Exhibit 4.17
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SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
AND
____________, as Collateral Agent, Custodial Agent and Securities Intermediary
AND
__________, as Purchase Contract Agent
FORM OF
PLEDGE AGREEMENT
Dated as of ____, 2003
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS
Section 1.01. Definitions..............................................................1
ARTICLE 2 PLEDGE
Section 2.01. Pledge...................................................................5
Section 2.02. Control; Financing Statement.............................................6
Section 2.03. Termination..............................................................6
ARTICLE 3 DISTRIBUTIONS ON PLEDGED COLLATERAL
Section 3.01. Income and Distributions.................................................6
Section 3.02. Principal Payments Following Termination Event...........................6
Section 3.03. Principal Payments Prior to or on Purchase Contract
Settlement Date .......................................................6
Section 3.04. Payments to Purchase Contract Agent......................................7
Section 3.05. Assets Not Properly Released.............................................7
ARTICLE 4 CONTROL
Section 4.01. Establishment of Collateral Account......................................7
Section 4.02. Treatment as Financial Assets............................................8
Section 4.03. Sole Control by Collateral Agent.........................................8
Section 4.04. Securities Intermediary's Location.......................................8
Section 4.05. No Other Claims..........................................................8
Section 4.06. Investment and Release...................................................9
Section 4.07. Statements and Confirmations.............................................9
Section 4.08. Tax Allocations..........................................................9
Section 4.09. No Other Agreements......................................................9
Section 4.10. Powers Coupled with an Interest..........................................9
Section 4.11. Waiver of Lien; Waiver of Set-off........................................9
ARTICLE 5 INITIAL DEPOSIT; CREATION OF TREASURY
UNITS AND RECREATION OF CORPORATE UNITS
Section 5.01. Initial Deposit of Notes................................................10
Section 5.02. Creation of Treasury Units..............................................10
Section 5.03. Recreation of Corporate Units...........................................11
Section 5.04. Termination Event.......................................................12
Section 5.05. Cash Settlement.........................................................13
Section 5.06. Early Settlement and Cash Merger Early Settlement.......................15
Section 5.07. Application of Proceeds in Settlement of Purchase Contracts.............15
Section 5.08. Special Event Redemption................................................17
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ARTICLE 6 VOTING RIGHTS - PLEDGED NOTES
Section 6.01. Voting Rights...........................................................17
ARTICLE 7 RIGHTS AND REMEDIES
Section 7.01. Rights and Remedies of the Collateral Agent.............................18
Section 7.02. Special Event Redemption................................................19
Section 7.03. Initial Remarketing.....................................................19
Section 7.04. Second Remarketing......................................................19
Section 7.05. Third Remarketing.......................................................19
Section 7.06. Successful Remarketing..................................................20
Section 7.07. Substitutions...........................................................20
ARTICLE 8 REPRESENTATIONS AND WARRANTIES; COVENANTS
Section 8.01. Representations and Warranties..........................................20
Section 8.02. Covenants...............................................................21
ARTICLE 9 THE COLLATERAL AGENT, THE CUSTODIAL
AGENT AND THE SECURITIES INTERMEDIARY
Section 9.01. Appointment, Powers and Immunities......................................21
Section 9.02. Instructions of the Company.............................................22
Section 9.03. Reliance by Collateral Agent and Securities Intermediary................22
Section 9.04. Certain Rights..........................................................23
Section 9.05. Merger, Conversion, Consolidation or Succession to Business.............23
Section 9.06. Rights in Other Capacities..............................................23
Section 9.07. Non-Reliance on the Collateral Agent, the Custodial Agent
and the Securities Intermediary ......................................24
Section 9.08. Compensation and Indemnity..............................................24
Section 9.09. Failure to Act..........................................................25
Section 9.10. Resignation of the Collateral Agent, the Custodial Agent
and the Securities Intermediary ......................................25
Section 9.11. Right to Appoint Agent or Advisor.......................................27
Section 9.12. Survival................................................................27
Section 9.13. Exculpation.............................................................27
ARTICLE 10 AMENDMENT
Section 10.01. Amendment Without Consent of Holders....................................27
Section 10.02. Amendment with Consent of Holders.......................................28
Section 10.03. Execution of Amendments.................................................29
Section 10.04. Effect of Amendments....................................................29
Section 10.05. Reference of Amendments.................................................29
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ARTICLE 11 MISCELLANEOUS
Section 11.01. No Waiver...............................................................29
Section 11.02. Governing Law; Submission to Jurisdiction...............................29
Section 11.03. Notices.................................................................30
Section 11.04. Successors and Assigns..................................................30
Section 11.05. Counterparts............................................................30
Section 11.06. Severability............................................................30
Section 11.07. Expenses, Etc...........................................................30
Section 11.08. Security Interest Absolute..............................................31
Section 11.09. Notice of Special Event, Special Event Redemption
and Termination Event ................................................31
Section 11.10. Regarding the Purchase Contract Agent...................................32
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Exhibit A - Instruction from Purchase Contract Agent to Collateral
Agent (Creation of Treasury Units)
Exhibit B - Instruction from Collateral Agent to Securities
Intermediary (Creation of Treasury Units)
Exhibit C - Instruction from Purchase Contract Agent to Collateral
Agent (Recreation of Corporate Units)
Exhibit D - Instruction from Collateral Agent to Securities
Intermediary (Recreation of Corporate Units)
Exhibit E - Notice of Cash Settlement from Securities Intermediary to
Purchase Contract Agent (Cash Settlement Amounts)
Exhibit F - Instruction to Custodial Agent (Regarding Remarketing)
Exhibit G - Instruction to Custodial Agent (Withdrawal from
Remarketing)
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PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of _____, 200__ by and between SCOTTISH
ANNUITY & LIFE HOLDINGS, LTD., a Cayman Islands exempted company (the
"Company"), ______, 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"), as securities intermediary (as defined in Sections 8-102(a)(14) of the
UCC) with respect to the Collateral Account (in such capacity, together with its
successors in such capacity, the "Securities Intermediary"), and as purchase
contract agent and as attorney-in-fact of the Holders from time to time of the
Units (in such capacity, together with its successors in such capacity, the
"Purchase Contract Agent") under the Purchase Contract Agreement.
Capitalized terms used herein and not defined herein have the
meanings assigned to them in 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 _____ Corporate Units (or ______ if the
over-allotment option granted to the Underwriters pursuant to the Underwriting
Agreement is exercised in full) will be issued;
WHEREAS, each Corporate Unit, at issuance, consists of a unit
comprised of (a) a stock purchase contract (a "Purchase Contract") pursuant to
which the Holder will purchase from the Company on the Purchase Contract
Settlement Date, for an amount equal to $_____ (the "Stated Amount"), a number
of shares of the Company's ordinary shares, par value $0.01 per share (the
"Ordinary Shares"), equal to the Settlement Rate and (b) either a Note or an
Applicable Ownership Interest in the Treasury Portfolio; and
WHEREAS, pursuant to the terms of the Purchase Contract Agreement
and the Purchase Contracts, the Holders of the Units have irrevocably authorized
the Purchase Contract Agent, as attorney-in-fact of such Holders, among other
things, to execute and deliver this Agreement on behalf of such Holders and to
grant the pledge provided herein of the Collateral to secure the Obligations.
NOW, THEREFORE, the Company, the Collateral Agent, the Custodial
Agent, the Securities Intermediary and the Purchase Contract Agent agree as
follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the words "HEREIN," "HEREOF" and "HEREUNDER" and other words
of similar import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision;
(b) the following terms which are defined in the UCC shall have
the meanings set forth therein: "CERTIFICATED SECURITY," "CONTROL," "FINANCIAL
ASSET," "ENTITLEMENT ORDER," "SECURITIES ACCOUNT" and "SECURITY ENTITLEMENT";
and
(c) the following terms have the meanings given to them in this
Section 1.01(c):
"AGREEMENT" means this Pledge Agreement, as the same may be
amended, modified or supplemented from time to time.
"CASH" means any coin or currency of the United States of America
as at the time shall be legal tender for payment of public and private debts.
"COLLATERAL" means the collective reference to:
(i) the Collateral Account and all investment
property and other financial assets from time to time credited to
the Collateral Account, including, without limitation, (A) the
Notes and security entitlements relating thereto that are a
component of the Corporate Units from time to time, (B) the
Applicable Ownership Interests (as specified in clause (i) of the
definition of such term) of the Holders with respect to the
Treasury Portfolio which are a component of the Corporate Units
from time to time; (C) any Treasury Securities and security
entitlements relating thereto delivered from time to time upon
creation of Treasury Units in accordance with Section 5.02 hereof
and (D) payments made by Holders pursuant to Section 5.05 hereof;
(ii) all Proceeds of any of the foregoing (whether
such Proceeds arise before or after the commencement of any
proceeding under any applicable bankruptcy, insolvency or other
similar law, by or against the pledgor or with respect to the
pledgor); and
(iii) all powers and rights now owned or hereafter
acquired under or with respect to the Collateral.
"COLLATERAL ACCOUNT" means the securities account of the
Collateral Agent, maintained by the Securities Intermediary and designated
"______, as Collateral Agent of Scottish Annuity & Life Holdings, Ltd., as
pledgee of ______, as the Purchase Contract Agent on behalf of and as
attorney-in-fact for the Holders".
"COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such pursuant
to the applicable provisions of the Purchase Contract Agreement, and thereafter
"Company" shall mean such successor.
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"CORPORATE UNIT" means the collective rights and obligations of a
Holder of a Corporate Units Certificate in respect of a Note or an appropriate
Applicable Ownership Interests in the Treasury Portfolio, as the case may be,
subject in each case to the Pledge thereof, and the related Purchase Contract;
provided that the appropriate Applicable Ownership Interests (as specified in
clause (ii) of the definition of such term) in the Treasury Portfolio shall not
be subject to the Pledge.
"CORPORATE UNITS CERTIFICATE" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Corporate Units
specified on such certificate.
"OBLIGATIONS" means, with respect to each Holder, all obligations
and liabilities of such Holder under such Holder's Purchase Contract, the
Purchase Contract Agreement and this Agreement or any other document made,
delivered or given in connection herewith or therewith, in each case whether on
account of principal, interest (including, without limitation, interest accruing
before and after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding, relating to such Holder,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding), fees, indemnities, costs, expenses or otherwise (including,
without limitation, all fees and disbursements of counsel to the Company or the
Collateral Agent or the Securities Intermediary that are required to be paid by
the Holder pursuant to the terms of any of the foregoing agreements).
"PERMITTED INVESTMENTS" means any one of the following, in each
case maturing on the Business Day following the date of acquisition:
(1) any evidence of indebtedness with an original
maturity of 365 days or less issued, or directly and fully
guaranteed or insured, by the United States of America or any
agency or instrumentality thereof (provided that the full faith
and credit of the United States of America is pledged in support
of the timely payment thereof or such indebtedness constitutes a
general obligation of it);
(2) deposits, certificates of deposit or
acceptances with an original maturity of 365 days or less of any
institution which is a member of the Federal Reserve System
having combined capital and surplus and undivided profits of not
less than _____ as of the date of its latest filed report of
condition or its audited financial statements (and which may
include the Collateral Agent);
(3) investments with an original maturity of 365
days or less of any Person that is fully and unconditionally
guaranteed by a bank referred to in clause (2);
(4) repurchase agreements and reverse repurchase
agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the United States of America or
issued by any agency thereof and backed as to timely payment by
the full faith and credit of the United States of America;
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(5) investments in commercial paper, other than
commercial paper issued by the Company or its affiliates, of any
corporation incorporated under the laws of the United States of
America or any State thereof, which commercial paper has a rating
at the time of purchase at least equal to "A-1" by Standard &
Poor's Ratings Services ("S&P") or at least equal to "P-1" by
Xxxxx'x Investors Service, Inc. ("Moody's"); and
(6) investments in money market funds (including,
but not limited to, money market funds managed by the Collateral
Agent or an affiliate of the Collateral Agent) registered under
the Investment Company Act of 1940, as amended, rated in the
highest applicable rating category by S&P or Moody's.
"PERSON" means any legal person, including, without limitation,
any individual, corporation, estate, partnership, joint venture, association,
joint-stock company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"PLEDGE" means the lien and security interest created by this
Agreement.
"PLEDGED APPLICABLE OWNERSHIP INTERESTS" means the Applicable
Ownership Interests (as specified in clause (i) of the definition thereof) of
the Holders with respect to the Treasury Portfolio and security entitlements
with respect thereto from time to time credited to the Collateral Account and
not then released from the Pledge.
"PLEDGED NOTES" means Notes and security entitlements with
respect thereto from time to time credited to the Collateral Account and not
then released from the Pledge.
"PLEDGED SECURITIES" means the Pledged Notes, the Pledged
Applicable Ownership Interests and the Pledged Treasury Securities,
collectively.
"PLEDGED TREASURY SECURITIES" means Treasury Securities and
security entitlements with respect thereto from time to time credited to the
Collateral Account and not then released from the Pledge.
"PROCEEDS" has the meaning ascribed thereto in the UCC and
includes, without limitation, all interest, dividends, cash, instruments,
securities, financial assets and other property received, receivable or
otherwise distributed upon the sale, exchange, collection or disposition of any
financial assets from time to time held in the Collateral Account.
"PURCHASE CONTRACT AGENT" has the meaning specified in the
paragraph preceding the recitals of this Agreement.
"SEPARATE NOTES" means Notes which are not components of
Corporate Units.
"TRADES" means the Treasury/Reserve Automated Debt Entry System
maintained by the Federal Reserve Bank of New York pursuant to the TRADES
Regulations.
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"TRADES REGULATIONS" means the regulations of the United States
Department of the Treasury, published at 31 C.F.R. Part 357, as amended from
time to time. Unless otherwise defined herein, all terms defined in the TRADES
Regulations are used herein as therein defined.
"TRANSFER" means (i) in the case of certificated securities in
registered form, delivery as provided in Section 8-301(a) of the UCC, endorsed
to the transferee or in blank by an effective endorsement; (ii) in the case of
Treasury Securities, registration of the transferee as the owner of such
Treasury Securities on TRADES; and (iii) in the case of security entitlements,
including, without limitation, security entitlements with respect to Treasury
Securities, a securities intermediary indicating by book entry that such
security entitlement has been credited to the transferee's securities account.
"TREASURY SECURITIES" means __ coupon U.S. treasury securities
that mature on or prior to ____, 200__ (CUSIP No. ______).
"TREASURY UNIT" means, following the substitution of Treasury
Securities for Notes as collateral to secure a Holder's obligations under the
Purchase Contract, the collective rights and obligations of a Holder of a
Treasury Units Certificate in respect of such Treasury Securities, subject to
the Pledge thereof, and the related Purchase Contract.
"TREASURY UNITS CERTIFICATE" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Treasury Units
specified on such certificate.
"UCC" means the Uniform Commercial Code as in effect in the State
of New York from time to time.
"VALUE" means, with respect to any item of Collateral on any
date, as to (i) Cash, the face amount thereof, (ii) Treasury Securities or
Notes, the aggregate principal amount thereof at maturity and (iii) Applicable
Ownership Interests (as specified in clause (i) of the definition of such term),
the appropriate percentage of the aggregate principal amount at maturity of the
Treasury Portfolio.
ARTICLE 2
PLEDGE
Section 2.01. Pledge. Each Holder, acting through the Purchase
Contract Agent as such Holder's attorney-in-fact, and the Purchase Contract
Agent, acting solely as such attorney-in-fact, hereby pledges and grants to the
Collateral Agent, as agent of and for the benefit of the Company, a continuing
first priority security interest in and to, and a lien upon and right of set-off
against, all of such Person's right, title and interest in and to the Collateral
to secure the prompt and complete payment and performance when due (whether at
stated maturity, by acceleration or otherwise) of the Obligations. The
Collateral Agent shall have all of the rights, remedies and recourses with
respect to the Collateral afforded a secured party by the UCC, in addition to,
and not in limitation of, the other rights, remedies and recourses afforded to
the Collateral Agent by this Agreement.
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Section 2.02. Control; Financing Statement.
(a) The Collateral Agent shall have control of the Collateral
Account pursuant to the provisions of Article 4 of this Agreement.
(b) Subsequent to the date of initial issuance of the Units, the
Purchase Contract Agent shall deliver to the Collateral Agent a copy of the
financing statement prepared by the Company and filed in the Office of the
Secretary of State of the State of _______ and any other jurisdictions which the
Company deems necessary, authorized by the Purchase Contract Agent, as
attorney-in-fact for the Holders, as Debtors, and describing the Collateral,
such filing to be undertaken by the Company.
Section 2.03. Termination. As to each Holder, this Agreement and
the Pledge created hereby shall automatically terminate upon the satisfaction of
such Holder's Obligations. Upon such termination, the Collateral Agent shall
Transfer such Holder's portion of the Collateral to the Purchase Contract Agent
for distribution to such Holder, free and clear of the Pledge created hereby.
ARTICLE 3
DISTRIBUTIONS ON PLEDGED COLLATERAL
Section 3.01. Income and Distributions. The Collateral Agent
shall transfer all income and distributions received by the Collateral Agent on
account of the Pledged Notes, the Pledged Applicable Ownership Interests or
Permitted Investments from time to time held in the Collateral Account (ABA No.
____, A/C No. ____, Re: ________, Attention: ________) to the Purchase Contract
Agent for distribution to the applicable Holders as provided in the Purchase
Contracts or Purchase Contract Agreement.
Section 3.02. Principal Payments Following Termination Event.
Following a Termination Event, the Collateral Agent shall transfer all principal
payments it receives, if any, in respect of (a) the Pledged Notes, (b) the
Pledged Applicable Ownership Interests, and (c) the Pledged Treasury Securities,
to the Purchase Contract Agent for the benefit of the applicable Holders for
distribution to such Holders in accordance with their respective interests, free
and clear of the Pledge created hereby.
Section 3.03. Principal Payments Prior to or on Purchase Contract
Settlement Date.
(a) Subject to the provisions of Sections 5.06 and 5.08, and
except as provided in clause 3.03(b) below, if no Termination Event shall have
occurred, all principal payments received by the Collateral Agent in respect of
(1) the Pledged Notes, (2) the Pledged Applicable Ownership Interests and (3)
the Pledged Treasury Securities, shall be held and invested in Permitted
Investments until the Purchase Contract Settlement Date, and transferred to the
Company on the Purchase Contract Settlement Date as provided in Section 5.07
hereof. Any balance remaining in the Collateral Account shall be released from
the Pledge and transferred to the Purchase Contract Agent for the benefit of the
applicable Holders for distribution to such Holders in accordance with their
respective interests, free and clear of the Pledge created
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thereby. The Company shall instruct the Collateral Agent in writing as to the
type of Permitted Investments in which any payments made under this Section
shall be invested, provided, however, that if the Company fails to deliver such
instructions by 10:30 a.m. (New York City time) on the day such payments are
received by the Collateral Agent, the Collateral Agent shall invest such
payments in the Permitted Investments described in clause (6) of the definition
of Permitted Investments. In no event shall the Collateral Agent be liable for
the selection of Permitted Investments or for investment losses incurred
thereon. The Collateral Agent shall have no liability in respect of losses
incurred as a result of the failure of the Company to provide timely written
investment direction.
(b) All principal payments received by the Collateral Agent in
respect of (1) the Pledged Notes, (2) the Applicable Ownership Interests (as
specified in clause (i) of the definition thereof) in the Treasury Portfolio and
(3) the Treasury Securities or security entitlements thereto, that, in each
case, have been released from the Pledge pursuant hereto shall be transferred to
the Purchase Contract Agent for the benefit of the applicable Holders for
distribution to such Holders in accordance with their respective interests.
Section 3.04. Payments to Purchase Contract Agent. The Collateral
Agent shall use all commercially reasonable efforts to deliver payments to the
Purchase Contract Agent hereunder to the account designated by the Purchase
Contract Agent for such purpose not later than 12:00 p.m. (New York City time)
on the Business Day such payment is received by the Collateral Agent; provided,
however, that if such payment is received on a day that is not a Business Day or
after 11:00 a.m. (New York City time) on a Business Day, then the Collateral
Agent shall use all commercially reasonable efforts to deliver such payment to
the Purchase Contract Agent no later than 10:30 a.m. (New York City time) on the
next succeeding Business Day.
Section 3.05. Assets Not Properly Released. If the Purchase
Contract Agent or any Holder shall receive any principal payments on account of
financial assets credited to the Collateral Account and not released therefrom
in accordance with this Agreement, the Purchase Contract Agent or such Holder
shall hold the same as trustee of an express trust for the benefit of the
Company and, upon receipt of an Officers' Certificate of the Company so
directing, promptly deliver the same to the Collateral Agent for credit to the
Collateral Account or to the Company for application to the Obligations of the
Holders, and the Purchase Contract Agent and Holders shall acquire no right,
title or interest in any such payments of principal amounts so received. The
Purchase Contract Agent shall have no liability under this Section 3.05 unless
and until it has been notified in writing that such payment was delivered to it
erroneously and shall have no liability for any action taken, suffered or
omitted to be taken prior to its receipt of such notice.
ARTICLE 4
CONTROL
Section 4.01. Establishment of Collateral Account. The Securities
Intermediary hereby confirms that:
(a) the Securities Intermediary has established the Collateral
Account;
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(b) the Collateral Account is a securities account;
(c) subject to the terms of this Agreement, the Securities
Intermediary shall identify in its records the Collateral Agent as the
entitlement holder entitled to exercise the rights that comprise any financial
asset credited to the Collateral Account;
(d) all property delivered to the Securities Intermediary
pursuant to this Agreement or the Purchase Contract Agreement will be credited
promptly to the Collateral Account; and
(e) all securities or other property underlying any financial
assets credited to the Collateral Account shall be (i) registered in the name of
the Purchase Contract Agent and endorsed to the Collateral Agent or in blank,
(ii) registered in the name of the Collateral Agent or (iii) credited to another
securities account maintained in the name of the Collateral Agent. The
Collateral Agent may, at any time or from time to time, in its sole discretion,
cause any or all securities or other property underlying any financial assets
credited to the Collateral Account not registered in its name to be so
registered in its name. In no case will any financial asset credited to the
Collateral Account be registered in the name of the Purchase Contract Agent or
any Holder or specially endorsed to the Purchase Contract Agent or any Holder.
Section 4.02. Treatment as Financial Assets. Each item of
property (whether investment property, financial asset, security, instrument or
cash) credited to the Collateral Account shall be treated as a financial asset.
Section 4.03. Sole Control by Collateral Agent. Except as
provided in Section 6.01, at all times prior to the termination of the Pledge,
the Collateral Agent shall have sole control of the Collateral Account, and the
Securities Intermediary shall take instructions and directions with respect to
the Collateral Account solely from the Collateral Agent. If at any time the
Securities Intermediary shall receive an entitlement order issued by the
Collateral Agent and relating to the Collateral Account, the Securities
Intermediary shall comply with such entitlement order without further consent by
the Purchase Contract Agent or any Holder or any other Person. Except as
otherwise permitted under this Agreement, until termination of the Pledge, the
Securities Intermediary will not comply with any entitlement orders issued by
the Purchase Contract Agent or any Holder.
Section 4.04. Securities Intermediary's Location. The Collateral
Account, and the rights and obligations of the Securities Intermediary, the
Collateral Agent, the Purchase Contract Agent and the Holders with respect
thereto, shall be governed by the laws of the State of New York, without giving
effect to the conflicts of law provisions thereof. Regardless of any provision
in any other agreement, for purposes of the UCC, _______ shall be deemed to be
the Securities Intermediary's location.
Section 4.05. No Other Claims. Except for the claims and interest
of the Collateral Agent and of the Purchase Contract Agent and the Holders in
the Collateral Account, the Securities Intermediary (without any duty to
investigate) does not know of any claim to, or interest in, the Collateral
Account or in any financial asset credited thereto. If any Person asserts any
lien, encumbrance or adverse claim (including any writ, garnishment, judgment,
warrant of
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attachment, execution or similar process) against the Collateral Account or in
any financial asset carried therein, the Securities Intermediary will promptly
notify the Collateral Agent and the Purchase Contract Agent.
Section 4.06. Investment and Release. All proceeds of financial
assets from time to time deposited in the Collateral Account shall be invested
and reinvested as provided in this Agreement. At all times prior to termination
of the Pledge, no property shall be released from the Collateral Account except
in accordance with this Agreement or upon written instructions of the Collateral
Agent.
Section 4.07. Statements and Confirmations. The Securities
Intermediary will promptly send copies of all statements, confirmations and
other correspondence concerning the Collateral Account and any financial assets
credited thereto simultaneously to each of the Purchase Contract Agent and the
Collateral Agent at their addresses for notices under this Agreement.
Section 4.08. Tax Allocations. The Purchase Contract Agent shall
report all items of income, gain, expense and loss recognized in the Collateral
Account, to the extent such reporting is required by law, to the Internal
Revenue Service or applicable state authorities in the manner required by law.
Neither the Securities Intermediary nor the Collateral Agent shall have any tax
reporting duties hereunder.
Section 4.09. No Other Agreements. The Securities Intermediary
has not entered into, and prior to the termination of the Pledge will not enter
into, any agreement with any other Person relating to the Collateral Account or
any financial assets credited thereto, including, without limitation, any
agreement to comply with entitlement orders of any Person other than the
Collateral Agent.
Section 4.10. Powers Coupled with an Interest. The rights and
powers granted in this Article 4 to the Collateral Agent have been granted in
order to perfect its security interests in the Collateral Account, are powers
coupled with an interest and will be affected neither by the bankruptcy of the
Purchase Contract Agent or any Holder nor by the lapse of time. The obligations
of the Securities Intermediary under this Article 4 shall continue in effect
until the termination of the Pledge.
Section 4.11. Waiver of Lien; Waiver of Set-off. The Securities
Intermediary waives any security interest, lien or right to make deductions or
setoffs that it may now have or hereafter acquire in or with respect to the
Collateral Account, any financial asset credited thereto or any security
entitlement in respect thereof. Neither the financial assets credited to the
Collateral Account nor the security entitlements in respect thereof will be
subject to deduction, set-off, banker's lien, or any other right in favor of any
Person other than the Company.
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ARTICLE 5
INITIAL DEPOSIT; CREATION OF TREASURY UNITS AND RECREATION OF CORPORATE UNITS
Section 5.01. Initial Deposit of Notes. (a) Prior to or
concurrently with the execution and delivery of this Agreement, the Purchase
Contract Agent, on behalf of the initial Holders of the Corporate Units, shall
Transfer to the Collateral Agent, for credit to the Collateral Account, the
Notes or security entitlements relating thereto, and, in the case of security
entitlements, the Securities Intermediary shall indicate by book-entry that a
securities entitlement to such Notes has been credited to the Collateral
Account.
(a) Unless any Event of Default (as defined in the Indenture)
shall have occurred and be continuing, the Collateral Agent agrees to hold any
Notes or security interests relating thereto, constituting a portion of the
Collateral registered in the name of the Purchase Contract Agent, as
attorney-in-fact for the Holders, with appropriate endorsement in the form
delivered to it and shall not re-register such Notes or security interests
relating thereto unless an Event of Default shall have occurred and be
continuing.
Section 5.02. Creation of Treasury Units.
(a) So long as the Treasury Portfolio has not replaced the Notes
as a component of the Corporate Units, a Holder of Corporate Units shall have
the right, at any time prior to 5:00 p.m. (New York City time) on the fifth
Business Day immediately preceding the Purchase Contract Settlement Date, to
create Treasury Units by substitution of Treasury Securities or security
entitlements with respect thereto for the Pledged Notes comprising a part of
such Holder's Corporate Units, in integral multiples of _______ Corporate Units
by:
(i) Transferring to the Collateral Agent, for
credit to the Collateral Account, Treasury Securities or security
entitlements with respect thereto having a Value equal to the
aggregate principal amount of the Pledged Notes to be released,
accompanied by a notice, substantially in the form of Exhibit C
to the Purchase Contract Agreement, whereupon the Purchase
Contract Agent shall deliver to the Collateral Agent a notice,
substantially in the form of Exhibit A hereto, (A) stating that
such Holder has notified the Purchase Contract Agent that such
Holder has Transferred Treasury Securities or security
entitlements with respect thereto to the Collateral Agent for
credit to the Collateral Account, (B) stating the Value of the
Treasury Securities or security entitlements with respect thereto
Transferred by such Holder and (C) requesting that the Collateral
Agent release from the Pledge the Pledged Notes that are a
component of such Corporate Units; and
(ii) delivering the related Corporate Units to the
Purchase Contract Agent.
Upon receipt of such notice and confirmation that Treasury
Securities or security entitlements with respect thereto have been credited to
the Collateral Account as described in
10
such notice, the Collateral Agent shall instruct the Securities Intermediary by
a notice, substantially in the form of Exhibit B, to release such Pledged Notes
from the Pledge by Transfer to the Purchase Contract Agent for distribution to
such Holder, free and clear of the Pledge created hereby.
If the Treasury Portfolio has replaced the Notes as a component
of the Corporate Units and subject to the conditions of the Purchase Contract
Agreement, a Holder may, at any time on or prior to the second Business Day
immediately preceding the Purchase Contract Settlement Date, substitute Treasury
Securities for the Applicable Ownerships Interests in the Treasury Portfolio
with respect to such Corporate Units, but only in multiples of ______Corporate
Units. In such an event, the Holder shall Transfer Treasury Securities having an
aggregate principal amount at maturity equal to the aggregate Stated Amount of
the Purchase Contracts underlying such Corporate Units to the Collateral Agent,
and the Purchase Contract Agent shall instruct the Collateral Agent to release
the Pledge of, and transfer to the Holder, the appropriate Applicable Ownership
Interests in the Treasury Portfolio in the manner set forth above.
(b) Upon credit to the Collateral Account of Treasury Securities
or security entitlements with respect thereto delivered by a Holder of Corporate
Units and receipt of the related instruction from the Collateral Agent, the
Securities Intermediary shall release such Pledged Notes or Applicable Ownership
Interest in the Treasury Portfolio, as the case may be, and shall promptly
Transfer the same to the Purchase Contract Agent for distribution to such
Holder, free and clear of the Pledge created hereby.
Section 5.03. Recreation of Corporate Units.
(a) So long as the Treasury Portfolio has not replaced the Notes
as a component of the Corporate Units, at any time prior to 5:00 p.m. (New York
City time) on the fifth Business Day immediately preceding the Purchase Contract
Settlement Date, a Holder of Treasury Units shall have the right to recreate
Corporate Units by substitution of Notes or security entitlements with respect
thereto for Pledged Treasury Securities in integral multiples of _____Treasury
Units by:
(i) Transferring to the Collateral Agent, for
credit to the Collateral Account, Notes or security entitlements
with respect thereto having a principal amount equal to the Value
of the Pledged Treasury Securities to be released, accompanied by
a notice, substantially in the form of Exhibit C to the Purchase
Contract Agreement, whereupon the Purchase Contract Agent shall
deliver to the Collateral Agent a notice, substantially in the
form of Exhibit C hereto, stating that such Holder has
Transferred the Notes or security entitlements with respect
thereto to the Collateral Account for credit to the Collateral
Account and requesting that the Collateral Agent release from the
Pledge the Pledged Treasury Securities related to such Treasury
Units; and
(ii) delivering the related Treasury Units to the
Purchase Contract Agent.
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Upon receipt of such notice and confirmation that Notes or
security entitlements with respect thereto have been credited to the Collateral
Account as described in such notice, the Collateral Agent shall instruct the
Securities Intermediary by a notice substantially in the form of Exhibit D
hereto to release such Pledged Treasury Securities from the Pledge by Transfer
to the Purchase Contract Agent for distribution to such Holder, free and clear
of the Pledge created hereby.
If the Treasury Portfolio has replaced the Notes represented by
the Corporate Units, a Holder may, at any time on or prior to the second
Business Day immediately preceding the Purchase Contract Settlement Date,
substitute the Applicable Ownership Interests in the Treasury Portfolio for the
Pledged Treasury Securities, but only in multiples of ______ Treasury Units. In
such an event, the Holder shall Transfer to the Collateral Agent the Applicable
Ownership Interests in the Treasury Portfolio in an amount such that the
aggregate principal amount at maturity of the portion of such Applicable
Ownership Interests specified in clause (i) of the definition of such term is
equal to the aggregate Stated Amount of the Purchase Contracts underlying such
Treasury Units, and the Purchase Contract Agent shall instruct the Collateral
Agent to release the Pledge of, and transfer to the Holder, the appropriate
Treasury Securities in the manner set forth above.
(b) Upon credit to the Collateral Account of Notes or security
entitlements with respect thereto delivered by a Holder of Treasury Units and
receipt of the related instruction from the Collateral Agent, the Securities
Intermediary shall release such Pledged Treasury Securities or Applicable
Ownership Interests in the Treasury Portfolio and shall promptly Transfer the
same to the Purchase Contract Agent for distribution to such Holder, free and
clear of the Pledge created hereby.
Section 5.04. Termination Event.
(a) Upon receipt by the Collateral Agent of written notice from
the Company or the Purchase Contract Agent that a Termination Event has
occurred, the Collateral Agent shall release all Collateral from the Pledge and
shall promptly Transfer:
(i) any Pledged Notes or security entitlements
with respect thereto or Pledged Applicable Ownership Interests,
(ii) any Pledged Treasury Securities, and
(iii) any payments by Holders (or the Permitted
Investments of such payments) pursuant to Section 5.05 hereof,
to the Purchase Contract Agent for the benefit of the Holders for distribution
to such Holders, in accordance with their respective interests, free and clear
of the Pledge created hereby; provided, however, if any Holder shall be entitled
to receive less than $1,000 with respect to its interest in the Applicable
Ownership Interests (as specified in clause (i) of the definition of such term)
in the Treasury Portfolio, the Purchase Contract Agent shall have the right (but
not the obligation) to dispose of such interest for cash and deliver to such
Holder cash in lieu of delivering the Applicable Ownership Interests (as
specified in clause (i) of the definition of such term) in the Treasury
Portfolio.
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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 Applicable Ownership Interests, Pledged Treasury
Securities and payments by Holders (or the Permitted Investments of such
payments) pursuant to Section 5.05 hereof and Proceeds of any of the foregoing,
as the case may be, as provided by this Section 5.04, the Purchase Contract
Agent shall:
(i) upon direction in writing by a majority of the
Holders, use its reasonable best efforts to obtain an opinion of
a nationally recognized law firm reasonably acceptable to the
Collateral Agent to the effect that, notwithstanding 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 5.04, and
shall deliver or cause to be delivered such opinion to the
Collateral Agent within ten days after the occurrence of such
Termination Event, and if (A) the Purchase Contract Agent shall
be unable to obtain such opinion within ten days after the
occurrence of such Termination Event or (B) the Collateral Agent
shall continue, after delivery of such opinion, to refuse to
effectuate the release and Transfer of all Pledged Notes, Pledged
Applicable Ownership Interests, Pledged Treasury Securities and
the payments by Holders (or the Permitted Investments of such
payments) pursuant to Section 5.05 hereof and Proceeds of any of
the foregoing, as the case may be, as provided in this Section
5.04, then the Purchase Contract Agent shall within 15 days after
the occurrence of such Termination Event commence an action or
proceeding in the court having jurisdiction of the Company's case
under the Bankruptcy Code seeking an order requiring the
Collateral Agent to effectuate the release and transfer of all
Pledged Notes, Pledged Applicable Ownership Interests, Pledged
Treasury Securities and the payments by Holders (or the Permitted
Investments of such payments) pursuant to Section 5.05 hereof and
Proceeds of any of the foregoing, or as the case may be, as
provided by this Section 5.04; and
(ii) commence an action or proceeding like that
described in clause 5.04(b)(i) hereof within ten days after the
occurrence of such Termination Event.
; provided that the Purchase Contract Agent shall have the right to refuse to
act under these Sections 5.04(b)(i) and (ii) unless it shall be indemnified to
its satisfaction as provided herein.
Section 5.05. Cash Settlement.
(a) Upon receipt by the Collateral Agent of (1) a notice from the
Purchase Contract Agent promptly after the receipt by the Purchase Contract
Agent of a notice from a Holder of Corporate Units that such Holder has elected,
in accordance with the procedures specified in Section 5.02(c)(i) of the
Purchase Contract Agreement to effect a Cash Settlement and (2) payment by such
Holder by deposit in the Collateral Account prior to 11:00 a.m. (New York City
time) on the fourth Business Day immediately preceding the Purchase Contract
Settlement Date of the Purchase Price in lawful money of the United States of
America by
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certified or cashier's check or wire transfer of immediately available funds
payable to or upon the order of the Securities Intermediary, then the Collateral
Agent shall:
(i) instruct the Securities Intermediary promptly
to invest any such Cash in Permitted Investments;
(ii) instruct the Securities Intermediary to
release from the Pledge such Holder's related Pledged Notes as to
which such Holder has effected a Cash Settlement pursuant to this
Section 5.05(a); and
(iii) instruct the Securities Intermediary to
Transfer all such Pledged Notes to the Purchase Contract Agent
for distribution to such Holder, in each case free and clear of
the Pledge created hereby.
The Company shall instruct the Collateral Agent in writing as to
the type of Permitted Investments in which any such Cash shall be invested;
provided, however, that if the Company fails to deliver such written
instructions by 10:30 a.m. (New York City time) on the day such Cash is received
by the Collateral Agent or to be reinvested by the Securities Intermediary, the
Collateral Agent shall instruct the Securities Intermediary to invest such Cash
in the Permitted Investments described in clause (6) of the definition of
Permitted Investments. In no event shall the Collateral Agent or Securities
Intermediary be liable for the selection of Permitted Investments or for
investment losses incurred thereon. The Collateral Agent and Securities
Intermediary shall have no liability in respect of losses incurred as a result
of the failure of the Company to provide timely written investment direction.
Upon receipt of the proceeds upon the maturity of the Permitted
Investments on the Purchase Contract Settlement Date, the Collateral Agent shall
(A) instruct the Securities Intermediary to pay the portion of such proceeds and
deliver any certified or cashier's checks received, in an aggregate amount equal
to the Purchase Price, to the Company on the Purchase Contract Settlement Date,
and (B) release any amounts in excess of the Purchase Price earned from such
Permitted Investments to the Purchase Contract Agent for distribution to such
Holder.
(b) If a Holder of Corporate Units (i) fails to notify the
Purchase Contract Agent of its intention to make a Cash Settlement as provided
in paragraph 5.02(c)(i) of the Purchase Contract Agreement or (ii) does notify
the Purchase Contract Agent of its intention to pay the Purchase Price in cash,
but fails to make such payment as required by paragraph 5.02(c)(ii) of the
Purchase Contract Agreement, such Holder shall be deemed to have consented to
the disposition of such Holder's Pledged Notes in accordance with paragraph
5.02(c)(iii) of the Purchase Contract Agreement.
(c) As soon as practicable after 11:00 a.m. (New York City time)
on the fourth Business Day immediately preceding the Purchase Contract
Settlement Date, the Collateral Agent shall deliver to the Purchase Contract
Agent a notice, substantially in the form of Exhibit E hereto, stating (i) the
amount of Cash that it has received with respect to the Cash Settlement of
Corporate Units and (ii) the amount of Pledged Notes to be remarketed in the
Final Remarketing pursuant to Section 5.02(c)(iii) of the Purchase Contract
Agreement.
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Section 5.06. Early Settlement and Cash Merger Early Settlement.
Upon receipt by the Collateral Agent of a notice from the Purchase Contract
Agent that a Holder of Units has elected to effect either (a) Early Settlement
of its obligations under the Purchase Contracts forming a part of such Units in
accordance with the terms of the Purchase Contracts and Section 5.07 of the
Purchase Contract Agreement or (b) Cash Merger Early Settlement of its
obligations under the Purchase Contracts forming a part of such Units in
accordance with the terms of the Purchase Contracts and Section 5.04(b)(2) of
the Purchase Contract Agreement (which notice shall set forth the number of such
Purchase Contracts as to which such Holder has elected to effect Early
Settlement or Cash Merger Early Settlement), and that the Purchase Contract
Agent has received from such Holder, and paid to the Company as confirmed in
writing by the Company, the related Purchase Price pursuant to the terms of the
Purchase Contracts and the Purchase Contract Agreement and that all conditions
to such Early Settlement or Cash Merger Early Settlement, as the case may be,
have been satisfied, then the Collateral Agent shall release from the Pledge,
(i) Pledged Notes or the Pledged Applicable Ownership Interests in the case of a
Holder of Corporate Units or (ii) Pledged Treasury Securities, in the case of a
Holder of Treasury Units, in each case with a Value equal to the product of (x)
the Stated Amount times (y) the number of Purchase Contracts as to which such
Holder has elected to effect Early Settlement or Cash Merger Early Settlement,
and shall instruct the Securities Intermediary to Transfer all such Pledged
Applicable Ownership Interests or Pledged Notes or Pledged Treasury Securities,
as the case may be, to the Purchase Contract Agent for distribution to such
Holder, in each case free and clear of the Pledge created hereby. A holder of
Treasury Units may settle early only in integral multiples of ______ Treasury
Units, and a Holder of Corporate Units, if the Treasury Portfolio has replaced
the Notes as a component of such Corporate Units, may settle early only in
integral multiples of ______ Corporate Units.
Section 5.07. Application of Proceeds in Settlement of Purchase
Contracts.
(a) If a Holder of Corporate Units (if the Treasury Portfolio has
not replaced the Notes as a component of such Corporate Units) has not elected
to make an effective Cash Settlement by notifying the Purchase Contract Agent in
the manner provided for in Section 5.02(c)(i) of the Purchase Contract Agreement
or does notify the Purchase Contract Agent as provided in paragraph 5.02(c)(i)
of the Purchase Contract Agreement of its intention to pay the Purchase Price in
cash, but fails to make such payment as required by paragraph 5.02(c)(ii) of the
Purchase Contract Agreement, such Holder shall be deemed to have elected to pay
for the shares of Common Stock to be issued under such Purchase Contracts from
the Proceeds of the Final Remarketing of the related Pledged Notes. In such
event, upon written direction from the Purchase Contract Agent, the Collateral
Agent shall instruct the Securities Intermediary to Transfer the related Pledged
Notes to the Remarketing Agent for Final Remarketing. Upon receiving such
Pledged Notes, the Remarketing Agent, pursuant to the terms of the Remarketing
Agreement, will use its reasonable efforts to remarket such Pledged Notes. The
Remarketing Agent will deposit the Proceeds of such Final Remarketing (less, to
the extent permitted by the Remarketing Agreement, the Remarketing Fee) in the
Collateral Account, and the Collateral Agent shall invest the Proceeds of the
Final Remarketing in Permitted Investments set forth in clause (6) of the
definition of Permitted Investments. On the Purchase Contract Settlement Date,
the Purchase Contract Agent shall consult with the Collateral Agent regarding
the instruction the Collateral Agent shall give to the Securities Intermediary
in order to apply a portion of the Proceeds from such Final Remarketing equal to
the aggregate principal amount of
15
such Pledged Notes, less the amount of any Deferred Contract Adjustment Payments
payable to such Holder on the Purchase Contract Settlement Date, to satisfy in
full such Holder's obligations to pay the Purchase Price to purchase the shares
of Ordinary Shares under the related Purchase Contracts and the balance of the
Proceeds from the Final Remarketing, if any, that shall be transferred to the
Purchase Contract Agent for distribution to such Holder.
If the Remarketing Agent advises the Collateral Agent in writing
that there has been a Failed Final Remarketing, the Collateral Agent, for the
benefit of the Company shall, at the written direction of the Company, exercise
the Company's rights as a secured party with respect to the Pledged Notes in
accordance with applicable law or deliver the Pledged Notes to the Company to
retain to the extent permitted by applicable law. Following such action, the
Holder's obligations to pay the Purchase Price for the shares of Ordinary Shares
will be deemed to be satisfied in full.
(b) In the case of a Treasury Unit or a Corporate Unit (if the
Treasury Portfolio has replaced the Notes as a component of such Corporate
Unit), promptly, after 11:00 a.m. (New York City time) on the Business Day
immediately prior to the Purchase Contract Settlement Date, the Collateral Agent
shall invest the Cash Proceeds of the maturing Pledged Treasury Securities or
Pledged Applicable Ownership Interests, as the case may be, in Permitted
Investments set forth in clause (6) of the definition of Permitted Investments,
unless prior to 10:30 a.m. (New York City time) on such date, the Company shall
otherwise instruct the Collateral Agent in writing as to the type of Permitted
Investments in which any such Cash Proceeds shall be invested. In no event shall
the Collateral Agent be liable for the selection of Permitted Investments or for
investment losses incurred thereon. The Collateral Agent shall have no liability
in respect of losses incurred as a result of the failure of the Company to
provide timely written investment direction. Without receiving any instruction
from any such Holder, the Collateral Agent shall apply the Proceeds of the
related Pledged Treasury Securities or Pledged Applicable Ownership Interests,
as the case may be, to the settlement of such Purchase Contracts on the Purchase
Contract Settlement Date. In the event the sum of the Proceeds from the related
Pledged Treasury Securities or Pledged Applicable Ownership Interests, as the
case may be, and the investment earnings from the investment in Permitted
Investments exceeds the aggregate Purchase Price of the Purchase Contracts being
settled thereby, less the amount of any Deferred Contract Adjustment Payments
payable to such Holder on the Purchase Contract Settlement Date, the Collateral
Agent shall instruct the Securities Intermediary to transfer such excess, when
received, to the Purchase Contract Agent for distribution to such Holder.
(c) Prior to 5:00 p.m. (New York City time) on the fifth Business
Day immediately preceding the applicable Remarketing Date, but no earlier than
the Payment Date immediately preceding such date, Holders of Separate Notes may
elect to have their Separate Notes remarketed under the Remarketing Agreement,
by delivering their Separate Notes along with a notice of such election,
substantially in the form of Exhibit F hereto, to the Custodial Agent. After
such time, such election shall become an irrevocable election to have such
Separate Notes remarketed in such Remarketing and, if such Remarketing fails, in
any subsequent Remarketing. The Custodial Agent shall hold Separate Notes in an
account separate from the Collateral Account in which the Pledged Securities
shall be held. Holders of Separate Notes electing to have their Separate Notes
remarketed will also have the right to withdraw that election by written notice
to the Custodial Agent, substantially in the form of Exhibit G hereto,
16
prior to 5:00 p.m. (New York City time) on the fifth Business Day immediately
preceding the applicable Remarketing Date, upon which notice the Custodial Agent
shall return such Separate Notes to such Holder.
By 11:00 a.m. (New York City time) on the Business Day
immediately preceding the applicable Remarketing Date, the Custodial Agent shall
notify the Remarketing Agent of the aggregate principal amount of the Separate
Notes to be remarketed and deliver to the Remarketing Agent for remarketing all
Separate Notes delivered to the Custodial Agent pursuant to this Section 5.07(c)
and not validly withdrawn prior to such date. In the event of a Successful
Remarketing, after deducting the Remarketing Fee (to the extent permitted under
the terms of the Remarketing Agreement), the Remarketing Agent will remit to the
Custodial Agent the remaining portion of the proceeds of such Remarketing for
payment to the Holders of the remarketed Separate Notes, in accordance with
their respective interests. In the event of a Failed Remarketing, the
Remarketing Agent will promptly return such Separate Notes to the Custodial
Agent, and, in the event of a Failed Final Remarketing, the Custodial Agent
shall deliver such Separate Notes to the appropriate Holders.
Section 5.08. Special Event Redemption. If the Collateral Agent
receives written notice that a Special Event Redemption has occurred while Notes
are still credited to the Collateral Account, the Collateral Agent shall apply
the Redemption Amount to purchase the Treasury Portfolio, and the Collateral
Agent shall credit the Applicable Ownership Interests (as specified in clause
(i) of the definition of such term) in the Treasury Portfolio to the Collateral
Account and shall transfer the Applicable Ownership Interests (as specified in
clause (ii)(y) of the definition of such term) in the Treasury Portfolio to the
Purchase Contract Agent for distribution to the Holders of the Corporate Units.
Upon credit to the Collateral Account of the Applicable Ownership Interests (as
specified in clause (i) of the definition of such term) in the Treasury
Portfolio having a Value equal to the aggregate principal amount of the Pledged
Notes, the Collateral Agent shall cause the Securities Intermediary to release
the Pledged Notes from the Collateral Account and shall promptly transfer the
Pledged Notes to the Company.
ARTICLE 6
VOTING RIGHTS - PLEDGED NOTES
Section 6.01. Voting Rights. Subject to the terms of Section 4.02
of the Purchase Contract Agreement, the Purchase Contract Agent may exercise, or
refrain from exercising, any and all voting and other consensual rights
pertaining to the Pledged Notes or any part thereof for any purpose not
inconsistent with the terms of this Agreement and in accordance with the terms
of the Purchase Contract Agreement; provided, that the Purchase Contract Agent
shall not exercise or shall not refrain from exercising such right, as the case
may be, if, in the judgment of the Purchase Contract Agent, such action would
impair or otherwise have a material adverse effect on the value of all or any of
the Pledged Notes; and provided, further, that the Purchase Contract Agent shall
give the Company and the Collateral Agent at least five Business Days' prior
written notice of the manner in which it intends to exercise, or its reasons for
refraining from exercising, any such right. Upon receipt of any notices and
other communications in respect of any Pledged Notes, including notice of any
meeting at which holders of the Notes are entitled to vote or solicitation of
consents, waivers or proxies of holders
17
of the 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 Company
and delivered to the Purchase Contract Agent with respect to the Pledged Notes.
ARTICLE 7
RIGHTS AND REMEDIES
Section 7.01. Rights and Remedies of the Collateral Agent.
(a) In addition to the rights and remedies specified in Section
5.07 hereof or otherwise available at law or in equity, after an event of
default (as specified in Section 7.01(b) below) hereunder, the Collateral Agent
shall have all of the rights and remedies with respect to the Collateral of a
secured party under the UCC (whether or not the UCC is in effect in the
jurisdiction where the rights and remedies are asserted) and the TRADES
Regulations and such additional rights and remedies to which a secured party is
entitled under the laws in effect in any jurisdiction where any rights and
remedies hereunder may be asserted. Without limiting the generality of the
foregoing, such remedies may include, to the extent permitted by applicable law,
(1) retention of the Pledged Notes, Pledged Treasury Securities or the
applicable Pledged Applicable Ownership Interests or (2) sale of the Pledged
Notes, Pledged Treasury Securities or the applicable Pledged Applicable
Ownership Interests in one or more public or private sales, and in each
instance, the Holders' obligations under the Purchase Contracts and the Purchase
Contract Agreement shall be deemed to have been satisfied in full.
(b) Without limiting any rights or powers otherwise granted by
this Agreement to the Collateral Agent, in the event the Collateral Agent is
unable to make payments to the Company on account of the applicable Pledged
Applicable Ownership Interests, or on account of principal payments of any
Pledged Treasury Securities as provided in Article 3 hereof, in satisfaction of
the Obligations of the Holder of the Units of which such applicable Pledged
Applicable Ownership Interests or such Pledged Treasury Securities, as
applicable, are a part under the related Purchase Contracts, the inability to
make such payments shall constitute an event of default hereunder and the
Collateral Agent shall have and may exercise, with reference to such Pledged
Treasury Securities or Pledged Applicable Ownership Interests, as applicable,
any and all of the rights and remedies available to a secured party under the
UCC and the TRADES Regulations after default by a debtor, and as otherwise
granted herein or under any other law.
(c) Without limiting any rights or powers otherwise granted by
this Agreement to the Collateral Agent, the Collateral Agent is hereby
irrevocably authorized to receive and collect all payments of (i) the principal
amount of the Pledged Notes, (ii) the principal amount of the Pledged Treasury
Securities and (iii) the principal amount of the Pledged Applicable Ownership
Interests, subject, in each case, to the provisions of Article 3 hereof, and as
otherwise granted herein.
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(d) The Purchase Contract Agent and each Holder of Units agrees
that, from time to time, upon the written request of the Collateral Agent or the
Purchase Contract Agent, such Holder shall execute and deliver such further
documents and do such other acts and things as the Collateral Agent may
reasonably request in order to maintain the Pledge, and the perfection and
priority thereof, and to confirm the rights of the Collateral Agent hereunder.
The Purchase Contract Agent shall have no liability to any Holder for executing
any documents or taking any such acts requested by the Collateral Agent
hereunder, except for liability for its own grossly negligent acts, its own
grossly negligent failure to act or its own willful misconduct.
Section 7.02. Special Event Redemption. Upon the occurrence of a
Special Event Redemption while Notes are still credited to the Collateral
Account, the Redemption Price shall be credited to the Collateral Account by the
Collateral Agent upon receipt thereof from the Indenture Trustee, on or prior to
12:30 p.m., New York City time on such Special Event Redemption Date, by federal
funds check or wire transfer of immediately available funds. The Collateral
Agent is hereby authorized to present the Pledged Notes for payment as may be
required by their respective terms. Upon receipt of such funds, the Pledged
Notes shall be released from the Collateral Account. In the event such funds are
credited to the Collateral Account, the Collateral Agent, at the written
direction of the Company, shall instruct the Securities Intermediary to (a)
apply an amount equal to the Redemption Amount of such funds to purchase the
Treasury Portfolio from the Quotation Agent for credit to the Collateral Account
and (b) promptly remit the remaining portion of such funds, if any, to the
Purchase Contract Agent for payment to the Holders of Corporate Units, in
accordance with their respective interests.
Section 7.03. Initial Remarketing. Unless a Special Event
Redemption has occurred prior to the Initial Remarketing Date, the Collateral
Agent shall, by 11:00 a.m., New York City time, on the Business Day immediately
preceding the Initial Remarketing Date, without any instruction from any Holder
of Corporate Units, present the related Pledged Notes to the Remarketing Agent
for Initial Remarketing. In the event of a Failed Initial Remarketing, the Notes
presented to the Remarketing Agent pursuant to this Section 7.03 for Remarketing
shall be redeposited into the Collateral Account.
Section 7.04. Second Remarketing. Unless a Special Event
Redemption has occurred prior to the Second Remarketing Date, if a Failed
Initial Remarketing has occurred, the Collateral Agent shall, by 11:00 a.m., New
York City time, on the Business Day immediately preceding the Second Remarketing
Date, without any instruction from any Holder of Corporate Units, present the
related Pledged Notes to the Remarketing Agent for Second Remarketing. In the
event of a Failed Second Remarketing, the Notes presented to the Remarketing
Agent pursuant to this Section 7.04 for Remarketing shall be redeposited into
the Collateral Account.
Section 7.05. Third Remarketing. Unless a Special Event
Redemption has occurred prior to the Third Remarketing Date, if a Failed Second
Remarketing has occurred, the Collateral Agent shall, by 11:00 a.m., New York
City time, on the Business Day immediately preceding the Third Remarketing Date,
without any instruction from any Holder of Corporate Units, present the related
Pledged Notes to the Remarketing Agent for Third Remarketing. In the event of a
Failed Third Remarketing, the Notes presented to the Remarketing Agent pursuant
to this Section 7.05 for Remarketing shall be redeposited into the Collateral
Account.
19
Section 7.06. Successful Remarketing. In the event the Collateral
Agent receives Proceeds of the Pledged Notes from any Successful Remarketing
prior to the Final Remarketing Date (after deducting any Remarketing Fee to the
extent permitted under the terms of the Remarketing Agreement), the Collateral
Agent will, at the written direction of the Company, apply an amount equal to
the Treasury Portfolio Purchase Price to purchase from the Quotation Agent the
Treasury Portfolio and promptly remit the remaining portion of such Proceeds to
the Purchase Contract Agent for payment to the Holders of Corporate Units, in
accordance with their respective interests. With respect to Separate Notes, any
Proceeds of such Remarketing (after deducting any Remarketing Fee to the extent
permitted under the terms of the Remarketing Agreement) attributable to the
Separate Notes will be remitted to the Custodial Agent for payment to the
holders of Separate Notes. The Collateral Agent shall Transfer the Treasury
Portfolio to the Collateral Account and the Pledged Applicable Ownership
Interests will secure the obligation of all Holders of Corporate Units to
purchase Common Stock of the Company under the Purchase Contracts constituting a
part of such Corporate Units, in substitution for the Pledged Notes, which shall
be released from the Collateral Account.
Section 7.07. Substitutions. Whenever a Holder has the right to
substitute Treasury Securities, Notes or security entitlements for any of them
or the appropriate Applicable Ownership Interests (as defined in clause (i) of
the definition of such term) in the Treasury Portfolio, as the case may be, for
financial assets held in the Collateral Account, such substitution shall not
constitute a novation of the security interest created hereby.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES; COVENANTS
Section 8.01. Representations and Warranties. Each Holder from
time to time, acting through the Purchase Contract Agent as attorney-in-fact (it
being understood that the Purchase Contract Agent shall not be liable for any
representation or warranty made by or on behalf of a Holder), hereby represents
and warrants to the Collateral Agent (with respect to such Holder's interest in
the Collateral), which representations and warranties shall be deemed repeated
on each day a Holder Transfers Collateral, that:
(a) such Holder has the power to grant a security interest in and
lien on the Collateral;
(b) such Holder is the sole beneficial owner of the Collateral
and, in the case of Collateral delivered in physical form, is the sole holder of
such Collateral and is the sole beneficial owner of, or has the right to
Transfer, the Collateral it Transfers to the Collateral Agent for credit to the
Collateral Account, free and clear of any security interest, lien, encumbrance,
call, liability to pay money or other restriction other than the security
interest and lien granted under Article 2 hereof;
(c) upon the Transfer of the Collateral to the Collateral Agent
for credit to the Collateral Account, the Collateral Agent, for the benefit of
the Company, will have a valid and perfected first priority security interest
therein (assuming that any central clearing operation or any securities
intermediary or other entity not within the control of the Holder involved in
the
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Transfer of the Collateral, including the Collateral Agent and the Securities
Intermediary, gives the notices and takes the action required of it hereunder
and under applicable law for perfection of that interest and assuming the
establishment and exercise of control pursuant to Article 4 hereof); and
(d) the execution and performance by the Holder of its
obligations under this Agreement will not result in the creation of any security
interest, lien or other encumbrance on the Collateral other than the security
interest and lien granted under Article 2 hereof or violate any provision of any
existing law or regulation applicable to it or of any mortgage, charge, pledge,
indenture, contract or undertaking to which it is a party or which is binding on
it or any of its assets.
Section 8.02. Covenants. The Holders from time to time, acting
through the Purchase Contract Agent as their attorney-in-fact (it being
understood that the Purchase Contract Agent shall not be liable for any covenant
made by or on behalf of a Holder), hereby covenant to the Collateral Agent that
for so long as the Collateral remains subject to the Pledge:
(a) neither the Purchase Contract Agent nor such Holders will
create or purport to create or allow to subsist any mortgage, charge, lien,
pledge or any other security interest whatsoever over the Collateral or any part
of it other than pursuant to this Agreement; and
(b) neither the Purchase Contract Agent nor such Holders will
sell or otherwise dispose (or attempt to dispose) of the Collateral or any part
of it except for the beneficial interest therein, subject to the Pledge
hereunder, transferred in connection with the Transfer of the Units.
ARTICLE 9
THE COLLATERAL AGENT, THE CUSTODIAL AGENT AND THE SECURITIES
INTERMEDIARY
It is hereby agreed as follows:
Section 9.01. Appointment, Powers and Immunities. The Collateral
Agent, the Custodial Agent or Securities Intermediary shall act as agent for the
Company hereunder with such powers as are specifically vested in the Collateral
Agent, the Custodial Agent or Securities Intermediary, as the case may be, by
the terms of this Agreement. The Collateral Agent, the Custodial Agent and
Securities Intermediary shall:
(a) have no duties or responsibilities except those expressly set
forth in this Agreement and no implied covenants or obligations shall be
inferred from this Agreement against the Collateral Agent, the Custodial Agent
and Securities Intermediary, nor shall the Collateral Agent, the Custodial Agent
and Securities Intermediary be bound by the provisions of any agreement by any
party hereto beyond the specific terms hereof;
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(b) not be responsible for any recitals contained in this
Agreement, or in any certificate or other document referred to or provided for
in, or received by it under, this Agreement, the Units or the Purchase Contract
Agreement, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement (other than as against the
Collateral Agent, the Custodial Agent or Securities Intermediary, as the case
may be), the Units, any Collateral or the Purchase Contract Agreement or any
other document referred to or provided for herein or therein or for any failure
by the Company or any other Person (except the Collateral Agent, the Custodial
Agent or Securities Intermediary, as the case may be) to perform any of its
obligations hereunder or thereunder or for the perfection, priority or, except
as expressly required hereby, maintenance of any security interest created
hereunder;
(c) not be required to initiate or conduct any litigation or
collection proceedings hereunder (except pursuant to directions furnished under
Section 9.02 hereof, subject to Section 9.08 hereof);
(d) not be responsible for any action taken or omitted to be
taken by it hereunder or under any other document or instrument referred to or
provided for herein or in connection herewith or therewith, except for its own
gross negligence, bad faith or willful misconduct; and
(e) not be required to advise any party as to selling or
retaining, or taking or refraining from taking any action with respect to, any
securities or other property deposited hereunder.
Subject to the foregoing, during the term of this Agreement, the
Collateral Agent, the Custodial Agent and the Securities Intermediary shall take
all reasonable action in connection with the safekeeping of the Collateral
hereunder.
No provision of this Agreement shall require the Collateral
Agent, Custodial Agent or Securities Intermediary to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder. In no event shall the Collateral Agent, Custodial Agent or
Securities Intermediary be liable for any amount in excess of the Value of the
Collateral.
Section 9.02. Instructions of the Company. The Company shall have
the right, by one or more written instruments executed and delivered to the
Collateral Agent, to direct the time, method and place of conducting any
proceeding for the realization of any right or remedy available to the
Collateral Agent, or of exercising any power conferred on the Collateral Agent,
or to direct the taking or refraining from taking of any action authorized by
this Agreement; provided, however, that (a) such direction shall not conflict
with the provisions of any law or of this Agreement or involve the Collateral
Agent in personal liability and (b) the Collateral Agent shall be indemnified to
its satisfaction as provided herein. Nothing contained in this Section 9.02
shall impair the right of the Collateral Agent in its discretion to take any
action or omit to take any action which it deems proper and which is not
inconsistent with such direction.
Section 9.03. Reliance by Collateral Agent and Securities
Intermediary. Each of the Securities Intermediary, the Custodial Agent and the
Collateral Agent shall be entitled to rely
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conclusively upon any certification, order, judgment, opinion, notice or other
written communication (including, without limitation, any thereof by e-mail or
similar electronic means, telecopy, telex 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 consult with and conclusively rely
upon advice, opinions and statements of legal counsel and other experts selected
by the Collateral Agent, the Custodial Agent or the Securities Intermediary, as
the case may be. As to any matters not expressly provided for by this Agreement,
the Collateral Agent, the Custodial Agent and the Securities Intermediary shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder in accordance with instructions given by the Company in accordance
with this Agreement.
Section 9.04. Certain Rights. (a) Whenever in the administration
of the provisions of this Agreement the Collateral Agent, the Custodial Agent or
the Securities Intermediary shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering any action to be taken
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of gross negligence, bad faith or
willful misconduct on the part of the Collateral Agent, the Custodial Agent or
the Securities Intermediary, be deemed to be conclusively proved and established
by a certificate signed by one of the Company's officers, and delivered to the
Collateral Agent, the Custodial Agent or the Securities Intermediary and such
certificate, in the absence of gross negligence, bad faith or willful misconduct
on the part of the Collateral Agent, the Custodial Agent or the Securities
Intermediary, shall be full warrant to the Collateral Agent, the Custodial Agent
or the Securities Intermediary for any action taken, suffered or omitted by it
under the provisions of this Agreement upon the faith thereof.
(a) The Collateral Agent, the Custodial Agent or the Securities
Intermediary shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, entitlement order, approval or other paper or
document.
Section 9.05. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Collateral Agent, the Custodial Agent
or the Securities Intermediary may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Collateral Agent, the Custodial Agent or the
Securities Intermediary shall be a party, or any corporation succeeding to the
business of the Collateral Agent, the Custodial Agent or the Securities
Intermediary shall be the successor of the Collateral Agent, the Custodial Agent
or the Securities Intermediary hereunder without the execution or filing of any
paper with any party hereto or any further act on the part of any of the parties
hereto except where an instrument of transfer or assignment is required by law
to effect such succession, anything herein to the contrary notwithstanding.
Section 9.06. Rights in Other Capacities. The Collateral Agent,
the Custodial Agent and the Securities Intermediary and their affiliates may
(without having to account therefor to the Company) accept deposits from, lend
money to, make their investments in and generally engage in any kind of banking,
trust or other business with the Company, the Purchase
23
Contract Agent, any other Person interested herein and any Holder of Units (and
any of their respective subsidiaries or affiliates) as if they were not acting
as the Collateral Agent, the Custodial Agent or the Securities Intermediary, as
the case may be, and the Collateral Agent, the Custodial Agent, the Securities
Intermediary and their affiliates may accept fees and other consideration from
the Company, the Purchase Contract Agent and any Holder of Units without having
to account for the same to the Company; provided that each of the Securities
Intermediary, the Custodial Agent and the Collateral Agent covenants and agrees
with the Company that it shall not accept, receive or permit there to be created
in favor of itself and shall take no affirmative action to permit there to be
created in favor of any other Person, any security interest, lien or other
encumbrance of any kind in or upon the Collateral other than the lien created by
the Pledge.
Section 9.07. Non-Reliance on the Collateral Agent, the Custodial
Agent and the Securities Intermediary. None of the Securities Intermediary, the
Custodial Agent or the Collateral Agent shall be required to keep itself
informed as to the performance or observance by the Purchase Contract Agent or
any Holder of Units of this Agreement, the Purchase Contract Agreement, the
Units or any other document referred to or provided for herein or therein or to
inspect the properties or books of the Purchase Contract Agent or any Holder of
Units. None of the Collateral Agent, the Custodial Agent or the Securities
Intermediary shall have any duty or responsibility to provide the Company with
any credit or other information concerning the affairs, financial condition or
business of the Purchase Contract Agent or any Holder of Units (or any of their
respective affiliates) that may come into the possession of the Collateral
Agent, the Custodial Agent or the Securities Intermediary or any of their
respective affiliates.
Section 9.08. Compensation and Indemnity. The Company agrees to:
(a) pay the Collateral Agent, the Custodial Agent and the
Securities Intermediary from time to time such compensation as shall be agreed
in writing between the Company and the Collateral Agent, the Custodial Agent or
the Securities Intermediary, as the case may be, for all services rendered by
them hereunder;
(b) indemnify, defend and hold harmless the Collateral Agent, the
Custodial Agent, the Securities Intermediary and each of their respective
directors, officers, agents and employees (collectively, the "INDEMNITEES"),
harmless from and against any and all claims, liabilities, losses, damages,
fines, penalties and expenses (including reasonable fees and expenses of
counsel) (collectively, "Losses" and individually, a "LOSS") that may be imposed
on, reasonably incurred by, or asserted against, the Indemnitees or any of them
for following any instructions or other directions upon which any of the
Indemnitees is entitled to rely pursuant to the terms of this Agreement,
provided that such Indemnitee has not acted with gross negligence or bad faith
or engaged in willful misconduct with respect to the specific Loss against which
indemnification is sought; and
(c) in addition to and not in limitation of paragraph (b)
immediately above, indemnify and hold the Indemnitees and each of them harmless
from and against any and all Losses that may be imposed on, incurred by or
asserted against, the Indemnitees or any of them in connection with or arising
out of the Collateral Agent's, the Custodial Agent's or the Securities
Intermediary's acceptance, performance or exercise of its rights, powers and
duties under this
24
Agreement, provided the Collateral Agent, the Custodial Agent or the Securities
Intermediary has not acted with gross negligence or bad faith or engaged in
willful misconduct with respect to the specific Loss against which
indemnification is sought.
The provisions of this Section and Section 11.07 shall survive
the resignation or removal of the Collateral Agent, Custodial Agent or
Securities Intermediary and the termination of this Agreement.
Section 9.09. Failure to Act. In the event of any ambiguity in
the provisions of this Agreement or any dispute between or conflicting claims by
or among the parties hereto or any other Person with respect to any funds or
property deposited hereunder, then at its sole option, each of the Collateral
Agent, the Custodial Agent and the Securities Intermediary shall be entitled,
after prompt notice to the Company and the Purchase Contract Agent, to refuse to
comply with any and all claims, demands or instructions with respect to such
property or funds so long as such dispute or conflict shall continue, and the
Collateral Agent, the Custodial Agent and the Securities Intermediary shall not
be or become liable in any way to any of the parties hereto for its failure or
refusal to comply with such conflicting claims, demands or instructions. The
Collateral Agent, the Custodial Agent and the Securities Intermediary shall be
entitled to refuse to act until either:
(a) such conflicting or adverse claims or demands shall have been
finally determined by a court of competent jurisdiction or settled by agreement
between the conflicting parties as evidenced in a writing satisfactory to the
Collateral Agent, the Custodial Agent or the Securities Intermediary; or (b) the
Collateral Agent, the Custodial Agent or the Securities Intermediary shall have
received security or an indemnity satisfactory to it sufficient to save it
harmless from and against any and all loss, liability or reasonable
out-of-pocket expense which it may incur by reason of its acting at the expense
of the Company.
The Collateral Agent, the Custodial Agent and the Securities
Intermediary may in addition elect to commence an interpleader action or seek
other judicial relief or orders as the Collateral Agent, the Custodial Agent or
the Securities Intermediary may deem necessary. Notwithstanding anything
contained herein to the contrary, none of the Collateral Agent, the Custodial
Agent or the Securities Intermediary shall be required to take any action that
is in its opinion contrary to law or to the terms of this Agreement, or which
would in its opinion subject it or any of its officers, employees or directors
to liability.
Section 9.10. Resignation of the Collateral Agent, the Custodial
Agent and the Securities Intermediary.
(a) Subject to the appointment and acceptance of a successor
Collateral Agent, Custodial Agent or Securities Intermediary as provided below:
(i) the Collateral Agent, the Custodial Agent and
the Securities Intermediary may resign at any time by giving
notice thereof to the Company and the Purchase Contract Agent as
attorney-in-fact for the Holders of Units;
25
(ii) the Collateral Agent, the Custodial Agent and
the Securities Intermediary may be removed at any time by the
Company; and
(iii) if the Collateral Agent, the Custodial Agent
or the Securities Intermediary fails to perform any of its
material obligations hereunder in any material respect for a
period of not less than 20 days after receiving written notice of
such failure by the Purchase Contract Agent and such failure
shall be continuing, the Collateral Agent, the Custodial Agent
and the Securities Intermediary may be removed by the Purchase
Contract Agent, acting at the direction of the Holders of a
majority of the Units.
The Purchase Contract Agent shall promptly notify the Company of any removal of
the Collateral Agent, the Custodial Agent or the Securities Intermediary
pursuant to clause (iii) of this Section 9.10(a). Upon any such resignation or
removal, the Company shall have the right to appoint a successor Collateral
Agent, Custodial Agent or Securities Intermediary, as the case may be, which
shall not be an Affiliate of the Purchase Contract Agent. If no successor
Collateral Agent, Custodial Agent or Securities Intermediary shall have been so
appointed and shall have accepted such appointment within 30 days after the
retiring Collateral Agent's, Custodial Agent's or Securities Intermediary's
giving of notice of resignation or the Company's or the Purchase Contract
Agent's giving notice of such removal, then the retiring or removed Collateral
Agent, Custodial Agent or Securities Intermediary may petition any court of
competent jurisdiction, at the expense of the Company, for the appointment of a
successor Collateral Agent, Custodial Agent or Securities Intermediary. The
Collateral Agent, the Custodial Agent and the Securities Intermediary shall each
be a bank or a national banking association which has an office (or an agency
office) in New York City with a combined capital and surplus of at least
$50,000,000. Upon the acceptance of any appointment as Collateral Agent,
Custodial Agent or Securities Intermediary hereunder by a successor Collateral
Agent, Custodial Agent or Securities Intermediary, as the case may be, such
successor Collateral Agent, Custodial Agent or Securities Intermediary, as the
case may be, shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Collateral Agent, Custodial Agent
or Securities Intermediary, as the case may be, and the retiring Collateral
Agent, Custodial Agent or Securities Intermediary, as the case may be, shall
take all appropriate action, subject to payment of any amounts then due and
payable to it hereunder, to transfer any money and property held by it hereunder
(including the Collateral) to such successor. The retiring Collateral Agent,
Custodial Agent or Securities Intermediary shall, upon such succession, be
discharged from its duties and obligations as Collateral Agent, Custodial Agent
or Securities Intermediary hereunder. After any retiring Collateral Agent's,
Custodial Agent's or Securities Intermediary's resignation hereunder as
Collateral Agent, Custodial Agent or Securities Intermediary, the provisions of
this Article 9 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Collateral
Agent, Custodial Agent or Securities Intermediary. Any resignation or removal of
the Collateral Agent, Custodial Agent or Securities Intermediary hereunder, at a
time when such Person is acting as the Collateral Agent, Custodial Agent or
Securities Intermediary, shall be deemed for all purposes of this Agreement as
the simultaneous resignation or removal of the Collateral Agent, Securities
Intermediary or Custodial Agent, as the case may be.
26
(b) Since _______ is serving as the Collateral Agent hereunder
and the Purchase Contract Agent under the Purchase Contract Agreement, if an
event of default (other than an event of default occurring as a result of a
Failed Final Remarketing) occurs hereunder or under the Purchase Contract
Agreement, _______ will resign as the Collateral Agent, but continue to act as
the Purchase Contract Agent. A successor Collateral Agent will be appointed in
accordance with the terms hereof.
Section 9.11. Right to Appoint Agent or Advisor. The Collateral
Agent shall have the right to appoint agents or advisors in connection with any
of its duties hereunder, and the Collateral Agent shall not be liable for any
action taken or omitted by, or in reliance upon the advice of, such agents or
advisors selected in good faith. The appointment of agents pursuant to this
Section 9.11 shall be subject to prior written consent of the Company, which
consent shall not be unreasonably withheld.
Section 9.12. Survival. The provisions of this Article 9 shall
survive termination of this Agreement and the resignation or removal of the
Collateral Agent, the Custodial Agent or the Securities Intermediary.
Section 9.13. Exculpation. Anything contained in this Agreement
to the contrary notwithstanding, in no event shall the Collateral Agent, the
Custodial Agent or the Securities Intermediary or their officers, directors,
employees or agents be liable under this Agreement to the Company or any third
party for indirect, special, punitive, or consequential loss or damage of any
kind whatsoever, including, but not limited to, lost profits, whether or not the
likelihood of such loss or damage was known to the Collateral Agent, the
Custodial Agent or the Securities Intermediary, or any of them and regardless of
the form of action.
ARTICLE 10
AMENDMENT
Section 10.01. Amendment Without Consent of Holders. Without the
consent of any Holders, the Company, when authorized by a Board Resolution, the
Collateral Agent, the Custodial Agent, the Securities Intermediary and the
Purchase Contract Agent, at any time and from time to time, may amend this
Agreement, in form satisfactory to the Company, the Collateral Agent, the
Custodial Agent, the Securities Intermediary and the Purchase Contract Agent,
to:
(a) evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company;
(b) evidence and provide for the acceptance of appointment
hereunder by a successor Collateral Agent, Custodial Agent, Securities
Intermediary or Purchase Contract Agent;
(c) add to the covenants of the Company for the benefit of the
Holders, or surrender any right or power herein conferred upon the Company,
provided that such covenants or such surrender do not adversely affect the
validity, perfection or priority of the Pledge created hereunder; or
27
(d) cure any ambiguity (or formal defect), correct or supplement
any provisions herein which may be inconsistent with any other such provisions
herein, or make any other provisions with respect to such matters or questions
arising under this Agreement, provided that such action shall not adversely
affect the interests of the Holders in any material respect.
Section 10.02. Amendment with Consent of Holders. With the
consent of the Holders of not less than a majority of the Purchase Contracts at
the time outstanding, including without limitation the consent of the Holders
obtained in connection with a tender or an exchange offer, by Act of such
Holders delivered to the Company, the Purchase Contract Agent, the Custodial
Agent, the Securities Intermediary and the Collateral Agent, as the case may be,
the Company, when duly authorized by a Board Resolution, the Purchase Contract
Agent, the Collateral Agent, the Securities Intermediary and the Collateral
Agent may amend this Agreement for the purpose of modifying in any manner the
provisions of this Agreement or the rights of the Holders in respect of the
Units; provided, however, that no such supplemental agreement shall, without the
unanimous consent of the Holders of each Outstanding Unit adversely affected
thereby in any material respect:
(a) change the amount or type of Collateral underlying a Unit
(except for the rights of holders of Corporate Units to substitute the Treasury
Securities for the Pledged Notes or the Pledged Applicable Ownership Interests,
as the case may be, or the rights of Holders of Treasury Units to substitute
Notes or the Applicable Ownership Interests (as specified in clause (i) of the
definition of such term) in the Treasury Portfolio, as applicable, for the
Pledged Treasury Securities), unless such change is not adverse to the Holders,
impair the right of the Holder of any Unit to receive distributions on the
underlying Collateral or otherwise adversely affect the Holder's rights in or to
such Collateral; or
(b) otherwise effect any action that would require the consent of
the Holder of each Outstanding Unit affected thereby pursuant to the Purchase
Contract Agreement if such action were effected by a modification or amendment
of the provisions of the Purchase Contract Agreement; or
(c) reduce the percentage of Purchase Contracts the consent of
whose Holders is required for the modification or amendment of the provisions of
this Agreement;
provided that if any amendment or proposal referred to above would adversely
affect only the Corporate Units or only the Treasury Units, then only the
affected class of Holders as of the record date for the Holders entitled to vote
thereon will be entitled to vote on such amendment or proposal, and such
amendment or proposal shall not be effective except with the consent of Holders
of not less than a majority of such class; provided, further, that the unanimous
consent of the Holders of each outstanding Purchase Contract of such class
affected thereby shall be required to approve any amendment or proposal
specified in clauses (a) through (c) above.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such Act shall approve the substance thereof.
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Section 10.03. Execution of Amendments. In executing any
amendment permitted by this Article, the Collateral Agent, the Custodial Agent,
the Securities Intermediary and the Purchase Contract Agent shall be entitled to
receive and (subject to Section 7.01 of the Purchase Contract Agreement with
respect to the Purchase Contract Agent) shall be fully authorized and protected
in relying upon, an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement and that all conditions
precedent, if any, to the execution and delivery of such amendment have been
satisfied. The Collateral Agent, Custodial Agent, Securities Intermediary and
Purchase Contract Agent may, but shall not be obligated to, enter into any such
amendment which affects their own respective rights, duties or immunities under
this Agreement or otherwise.
Section 10.04. Effect of Amendments. Upon the execution of any
amendment under this Article, this Agreement shall be modified in accordance
therewith, and such amendment shall form a part of this Agreement for all
purposes; and every Holder of Certificates theretofore or thereafter
authenticated, executed on behalf of the Holders and delivered under the
Purchase Contract Agreement shall be bound thereby.
Section 10.05. Reference of Amendments. Certificates
authenticated, executed on behalf of the Holders and delivered after the
execution of any amendment pursuant to this Section may, and shall if required
by the Collateral Agent or the Purchase Contract Agent, bear a notation in form
approved by the Purchase Contract Agent and the Collateral Agent as to any
matter provided for in such amendment. If the Company shall so determine, new
Certificates so modified as to conform, in the opinion of the Collateral Agent,
the Purchase Contract Agent and the Company, to any such amendment may be
prepared and executed by the Company and authenticated, executed on behalf of
the Holders and delivered by the Purchase Contract Agent in accordance with the
Purchase Contract Agreement in exchange for Certificates representing
Outstanding Units.
ARTICLE 11
MISCELLANEOUS
Section 11.01. No Waiver. No failure on the part of the Company,
the Collateral Agent, the Custodial Agent, the Securities Intermediary or any of
their respective agents to exercise, and no course of dealing with respect to,
and no delay in exercising, any right, power or remedy hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise by the Company,
the Collateral Agent, the Custodial Agent, the Securities Intermediary or any of
their respective agents of any right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
Section 11.02. Governing Law; Submission to Jurisdiction. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PROVISIONS
THEREOF. The Company, the Collateral Agent, the Custodial Agent, the Securities
Intermediary and the Holders from time to time of the Units, acting through the
Purchase Contract Agent as their attorney-in-fact, hereby submit to the
nonexclusive jurisdiction
29
of the United States District Court for the Southern District of New York and of
any New York state court sitting in New York City for the purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. The Company, the Collateral Agent, the Custodial Agent, the
Securities Intermediary and the Holders from time to time of the Units, acting
through the Purchase Contract Agent as their attorney-in-fact, irrevocably
waive, to the fullest extent permitted by applicable law, any objection 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 11.03. Notices. All notices, requests, consents and other
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, by telecopy) delivered to the
intended recipient at the "Address For Notices" specified below its name on the
signature pages hereof or, as to any party, at such other address as shall be
designated by such party in a notice to the other parties. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
Section 11.04. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective successors and assigns
of the Company, the Collateral Agent, the Custodial Agent, the Securities
Intermediary and the Purchase Contract Agent, and the Holders from time to time
of the Units, by their acceptance of the same, shall be deemed to have agreed to
be bound by the provisions hereof and to have ratified the agreements of, and
the grant of the Pledge hereunder by, the Purchase Contract Agent.
Section 11.05. Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument, and any of the parties hereto may execute this Agreement by
signing any such counterpart.
Section 11.06. Severability. If any provision hereof is invalid
and unenforceable in any jurisdiction, then, to the fullest extent permitted by
law, (i) the other provisions hereof shall remain in full force and effect in
such jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision hereof in any jurisdiction shall
not affect the validity or enforceability of such provision in any other
jurisdiction.
Section 11.07. Expenses, Etc. The Company agrees to reimburse the
Collateral Agent, the Custodial Agent and the Securities Intermediary for:
(a) all reasonable costs and expenses of the Collateral Agent,
the Custodial Agent and the Securities Intermediary (including, without
limitation, the reasonable fees and expenses of counsel to the Collateral Agent,
the Custodial Agent and the Securities Intermediary), reasonably incurred 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;
30
(b) all reasonable costs and expenses of the Collateral Agent,
the Custodial Agent and the Securities Intermediary (including, without
limitation, reasonable fees and expenses of counsel) reasonably incurred in
connection with (i) any enforcement or proceedings resulting or incurred in
connection with causing any Holder of Units to satisfy its obligations under the
Purchase Contracts forming a part of the Units and (ii) the enforcement of this
Section 11.07;
(c) all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any other document referred to herein and all
costs, expenses, taxes, assessments and other charges reasonably incurred in
connection with any filing, registration, recording or perfection of any
security interest contemplated hereby;
(d) all reasonable fees and expenses of any agent or advisor
appointed by the Collateral Agent and consented to by the Company under Section
9.11 of this Agreement;
(e) any out-of-pocket costs and expenses reasonably incurred by
the Collateral Agent, the Custodial Agent, and the Securities Intermediary in
connection with the exercise of their rights or performance of their obligations
and duties under Section 9.10 hereof; and
(f) any other reasonable out-of-pocket costs and expenses
reasonably incurred by the Collateral Agent, the Custodial Agent and the
Securities Intermediary in connection with the performance of their duties
hereunder.
Section 11.08. Security Interest Absolute. All rights of the
Collateral Agent and security interests hereunder, and all obligations of the
Holders from time to time hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of any provision of
the Purchase Contracts or the Units or any other agreement or instrument
relating thereto;
(b) any change in the time, manner or place of payment of, or any
other term of, or any increase in the amount of, all or any of the obligations
of Holders of the Units under the related Purchase Contracts, or any other
amendment or waiver of any term of, or any consent to any departure from any
requirement of, the Purchase Contract Agreement or any Purchase Contract or any
other agreement or instrument relating thereto; or
(c) any other circumstance which might otherwise constitute a
defense available to, or discharge of, a borrower, a guarantor or a pledgor.
Section 11.09. Notice of Special Event, Special Event Redemption
and Termination Event. Upon the occurrence of a Special Event, a Special Event
Redemption or a Termination Event, the Company shall deliver written notice to
the Purchase Contract Agent, the Collateral Agent and the Securities
Intermediary. Upon the written request of the Collateral Agent or the Securities
Intermediary, the Company shall inform such party whether or not a Special
Event, a Special Event Redemption or a Termination Event has occurred.
31
Section 11.10. Regarding the Purchase Contract Agent. All of the
rights, privileges, protections, indemnities and immunities afforded the
Purchase Contract Agent pursuant to the Purchase Contract Agreement are hereby
incorporated herein as if set forth herein in full.
32
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
Scottish Annuity & Life Holdings, Ltd., _______as
Purchase Contract Agent and
as attorney-in-fact of the Holders
from time to time of the Units
By: By:
---------------------------------- ----------------------------------
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
Scottish Annuity & Life Holding, Ltd.
X.X. Xxx 0000
Xxxxx Xxxxx, Xxxxx Xxxxx
4 Par-la-Ville Road
Xxxxxxxx XX MX, Bermuda
Telephone: (000) 000-0000
Attention: General Counsel
----------------------------,
as Collateral Agent, Custodial Agent and
Securities Intermediary
By:
----------------------------------
Name:
Title:
Address for Notices:
33
EXHIBIT A
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Creation of Treasury Units)
The Collateral Agent
[Address]
Attention:
Re:
_____ Corporate Units of Scottish Annuity & Life Holdings,
Ltd. (the "Company")
The securities account of ____, as Collateral Agent,
maintained by the Securities Intermediary and designated
"_____, as Collateral Agent of Scottish Annuity & Life
Holdings, Ltd., as pledgee of __, as the Purchase Contract
Agent on behalf of and as attorney-in-fact for the
Holders" (the "Collateral Account")
Please refer to the Pledge Agreement, dated as of ____, 200__
(the "Pledge Agreement"), among the Company, you, as Collateral Agent, as
Securities Intermediary and as Custodial Agent and the undersigned, as Purchase
Contract Agent and as attorney-in-fact for the holders of Corporate Units from
time to time. Capitalized terms used herein but not defined shall have the
meaning set forth in the Pledge Agreement.
We hereby notify you in accordance with Section 5.02 of the
Pledge Agreement that the holder of securities named below (the "Holder") has
elected to substitute $_____ Value of Treasury Securities or security
entitlements with respect thereto in exchange for an equal Value of Pledged
Notes relating to _____ Corporate Units and has delivered to the undersigned a
notice stating that the Holder has Transferred such Treasury Securities or
security entitlements with respect thereto to the Securities Intermediary, for
credit to the Collateral Account.
34
We hereby request that you instruct the Securities Intermediary,
upon confirmation that such Treasury Securities or security entitlements thereto
have been credited to the Collateral Account, to release to the undersigned an
equal Value of Pledged Notes in accordance with Section 5.02 of the Pledge
Agreement.
Date: __________________________,
as Purchase Contract Agent and as
attorney-in-fact of the Holders from
time to time of the Units
By: ____________________________________
Name:
Title:
35
Please print name and address of Holder electing to substitute Treasury
Securities or security entitlements with respect thereto for the Pledged Notes:
---------------------------------- ----------------------------------
Name:
Social Security
or other Taxpayer Identification
Number, if any
----------------------------------
Address
----------------------------------
----------------------------------
36
EXHIBIT B
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Creation of Treasury Units)
The Securities Intermediary
[Address]
Fax:
Attention:
Re:
_____ Corporate Units of Scottish Annuity & Life Holdings,
Ltd. (the "Company")
The securities account of ______, as Collateral Agent,
maintained by the Securities Intermediary and designated
"______, as Collateral Agent of Scottish Annuity & Life
Holdings, Ltd., as pledgee of _____, as the Purchase
Contract Agent on behalf of and as attorney-in-fact for
the Holders" (the "Collateral Account")
Please refer to the Pledge Agreement, dated as of ____, 200__
(the "Pledge Agreement"), among the Company, you, as Securities Intermediary,
_______, as Purchase Contract Agent and as attorney-in-fact for the holders of
Corporate Units from time to time, and the undersigned, as Collateral Agent.
Capitalized terms used herein but not defined shall have the meanings set forth
in the Pledge Agreement.
When you have confirmed that $____ Value of Treasury
Securities or security entitlements thereto has been credited to the Collateral
Account by or for the benefit of _____, as Holder of Corporate Units (the
"Holder"), you are hereby instructed to release from the Collateral Account an
equal Value of Pledged Notes or security entitlements with respect thereto
relating to _____ Corporate Units of the Holder by Transfer to the Purchase
Contract Agent.
-------------------
as Collateral Agent
Dated: By:
----------------------------- -----------------------------
Name:
Title:
37
Please print name and address of Holder:
---------------------------------- ----------------------------------
Name Social Security
or other Taxpayer Identification
Number, if any
----------------------------------
Address
----------------------------------
----------------------------------
38
EXHIBIT C
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Recreation of Corporate Units)
The Collateral Agent
[Address]
Fax:
Attention:
Re: _____ Treasury Units of Scottish Annuity & Life Holdings,
Ltd. (the "Company")
Please refer to the Pledge Agreement dated as of ____, 200__ (the
"Pledge Agreement"), among the Company, you, as Collateral Agent, as Securities
Intermediary, as Custodial Agent and the undersigned, as Purchase Contract Agent
and as attorney-in-fact for the holders of Treasury Units from time to time.
Capitalized terms used herein but not defined shall have the meaning set forth
in the Pledge Agreement.
We hereby notify you in accordance with Section 5.03(a) of the
Pledge Agreement that the holder of securities named below (the "Holder") has
elected to substitute $____ Value of Notes or security entitlements with respect
thereto in exchange for $_____ Value of Pledged Treasury Securities and has
delivered to the undersigned a notice stating that the holder has Transferred
such Notes or security entitlements with respect thereto to the Securities
Intermediary, for credit to the Collateral Account.
We hereby request that you instruct the Securities Intermediary,
upon confirmation that such Notes or security entitlements with respect thereto
have been credited to the Collateral Account, to release to the undersigned
$_____ Value of Treasury Securities or security entitlements with respect
thereto related to _____ Treasury Units of such Holder in accordance with
Section 5.03(a) of the Pledge Agreement.
--------------------------
as Purchase Contract Agent
Dated: By:
----------------------------- -----------------------------
Name:
Title:
39
Please print name and address of Holder electing to substitute Notes or security
entitlements with respect thereto for Pledged Treasury Securities:
---------------------------------- ----------------------------------
Name Social Security
or other Taxpayer Identification
Number, if any
----------------------------------
Address
----------------------------------
----------------------------------
40
EXHIBIT D
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Recreation of Corporate Units)
The Securities Intermediary
[Address]
Fax:
Attention:
Re: _____ Treasury Units of Scottish Annuity & Life Holdings,
Ltd. (the "Company")
The securities account of _____, as Collateral Agent,
maintained by the Securities Intermediary and designated
"__, as Collateral Agent of Scottish Annuity & Life
Holdings, Ltd., as pledgee of ______, as the Purchase
Contract Agent on behalf of and as attorney-in-fact for
the Holders" (the "Collateral Account")
Please refer to the Pledge Agreement dated as of _____, 200__
(the "Pledge Agreement"), among the Company, you, as Securities Intermediary,
Custodial Agent and Collateral Agent and _____, as Purchase Contract Agent and
as attorney-in-fact for the holders of Corporate Units from time to time, and
the undersigned, as Collateral Agent. Capitalized terms used herein but no
defined shall have the meaning set forth in the Pledge Agreement.
When you have confirmed that $ _____ Value of Notes or security
entitlements with respect thereto has been credited to the Collateral Account by
or for the benefit of _____, as Holder of Treasury Units (the "Holder"), you are
hereby instructed to release from the Collateral Account $_____ Value of
Treasury Securities or security entitlements thereto by Transfer to the Purchase
Contract Agent.
-------------------
as Collateral Agent
Dated: By:
----------------------------- -----------------------------
Name:
Title:
41
---------------------------------- ----------------------------------
Name Social Security
or other Taxpayer Identification
Number, if any
----------------------------------
Address
----------------------------------
----------------------------------
42
EXHIBIT E
NOTICE OF CASH SETTLEMENT FROM COLLATERAL
AGENT TO PURCHASE CONTRACT AGENT
(Cash Settlement Amounts)
The Purchase Contract Agent
[Address]
Fax:
Attention:
Re: ______ Corporate Units of Scottish Annuity & Life
Holdings, Ltd. (the "Company") ______ Treasury Units of
the Company
Please refer to the Pledge Agreement dated as of ____, 200__ (the
"Pledge Agreement"), by and among you, the Company, and _______, as Collateral
Agent, Custodial Agent and Securities Intermediary. Unless otherwise defined
herein, terms defined in the Pledge Agreement are used herein as defined
therein.
In accordance with Section 5.05(c) of the Pledge Agreement, we
hereby notify you that as of 11:00 a.m. (New York City time) on the fourth
Business Day immediately preceding _____ (the "Purchase Contract Settlement
Date"), we have received (i) $_____ in immediately available funds paid in an
aggregate amount equal to the Purchase Price due to the Company on the Purchase
Contract Settlement Date with respect to ____ Corporate Units and (ii) based on
the funds received set forth in clause (i) above, an aggregate principal amount
of $_____ of Pledged Notes are to be tendered for purchase in the Final
Remarketing.
as Collateral Agent
Dated: By:
----------------------------- -----------------------------
Name:
Title:
43
EXHIBIT F
INSTRUCTION TO CUSTODIAL AGENT REGARDING REMARKETING
The Custodial Agent
[Address]
Fax:
Attention:
Re: Notes Due ____ of Scottish Annuity & Life Holdings, Ltd.
(the "Company")
The undersigned hereby notifies you in accordance with Section
5.07(c) of the Pledge Agreement, dated as of ____, 200__ (the "Pledge
Agreement"), among the Company, you, as Collateral Agent, Custodial Agent and
Securities Intermediary and ______, as the Purchase Contract Agent and as
attorney-in-fact for the holders of Corporate Units from time to time, that the
undersigned elects to deliver $____ aggregate principal amount of Separate Notes
for delivery to the Remarketing Agent prior to 5:00 p.m. (New York City time) on
the fifth Business Day immediately preceding the ____ Remarketing Date for
remarketing pursuant to Section 5.07(c) of the Pledge Agreement. The undersigned
will, upon request of the Remarketing Agent, execute and deliver any additional
documents deemed by the Remarketing Agent or by the Company to be necessary or
desirable to complete the sale, assignment and transfer of the Separate Notes
tendered hereby. Capitalized terms used herein but not defined shall have the
meaning set forth in the Pledge Agreement.
The undersigned hereby instructs you, upon receipt of the
Proceeds of such remarketing from the Remarketing Agent, to deliver such
Proceeds to the undersigned in accordance with the instructions indicated herein
under "A. Payment Instructions." The undersigned hereby instructs you, in the
event of a Failed Final Remarketing, upon receipt of the Separate Notes tendered
herewith from the Remarketing Agent, to deliver such Separate Notes to the
person(s) and the address(es) indicated herein under "B. Delivery Instructions."
With this notice, the undersigned hereby (i) represents and
warrants that the undersigned has full power and authority to tender, sell,
assign and transfer the Separate 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, (ii)
agrees to be bound by the terms and conditions of Section 5.07(c) of the Pledge
Agreement and (iii) acknowledges and agrees that after 5:00 p.m. (New York City
time) on the fifth Business Day immediately preceding the ____ Remarketing Date,
such election shall become an irrevocable election to have such Separate Notes
remarketed in the Remarketing and, in the case of a Failed Remarketing, in any
subsequent Remarketing, and that the Separate Notes tendered herewith will only
be returned in the event of a Failed Final Remarketing.
44
Dated:
-----------------------------
----------------------------------------
By:
-----------------------------------
Name:
Title:
Signature Guarantee:
-------------
----------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
----------------------------------
Address
----------------------------------
----------------------------------
45
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)
B. DELIVERY INSTRUCTIONS
In the event of a failed final 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 final remarketing, Notes which are in book-entry form
should be credited to the account at The Depository Trust Company set forth
below.
----------------------------------------------
DTC Account Number
Name of Account Party:
------------------------
46
EXHIBIT G
INSTRUCTION TO CUSTODIAL AGENT REGARDING
WITHDRAWAL FROM REMARKETING
The Custodial Agent
[Address]
Fax:
Attention:
Re: Notes due ____ of Scottish Annuity & Life Holdings, Ltd.
(the "Company")
The undersigned hereby notifies you in accordance with Section
5.07(c) of the Pledge Agreement, dated as of _______ (the "Pledge Agreement"),
among the Company and you, as Collateral Agent, Custodial Agent and Securities
Intermediary, and _______, as Purchase Contract Agent and as attorney-in-fact
for the holders of Corporate Units from time to time, that the undersigned
elects to withdraw the $____ aggregate principal amount of Separate Notes
delivered to the Collateral Agent on ___, 200__ for remarketing pursuant to
Section 5.07(c) of the Pledge Agreement. The undersigned hereby instructs you to
return such Notes to the undersigned in accordance with the undersigned's
instructions. With this notice, the Undersigned hereby agrees to be bound by the
terms and conditions of Section 5.07(c) of the Pledge Agreement. Capitalized
terms used herein but not defined shall have the meaning set forth in the Pledge
Agreement.
Dated:
-----------------------------
----------------------------------------
By:
-----------------------------------
Name:
Title:
Signature Guarantee:
-------------
---------------------------------- ----------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
----------------------------------
Address
----------------------------------
----------------------------------
