pledge
Agreement, dated as of October 31, 2001, (the "Pledge Agreement") among the
Company, yourselves, as Collateral Agent, Custodial Agent and Securities
Intermediary and ourselves, as Purchase Contract Agent and as attorney-in-fact
for the holders of [Normal Units] [Stripped Units] from time to time, that the
holder of Units listed below (the "Holder") has elected to substitute [$_____
aggregate principal amount of Treasury Securities (CUSIP No. 000000XX0)]
[$_______ aggregate principal amount of Notes or $_____ aggregate principal
amount of Treasury Consideration (CUSIP No. _____) or the Applicable Ownership
Interest of the Treasury Portfolio, as the case may be,] in exchange for the
related [Pledged Notes, Pledged Treasury Consideration or the appropriate
Pledged Applicable Ownership Interest of the Treasury Portfolio, as the case may
be,] [Pledged Treasury Securities] held by you in accordance with the Pledge
Agreement and has delivered to us a notice stating that the Holder has
Transferred [Treasury Securities] [Notes, the Treasury Consideration or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the case
may be,] to you, as Collateral Agent. We hereby instruct you, upon receipt of
such [Pledged Treasury Securities] [Pledged Notes, Pledged Treasury
Consideration or the appropriate Pledged Applicable Ownership Interest of the
Treasury Portfolio, as the case may be,], to release the [Notes, the Treasury
Consideration or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be,] [Treasury Securities] related to such [Normal
Units] [Stripped Units] 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: _____________________
First Union Trust Company, National
Association, as Purchase Contract Agent
A-1
By:______________________
Name:
Title:
A-2
Please print name and address of Registered Holder electing to substitute
[Treasury Securities] [Notes, Treasury Consideration or the appropriate
Applicable Ownership Interest in the Treasury Portfolio] for the [Pledged Notes,
Pledged Treasury Consideration or the appropriate Pledged Applicable Ownership
Interest in the Treasury Portfolio] [Pledged Treasury Securities]:
Name: Social Security or other Taxpayer
Identification Number, if any:
Address:
A-3
EXHIBIT B
INSTRUCTION TO PURCHASE CONTRACT AGENT
First Union Trust Company, National Association
Xxx Xxxxxx Xxxxxx, Xxxxx 000
000 Xxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx, 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
Re: Equity Security Units of Motorola, Inc. (the "Company")
-------------------------------------------------------
The undersigned Holder hereby notifies you that it has delivered to The
Chase Manhattan Bank, as Collateral Agent, [$_______ aggregate principal amount
of Treasury Securities (CUSIP No. 000000XX0)] [$_______ aggregate principal
amount of Notes or $_____ principal amount of Treasury Consideration (CUSIP No.
_____) or the appropriate Applicable Ownership Interest] in exchange for the
related [Pledged Notes, Pledged Treasury Consideration or the appropriate
Pledged Applicable Ownership Interest] [Pledged Treasury Securities] held by the
Collateral Agent, in accordance with Section 4.1 of the Pledge Agreement, dated
October 31, 2001 (the "Pledge Agreement"), 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 Notes, Pledged Treasury Consideration or the appropriate Pledged
Applicable Ownership Interest] [Pledged Treasury Securities] related to such
[Normal Units] [Stripped Units]. Capitalized terms used herein but not defined
shall have the meaning set forth in the Pledge Agreement.
Date: ___________________ Signature:_________________________________
Signature Guarantee:_______________________
Please print name and address of Registered Holder:
Name: Social Security or other Taxpayer
Identification Number, if any:
Address:
B-1
EXHIBIT C
INSTRUCTION TO CUSTODIAL AGENT REGARDING REMARKETING
The Chase Manhattan Bank,
as Collateral Agent
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Institutional Trust Services
Telecopy: (000) 000-0000
Re: Notes of Motorola, Inc. (the "Company")
---------------------------------------
The undersigned hereby notifies you in accordance with Section 4.5(d) of
the Pledge Agreement, dated as of October 31, 2001 (the "Pledge Agreement"),
among the Company, yourselves, as Collateral Agent, Securities Intermediary and
Custodial Agent, and First Union Trust Company, National Association, as
Purchase Contract Agent and as attorney-in-fact for the Holders of Normal Units
and Stripped Units from time to time, that the undersigned elects to deliver
$__________ aggregate principal amount of Notes for delivery to the Remarketing
Agent on the fourth Business Day immediately preceding the first day of any
Remarketing Period or any Subsequent Remarketing Period for remarketing pursuant
to Section 4.5(d) of the Pledge Agreement. The undersigned will, upon request
of the Remarketing Agent, execute and deliver any additional documents deemed by
the Remarketing Agent or by the Company to be necessary or desirable to complete
the sale, assignment and transfer of the Notes tendered hereby.
The undersigned hereby instructs you, upon receipt of the proceeds of such
remarketing from the Remarketing Agent, net of amounts payable to the
Remarketing Agent in accordance with the Pledge Agreement, to deliver such
proceeds to the undersigned in accordance with the instructions indicated herein
under "A. Payment Instructions." The undersigned hereby instructs you, in the
event of a Failed Remarketing, upon receipt of the Notes tendered herewith from
the Remarketing Agent, to be delivered to the person(s) and the address(es)
indicated herein under "B. Delivery Instructions."
With this notice, the undersigned hereby (i) represents and warrants that
the undersigned has full power and authority to tender, sell, assign and
transfer the Notes tendered hereby and that the undersigned is the record owner
of any Notes tendered herewith in physical form or a participant in The
Depositary Trust Company ("DTC") and the beneficial owner of any Notes tendered
herewith by book-entry transfer to your account at DTC and (ii) agrees to be
bound by the terms
C-1
and conditions of Section 4.5(d) of the Pledge Agreement. Capitalized terms
used herein but not defined shall have the meaning set forth in the Pledge
Agreement.
Date:______________________ Signature:_____________________________
Signature Guarantee:
Name: Social Security or other Taxpayer
Identification Number, if any:
Address:
A. PAYMENT INSTRUCTIONS
Proceeds of the remarketing should be paid by check in the name of the person(s)
set forth below and mailed to the address set forth below.
Name(s):__________________________________
(Please Print)
Address:__________________________________
(Please Print)
(Zip Code)
(Tax Identification or Social Security Number):
C-2
B. DELIVERY INSTRUCTIONS
In the event of a Failed Remarketing, Notes which are in physical form should be
delivered to the person(s) set forth below and mailed to the address set forth
below.
Name(s):_______________________________
(Please Print)
Address:_______________________________
(Please Print)
(Zip Code)
(Tax Identification or Social Security Number):
In the event of a Failed Remarketing, Notes which are in book-entry form should
be credited to the account at The Depository Trust Company set forth below.
Name of Account Party: DTC Account Number:
C-3
EXHIBIT D
INSTRUCTION TO CUSTODIAL AGENT REGARDING
WITHDRAWAL FROM REMARKETING
The Chase Manhattan Bank
as Collateral Agent
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Institutional Trust Services
Telecopy: (000) 000-0000
Re: Notes of Motorola, Inc. (the "Company")
---------------------------------------
The undersigned hereby notifies you in accordance with Section 4.5(d) of
the Pledge Agreement, dated as of October 31, 2001 (the "Pledge Agreement"),
among the Company, yourselves, as Collateral Agent, Securities Intermediary and
Custodial Agent and First Union Trust Company, National Association, as Purchase
Contract Agent and as attorney-in-fact for the Holders of Normal Units and
Stripped Units from time to time, that the undersigned elects to withdraw the
$_____ aggregate principal amount of Notes delivered to the Custodial Agent on
___________, 2004 for remarketing pursuant to Section 4.5(d) of the Pledge
Agreement. The undersigned hereby instructs you to return such Notes to the
undersigned in accordance with the undersigned's instructions. With this
notice, the Undersigned hereby agrees to be bound by the terms and conditions of
Section 4.5(d) of the Pledge Agreement. Capitalized terms used herein but not
defined shall have the meaning set forth in the Pledge Agreement.
Date:_______________________
Signature:______________________________
Signature Guarantee:
Name: Social Security or other Taxpayer
Identification Number, if any:
Address:
D-1
A. DELIVERY INSTRUCTIONS
In the event of a Failed Remarketing, Notes which are in physical form should be
delivered to the person(s) set forth below and mailed to the address set forth
below.
Name(s):____________________________
(Please Print)
Address:____________________________
(Please Print)
(Zip Code)
(Tax Identification or Social Security Number):
In the event of a Failed Remarketing, Notes which are in book-entry form should
be credited to the account at The Depository Trust Company set forth below.
Name of Account Party: DTC Account Number:
D-2
