EXHIBIT 4
EXECUTION COPY
COLLATERAL AGREEMENT
Among
i-STT INVESTMENTS (BERMUDA) LTD., As Pledgor,
CREDIT SUISSE FIRST BOSTON LLC, As Collateral Agent
and
CREDIT SUISSE FIRST BOSTON CAPITAL LLC
Dated as of
November 9, 2005
The following Table of Contents has been inserted for convenience of
reference only and does not constitute a part of the Collateral Agreement.
TABLE OF CONTENTS
SECTION
1. The Security Interests................................................. 1
2. Definitions............................................................ 2
3. Representations and Warranties of the Pledgor.......................... 4
4. Representations and Warranties of the Collateral Agent................. 5
5. Certain Covenants of the Pledgor....................................... 6
6. Administration of the Collateral....................................... 8
7. Income and Voting Rights on Collateral................................. 12
8. Remedies upon Events of Default........................................ 14
9. The Collateral Agent................................................... 17
10. Miscellaneous.......................................................... 20
11. Termination of Collateral Agreement.................................... 22
Exhibit A - Certificate for Substituted Collateral
Exhibit B - Certificate for Additional Collateral
COLLATERAL AGREEMENT
THIS COLLATERAL AGREEMENT (the "Agreement"), dated as of November 9,
2005, among i-STT INVESTMENTS (BERMUDA) LTD., an exempted company incorporated
under the law of Bermuda (the "Pledgor"), CREDIT SUISSE FIRST BOSTON LLC, a U.S.
broker-dealer, as collateral agent and securities intermediary (the "Collateral
Agent") hereunder for the benefit of CREDIT SUISSE FIRST BOSTON CAPITAL LLC, a
limited liability company organized under the laws of Delaware (the
"Purchaser"), and the Purchaser;
WITNESSETH:
WHEREAS, pursuant to the Forward Purchase Agreement (the "Purchase
Agreement"), dated as of the date hereof, between Pledgor and Purchaser, the
Pledgor has agreed to sell and Purchaser has agreed to purchase Common Stock,
$.001 par value (the "Common Stock"), of Equinix, Inc., a Delaware corporation
(the "Company"), subject to the terms and conditions of the Purchase Agreement;
and
NOW, THEREFORE, to secure the performance by the Pledgor of its
obligations under the Purchase Agreement and to secure the observance and
performance of the covenants and agreements contained herein and in the Purchase
Agreement, the parties hereto agree as follows:
1. The Security Interests.
In order to secure the observance and performance of the covenants
and agreements contained herein and in the Purchase Agreement:
(a) Security Interests. The Pledgor hereby grants, sells, conveys,
assigns, transfers and pledges unto the Purchaser, a security interest in and
to, and a lien upon and right of set-off against, all of Pledgor's right, title
and interest in and to (i) the property described in Section 1(b) (including the
Common Stock and the Collateral Account), (ii) all additions to and
substitutions for such property, (iii) subject to the remittance of certain
payments upon satisfaction of the conditions specified in Section 7(a) hereof,
all income, proceeds and collections received or to be received, or derived or
to be derived, now or any time hereafter from or in connection with such
property (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 with respect to the Pledgor), and (iv) subject to Section
7(b), all powers and rights now owned or hereafter acquired under or with
respect to such property (such property, additions, substitutions, income,
proceeds, collections, powers, rights and the Collateral Account being herein
collectively called the "Collateral"). The Purchaser 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 Purchaser by this Agreement.
(b) Payment Date. On the Payment Date, subject to the satisfaction
of the conditions set forth in Article IV of the Purchase Agreement, the Pledgor
shall transfer to the
Purchaser in pledge hereunder 4,300,000 shares of the Common Stock to a
securities account maintained by the Collateral Agent (in its capacity as a
"securities intermediary" within the meaning of the UCC) under the name "Credit
Suisse First Boston Capital LLC, as pledgee of i-STT Investments (Bermuda) Ltd."
(the "Collateral Account"). The Collateral Agent represents and warrants that
the Collateral Account will at all times be maintained as a securities account
(within the meaning of the UCC) and that it will at all times be acting as
"securities intermediary" (within the meaning of the UCC) in taking actions with
respect to the Collateral Account.
2. Definitions.
Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Purchase Agreement. Capitalized terms used
herein shall have the meanings as follows:
"Authorized Representative" of the Pledgor means the persons
designated as such by the Pledgor as of the date of this Agreement or any
officer or other representative as to whom Pledgor shall have delivered notice
to the Collateral Agent that such other representative is authorized to act
hereunder on behalf of Pledgor.
"Cash Delivery Obligations" means (A) if no Reorganization Event or
Distribution Event shall have occurred prior to such time, zero, and (B) from
and after any Reorganization Event or Distribution Event, the sum of all cash
included in the Reference Property pursuant to Section 6.2(a) or Section
6.4(b)(i)(B) or (D) of the Purchase Agreement following a Reorganization Event
or Distribution Event, if any.
"Collateral" has the meaning specified in Section 1(a).
"Collateral Account" has the meaning specified in Section 1(b).
"Collateral Agent" means the financial institution identified as
such in the preliminary paragraph hereof, or any successor appointed in
accordance with Section 9.
"Collateral Agreement" means this Collateral Agreement and any
exhibits hereto.
"Collateral Event of Default" has the meaning specified in Section
6(e).
"Collateral Requirement" means, as of any date and with respect to
(i) any Common Stock, 100%, (ii) any Marketable Equity Securities or
Transferable Exchangeable Securities, 100%, (iii) any cash pledged in respect of
Cash Delivery Obligations, 100%, (iv) any U.S. Government Securities pledged in
respect of Cash Delivery Obligations, 105%, and (v) any other U.S. Government
Securities, 150%.
"Delivery Date" has the meaning specified in Section 8(a).
"Eligible Collateral" means (i) Common Stock, (ii) with respect to
Cash Delivery Obligations, cash, and (iii) U.S. Government Securities and from
and after any Dilution Event, Reorganization Event or Distribution Event,
Marketable Equity Securities or Transferable
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Exchangeable Securities, provided, in each case, that (A) the Pledgor has good
and marketable title thereto, free of all Liens (other than the Liens created by
this Collateral Agreement) and Transfer Restrictions and (B) the Purchaser has a
valid, first priority perfected security interest therein and first lien
thereon, and provided further that to the extent the number of shares of Common
Stock, Marketable Equity Securities or Transferable Exchangeable Securities
pledged hereunder exceeds at any time the Maximum Deliverable Number thereof,
such excess shares of Common Stock, Marketable Equity Securities or Transferable
Exchangeable Securities shall not be Eligible Collateral.
"Event of Default" means the occurrence of: (i) an event described
in clause (a) or (b) of Section 7.1 of the Purchase Agreement, (ii) a Collateral
Event of Default, (iii) a failure by Pledgor to have caused the Collateral to
meet the requirements described in Section 5(d), (iv) if Pledgor shall have
exercised its Cash Delivery Option, a failure by the Pledgor to deliver cash on
the Exchange Date in the amount required under Section 1.3(d) of the Purchase
Agreement, or (v) if a Cash Merger or an Early Termination Event shall have
occurred, failure by Pledgor to cause to be delivered to Purchaser the property
then required to be delivered pursuant to Section 7.2 or 7.3 of the Purchase
Agreement.
"Ineligible Collateral" means Collateral that does not constitute
"Eligible Collateral".
"Insufficiency Determination" has the meaning specified in Section
6(e).
"Market Value" means, as of any date, (a) with respect to any U.S.
Government Security, the product of (x)(i) the average unit bid price for such
security on the Trading Day prior to such date as published in the New York
edition of The Wall Street Journal or The New York Times or, if not so
published, (ii) the lower bid price quoted on such date (or if such date is not
a Trading Date, on the preceding Trading Date) by either of two nationally
recognized dealers making a market in such security which are members of the
National Association of Securities Dealers, Inc. and (y) the number of such
units comprised in the outstanding principal amount of such U.S. Government
Security, and (b) with respect to any other property, its Current Value;
provided that the "Market Value" of any Ineligible Collateral shall be zero.
"Maximum Deliverable Number" means, on any date, with respect to the
Common Stock, any Marketable Equity Security or any Transferable Exchangeable
Security, the product of (i) the SAILS Base Amount and (ii) such number of
shares of the Common Stock or of such Marketable Equity Security or Transferable
Exchangeable Security as shall be included in the Reference Property Per SAILS
as of such date.
"Person" means an individual, a corporation, a partnership, an
association, a limited liability company, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Pledge Value" means, as of any date and with respect to any
particular type of Collateral, an amount equal to the aggregate Market Value of
such Collateral divided by the Collateral Requirement for such Collateral.
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"Pledge Value Requirement" means, as of any date, (a) the aggregate
Market Value on such date of the Maximum Deliverable Number of shares of Common
Stock and/or, from and after a Dilution Event, Reorganization Event or
Distribution Event, Marketable Equity Securities and/or Transferable
Exchangeable Securities, on such date plus (b) from and after a Reorganization
Event or Distribution Event, the aggregate amount of any Cash Delivery
Obligations on such date.
"Prior Collateral" has the meaning specified in Section 6(b)(1).
"Responsible Officer" means, when used with respect to the
Collateral Agent, any vice president, assistant vice president, assistant
treasurer or assistant secretary located in the division or department of the
Collateral Agent responsible for performing the obligations of the Collateral
Agent under this Collateral Agreement, or in any other division or department of
the Collateral Agent performing operations substantially equivalent to those
performed by such division or department pursuant hereto, or any other officer
of the Collateral Agent or any successor Collateral Agent customarily performing
functions similar to those performed by any of the aforesaid officers, and also
means, with respect to any matter relating to this Collateral Agreement or the
Collateral, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Transfer Restriction" means, with respect to any item of
Collateral, any condition to or restriction on the ability of the holder thereof
to sell, assign or otherwise transfer such item of Collateral whether set forth
in such item of Collateral itself or in any document related thereto, including,
without limitation, (i) any requirement that any sale, assignment or other
transfer or enforcement of such item of Collateral be consented to or approved
by any Person, including, without limitation, the issuer thereof or any other
obligor thereon, (ii) any limitations on the type or status, financial or
otherwise, of any purchaser, pledgee, assignee or transferee of such item of
Collateral, (iii) any requirement of the delivery of any certificate, consent,
agreement, opinion of counsel, notice or any other document of any Person to the
issuer of, any other obligor on or any registrar or transfer agent for, such
item of Collateral, prior to the sale, pledge, assignment or other transfer or
enforcement of such item of Collateral and (iv) any registration or
qualification requirement for such item of Collateral pursuant to any federal or
state securities law, unless, in respect of clauses (i) to (iv), such item of
Collateral is accompanied by any such required consent, approval, certificate,
agreement or opinion, and the Transfer Restriction described in the relevant
clause is removed within two Business Days after such item becomes part of the
Collateral; provided that the required delivery of any assignment from the
seller, pledgor, assignor or transferor of such item of Collateral, together
with any evidence of the corporate or other authority of such Person, shall not
constitute a "Transfer Restriction."
"UCC" means the Uniform Commercial Code as in effect from time to
time in the State of New York.
3. Representations and Warranties of the Pledgor.
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The Pledgor hereby represents and warrants to the Collateral Agent
and the Purchaser that as of the date hereof and on any date on which Pledgor
substitutes any Collateral pursuant to Section 6(b) hereof or adds any
Collateral pursuant to Section 6(c) hereof:
(a) Power. The Pledgor has full corporate power and authority
to execute and deliver this Collateral Agreement and to perform and
observe the provisions hereof.
(b) Non-Contravention. The execution and delivery by the
Pledgor, and the performance by the Pledgor of its obligations under, this
Collateral Agreement do not and will not contravene any provision of
applicable law or the memorandum of association of the Pledgor, or any
material agreement or other instrument binding upon the Pledgor or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Pledgor, except for any such contravention as would
not have a Selling Stockholder Material Adverse Effect (as defined in the
Terms Agreement), and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency, self-regulatory
organization or court or other tribunal is required for the performance by
the Pledgor of its obligations under this Agreement, except such as have
been obtained and except to the extent that the failure to so obtain such
consent, approval, authorization, order or qualification would not have a
Selling Stockholder Material Adverse Effect (as defined in the Terms
Agreement).
(c) Binding Effect. This Collateral Agreement constitutes a
valid and binding agreement of the Pledgor enforceable against the Pledgor
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles
relating to enforceability.
(d) Solvency. The Pledgor is presently solvent, able to pay,
and is presently paying its debts as they become due.
(e) Title to Collateral; Perfected Security Interest. The
Pledgor has good and marketable title to the Collateral, free of all Liens
(other than the Lien created by this Collateral Agreement) and Transfer
Restrictions (other than the Transfer Restrictions created by this
Collateral Agreement). Upon delivery of the Collateral to the Collateral
Agent hereunder for the benefit of the Purchaser, the Purchaser will
obtain a valid, first priority perfected security interest in, and a first
lien upon, such Collateral subject to no other Lien. None of the
Collateral is or shall be pledged by the Pledgor as collateral for any
other purpose.
(f) Ownership and Control of Pledgor. All of the stock and/or
other ownership interests in the Pledgor are owned by Parent.
4. Representations and Warranties of the Collateral Agent.
The Collateral Agent represents and warrants to the Pledgor and the
Purchaser that:
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(a) Corporate Existence and Power. The Collateral Agent is a
limited liability company, duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, and has
all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to enter into, and perform
its obligations under, this Collateral Agreement.
(b) Authorization and Non-Contravention. The execution,
delivery and performance by the Collateral Agent of this Collateral
Agreement have been duly authorized by all necessary corporate action on
the part of the Collateral Agent (no action by the shareholders of the
Collateral Agent being required) and do not and will not violate,
contravene or constitute a default under any provision of applicable law
or regulation or of the charter or by-laws of the Collateral Agent or of
any material agreement, judgment, injunction, order, decree or other
instrument binding upon the Collateral Agent.
(c) Binding Effect. This Collateral Agreement constitutes a
valid and binding agreement of the Collateral Agent enforceable against
the Collateral Agent in accordance with its terms.
5. Certain Covenants of the Pledgor.
The Pledgor agrees that, so long as any of its obligations under the
Purchase Agreement remain outstanding:
(a) Title to Collateral. The Pledgor shall at all times
hereafter have good and marketable title to the Collateral pledged
hereunder at such time, free of all Liens (other than the Liens created by
this Collateral Agreement) and Transfer Restrictions, and, subject to the
terms of this Collateral Agreement, will at all times hereafter have good,
right and lawful authority to assign, transfer and pledge such Collateral
and all such additions thereto and substitutions therefor under this
Collateral Agreement.
(b) Pledge Value Requirement. Unless the Collateral includes
Common Stock, Marketable Equity Securities and/or Transferable
Exchangeable Securities in each case in an amount at least equal to the
Maximum Deliverable Number thereof and cash in an amount at least equal to
the sum of all Cash Delivery Obligations (if any), the Pledgor shall cause
the aggregate Pledge Value of the Collateral to be equal to or greater
than the Pledge Value Requirement at all times, and shall pledge
additional Collateral in the manner described in Section 6(d) as necessary
to cause such requirement to be met.
(c) Pledge upon Dilution Event, Reorganization Event or
Distribution Event. Upon the occurrence of a Dilution Event,
Reorganization Event or Distribution Event, the Pledgor shall, as soon as
reasonably practicable, cause to be delivered to the Collateral Agent, in
the manner provided in Section 6(d) and 7(a), (i) at Pledgor's election,
(A) cash having an aggregate Market Value at least equal to 100% of the
Cash Delivery Obligation, if any, resulting from such Reorganization Event
or Distribution
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Event, or (B) U.S. Government Securities having an aggregate Market Value
at least equal to 105% of the Cash Delivery Obligation, if any, resulting
from such Reorganization Event or Distribution Event, and/or (ii) at
Pledgor's election, (A) Common Stock, Marketable Equity Securities and/or
Transferable Exchangeable Securities in an amount at least equal to the
Maximum Deliverable Number thereof deliverable pursuant to such Dilution
Event, Reorganization Event or Distribution Event, as the case may be (if
any), or (B)(x) Transferable Exchangeable Securities in an amount at
least equal to the Maximum Deliverable Number thereof deliverable pursuant
to such Dilution Event, Reorganization Event or Distribution Event (if
any), and (y) U.S. Government Securities having an aggregate Market Value
at least equal to 150% of the Maximum Deliverable Number of Common Stock
and/or Marketable Equity Securities deliverable pursuant to such Dilution
Event, Reorganization Event or Distribution Event (if any), minus the
number or amount of any Common Stock and/or Marketable Equity Securities
delivered to the Collateral Agent by the Pledgor in connection with such
Dilution Event, Reorganization Event or Distribution Event (if any); in
each case to be held as additional Collateral hereunder.
(d) Composition of Collateral. Notwithstanding the Pledgor's
right to substitute Collateral pursuant to Section 6(b), the Pledgor shall
cause the Collateral to include, on the Exchange Date, unless Pledgor
shall have exercised its Cash Delivery Option, Common Stock, cash,
Marketable Equity Securities and/or Transferable Exchangeable Securities
in a number or amount at least equal, in each case, to that included in
the Contract Property as of such date in accordance with the Purchase
Agreement.
(e) Further Assurances. The Pledgor shall, at its expense and
in such manner and form as the Purchaser or the Collateral Agent may
require, give, execute, deliver, file and record any financing statement,
notice, instrument, document, agreement or other papers that may be
reasonably necessary or desirable in order to create, preserve, perfect,
substantiate or validate any security interest granted pursuant hereto or
to enable the Collateral Agent to exercise and enforce its rights and the
rights of the Purchaser hereunder with respect to such security interest.
To the extent permitted by applicable law, the Pledgor hereby authorizes
the Collateral Agent to execute and file, in the name of the Pledgor or
otherwise, Uniform Commercial Code financing or continuation statements
(which may be carbon, photographic, photostatic or other reproductions of
this Agreement or of a financing statement relating to this Agreement)
which the Collateral Agent may deem reasonably necessary or appropriate to
further perfect, or maintain the perfection of the security interests
granted hereby.
(f) The Pledgor shall not consolidate with or merge with or
into, or transfer all or substantially all of its assets to, any other
Person without the prior written consent of the Purchaser, which consent
shall not be unreasonably withheld or delayed. Nothing in this Agreement
or the Purchase Agreement shall prohibit the Pledgor from transferring,
remitting or paying out to any of its Affiliates, by way of dividend or
redemption of capital, the Purchase Price received from Purchaser pursuant
to Section 1.3(a) of the Purchase Agreement. The Pledgor may, at its
election, transfer any or all of such Purchase Price to any of its
Affiliates pursuant to a loan, provided that any such
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loan shall be repaid by such Affiliate to the Pledgor (or extinguished by
a capital redemption to such Affiliate) no later than the day that is two
years and one day prior to the Exchange Date, and that no such loan shall
be extended after such day.
6. Administration of the Collateral.
(a) Valuation of Collateral. Unless the Collateral includes Common
Stock, Marketable Equity Securities and/or Transferable Exchangeable Securities
in each case in an amount at least equal to the Maximum Deliverable Number
thereof and cash in an amount at least equal to the sum of all Cash Delivery
Obligations (if any), the Collateral Agent shall determine on each Business Day
whether the Pledge Value is at least equal to the Pledge Value Requirement and
whether an Insufficiency Determination has occurred, and shall provide written
notice of the Pledge Value to the Pledgor. The Collateral Agent shall determine
on each Business Day whether a Collateral Event of Default has occurred.
(b) Substitution of Collateral. The Pledgor may substitute
Collateral in accordance with the following provisions:
(1) Unless an Event of Default or a failure by the Pledgor to
meet any of its obligations under Section 5(b) or (c) hereof has occurred
and is continuing, the Pledgor shall have the right at any time and from
time to time to deposit Eligible Collateral with the Collateral Agent in
substitution for Collateral previously deposited hereunder ("Prior
Collateral") and to obtain the release from the Lien hereof of such Prior
Collateral.
(2) Subject to Section 5(d), if the Pledgor wishes to deposit
Eligible Collateral with the Collateral Agent in substitution for Prior
Collateral, the Pledgor shall (i) give written notice to the Collateral
Agent identifying the Prior Collateral to be released from the Lien
hereof, (ii) deliver to the Collateral Agent concurrently with such
Eligible Collateral a certificate of the Pledgor substantially in the form
of Exhibit A hereto and dated the date of such delivery, (A) identifying
the items of Eligible Collateral being substituted for the Prior
Collateral and the Prior Collateral that is to be transferred to the
Pledgor and (B) certifying that the representations and warranties
contained in such Exhibit A hereto are true and correct on and as of the
date thereof. The Pledgor hereby covenants and agrees to take all actions
reasonably required under Section 6(d) and any other actions reasonably
necessary to create for the benefit of the Purchaser a valid, first
priority perfected security interest in, and a first lien upon, such
Eligible Collateral deposited with the Collateral Agent in substitution
for Prior Collateral.
(3) No such substitution shall be made unless and until the
Collateral Agent shall have determined that the aggregate Pledge Value of
all of the Collateral at the time of such proposed substitution, after
giving effect to the proposed substitution, shall at least equal the
Pledge Value Requirement.
(c) Additional Collateral. The Pledgor may pledge additional
Collateral hereunder at any time. Concurrently with the delivery of any
additional Collateral to the Collateral Agent, the Pledgor shall deliver (i) a
certificate of the Pledgor substantially in the form
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of Exhibit B hereto, dated the date of such delivery, (A) identifying the
additional items of Collateral being pledged and (B) certifying that with
respect to such items of additional Collateral the representations and
warranties contained in such Exhibit B hereto are true and correct on and as of
the date thereof. The Pledgor hereby covenants and agrees to take all actions
reasonably required under Section 6(d) and any other actions reasonably
necessary to create for the benefit of the Purchaser a valid, first priority
perfected security interest in, and a first lien upon, such additional
Collateral.
(d) Delivery of Collateral. The Pledgor shall deliver all Collateral
to the Collateral Agent in accordance with the following provisions:
(1) Pledged Common Stock. In the case of Collateral consisting
of Common Stock, by transfer thereof through the book-entry system of The
Depository Trust Company to an account of the Collateral Agent at The
Depository Trust Company, and the Collateral Agent agrees to credit such
Common Stock to the Collateral Account;
(2) Pledged Government Securities. In the case of Collateral
consisting of U.S. Government Securities, by transfer thereof through the
book-entry system of the Federal Reserve System to an account of the
Collateral Agent at the Federal Reserve System or, if the Collateral Agent
is not a member thereof, at an institution designated by the Collateral
Agent, and the Collateral Agent agrees to credit such U.S. Government
Securities to the Collateral Account;
(3) Pledged Marketable Equity Securities. In the case of
Collateral consisting of Marketable Equity Securities, (i) by delivery of
certificates evidencing such Marketable Equity Securities, indorsed in
blank (together with all documents necessary to permit the Collateral
Agent to effect the re-registration thereof without further action by the
Pledgor) or registered in the name of the Collateral Agent or its nominee,
or (ii) if such Marketable Equity Securities are held in book entry form
by The Depository Trust Company, by transfer thereof through the
book-entry system of The Depository Trust Company to an account of the
Collateral Agent at The Depository Trust Company, and, in each case, the
Collateral Agent agrees to credit such Marketable Equity Securities to the
Collateral Account; and
(4) Pledged Transferable Exchangeable Securities. In the case
of Collateral consisting of Transferable Exchangeable Securities, (i) by
delivery of certificates evidencing such Transferable Exchangeable
Securities, indorsed in blank (together with all documents necessary to
permit the Collateral Agent to effect the re-registration thereof without
further action by the Pledgor) or registered in the name of the Collateral
Agent or its nominee, or (ii) if such Transferable Exchangeable Securities
are held in book entry form by The Depository Trust Company, by transfer
thereof through the book-entry system of The Depository Trust Company to
an account of the Collateral Agent at The Depository Trust Company, and,
in each case, the Collateral Agent agrees to credit such Transferable
Exchangeable Securities to the Collateral Account.
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(5) Pledged Cash. In the case of Collateral consisting of
cash, by wire transfer to an account designated by the Collateral Agent,
and the Collateral Agent agrees to credit such cash to the Collateral
Account.
Upon delivery of any Collateral under this Collateral Agreement, the
Collateral Agent shall examine such Collateral and any certificates delivered
pursuant to Sections 6(c), 6(d)(3), 6(d)(4) or otherwise pursuant to the terms
hereof in connection therewith to determine that they comply as to form with the
requirements for Eligible Collateral. Immediately following the delivery to the
Collateral Agent of any Collateral in the form of certificates indorsed in
blank, the Collateral Agent shall cause all such certificates to be
re-registered on the books of the applicable transfer agent into the name of the
Collateral Agent or its nominee, and shall thereafter maintain all such
Collateral in such form until the termination of this Agreement (or, if prior
thereto, the release of the Lien of the Purchaser thereon pursuant to the terms
hereof); provided, however, that at any time following such delivery to the
Collateral Agent, the Collateral Agent may cause any such certificates to be
deposited with The Depository Trust Company and thereafter hold such
certificates in book entry form in the Collateral Account. The Pledgor hereby
designates the Collateral Agent (or, if the Collateral Agent is not a member of
the Federal Reserve System, the institution designated by the Collateral Agent
pursuant to Section 6(d)(2)) as the person in whose name any Collateral held in
book entry form in the Federal Reserve System shall be registered.
(e) Insufficiency Determination.
(1) If on any Business Day (other than a Business Day on which
the Collateral includes Common Stock, Marketable Equity Securities and/or
Transferable Exchangeable Securities in each case in an amount at least
equal to the Maximum Deliverable Number thereof and cash in an amount at
least equal to the sum of all Cash Delivery Obligations, if any) the
Collateral Agent determines, in accordance with Section 6(a), that the
aggregate Pledge Value of the Collateral is less than the Pledge Value
Requirement (any such determination, an "Insufficiency Determination"),
the Collateral Agent shall, by telephone call to an Authorized
Representative of the Pledgor followed by a written confirmation of such
call, promptly notify the Pledgor of such determination and of the amount
of the insufficiency.
(2) If, by 4:00 p.m., New York City time on the second
Business Day following the day on which telephonic notice shall have been
given pursuant to the preceding paragraph (e)(1), the Pledgor shall have
failed to deliver, in the manner set forth in paragraphs (c) and (d) of
this Section 6, sufficient additional Eligible Collateral so that, after
giving effect to such delivery (and taking into account that Common Stock
Marketable Equity Securities and Transferable Exchangeable Securities in
excess of the Maximum Deliverable Number thereof shall not constitute
Eligible Collateral), the aggregate Pledge Value of the Collateral, as of
such Business Day, is at least equal to the Pledge Value Requirement, then
a Collateral Event of Default shall occur.
A "Collateral Event of Default" shall mean, at any time, the
occurrence of any of the following: (A) the Purchaser shall not have a
valid, first priority perfected security interest in, and a first lien
upon, the Collateral subject to no other Lien; (B) if no
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U.S. Government Securities are pledged at such time, failure of the
Collateral to include Common Stock, Marketable Equity Securities and/or
Transferable Equity Securities in each case in an amount at least equal to
the Maximum Deliverable Number thereof and cash in an amount at least
equal to the sum of all Cash Delivery Obligations, if any; (C) if any U.S.
Government Securities are pledged as Collateral at such time, failure of
the aggregate Pledge Value of the Collateral to be at least equal to the
Pledge Value Requirement (taking into account that Common Stock Marketable
Equity Securities and Transferable Exchangeable Securities in excess of
the Maximum Deliverable Number thereof shall not constitute Eligible
Collateral); provided that, in the case of a failure described in clause
(C), a Collateral Event of Default shall occur only if such failure shall
continue to be in effect at 4:00 p.m., New York City time, on the second
Business Day following the day on which telephonic notice in respect
thereof shall have been given pursuant to paragraph (e)(1) above.
(f) Release of Excess Collateral. If on any Business Day the
Collateral Agent determines that (i) if no U.S. Government Securities are
pledged at such time, the Collateral includes Common Stock, Marketable Equity
Securities or Transferable Equity Securities in excess of the Maximum
Deliverable Number thereof, or cash in an amount exceeding the sum of all Cash
Delivery Obligations, if any, or (ii) if any U.S. Government Securities are
pledged as Collateral at such time, the aggregate Pledge Value of the Pledgor's
Eligible Collateral exceeds the Pledge Value Requirement and, in the case of
clause (i) or (ii), no Event of Default has occurred and is continuing, the
Pledgor may obtain the release from the Lien hereof of any Collateral, in the
case of clause (i), consisting of Common Stock, Marketable Equity Securities,
Transferable Equity Securities and/or cash in an amount or number less than or
equal to such excess, or in the case of clause (ii), having an aggregate Pledge
Value on such Business Day less than or equal to such excess, in each case upon
delivery to the Collateral Agent of a written notice from an Authorized
Representative of the Pledgor indicating the items of Collateral to be released.
Such Collateral shall be released promptly after the Collateral Agent shall have
determined that the Collateral remaining after such release, as determined on
such Business Day, is at least equal, in the case of clause (i), to the Maximum
Deliverable Number of Common Stock, Marketable Equity Securities, Transferable
Equity Securities and/or cash, or in the case of clause (ii), to the Pledge
Value Requirement. In connection with any release of Collateral pursuant to this
Section 6(f), the Collateral Agent and the Purchaser shall take all actions
reasonably necessary to effect and evidence such release, including without
limitation executing and delivering to Pledgor all documents reasonably
necessary thereto. Notwithstanding the foregoing and anything else to the
contrary in this Agreement, additional Collateral delivered to the Collateral
Agent pursuant to Section 1.3(d) of the Purchase Agreement shall be retained by
the Collateral Agent until satisfaction in full by Pledgor of its obligations
pursuant to the Purchase Agreement.
(g) Delivery of Purchase Agreement Consideration. On each Settlement
Date (unless Pledgor shall have exercised its Cash Delivery Option), or as
required pursuant to the Purchase Agreement following any Event of Default, Cash
Merger or Early Termination Event, the Collateral Agent shall deliver to the
Purchaser cash, shares of Common Stock, Marketable Equity Securities and/or
Transferable Exchangeable Securities then held by it hereunder representing, in
each case, the number or amount of such property then required to be delivered
under the Purchase Agreement. Upon such delivery, the Purchaser shall hold such
cash,
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Common Stock, Marketable Equity Securities and/or Transferable Exchangeable
Securities, as the case may be, absolutely and free from any claim or right
whatsoever.
(h) Investment of Cash Collateral. The Collateral Agent shall invest
any cash received by it pursuant to Section 6.2(a) or 6.4(b)(i)(B) or (D) of the
Purchase Agreement in direct obligations of the United States of America
maturing on or before the Business Day immediately preceding the Exchange Date;
provided, however, that for all purposes of this Agreement, such cash shall be
deemed held as Collateral hereunder and shall not be deemed to have been
substituted by Pledgor with U.S. Government Securities. For the avoidance of
doubt, if Pledgor shall have delivered to the Collateral Agent cash in an amount
at least equal to the amount of a Cash Delivery Obligation pursuant to Section
5(c), the Collateral shall be deemed to include cash in an amount at least equal
to such Cash Delivery Obligation for purposes of Sections 5(b), 6(a) and 6(e),
notwithstanding any investment of such cash by the Collateral Agent pursuant to
this Section 6(h).
(i) Notwithstanding anything to the contrary in this Agreement or
the Purchase Agreement, and specifically notwithstanding anything in clauses (3)
and (4) of the "Notice of Regulatory Treatment" delivered by the Purchaser to
the Pledgor, the Purchaser shall not, whether directly or indirectly, sell,
lend, pledge or otherwise encumber, rehypothecate, assign, invest, use,
commingle or otherwise dispose of, or otherwise use in connection with its
business, any or all of the Collateral.
7. Income and Voting Rights on Collateral.
(a) The Collateral Agent, on behalf of the Purchaser, shall be
entitled to receive all dividends, distributions, interest and, if any,
principal and premium relating to all of the Collateral, and all securities or
other property received in respect of the Collateral in a Dilution Event,
Reorganization Event or a Distribution Event. Any such payments or distributions
which are received by the Pledgor shall be received in trust for the benefit of
the Purchaser, shall be segregated from other funds and property of the Pledgor
and shall promptly be paid over to the Collateral Agent; provided that the
Pledgor may retain any amount received by the Pledgor in respect of any cash
distribution described in clause (i) below in excess of 70% of the amount of
such cash distribution. The Collateral Agent shall:
(i) remit to the Purchaser, on the Business Day received or the
first Business Day thereafter, 70% of the amount of any cash
distribution in respect of a Distribution Event (other than
cash received pursuant to Section 6.4(b)(i)(B) or (D) of the
Purchase Agreement), and remit to the Pledgor the remainder of
any such cash distribution (in each case as provided in
Section 6.4(a) of the Purchase Agreement);
(ii) hold all cash payments received by it pursuant to this Section
7(a) in respect of a Reorganization Event as Collateral
hereunder credited to the Collateral Account;
(iii) hold all (A) Marketable Equity Securities and (B) Transferable
Exchangeable Securities that expire on or after the Exchange
Date and
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whose holders are entitled to receive, as a result of
conversion, exercise or exchange, property consisting
exclusively of cash and/or Marketable Equity Securities, in
each case received by it pursuant to this Section 7(a) in
respect of a Dilution Event, Reorganization Event or a
Distribution Event, as Collateral hereunder credited to the
Collateral Account;
(iv) pursuant to Section 6.4(b)(i)(B) of the Purchase Agreement,
convert, exercise or exchange all Exchangeable Securities that
expire prior to the Exchange Date and that do not require
payment as a condition to their conversion, exercise or
exchange on the Business Day immediately preceding their
expiration date in the manner required by the terms of such
Exchangeable Securities, notify the Pledgor and the Purchaser
of such conversion, exercise or exchange, and (a) hold all
cash and Marketable Equity Securities received in connection
with such conversion, exercise or exchange as Collateral
hereunder credited to the Collateral Account, and (b)
liquidate and turn into cash all securities or other property
other than cash or Marketable Equity Securities received in
connection with such conversion, exercise or exchange, notify
the Purchaser of such liquidation, and hold the cash proceeds
as Collateral hereunder credited to the Collateral Account.
(v) pursuant to Section 6.4(b)(i)(B) of the Purchase Agreement,
convert, exercise or exchange all Non-Transferable
Exchangeable Securities that expire on or after the Exchange
Date and that do not require payment as a condition to their
conversion, exercise or exchange on the tenth Business Day
preceding the Exchange Date in the manner required by the
terms of such Non-Transferable Exchangeable Securities, notify
the Pledgor and the Purchaser of such conversion, exercise or
exchange, and (a) hold all cash and Marketable Equity
Securities received in connection with such conversion,
exercise or exchange as Collateral hereunder credited to the
Collateral Account, and (b) liquidate and turn into cash all
securities or other property other than cash or Marketable
Equity Securities received in connection with such conversion,
exercise or exchange, notify the Purchaser of such
liquidation, and hold the cash proceeds as Collateral
hereunder credited to the Collateral Account;
(vi) pursuant to Section 6.2(a)(ii) of the Purchase Agreement,
liquidate and turn into cash all securities or other property
other than cash or Marketable Equity Securities received by
the Collateral Agent in respect of a Reorganization Event,
notify the Calculation Agent of such liquidation, and hold the
cash proceeds as Collateral hereunder credited to the
Collateral Account; and
(vii) pursuant to Section 6.4(b)(i)(D) of the Purchase Agreement,
liquidate and turn into cash (A) securities or other property
other than Marketable Equity Securities or Exchangeable
Securities, (B) Transferable Exchangeable Securities that
expire on or after the Exchange Date and
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whose holders are entitled to receive, as a result of
conversion, exercise or exchange, property other than cash and
Marketable Equity Securities, and (C) Transferable
Exchangeable Securities that expire prior to the Exchange Date
and that require payment as a condition to their conversion,
exercise or exchange, in each case received by the Collateral
Agent in respect of a Distribution Event, notify the Purchaser
of such liquidation, and hold the cash proceeds as Collateral
hereunder credited to the Collateral Account.
(b) At any time prior to the disposition of any Collateral by the
Collateral Agent pursuant to Section 8 hereof, the Pledgor shall have the right,
from time to time, to vote and to give consents, ratifications and waivers with
respect to the Collateral, and the Collateral Agent shall promptly deliver to
the Pledgor such proxies, powers of attorney, consents, ratifications and
waivers in respect of any of the Collateral which is registered in the name of
the Collateral Agent or its nominee and shall further deliver such documents and
instruments as shall be reasonably necessary to allow the Pledgor to exercise
such rights. For the avoidance of doubt, neither the Purchaser nor the
Collateral Agent shall have voting rights with respect to the Collateral, except
to the extent that the Purchaser or the Collateral Agent buys any Collateral in
a sale or other disposition made pursuant to Section 8(b).
(c) The Collateral Agent agrees that it will, promptly upon a
request by the Pledgor, furnish to the Pledgor such evidence as is reasonably
available to the Collateral Agent as to the withholding of any tax in respect of
any dividends, distributions, interest and, if any, principal and premium
relating to any of the Collateral, or any securities or other property received
in respect of the Collateral in a Dilution Event, Reorganization Event or a
Distribution Event, and that it will, if requested by the Pledgor, make
reasonable efforts to cooperate with the Pledgor in its efforts to obtain a
refund or similar relief in respect of such tax withholding.
8. Remedies upon Events of Default.
(a) If any Event of Default shall have occurred and be continuing,
the Collateral Agent may exercise on behalf of the Purchaser all the rights of a
secured party under the UCC (whether or not in effect in the jurisdiction where
such rights are exercised) and, in addition, without being required to give any
notice, except as herein provided or as may be required by mandatory provisions
of law (and subject in all cases to Section 8(d)), shall: (i) deliver all
Collateral consisting of cash, Common Stock, Marketable Equity Securities or
Transferable Exchangeable Securities (but not, in any event, in excess of the
amount or number of the relevant type of Reference Property thereof deliverable
under the Purchase Agreement at such time) to the Purchaser on the date of the
notice delivered to the Collateral Agent pursuant to the last paragraph of
Section 7.1 or Section 7.3 of the Purchase Agreement relating to such Event of
Default (or, in the case of an Event of Default described in clause (iii) or
(iv) of the definition thereof in this Agreement, on the Exchange Date) (in
either case, the "Delivery Date"), whereupon the Purchaser shall hold such cash,
Common Stock, Marketable Equity Securities or Transferable Exchangeable
Securities absolutely free from any claim or right of whatsoever kind, including
any equity or right of redemption of the Pledgor which may be waived, and the
Pledgor, to the extent permitted by law, hereby specifically waives all rights
of redemption, stay or appraisal which Pledgor has or may have under any law now
existing or hereafter adopted;
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and (ii) if such delivery shall be insufficient to satisfy in full all of the
obligations of Pledgor under the Purchase Agreement, sell all of the remaining
Collateral, or such lesser portion thereof as may be necessary to generate
proceeds sufficient to satisfy in full all of the obligations of Pledgor under
the Purchase Agreement, at public or private sale or at any broker's board or on
any securities exchange, for cash, upon credit or for future delivery, and at
such price or prices as the Collateral Agent may deem reasonably satisfactory.
The Pledgor covenants and agrees to execute and deliver such documents and take
such other action as the Collateral Agent deems reasonably necessary or
advisable in order that any such sale may be made in compliance with law. Upon
any such sale the Collateral Agent shall have the right to deliver, assign and
transfer to the purchaser thereof the Collateral so sold. Each purchaser at any
such sale shall hold the Collateral so sold absolutely and free from any claim
or right of whatsoever kind, including any equity or right of redemption of the
Pledgor which may be waived, and the Pledgor, to the extent permitted by law,
hereby specifically waives all rights of redemption, stay or appraisal which
Pledgor has or may have under any law now existing or hereafter adopted. The
notice (if any) of such sale required by Article 9 of the UCC shall (1) in case
of a public sale, state the time and place fixed for such sale, (2) in case of
sale at a broker's board or on a securities exchange, state the board or
exchange at which such sale is to be made and the day on which the Collateral,
or the portion thereof so being sold, will first be offered for sale at such
board or exchange, and (3) in the case of a private sale, state the day after
which such sale may be consummated. Any such public sale shall be held at such
time or times within ordinary business hours and at such place or places as the
Collateral Agent may fix in the notice of such sale. At any such sale the
Collateral may be sold in one lot as an entirety or in separate parcels, as the
Collateral Agent may determine. The Collateral Agent shall not be obligated to
make any such sale pursuant to any such notice. The Collateral Agent may,
without notice or publication, adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at the time and place
fixed for the sale, and such sale may be made at any time or place to which the
same may be so adjourned. In case of any sale of all or any part of the
Collateral on credit or for future delivery, the Collateral so sold may be
retained by the Collateral Agent until the selling price is paid by the
purchaser thereof, but the Collateral Agent shall not incur any liability in
case of the failure of such purchaser to take up and pay for the Collateral so
sold and, in case of any such failure, such Collateral may again be sold upon
like notice. The Collateral Agent, instead of exercising the power of sale
herein conferred upon it, may proceed by a suit or suits at law or in equity to
foreclose the security interests and sell the Collateral, or any portion
thereof, under a judgment or decree of a court or courts of competent
jurisdiction.
(b) Power of Attorney. The Collateral Agent is hereby irrevocably
appointed the true and lawful attorney of the Pledgor with full power and
authority, in the name and stead of the Pledgor, to do all of the following: (i)
upon any delivery or sale of all or any part of any Collateral made either under
the power of delivery or sale given hereunder or under judgment or decree in any
judicial proceedings for foreclosure or otherwise in accordance with the terms
of this Agreement, to make all necessary deeds, bills of sale and instruments of
assignment, transfer or conveyance of the property thus delivered or sold; (ii)
upon the occurrence of a Dilution Event, Reorganization Event or Distribution
Event while any shares of Common Stock are pledged as Collateral, to take any
necessary actions with respect to such shares of Common Stock to cause the
Collateral to conform to the requirements of this Agreement following the
occurrence of the Dilution Event, Reorganization Event or Distribution Event,
including, without limitation, the tender of shares of Common Stock and the sale
of property (other than Marketable
15
Equity Securities) received in respect of Common Stock; and (iii) upon the
occurrence of a Reorganization Event or Distribution Event, to take any
necessary actions to liquidate, convert, exercise or exchange, in each case as
required by Section 7(a), cash, securities or other property received in
connection with such Reorganization Event or Distribution Event. For such
purposes the Collateral Agent may execute all necessary documents and
instruments. This power of attorney shall be deemed coupled with an interest,
and the Pledgor hereby ratifies and confirms all that its attorneys acting under
such power, or such attorneys' successors or agents, shall lawfully do by virtue
of this Collateral Agreement. If so requested by the Collateral Agent, by the
Purchaser or by any purchaser of the Collateral or a portion thereof, the
Pledgor shall further ratify and confirm any such delivery, sale or other action
by executing and delivering to the Collateral Agent, to the Purchaser or to such
purchaser or purchasers at the expense of the Pledgor all proper deeds, bills of
sale, instruments of assignment, conveyance of transfer and releases as may be
designated in any such request. The Pledgor's obligations and authorizations
hereunder shall not be terminated by operation of law or the occurrence of any
event whatsoever.
(c) Application of Collateral and Proceeds. In case an Event of
Default has occurred and has not been waived by the Purchaser, the Collateral
Agent, on behalf of the Purchaser, may proceed to realize upon the security
interest in the Collateral against any one or more of the types of Collateral,
at any one time, as the Collateral Agent shall determine in its sole discretion
subject to the foregoing provisions of this Section 8. The proceeds of any sale
of, or other realization upon, or other receipt from, any of the Collateral
remaining after delivery to the Purchaser pursuant to Section 8(a) shall be
applied by the Collateral Agent in the following order of priorities:
(1) first, to the payment to the Purchaser of an amount sufficient to
satisfy all of Seller's obligations under the Purchase Agreement in
accordance with the terms thereof (determined, in the case of any
obligation to deliver Reference Property, on the basis of the
Current Value thereof as of the date on which Seller is obligated to
make such delivery);
(2) second, to the payment to the Collateral Agent of the expenses of
such sale or other realization, including reasonable compensation to
the Collateral Agent, and all reasonable expenses, liabilities and
advances incurred or made by the Collateral Agent in connection
therewith, including brokerage fees in connection with the sale by
the Collateral Agent of any Collateral and reasonable fees of
counsel; and
(3) finally, if all of the obligations of the Pledgor hereunder and
under the Purchase Agreement have been fully discharged or
sufficient funds have been set aside by the Collateral Agent at the
request of the Pledgor for the discharge thereof, any remaining
proceeds shall be released to the Pledgor.
(d) The Pledgor, the Purchaser and the Collateral Agent agree that
(i) neither the Purchaser nor the Collateral Agent on behalf of the Purchaser
shall be entitled to exercise its remedies hereunder in a manner that would
cause the Purchaser to become at any one time the beneficial owner of more than
9.9% of any class of any "equity security" (within the meaning of the Exchange
Act) which is registered pursuant to Section 12 of the Exchange Act, (ii)
neither
16
the Purchaser nor the Collateral Agent on behalf of the Purchaser shall
knowingly sell or otherwise dispose of any Collateral in a manner that would
result in any person becoming the beneficial owner of more than 9.9% of any
class of any "equity security" (within the meaning of the Exchange Act) which is
registered pursuant to Section 12 of the Exchange Act, and (iii) neither the
Purchaser nor the Collateral Agent on behalf of the Purchaser shall sell, in any
single transaction, to one or more purchasers, an amount of Collateral in excess
of 9.9% of any class of any "equity security" (within the meaning of the
Exchange Act) which is registered pursuant to Section 12 of the Exchange Act.
The Pledgor hereby (x) acknowledges that selling or otherwise disposing of the
Collateral in accordance with the restrictions set forth in this Section 8(d)
may result in prices and terms less favorable to the Purchaser than those that
could be obtained by selling or otherwise disposing of the Common Stock (or
substituted Collateral) in a single transaction to a single purchaser and (y)
agrees and acknowledges that no method of sale or other disposition of
Collateral shall be deemed commercially unreasonable because of any action taken
or not taken by the Purchaser (or the Collateral Agent on behalf of the
Purchaser) to comply with such restrictions. The Pledgor, the Purchaser and the
Collateral Agent agree that (i) the Pledgor shall have no responsibility under
this Section 8(d) for determining the number of shares of any class of any
equity security beneficially owned by Purchaser, and (ii) if the Pledgor
complies with its obligations hereunder, the Pledgor shall not be responsible if
Purchaser, as a result of exercising its remedies hereunder, obtains direct or
indirect beneficial ownership in excess of 9.9% of any class of any equity
security which is registered pursuant to Section 12 of the Exchange Act.
(e) Notwithstanding any other provision of this Agreement or the
Purchase Agreement, Purchaser and Collateral Agent shall have recourse only to
the Collateral and to any other assets or undertakings of Pledgor. Purchaser and
Collateral Agent shall not be obliged or entitled to take any further steps
against Pledgor to recover any sums due but still unpaid in respect of this
Agreement or the Purchase Agreement and all claims in respect of such sums due
but still unpaid shall be extinguished.
9. The Collateral Agent.
The Collateral Agent accepts its duties and responsibilities
hereunder as agent for the Purchaser, on and subject to the following terms and
conditions:
(a) Performance of Duties. The Collateral Agent undertakes to
perform such duties and only such duties as are expressly set forth herein and,
beyond the exercise of reasonable care in the performance of such duties and
acting in good faith, no implied covenants or obligations shall be read into
this Collateral Agreement against the Collateral Agent. No provision hereof
shall be construed to relieve the Collateral Agent from liability for its own
grossly negligent action, grossly negligent failure to act or its own willful
misconduct, subject to the following:
(1) The Collateral Agent may consult with counsel, and the
advice or opinion of such counsel shall be full and complete authorization
and protection in respect of an action taken or suffered hereunder in good
faith and in accordance with such advice or opinion of counsel.
17
(2) The Collateral Agent shall not be liable with respect to
any action taken, suffered or omitted by it in good faith (i) reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred on it by this Collateral Agreement or (ii) in accordance
with any lawful direction or request of the Purchaser.
(3) The Collateral Agent shall not be liable for any error of
judgment made in good faith by any of its officers, unless the Collateral
Agent was grossly negligent in ascertaining the pertinent facts.
(4) In the absence of bad faith on its part, the Collateral
Agent may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any note, notice,
resolution, consent, certificate, affidavit, letter, telegram, teletype
message, statement, order or other document believed by it to be genuine
and correct and to have been signed or sent by the proper Person or
Persons.
(5) No provision of this Collateral Agreement shall require
the Collateral Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(6) The Collateral Agent may perform any duties hereunder
either directly or by or through agents or attorneys, and the Collateral
Agent shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder. In
furtherance thereof, any subsidiary owned or controlled by the Collateral
Agent, or its successors, as agent for the Collateral Agent, may perform
any or all of the duties of the Collateral Agent relating to the valuation
of securities and other instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be personally
liable for any taxes or other governmental charges imposed upon or in
respect of (i) the Collateral or (ii) the income or other distributions
thereon.
(8) Unless and until the Collateral Agent shall have received
notice from the Pledgor, or unless and until a Responsible Officer of the
Collateral Agent shall have actual knowledge to the contrary, the
Collateral Agent shall be entitled to deem and treat all Collateral
delivered to it hereunder as Eligible Collateral hereunder, provided that
the Collateral Agent has carried out the duties specified in Section 6
with respect to such Collateral at the time of delivery thereof.
The Collateral Agent shall not be responsible for the correctness of
the recitals and statements herein which are made by the Pledgor or for any
statement or certificate delivered by the Pledgor pursuant hereto. Except as
specifically provided herein, the Collateral Agent shall not be responsible for
the validity, sufficiency, collectibility or marketability of any Collateral
given to or held by it hereunder or for the validity or sufficiency of the
Purchase Agreement or the Lien on the Collateral purported to be created hereby.
18
(b) Knowledge. The Collateral Agent shall not be deemed to have
knowledge of any Event of Default (except a Collateral Event of Default), unless
and until a Responsible Officer of the Collateral Agent shall have actual
knowledge thereof or shall have received written notice thereof.
(c) Merger. Any corporation or association into which the Collateral
Agent may be converted or merged, or with which it may be consolidated, or to
which it may sell or transfer its agency business and assets as a whole or
substantially as a whole, or any corporation or association resulting from any
such conversion, sale, merger, consolidation or transfer to which it is a party,
shall, subject to the prior written consent of the Purchaser, be and become a
successor Collateral Agent hereunder and vested with all of the title to the
Collateral and all of the powers, discretions, immunities, privileges and other
matters as was its predecessor without, except as provided above, the execution
or filing of any instrument or any further act, deed or conveyance on the part
of any of the parties hereto, anything herein to the contrary notwithstanding.
(d) Resignation. The Collateral Agent and any successor Collateral
Agent may at any time resign by giving thirty days' written notice by registered
or certified mail to the Pledgor and notice to the Purchaser in accordance with
the provisions of Section 10(d) hereof. Such resignation shall take effect upon
the appointment of a successor Collateral Agent by the Purchaser.
(e) Removal. The Collateral Agent may, with the Pledgor's prior
written consent (which consent shall not be unreasonably withheld), be removed
at any time by an instrument or concurrent instruments in writing delivered to
the Collateral Agent and to the Pledgor and signed by the Purchaser.
(f) Appointment of Successor. (1) If the Collateral Agent hereunder
shall resign or be removed, or be dissolved or shall be in the course of
dissolution or liquidation or otherwise become incapable of action hereunder, or
if it shall be taken under the control of any public officer or officers or of a
receiver appointed by a court, a successor may be appointed by the Purchaser,
after consultation with the Pledgor, by an instrument or concurrent instruments
in writing signed by the Purchaser or by its attorneys in fact fully authorized
and a copy of such instrument or concurrent instruments shall be sent by
registered mail to the Pledgor.
(2) Every such temporary or permanent successor Collateral Agent
appointed pursuant to the provisions hereof shall be a trust company or bank in
good standing, having a reported capital and surplus of not less than
$100,000,000 and capable of holding the Collateral in the State of New York, if
there be such an institution willing, qualified and able to accept the duties of
the Collateral Agent hereunder upon customary terms.
(g) Acceptance by Successor. Every temporary or permanent successor
Collateral Agent appointed hereunder shall execute, acknowledge and deliver to
its predecessor and also to the Pledgor an instrument in writing accepting such
appointment hereunder, whereupon such successor, without any further act, deed
or conveyance, shall become fully vested with all the estates, properties,
rights, powers, duties and obligations of its predecessors. Such predecessor
shall, nevertheless, on the written request of its successor or the Pledgor,
19
execute and deliver an instrument transferring to such successor all the
estates, properties, rights and powers of such predecessor hereunder. Every
predecessor Collateral Agent shall deliver all Collateral held by it as the
Collateral Agent hereunder to its successor. Should any instrument in writing
from the Pledgor be required by a successor Collateral Agent for more fully and
certainly vesting in such successor the estates, properties, rights, powers,
duties and obligations hereby vested or intended to be vested in the
predecessor, any and all such instruments in writing shall, at the request of
the temporary or permanent successor Collateral Agent, be forthwith executed,
acknowledged and delivered by the Pledgor.
(h) Fees and Expenses. Except as specifically provided herein, and
subject to Section 6.6(d) of the Purchase Agreement, the Collateral Agent shall
not be entitled to fees or reimbursement of expenses from the Pledgor in respect
of the performance of the Collateral Agent's duties hereunder.
10. Miscellaneous.
(a) Benefit of Agreement; Successors and Assigns. Whenever any of
the parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party. All the covenants and agreements herein
contained by or on behalf of the Pledgor and the Collateral Agent shall bind,
and inure to the benefit of, their respective successors and assigns whether so
expressed or not, and shall be enforceable by and inure to the benefit of the
Purchaser and its successors and assigns.
(b) Separability. To the extent permitted by law, the
unenforceability or invalidity of any provision or provisions of this Collateral
Agreement shall not render any other provision or provisions herein contained
unenforceable or invalid.
(c) Amendments and Waivers. Any term, covenant, agreement or
condition of this Collateral Agreement may be amended or compliance therewith
may be waived (either generally or in a particular instance and either
retrospectively or prospectively) but only by a writing signed by the Collateral
Agent, the Pledgor and the Purchaser.
(d) Notices. Notices to the Collateral Agent shall be directed to:
Credit Suisse First Boston LLC, Xxx Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, facsimile number (000) 000-0000, Attention: Collateral Management;
notices to Pledgor shall be directed to: i-STT Investments (Bermuda) Ltd.,
Canon's Court, 00 Xxxxxxxx Xxxxxx, Xxxxxxxx XX00 Xxxxxxx, facsimile number
x0(000) 000 0000, Attention: Directors, with a copy to Parent at: i-STT
Investments Pte. Ltd., 00 Xxxxxxx Xxxx, #00 - 00/00 XxxxXxx Xxxxxx, Xxxxxxxxx
000000, facsimile number x00 0000 0000, Attention: General Counsel; notices to
Purchaser shall be directed to: Credit Suisse First Boston Capital LLC, c/o
Credit Suisse, New York Branch, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
facsimile number: (000) 000-0000, Attention: Senior Legal Officer.
Notwithstanding the foregoing, notices to a party shall be directed to such
other address or facsimile number for such party as shall be specified by such
party in a like notice given pursuant to this Section 10(d). All notices and
other communications hereunder shall be in writing (including facsimile
transmission) and shall be deemed to have been duly given if either (i)
personally delivered (including delivery by courier service or by Federal
Express or any other nationally recognized overnight delivery service for next
day delivery) to
20
the offices specified in the preceding sentence (in which case they shall be
deemed received on the first Business Day by which delivery shall have been made
to said offices); or (ii) sent by facsimile in legible form (in which case
delivery shall be deemed to have been received on the date appearing on the
facsimile transmission confirmation). Any notice, demand or other communication
to be provided by or on behalf of a party to this Agreement shall be sent to the
address of such party provided in this Section 10(d). Any failure by Collateral
Agent, Pledgor or Purchaser or any guardian, conservator, executor,
administrator or other similarly appointed person to receive any such notice,
demand or communication shall in no way abrogate, invalidate or otherwise affect
the validity or enforceability of the notice, demand or communication or the
matters set forth therein.
(e) Governing Law. This Collateral Agreement shall in all respects
be construed in accordance with and governed by the laws of the State of New
York; provided that as to Collateral located in any jurisdiction other than the
State of New York, the Collateral Agent on behalf of the Purchaser shall have
all of the rights to which a secured party is entitled under the laws of such
other jurisdiction.
(f) Counterparts. This Collateral Agreement may be executed,
acknowledged and delivered in any number of counterparts and such counterparts
taken together shall constitute one and the same instrument.
(g) Application of Bankruptcy Code. The parties hereto acknowledge
and agree that: (i) the Collateral Agent is a "stockbroker" as defined in the
Bankruptcy Code and is acting as agent and custodian for Purchaser in connection
with this Agreement, and Purchaser is a "customer" of the Collateral Agent
within the meaning of the Bankruptcy Code; (ii) each of Purchaser and the
Collateral Agent is a "financial participant" within the meaning of the
Bankruptcy Code, (iii) this Agreement is a "securities contract" within the
meaning of the Bankruptcy Code, (iv) the remedies provided herein and in the
Collateral Agreement are the remedies referred to in Sections 362(b)(6) and 555
of the Bankruptcy Code, and (v) all transfers of cash, securities or other
property under or in connection with this Agreement and the Collateral Agreement
are "margin payments", "settlement payments" and "transfers" under Section
546(e) of the Bankruptcy Code.
(h) WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THE PARTIES HERETO HEREBY WAIVE AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER
AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN
RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR
BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT OR TORT OR OTHERWISE. EACH
PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTY HERETO
THAT THE PROVISIONS OF THIS SECTION CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH
SUCH OTHER PARTY HERETO HAS RELIED, IS RELYING AND WILL RELY IN ENTERING INTO
THIS AGREEMENT AND ANY DOCUMENT RELATED THERETO. EACH PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OF THIS SECTION WITH ANY
21
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY HERETO TO THE WAIVER
OF ITS RIGHTS TO TRIAL BY JURY.
11. Termination of Collateral Agreement.
This Collateral Agreement and the rights hereby granted by the
Pledgor in the Collateral shall cease, terminate and be void upon fulfillment of
all of the obligations of the Pledgor under the Purchase Agreement, and the
Pledgor shall have no further liability hereunder upon such termination. Any
Collateral remaining at the time of such termination shall be fully released and
discharged from the Lien hereof and delivered to the Pledgor by the Collateral
Agent as soon as reasonably practicable. In connection with any termination or
release pursuant to this Section 11, the Collateral Agent and the Purchaser
shall take all actions reasonably necessary to effect and evidence such release,
including without limitation executing and delivering to Pledgor all documents
reasonably necessary thereto. The parties agree that, if the transactions
contemplated on the Payment Date under the Purchase Agreement are not
consummated pursuant to the terms thereof, any Collateral delivered to the
Collateral Agent by Pledgor shall be released and discharged in the manner
provided in this Section 11.
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IN WITNESS WHEREOF, each of the Pledgor, the Collateral Agent and
the Purchaser has caused this Collateral Agreement to be duly executed on its
behalf as of the date hereof.
PLEDGOR:
i-STT INVESTMENTS (BERMUDA) LTD.
By: /s/ Xxxxxxx Xxxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxxx Xxxxxx
Title: Director
PURCHASER:
CREDIT SUISSE FIRST BOSTON CAPITAL LLC
By: /s/ Xxxx Xxxx
----------------------------
Name: Xxxx Xxxx
Title: A.V.P. Operations
COLLATERAL AGENT:
CREDIT SUISSE FIRST BOSTON LLC
as Collateral Agent
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
Operations
Exhibit A
to
Collateral Agreement
CERTIFICATE FOR SUBSTITUTED COLLATERAL
The undersigned, i-STT Investments (Bermuda) Ltd. (the "Pledgor"), hereby
certifies, pursuant to Section 6(b) of the Collateral Agreement dated as of
November 9, 2005 among the Pledgor, Credit Suisse First Boston LLC, as
Collateral Agent, and Credit Suisse First Boston Capital LLC (the "Purchaser",
and such agreement, the "Collateral Agreement"; terms defined in the Collateral
Agreement being used herein as defined therein), that:
1. The Pledgor is delivering the following securities to the
Collateral Agent to be held by the Collateral Agent as substituted Collateral
(the "Substituted Collateral"):
2. The Pledgor requests that the Collateral Agent transfer to the
Pledgor the following Prior Collateral, pursuant to Section 6(b) of the
Collateral Agreement:
3. The Pledgor hereby represents and warrants to the Collateral
Agent and the Purchaser that:
(a) Consents to Transfer. No Transfer Restrictions exist with
respect to or otherwise apply to the assignment of, or transfer by the Pledgor
of possession of, any items of Substituted Collateral to the Collateral Agent
under the Collateral Agreement, or the subsequent sale or transfer of such items
of Substituted Collateral by the Collateral Agent pursuant to the terms of the
Collateral Agreement.
(b) Title to Collateral; Perfected Security Interest. The Pledgor
has good and marketable title to the Substituted Collateral, free of all Liens
(other than the Lien created by the Collateral Agreement) and Transfer
Restrictions. Upon delivery of the Collateral to the Collateral Agent, the
Purchaser will obtain a valid, first priority perfected security interest in,
and a first lien upon, such Substituted Collateral subject to no other Lien.
None of such Substituted Collateral is or shall be pledged by the Pledgor as
collateral for any other purpose.
This Certificate may be relied upon by the Purchaser as fully and to
the same extent as if this Certificate had been specifically addressed to the
Purchaser.
A-1
IN WITNESS WHEREOF, the undersigned has executed this Certificate
this _____ day of ______,______.
______________
Name:
Title:
A-2
Exhibit B
to
Collateral Agreement
CERTIFICATE FOR ADDITIONAL COLLATERAL
The undersigned, i-STT Investments (Bermuda) Ltd. (the "Pledgor"),
hereby certifies, pursuant to Section 6(c) of the Collateral Agreement, dated as
of November 9, 2005, among the Pledgor, Credit Suisse First Boston LLC, as
Collateral Agent, and Credit Suisse First Boston Capital LLC (the "Purchaser",
and such agreement, the "Collateral Agreement"; terms defined in the Collateral
Agreement being used herein as defined therein), that:
1. The Pledgor is delivering the following securities to the
Collateral Agent to be held by the Collateral Agent as additional Collateral
(the "Additional Collateral"):
2. The Pledgor hereby represents and warrants to the Collateral
Agent and the Purchaser that:
(a) Consents to Transfer. No Transfer Restrictions exist with
respect to or otherwise apply to the assignment of, or transfer by the Pledgor
of possession of, any items of Additional Collateral to the Collateral Agent
under the Collateral Agreement, or the subsequent sale or transfer of such items
of Additional Collateral by the Collateral Agent pursuant to the terms of the
Collateral Agreement.
(b) Title to Collateral; Perfected Security Interest. The Pledgor
has good and marketable title to the Additional Collateral, free of all Liens
(other than the Lien created by the Collateral Agreement) and Transfer
Restrictions. Upon delivery of the Collateral to the Collateral Agent, the
Purchaser will obtain a valid, first priority perfected security interest in,
and a first lien upon, such additional Collateral subject to no other Lien. None
of such Additional Collateral is or shall be pledged by the Pledgor as
collateral for any other purpose.
This Certificate may be relied upon by the Purchaser as fully and to
the same extent as if this Certificate had been specifically addressed to the
Purchaser.
B-1
IN WITNESS WHEREOF, the undersigned has executed this Certificate
this _____ day of _____ , .
____________
Name:
Title:
B-2