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EXHIBIT 4.14
MCN CORPORATION
AND
THE CHASE MANHATTAN BANK
PLEDGE AGREEMENT
Dated as of March __, 1997
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TABLE OF CONTENTS
Page
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Section 1. Definitions . . . . . . . . . . . . . . . . . . . . . . 2
Section 2. Pledge; Control and Perfection . . . . . . . . . . . . . 6
Section 2.1. The Pledge . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.2. Control and Perfection . . . . . . . . . . . . . . . . . 7
Section 3. Distributions on Pledged Collateral . . . . . . . . . . 8
Section 4. Substitution, Release, Repledge and
Early Settlement of Preferred Securi-
ties . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4.1. Substitution of Preferred Securities and
the Establishment of Growth PRIDES . . . . . . . . . . 10
Section 4.2. Pledge of Preferred Securities and Re-
establishment of Income PRIDES . . . . . . . . . . . . . 10
Section 4.3. Termination Event . . . . . . . . . . . . . . . . . . . 11
Section 4.4. Cash Settlement . . . . . . . . . . . . . . . . . . . . 12
Section 4.5. Early Settlement . . . . . . . . . . . . . . . . . . . . 12
Section 5. Voting Rights -- Preferred Securities . . . . . . . . . 14
Section 6. Rights and Remedies; Investment Company
Event; Tax Event etc. . . . . . . . . . . . . . . . . . 14
Section 6.1. Rights and Remedies of Collateral Agent . . . . . . . . 14
Section 6.2. Tax Event, Investment Company Event, etc. . . . . . . . 16
Section 7. Representation and Warranties; Covenants . . . . . . . . 16
Section 7.1. Representations and Warranties . . . . . . . . . . . . . 16
Section 7.2. Covenants . . . . . . . . . . . . . . . . . . . . . . . 17
Section 8. The Collateral Agent . . . . . . . . . . . . . . . . . . 18
Section 8.1. Appointment, Powers and Immunities . . . . . . . . . . . 18
Section 8.2. Instructions of the Company . . . . . . . . . . . . . . 19
Section 8.3. Reliance by Collateral Agent . . . . . . . . . . . . . . 19
Section 8.4. Rights in Other Capacities . . . . . . . . . . . . . . . 20
Section 8.5. Non-Reliance on Collateral Agent . . . . . . . . . . . . 20
Section 8.6. Compensation and Indemnity . . . . . . . . . . . . . . . 20
Section 8.7. Failure to Act . . . . . . . . . . . . . . . . . . . . . 21
Section 8.8. Resignation of Collateral Agent . . . . . . . . . . . . 21
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Page
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Section 8.9. Right to Appoint Agent or Advisor . . . . . . . . . . . 22
Section 8.10. Survival . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 8.11. Indemnity . . . . . . . . . . . . . . . . . . . . . . . 23
Section 9. Amendment . . . . . . . . . . . . . . . . . . . . . . . 23
Section 9.1. Amendment Without Consent of Holders . . . . . . . . . . 23
Section 9.2. Amendment with Consent of Holders . . . . . . . . . . . 24
Section 9.3. Execution of Amendments . . . . . . . . . . . . . . . . 24
Section 9.4. Effect of Amendments . . . . . . . . . . . . . . . . . . 25
Section 9.5. Reference to Amendments . . . . . . . . . . . . . . . . 25
Section 10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . 25
Section 10.1. No Waiver . . . . . . . . . . . . . . . . . . . . . . . 25
Section 10.2. Governing Law . . . . . . . . . . . . . . . . . . . . . 26
Section 10.3. Notices . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 10.4. Successors and Assigns . . . . . . . . . . . . . . . . . 26
Section 10.5. Counterparts . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.6. Severability . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.7. Expenses, etc. . . . . . . . . . . . . . . . . . . . . . 27
Section 10.8. Security Interest Absolute . . . . . . . . . . . . . . . 28
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PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of March __, 1997 (this "Agreement"), among
MCN Corporation, a Michigan corporation, doing business as MCN Energy Group
Inc. (the "Company"), The Chase Manhattan Bank, a New York banking corporation,
not individually but solely as collateral agent (in such capacity, together
with its successors in such capacity, the "Collateral Agent"), and The First
National Bank of Chicago, not individually but solely as purchase contract
agent and as attorney-in-fact of the Holders (as hereinafter defined) from time
to time of the Securities (as hereinafter defined) (in such capacity, together
with its successors in such capacity, the "Purchase Contract Agent") under the
Purchase Contract Agreement (as hereinafter defined) and The Chase Manhattan
Bank in its capacity as a "securities intermediary" as defined in Section
8.102(a)(14) of Revised Article F.
RECITALS
The Company and the Purchase Contract Agent are parties to the
Purchase Contract Agreement, dated as of the date hereof (as modified and
supplemented and in effect from time to time, the "Purchase Contract
Agreement"), pursuant to which there will be issued _____ FELINE PRIDES (the
"Securities").
Each Security, at issuance, consists of a unit (the "Income PRIDES")
comprised of (a) one Purchase Contract (as hereinafter defined) and (b) a ____%
Trust Originated Preferred Security (the "Preferred Securities") issued by MCN
Financing III (the "Trust"), having a stated liquidation amount equal to $50
(the "Stated Amount") and maturing on May __, 2002, unless settled earlier.
The Company has caused the Underwriters, on its behalf, to purchase
the Preferred Securities, with the proceeds of the offering of the Securities.
The Company will convey such Preferred Securities to the Holders as a part of
the Securities. Upon such conveyance the Preferred Securities will be
beneficially owned by the Holders but will be owned of record by the Purchase
Contract Agent subject to the Pledge hereunder.
Pursuant to the terms of the Purchase Contract Agreement and the
Purchase Contracts, the Holders (as
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defined in the Purchase Contract Agreement), from time to time, of the
Securities have irrevocably authorized the Purchase Contract Agent, as
attorney-in-fact of such Holders, among other things, to execute and deliver
this Agreement on behalf of such Holders and to grant the pledge provided
hereby of the Preferred Securities and any Treasury Securities (as defined
below) delivered in exchange therefor to secure each Holder's obligations under
the related Purchase Contract, as provided herein and subject to the terms
hereof.
Accordingly, the Company, the Collateral Agent and the Purchase
Contract Agent, on its own behalf and as attorney-in-fact of the Holders from
time to time of the Securities, agree as follows:
Section 1. Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular; and
(b) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to
any particular Article, Section or other subdivision.
(c) the following terms have the meanings assigned to them in
the Purchase Contract Agreement: (i) Act, (ii) Board Resolution, (iii)
Cash Settlement, (iv) Certificate, (v) Collateral Settlement, (vi)
Common Stock, (vii) Opinion of Counsel, (viii) Purchase Price, (ix)
Repayment Price, (x) Purchase Contract Settlement Date, (xi) Junior
Subordinated Debentures, (xii) Termination Event, (xiii) Early
Settlement, (xiv) Early Settlement Amount, (xv) Early Settlement Date,
(xvi) Outstanding Securities, (xvii) Purchase Contract, (xviii)
Certificate and (xix) Income PRIDES.
(d) the following terms have the meanings assigned to them in
the Declaration: (i) Investment Company Event, (ii) Liquidation
Distribution, (iii) Institutional Trustee, and (iv) Tax Event.
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"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Bankruptcy Code" means title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform system
of bankruptcy laws.
"Business Day" means any day other than a Saturday, a Sunday or any
other day on which banking institutions in The City of New York (in the State
of New York) are permitted or required by any applicable law to close.
"Cash" means (i) any coin or currency of the United States as at the
time shall be legal tender for payment of public and private debts and (ii)
immediately available federal funds deposited in a trust account for the sole
and exclusive benefit of the Collateral Agent maintained with the Chase
Manhattan Bank (or any successor Collateral Agent) in its commercial banking
capacity which funds are on deposit at the Federal Reserve Bank of New York.
"Code" has the meaning set forth in Section 6.1 hereof.
"Collateral" has the meaning specified in Section 2 hereof.
"Collateral" has the meaning specified in Section 2.1 hereof.
"Collateral Account" means the account maintained at The Chase
Manhattan Bank in the name "The Chase Manhattan Bank as Collateral Agent of MCN
Corporation as pledgee of the First National Bank of Chicago as Purchase
Contract Agent".
"Collateral Agent" has the meaning specified in the first paragraph of
this instrument.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor
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shall have become such, and thereafter "Company" shall mean such successor.
"Declaration" means the Amended and Restated Declaration of Trust,
dated as of the date hereof, among the Company as sponsor, the trustees named
therein and the holders from time to time of undivided beneficial interests in
the assets of the Trust.
"Growth PRIDES" means Purchase Contracts with respect to which
Treasury Securities have been substituted for Preferred Securities as
collateral to secure the Holder's obligations under such Purchase Contracts.
"Holder" when used with respect to a Security, or a Purchase Contract
constituting a part thereof, means an Income PRIDES holder and/or a Growth
PRIDES holder, as the case may be.
"Intermediary" means any entity that in the ordinary course of its
business maintains securities accounts for others and is acting in that
capacity.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Pledge" has the meaning specified in Section 2 hereof.
"Pledged Preferred Securities" has the meaning specified in Section
2.1 hereof.
"Pledged Treasury Securities" has the meaning specified in Section 2.1
hereof.
"Proceeds" means all interest, dividends, cash, instruments,
securities, financial assets (as defined in Section 8-102(a)(9) of Revised
Article 8) and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the
Collateral.
"Purchase Contract Agent" has the meaning specified in the first
paragraph of this instrument.
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"Revised Article 8" means the 1994 Official Text of Revised Article 8
of the Uniform Commercial Code, together with conforming and miscellaneous
amendments to Articles 1, 3, 4, 5, 9 and 10, 1994 Official Text, as adopted by
the American Law Institute and the National Conference of Commissioners on
Uniform State Laws and approved by the American Bar Association on February 14,
1995.
"Securities" has the meaning specified in the Recitals.
"Stated Amount" has the meaning specified in the Recitals.
"TRADES" means the Treasury/Reserve Automated Debt Entry System
maintained by the Federal Reserve Bank of New York pursuant to the TRADES
Regulations.
"TRADES Regulations" means the regulations of the United States
Department of the Treasury, published at 31 C.F.R. Part 257, as amended from
time to time. Unless otherwise defined herein, all terms defined in the TRADES
Regulations are used herein as therein defined.
"Transfer" means, with respect to the Collateral and in accordance
with the instructions of the Collateral Agent, the Purchase Contract Agent or
the Holder, as applicable:
(i) in the case of Collateral consisting of Preferred Securities
which cannot be delivered by book-entry or which the parties
agree are to be delivered in physical form, delivery in
appropriate physical form to the recipient accompanied by
any duly executed instruments of transfer, assignments in
blank, transfer tax stamps and any other documents necessary
to constitute a legally valid transfer to the recipient;
(ii) in the case of Collateral consisting of Preferred Securities
maintained in book-entry form by (A) causing such Preferred
Securities to be credited to a book-entry securities account
of the recipient or an Intermediary and (B) causing such
Intermediary, if any, (i) to send to the recipient
confirmation of the
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transfer of the relevant interest in such Collateral to
the recipient and (ii) to identify by book-entry or
otherwise such Collateral as subject to the relevant
security interest in favor of the recipient, or causing such
Preferred Securities to be transferred to the recipient in
such other manner as the recipient may reasonably request;
and
(iii) in the case of securities issued by the United States in
book-entry form, by causing a "securities intermediary" (as
defined in Section 8.102(a)(14) of Revised Article 8) to
credit a "securities entitlement" (as defined in Section
8.102(a)(17) of Revised Article 8) to a securities account
maintained by or on behalf of such person.
"Treasury Security" means a zero-coupon U.S. Treasury Security
maturing on May 15, 2000 (Cusip Number 912820 AW7) (collectively, the
"Treasury Securities").
"Value" with respect to any item of Collateral on any date means, as
to (i) a Preferred Security, the Stated Amount, (ii) Cash, the face amount
thereof and (iii) Treasury Securities, the aggregate principal amount thereof
at maturity.
Section 2. Pledge; Control and Perfection.
Section 2.1. The Pledge. The Holders from time to time acting through
the Purchase Contract Agent, as their attorney-in-fact, hereby pledge and grant
to the Collateral Agent, for the benefit of the Company, as collateral security
for the performance when due by such Holders of their respective obligations
under the related Purchase Contracts, a security interest in all of the right,
title and interest of such Holders in the Preferred Securities constituting a
part of the FELINE PRIDES and all Proceeds thereof (including any Proceeds from
the repayment of the Preferred Securities by the Trust) and any Treasury
Securities delivered in exchange therefor, in each case that have been
Transferred to or received by the Collateral Agent and not released by the
Collateral Agent to such Holders under the provisions of this Agreement (the
"Collateral"), in payments made by Holders pursuant to Section 4.4 and in the
Collateral Account, in any Trea-
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xxxx Securities substituted for any Pledged Preferred Securities in accordance
with Section 4 and any Junior Subordinated Debentures upon the occurrence of a
Tax Event or an Investment Company Event as provided in Section 6.3. Prior to
or concurrently with the execution and delivery of this Agreement, the Purchase
Contract Agent, on behalf of the initial Income PRIDES holders, shall cause the
Preferred Securities to be delivered to the Collateral Agent by book-entry
transfer through the facilities of The Depository Trust Company to the account
of the Collateral Agent designated by it for such purpose. In the event an
Income PRIDES holder so elects, such Income PRIDES holders may Transfer
Treasury Securities to the Collateral Agent for the benefit of the Company in
exchange for the release by the Collateral Agent for the benefit of the Company
of a Preferred Security to the Purchase Contract Agent on behalf of such Income
PRIDES holder. Treasury Securities shall be Transferred to the Collateral
Account maintained by the Collateral Agent by book-entry transfer to the
account of the Collateral Agent or its Intermediary with the Federal Reserve
Bank of New York in accordance with the TRADES Regulations. For purposes of
perfecting the Pledge under applicable law, including, to the extent
applicable, TRADES Regulations, the Uniform Commercial Code as adopted and in
effect in any applicable jurisdiction or Revised Article 8 as made applicable
by the TRADES Regulations, the Collateral Agent shall be the Agent of the
Company as provided herein. The pledge provided in this Section 2.1 is herein
referred to as the "Pledge" and the Preferred Securities or Treasury Securities
subject to the Pledge, excluding any Preferred Securities or Treasury
Securities released from the Pledge as provided in Section 4 hereof, are
hereinafter referred to as "Pledged Preferred Securities" or the "Pledged
Treasury Securities," respectively. Subject to the Pledge and the provisions
of Section 2.2 hereof, the Holders from time to time shall have full beneficial
ownership of the Collateral.
Section 2.2. Control and Perfection. In connection with the Pledge
granted in Section 2.1, and subject to the other provisions of this Agreement,
the Holders from time to time acting through the Purchase Contract Agent, as
their attorney-in-fact, hereby authorize and direct the Securities Intermediary
(without the necessity of obtaining the further consent of the Purchase
Contract
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Agent or any of the Holders), to comply with and follow any instructions and
entitlement orders (as defined in Section 8-102(a)(8) of Revised Article 8)
that the Company or the Collateral Agent on behalf of the Company may or the
Collateral Agent on behalf of the Company in writing give with respect to the
Collateral Account, the Collateral credited thereto and any security
entitlements with respect to any thereof. Such instructions and entitlement
orders may, without limitation, direct the Securities Intermediary to transfer,
redeem, sell, liquidate, assign, deliver or otherwise dispose of the Preferred
Securities, the Treasury Securities and any security entitlements with respect
thereto and to pay and deliver any income, proceeds or other funds derived
therefrom to the Company. The Holders from time to time acting through the
Purchase Contract Agent hereby further authorize and direct the Collateral
Agent, as agent of the Company, to itself issue instructions and entitlement
orders, and to otherwise take action, with respect to the Collateral Account,
the Collateral credited thereto and any security entitlements with respect to
any thereof, pursuant to the terms and provisions hereof, all without the
necessity of obtaining the further consent of the Purchase Contract Agent or
any of the Holders. In addition, to further protect and perfect the Pledge,
the Collateral Agent agrees that it will, until New York adopts Revised Article
8, at all times xxxx its books with respect to the Collateral Account to show
that all securities credited thereto are subject to the Pledge in favor of the
Company.
Section 3. Distributions on Pledged Collateral. All payments of the
Stated Amount of, or cash distributions on, any Pledged Preferred Securities
and all payments of the principal of, or cash distribution on, any Pledged
Treasury Securities received by the Collateral Agent and that are properly
payable hereunder shall be paid by the Collateral Agent by wire transfer in
same day funds:
(i) In the case of (A) cash distributions with respect
to Pledged Preferred Securities and (B) any payments of the Stated
Amount with respect to any Preferred Securities that have been
released from the Pledge pursuant to Section 4 hereof, to the Purchase
Contract Agent, for the benefit of the relevant Holders of Securities,
to the account
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designated by the Purchase Contract Agent for such purpose no later
than 2:00 p.m., New York City time, on the Business Day such payment
is received by the Collateral Agent (provided that in the event such
payment is received by the Collateral Agent on a day that is not a
Business Day or after 12:30 p.m., New York City time, on a Business
Day, then such payment shall be made no later than 10:30 a.m., New
York City time, on the next succeeding Business Day);
(ii) In the case of any principal payments with respect
to any Treasury Securities that have been released from the Pledge
pursuant to Section 4 hereof, to the Holders of the Growth PRIDES to
the accounts designated by them in writing for such purpose no later
than 2:00 p.m., New York City time, on the Business Day such payment
is received by the Collateral Agent (provided that in the event such
payment is received by the Collateral Agent on a day that is not a
Business Day or after 12:30 p.m., New York City time, on a Business
Day, then such payment shall be made no later than 10:30 a.m., New
York City time, on the next succeeding Business Day); and
(iii) In the case of payments of the Stated Amount of any
Pledged Preferred Securities or the principal of any Pledged Treasury
Securities, to the Company on the relevant Payment Date in accordance
with the procedure set forth in Section 6.2(a) or 6.2(b) hereof, in
full satisfaction of the respective obligations of the Holders under
the related Purchase Contracts.
All payments received by the Purchase Contract Agent as provided herein shall
be applied by the Purchase Contract Agent pursuant to the provisions of the
Purchase Contract Agreement. If, notwithstanding the foregoing the Purchase
Contract Agent shall receive any payments of the Stated Amount on account of
any Preferred Security that, at the time of such payment, is a Pledged
Preferred Security or a Holder of a Growth PRIDES shall receive any payments of
principal on account of any Treasury Securities that, at the time of such
payment, is Pledged Treasury Securities, the Purchase Contract Agent or such
Holder shall hold the same as trustee of an express trust for the benefit of
the Company (and promptly deliver the same over to the Company) for application
to the obliga-
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tions of the Holders under the related Purchase Contracts, and the Holders
shall acquire no right, title or interest in any such payments of Stated Amount
or principal so received.
Section 4. Substitution, Release, Repledge and Early Settlement of
Preferred Securities.
Section 4.1. Substitution of Preferred Securities and the
Establishment of Growth PRIDES. At any time on or prior to the Business
Day immediately preceding the Purchase Contract Settlement Date, an Income
PRIDES holder shall have the right to substitute Treasury Securities for the
Pledged Preferred Securities securing such Holder's obligations under the
Purchase Contract(s) comprising a part of its Income PRIDES in integral
multiples of 20 Income PRIDES by (a) Transferring to the Collateral Agent
Treasury Securities having a Value equal to the Stated Amount of the Pledged
Preferred Securities and (b) delivering the related Income PRIDES to the
Purchase Contract Agent, accompanied by a notice to the Purchase Contract Agent
stating that the Income PRIDES holder has Transferred Treasury Securities to
the Collateral Agent pursuant to clause (a) above and requesting that the
Purchase Contract Agent instruct the Collateral Agent to release from the
Pledge the Pledged Preferred Securities related to such Income PRIDES. The
Purchase Contract Agent shall instruct the Collateral Agent in the form
provided in Exhibit A. Upon receipt of the Treasury Securities from the Income
PRIDES holder and the instruction from the Purchase Contract Agent, the
Collateral Agent shall release the Preferred Securities and shall promptly
Transfer such Preferred Securities, free and clear of any lien, pledge or
security interest created hereby, to the Purchase Contract Agent.
Section 4.2. Pledge of Preferred Securities and Re-establishment of
Income PRIDES. At any time on or prior to the Business Day immediately
preceding the Purchase Contract Settlement Date, a holder of Growth PRIDES
shall have the right to establish or reestablish Income PRIDES consisting of
the Purchase Contracts and Preferred Securities in integral multiples of 20
Income PRIDES by (a) Transferring Preferred Securities to the Collateral Agent
with an instruction that the Collateral Agent (i) release Treasury Securities
having a Value equal to the product of the Stated Amount and the number of
related
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Purchase Contracts and (ii) notify the Purchase Contract Agent of the receipt
of the Preferred Securities and (b) delivering the certificates evidencing the
Growth PRIDES to the Purchase Contract Agent. Upon receipt of the Preferred
Securities and the instruction from the Growth PRIDES Holder, the Collateral
Agent shall release the Treasury Securities requested by such Holder and shall
promptly Transfer such Treasury Securities, free and clear of any lien, pledge
or security interest created hereby, to the Purchase Contract Agent.
Section 4.3. Termination Event. Upon receipt by the Collateral Agent
of notice from the Company or the Purchase Contract Agent that there has
occurred a Termination Event, the Collateral Agent shall release all Collateral
from the Pledge and shall promptly Transfer any Pledged Preferred Securities
and Pledged Treasury Securities to the Purchase Contract Agent for the benefit
of the Holders of the Income PRIDES and the Growth PRIDES, respectively, free
and clear of any lien, pledge or security interest created hereby.
If such Termination Event shall result from the Company's becoming a
debtor under the Bankruptcy Code, and if the Collateral Agent shall for any
reason fail immediately to effectuate the release and transfer of all Pledged
Preferred Securities or of the Pledged Treasury Securities, as the case may be,
as provided by this Section 4.3, the Purchase Contract Agent shall (i) use its
best efforts to obtain an opinion of a nationally recognized law firm
reasonably acceptable to the Collateral Agent to the effect that, as a result
of the Company's being the debtor in such a bankruptcy case, the Collateral
Agent will not be prohibited from releasing or transferring the Collateral as
provided in this Section 4.3, and shall deliver such opinion to the Collateral
Agent within ten days after the occurrence of such Termination Event, and if
(y) the Purchase Contract Agent shall be unable to obtain such opinion within
ten days after the occurrence of such Termination Event or (z) the Collateral
Agent shall continue, after delivery of such opinion, to refuse to effectuate
the release and transfer of all Pledged Preferred Securities or of the Pledged
Treasury Securities, as the case may be, as provided in this Section 4.3, then
the Purchase Contract Agent shall within fifteen days after the occurrence of
such Termination Event commence an action or proceeding in the
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court with jurisdiction of the Company's case under the Bankruptcy Code seeking
an order requiring the Collateral Agent to effectuate the release and transfer
of all Pledged Preferred Securities or of the Pledged Treasury Securities, as
the case may be, as provided by this Section 4.3 or (ii) commence an action or
proceeding like that described in subsection (i)(z) hereof within ten days
after the occurrence of such Termination Event.
Section 4.4. Cash Settlement. Upon receipt by the Collateral Agent of
(a) notice from the Purchase Contract Agent prior to the Purchase Contract
Settlement Date that a Holder elects to effect a Cash Settlement with respect
to some or all of such Holder's Purchase Contracts in accordance with the terms
of the Purchase Contracts and the Purchase Contract Agreement and (b) payment
by such Holder prior to 9:00 a.m., New York City time, on the Business Day
immediately preceding the Purchase Contract Settlement Date, of the Purchase
Price of such Purchase Contracts by certified check or wire transfer in
immediately available funds payable to or upon the order of the Company, then
the Collateral Agent shall, after payment of the Purchase Price to the Company
on the Purchase Contract Settlement Date, release from the Pledge and promptly
Transfer to the Purchase Contract Agent Pledged Preferred Securities or Pledged
Treasury Securities with a principal amount equal to the product of the Stated
Amount and the number of Purchase Contracts as to which such Holder has elected
to effect a Cash Settlement. The Collateral Agent shall promptly invest any
funds received from a Holder in connection with a Cash Settlement in overnight
federal funds and pay such funds to the Company on the Purchase Contract
Settlement Date. The Collateral Agent shall distribute any funds received in
respect of the interest earned from the investment in overnight Federal funds
to the Purchase Contract Agent on the Purchase Date, for payment to the
relevant Holders.
Section 4.5. Early Settlement. Upon written notice to the Collateral
Agent by the Purchase Contract Agent that one or more Holders of Securities
have elected to effect Early Settlement of their respective obligations under
the Purchase Contracts forming a part of such Securities in accordance with the
terms of the Purchase Contracts and the Purchase Contract Agreement (setting
forth the number of such Purchase Contracts as to which such Holders have
elected to effect Early Settlement),
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and that the Purchase Contract Agent has received from such Holders, and paid
to the Company, the related Early Settlement Amounts pursuant to the terms of
the Purchase Contracts and the Purchase Contract Agreement and that all
conditions to such Early Settlement have been satisfied, then the Collateral
Agent shall release from the Pledge, Pledged Preferred Securities or Pledged
Treasury Securities, as the case may be, with a principal amount equal to the
product of (i) the Stated Amount times (ii) the number of such Purchase
Contracts as to which such Holders have elected to effect Early Settlement and
shall Transfer all such Pledged Preferred Securities or Pledged Treasury
Securities, as the case may be, free and clear of the Pledge created hereby, to
the Purchase Contract Agent for the benefit of the Holders.
In the event a Holder has not made an effective Cash Settlement or an
Early Settlement of such Purchase Contract, the Collateral Agent shall, by
10:00 a.m., New York City time, on the Business Day immediately preceding the
Purchase Contract Settlement Date, present the related Preferred Securities to
the Institutional Trustee for repayment at the Repayment Price and apply an
amount equal to the product of the Stated Amount and the number of related
Purchase Contracts to the Settlement of such Purchase Contracts. The
Collateral Agent shall promptly invest any funds received in respect of the
repayment of the Pledged Preferred Securities in overnight federal funds and
pay such funds to the Company on the Purchase Contract Settlement Date. The
Collateral Agent shall distribute any funds received (a) in excess of the
aggregated Purchase Price of the Purchase Contract being settled hereby or (b)
in respect of the interest earned from the investment in overnight federal
funds to the Purchase Contract Agent on the Purchase Contract Settlement Date
for payment to the relevant Holders.
Without receiving any instruction from the Holder of Growth PRIDES,
the Collateral Agent shall automatically apply the proceeds of the related
Pledged Treasury Securities to the settlement of such Purchase Contracts on the
Purchase Contract Settlement Date. On the Business Day immediately prior to
the Purchase Contract Settlement Date, the Collateral Agent shall invest the
maturing Pledged Treasury Securities in overnight federal funds and pay such
funds to the Company on the Purchase Contract Settlement Date.
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In the event the sum of the proceeds from the related Pledged Treasury
Securities and the interest earned from the investment in overnight federal
funds is in excess of the aggregate Purchase Price of the Purchase Contracts
being settled thereby, the Collateral Agent shall distribute such excess to the
Purchase Contract Agent for the benefit of the holder of the related Purchase
Contracts on the Purchase Contract Settlement Date.
Section 5. Voting Rights -- Preferred Securities. The Purchase
Contract Agent may exercise, or refrain from exercising, any and all voting and
other consensual rights pertaining to the Pledged Preferred Securities or any
part thereof for any purpose not inconsistent with the terms of this Agreement
and in accordance with the terms of the Purchase Contract Agreement; provided,
that the Purchase Contract Agent shall not exercise or, as the case may be,
shall not refrain from exercising such right if, in the judgment of the Company
or the Collateral Agent, such action would impair or otherwise have a material
adverse effect on the value of all or any of the Pledged Preferred Securities;
and provided, further, that the Purchase Contract Agent shall give the Company
and the Collateral Agent at least five days' prior written notice of the manner
in which it intends to exercise, or its reasons for refraining from exercising,
any such right. Upon receipt of any notices and other communications in
respect of any Pledged Preferred Securities, including notice of any meeting at
which holders of Preferred Securities are entitled to vote or solicitation of
consents, waivers or proxies of holders of Preferred Securities, the Collateral
Agent shall use reasonable efforts to send promptly to the Purchase Contract
Agent such notice or communication, and as soon as reasonably practicable after
receipt or a written request therefor from the Purchase Contract Agent, deliver
to the Purchase Contract Agent such proxies and other instruments in respect of
such Pledged Preferred Securities (in form and substance satisfactory to the
Collateral Agent) as shall be so requested.
Section 6. Rights and Remedies; Investment Company Event; Tax Event
etc.
Section 6.1. Rights and Remedies of Collateral Agent. (a) The
Collateral Agent shall have all of the rights and remedies with respect to the
Collateral of a
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secured party under the Uniform Commercial Code as in effect in the State of
New York (the "Code") (whether or not the Code is in effect in the jurisdiction
where the rights and remedies are asserted), Revised Article 8 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.
(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 principal payments of any
Pledged Treasury Securities as provided in Section 3 hereof in satisfaction of
the obligations of the Holder of the Securities of which such Pledged Treasury
Securities is a part under the related Purchase Contracts, the Collateral Agent
shall have and may exercise, with reference to such Pledged Treasury Securities
and such obligations of such Holder, any and all of the rights and remedies
available to a secured party under the Code, Revised Article 8 and the TRADES
Regulations after default by a debtor, and as otherwise granted herein or under
any other law.
(c) Without limiting any rights or powers otherwise granted by
this Agreement to the Collateral Agent, the Collateral Agent is hereby
irrevocably authorized to receive and collect all payments of (i) the Stated
Amount of, or cash distributions on, the Pledged Preferred Securities, or (ii)
the principal of the Pledged Treasury Securities, subject, in each case, to the
provisions of Section 3, and as otherwise granted herein.
(d) The Purchase Contract Agent and each Holder of Securities, in
the event such Holder becomes the holder of a Growth PRIDES, agrees that, from
time to time, upon the written request of the Collateral Agent, the Purchase
Contract Agent or such Holder shall execute and deliver such further documents
and do such other acts and things as the Collateral Agent may reasonably
request in order to maintain the Pledge, and the perfection and priority
thereof, and to confirm the rights of the Collateral Agent hereunder. The
Purchase Contract Agent shall have no liability to any Holder for executing any
documents or taking any such acts requested by the Collateral Agent hereunder,
except for liability for its own negligent
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act, its own negligent failure to act or its own willful misconduct.
Section 6.2. Tax Event, Investment Company Event, etc. Upon the
occurrence of a Tax Event or an Investment Company Event or a liquidation of
the Trust, a principal amount of the Junior Subordinated Debentures
constituting the assets of the Trust and underlying the Preferred Securities
equal to the aggregated Stated Amount of the Pledged Preferred Securities shall
be delivered to the Collateral Agent in exchange for the Pledged Preferred
Securities. In the event the Collateral Agent receives such Junior
Subordinated Debentures in respect of Pledged Preferred Securities upon the
occurrence of a Tax Event, Investment Company Event or liquidation of the
Trust, the Collateral Agent shall Transfer the Junior Subordinated Debentures
to the Collateral Account in the manner specified herein for Pledged Preferred
Securities to secure the obligations of the Holders of Income PRIDES to
purchase the Company's Common Stock under the related Purchase Contracts.
Thereafter, the Collateral Agent shall have such security interests, rights and
obligations with respect to the Junior Subordinated Debentures as it had in
respect of the Pledged Preferred Securities as provided in Articles II, III,
IV, V and VI hereof.
Section 7. Representation and Warranties; Covenants.
Section 7.1. Representations and Warranties. The Holders from time to
time, acting through the Purchase Contract Agent as their attorney-in-fact (it
being understood that the Purchase Contract Agent shall not be liable for any
representation or warranty made by or on behalf of a Holder), hereby represent
and warrant to the Collateral Agent, which representations and warranties shall
be deemed repeated on each day a Holder Transfers Collateral that:
(a) such Holder has the power to grant a security
interest in and lien on the Collateral;
(b) such Holder is the sole beneficial owner of the
Collateral and, in the case of Collateral delivered
in physical form, is the sole holder of such
Collateral and is
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the sole beneficial owner of, or has the right
to Transfer, the Collateral it Transfers to the
Collateral Agent, free and clear of any security
interest, lien, encumbrance, calls, liabilities to
pay money or other restrictions other than the
security interest and lien granted under Section 2
hereof;
(c) upon the Transfer of the Collateral to the
Collateral Agent, the Collateral Agent, for the
benefit of the Company, will have a valid and
perfected first priority security interest therein
(assuming that any central clearing operation or any
Intermediary or other entity not within the control
of the Holder involved in the Transfer of the
Collateral, including the Collateral Agent, gives
the notices and takes the action required of it
hereunder and under applicable law for perfection of
that interest and assuming the establishment and
exercise of control pursuant to Section 2.2 hereof);
and
(d) the execution and performance by the Holder of its
obligations under this Agreement will not result in
the creation of any security interest, lien or other
encumbrance on the Collateral other than the
security interest and lien granted under Section 2
hereof or violate any provision of any existing law
or regulation applicable to it or of any mortgage,
charge, pledge, indenture, contract or undertaking
to which it is a party or which is binding on it or
any of its assets.
Section 7.2. Covenants. The Holders from time to time, acting through
the Purchase Contract Agent as their attorney-in-fact (it being understood that
the Purchase Contract Agent shall not be liable for any covenant made by or on
behalf of a Holder), hereby covenant to the Collateral Agent that for so long
as the Collateral remains subject to the Pledge:
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(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; 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 PRIDES.
Section 8. The Collateral Agent. It is hereby agreed as follows:
Section 8.1. Appointment, Powers and Immunities. The Collateral Agent
shall act as agent for the Company hereunder with such powers as are
specifically vested in the Collateral Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto. The
Collateral Agent: (a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and no implied covenants or obligations
shall be inferred from this Agreement against the Collateral Agent, nor shall
the Collateral Agent be bound by the provisions of any agreement by any party
hereto beyond the specific terms hereof; (b) shall not be responsible for any
recitals contained in this Agreement, or in any certificate or other document
referred to or provided for in, or received by it under, this Agreement, the
Securities or the Purchase Contract Agreement, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement
(other than as against the Collateral Agent), the Securities or the Purchase
Contract Agreement or any other document referred to or provided for herein or
therein or for any failure by the Company or any other Person (except the
Collateral Agent) to perform any of its obligations hereunder or thereunder;
(c) shall not be required to initiate or conduct any litigation or collection
proceedings hereunder (except pursuant to directions furnished under Section
8.2 hereof); (d) shall not be responsible for any action taken or omitted to be
taken by it hereunder or under any other document or instrument referred to or
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provided for herein or in connection herewith or therewith, except for its own
negligence; and (e) shall not be required to advise any party as to selling or
retaining, or taking or refraining from taking any action with respect to, any
securities or other property deposited hereunder. Subject to the foregoing,
during the term of this Agreement, the Collateral Agent shall take all
reasonable action in connection with the safekeeping and preservation of the
Collateral hereunder.
No provision of this Agreement shall require the Collateral Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder. In no event shall the Collateral
Agent be liable for any amount in excess of the Value of the Collateral.
Notwithstanding the foregoing, the Collateral Agent and the Securities
Intermediary in its individual capacity hereby waive any right of setoff,
bankers lien, liens or perfection rights as securities intermediary or any
counterclaim with respect to any of the Collateral.
Section 8.2. Instructions of the Company. The Company shall have the
right, by one or more instruments in writing executed and delivered to the
Collateral Agent, to direct the time, method and place of conducting any
proceeding for the realization of any right or remedy available to the
Collateral Agent, or of exercising any power conferred on the Collateral Agent,
or to direct the taking or refraining from taking of any action authorized by
this Agreement; provided, however, that (i) such direction shall not conflict
with the provisions of any law or of this Agreement and (ii) the Collateral
Agent shall be adequately indemnified as provided herein. Nothing in this
Section 8.2 shall impair the right of the Collateral Agent in its discretion to
take any action or omit to take any action which it deems proper and which is
not inconsistent with such direction.
Section 8.3. Reliance by Collateral Agent. The Collateral Agent shall
be entitled to rely upon any certification, order, judgment, opinion, notice or
other communication (including, without limitation, any thereof by telephone,
telecopy, telex or facsimile) believed by it to be genuine and correct and to
have been signed or sent by or on behalf of the proper Person or Persons
(without being required to determine the correctness of
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any fact stated therein), and upon advice and statements of legal counsel and
other experts selected by the Collateral Agent. As to any matters not
expressly provided for by this Agreement, the Collateral Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder in
accordance with instructions given by the Company in accordance with this
Agreement.
Section 8.4. Rights in Other Capacities. The Collateral Agent and its
affiliates may (without having to account therefor to the Company) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Purchase Contract Agent and
any Holder of Securities (and any of their respective subsidiaries or
affiliates) as if it were not acting as the Collateral Agent, and the
Collateral Agent and its affiliates may accept fees and other consideration
from the Purchase Contract Agent and any Holder of Securities without having to
account for the same to the Company; provided that the Collateral Agent
covenants and agrees with the Company that the Collateral Agent shall not
accept, receive or permit there to be created in its favor any security
interest, lien or other encumbrance of any kind in or upon the Collateral.
Section 8.5. Non-Reliance on Collateral Agent. The Collateral Agent
shall not be required to keep itself informed as to the performance or
observance by the Purchase Contract Agent or any Holder of Securities of this
Agreement, the Purchase Contract Agreement, the Securities or any other
document referred to or provided for herein or therein or to inspect the
properties or books of the Purchase Contract Agent or any Holder of Securities.
The Collateral Agent shall not have any duty or responsibility to provide the
Company with any credit or other information concerning the affairs, financial
condition or business of the Purchase Contract Agent or any Holder of
Securities (or any of their respective affiliates) that may come into the
possession of the Collateral Agent or any of its affiliates.
Section 8.6. Compensation and Indemnity. The Company agrees: (i) to
pay the Collateral Agent from time to time such compensation as shall be agreed
in writing between the Company and the Collateral Agent for all services
rendered by it hereunder and (ii) to indemnify the
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Collateral Agent for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of its powers and duties
under this Agreement, including the costs and expenses (including reasonable
fees and expenses of counsel) of defending itself against any claim or
liability in connection with the exercise or performance of such powers and
duties.
Section 8.7. Failure to Act. In the event of any ambiguity in the
provisions of this Agreement or any dispute between or conflicting claims by or
among the parties hereto and/or any other Person with respect to any funds or
property deposited hereunder, the Collateral Agent shall be entitled, at its
sole option, to refuse to comply with any and all claims, demands or
instructions with respect to such property or funds so long as such dispute or
conflict shall continue, and the Collateral Agent shall not be or become liable
in any way to any of the parties hereto for its failure or refusal to comply
with such conflicting claims, demands or instructions. The Collateral Agent
shall be entitled to refuse to act until either (i) such conflicting or adverse
claims or demands shall have been finally determined by a court of competent
jurisdiction or settled by agreement between the conflicting parties as
evidenced in a writing, satisfactory to the Collateral Agent or (ii) the
Collateral Agent shall have received security or an indemnity satisfactory to
the Collateral Agent sufficient to save the Collateral Agent harmless from and
against any and all loss, liability or expense which the Collateral Agent may
incur by reason of its acting. The Collateral Agent may in addition elect to
commence an interpleader action or seek other judicial relief or orders as the
Collateral Agent may deem necessary. Notwithstanding anything contained herein
to the contrary, the Collateral Agent shall not be required to take any action
that is in its opinion contrary to law or to the terms of this Agreement, or
which would in its opinion subject it or any of its officers, employees or
directors to liability.
Section 8.8. Resignation of Collateral Agent. Subject to the
appointment and acceptance of a successor Collateral Agent as provided below,
(a) the Collateral Agent may resign at any time by giving notice thereof to the
Company and the Purchase Contract Agent as attorney-
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in-fact for the Holders of Securities, (b) the Collateral Agent may be removed
at any time by the Company and (c) if the Collateral Agent fails to perform any
of its material obligations hereunder in any material respect for a period of
not less than 20 days after receiving written notice of such failure by the
Purchase Contract Agent and such failure shall be continuing, the Collateral
Agent may be removed by the Purchase Contract Agent. The Purchase Contract
Agent shall promptly notify the Company of any removal of the Collateral Agent
pursuant to clause (c) of the immediately preceding sentence. Upon any such
resignation or removal, the Company shall have the right to appoint a successor
Collateral Agent. If no successor Collateral Agent shall have been so appointed
and shall have accepted such appointment within 30 days after the retiring
Collateral Agent's giving of notice of resignation or such removal, then the
retiring Collateral Agent may petition any court of competent jurisdiction for
the appointment of a successor Collateral Agent. The Collateral Agent shall be
a bank which has an office in New York, New York with a combined capital and
surplus of at least $50,000,000. Upon the acceptance of any appointment as
Collateral Agent hereunder by a successor Collateral Agent, such successor
Collateral Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Collateral Agent, and the
retiring Collateral Agent shall take all appropriate action to transfer any
money and property held by it hereunder (including the Collateral) to such
successor Collateral Agent. The retiring Collateral Agent shall, upon such
succession, be discharged from its duties and obligations as Collateral Agent
hereunder. After any retiring Collateral Agent's resignation hereunder as
Collateral Agent, the provisions of this Section 8 shall continue in effect for
its benefit in respect of any actions taken or omitted to be taken by it while
it was acting as the Collateral Agent.
Section 8.9. Right to Appoint Agent or Advisor. The Collateral Agent
shall have the right to appoint agents or advisors in connection with any of
its duties hereunder, and the Collateral Agent shall not be liable for any
action taken or omitted by, or in reliance upon the advice of, such agents or
advisors selected in good faith. The appointment of agents pursuant to this
Section 8.9 shall be subject to prior consent of the Company, which consent
shall not be unreasonably withheld.
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Section 8.10. Survival. The provisions of this Section 8.10 shall
survive termination of this Agreement and the resignation or removal of the
Collateral Agent.
Section 8.11. Indemnity. Anything in this Agreement to the contrary
notwithstanding, in no event shall the Collateral Agent or its officers,
employees or agents be liable under this Agreement to any third party for
indirect, special, punitive, or consequential loss or damage of any kind
whatsoever, including lost profits, whether or not the likelihood of such loss
or damage was known to the Collateral Agent, or any of them, incurred without
any act or deed that is found to be attributable to gross negligence on the
part of the Collateral Agent.
Section 9. Amendment.
Section 9.1. Amendment Without Consent of Holders. Without the
consent of any Holders, the Company, the Collateral Agent and the Purchase
Contract Agent, at any time and from time to time, may amend this Agreement, in
form satisfactory to the Company, the Collateral Agent and the Purchase
Contract Agent, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company so long as such covenants or such surrender do not
adversely affect the validity, perfection or priority of the security
interests granted or created hereunder; or
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Collateral Agent or Purchase Contract Agent;
or
(4) to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other such
provisions herein, or to make any other provisions with respect to
such matters or questions arising under this Agreement,
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provided such action shall not adversely affect the interests of the
Holders.
Section 9.2. Amendment with Consent of Holders. With the consent of
the Holders of not less than 66 2/3% of the Outstanding Securities, by Act of
said Holders delivered to the Company, the Purchase Contract Agent and the
Collateral Agent, the Company, when authorized by a Board Resolution, the
Purchase Contract Agent and the Collateral Agent may amend this Agreement for
the purpose of modifying in any manner the provisions of this Agreement or the
rights of the Holders in respect of the Securities; provided, however, that no
such supplemental agreement shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the amount or type of Collateral underlying a
Security, impair the right of the Holder of any Security to receive
distributions on the underlying Collateral or otherwise adversely
affect the Holder's rights in or to such Collateral; or
(2) otherwise effect any action that would require the consent
of the Holder of each Outstanding Security affected thereby pursuant
to the Purchase Contract Agreement if such action were effected by an
agreement supplemental thereto; or
(3) reduce the percentage of Outstanding Securities the
consent of whose Holders is required for any such amendment; or
(4) materially and adversely alter the rights of the holders
of Preferred Securities.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed amendment, but it shall be
sufficient if such Act shall approve the substance thereof.
Section 9.3. Execution of Amendments. In executing any amendment
permitted by this Section, the Collateral Agent and the Purchase Contract Agent
shall be entitled to receive and (subject to Section 6.1 hereof, with respect
to the Collateral Agent, and Section 7.1 of the Purchase Contract Agreement,
with respect to the Purchase
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Contract Agent) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement and that all conditions precedent, if any, to the execution and
delivery of such amendment have been satisfied.
Section 9.4. Effect of Amendments. Upon the execution of any
amendment under this Section, this Agreement shall be modified in accordance
therewith, and such amendment shall form a part of this Agreement for all
purposes; and every Holder of Certificates theretofore or thereafter
authenticated, executed on behalf of the Holders and delivered under the
Purchase Contract Agreement shall be bound thereby.
Section 9.5. Reference to Amendments. Security Certificates
authenticated, executed on behalf of the Holders and delivered after the
execution of any amendment pursuant to this Section may, and shall if required
by the Collateral Agent or the Purchase Contract Agent, bear a notation in form
approved by the Purchase Contract Agent and the Collateral Agent as to any
matter provided for in such amendment. If the Company shall so determine, new
Security Certificates so modified as to conform, in the opinion of the
Collateral Agent, the Purchase Contract Agent and the Company, to any such
amendment may be prepared and executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Purchase Contract Agent
in accordance with the Purchase Contract Agreement in exchange for Outstanding
Security Certificates.
Section 10. Miscellaneous.
Section 10.1. No Waiver. No failure on the part of the Collateral
Agent or any of its agents to exercise, and no course of dealing with respect
to, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise by the
Collateral Agent or any of its agents of any right, power or remedy hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. The remedies herein are cumulative and are not
exclusive of any remedies provided by law.
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Section 10.2. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Without
limiting the foregoing, the above choice of law is expressly agreed to by the
Securities Intermediary, the Collateral Agent and the Holders from time to time
acting through the Agent, as their attorney-in-fact, in connection with the
establishment and maintenance of the Collateral Account. The Company, the
Collateral Agent and the Holders from time to time of the Securities, acting
through the Purchase Contract Agent as their attorney-in-fact, hereby submit to
the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York state court sitting in New
York City for the purposes of all legal proceedings arising out of or relating
to this Agreement or the transactions contemplated hereby. The Company, the
Collateral Agent and the Holders from time to time of the Securities, acting
through the Purchase Contract Agent as their attorney-in-fact, irrevocably
waive, to the fullest extent permitted by applicable law, any objection which
they may now or hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
Section 10.3. Notices. All notices, requests, consents and other
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, by telecopy) delivered to
the intended recipient at the "Address for Notices" specified below its name on
the signature pages hereof or, as to any party, at such other address as shall
be designated by such party in a notice to the other parties. Except as
otherwise provided in this Agreement, all such communications shall be deemed
to have been duly given when transmitted by telecopier or personally delivered
or, in the case of a mailed notice, upon receipt, in each case given or
addressed as aforesaid.
Section 10.4. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective successors and assigns
of the Company, the Collateral Agent and the Purchase Contract Agent, and the
Holders from time to time of the Securities, by their
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acceptance of the same, shall be deemed to have agreed to be bound by the
provisions hereof and to have ratified the agreements of, and the grant of the
Pledge hereunder by, the Purchase Contract Agent.
Section 10.5. Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and
the same instrument, and any of the parties hereto may execute this Agreement
by signing any such counterpart.
Section 10.6. Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by
law, (i) the other provisions hereof shall remain in full force and effect in
such jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of such provision in any other
jurisdiction.
Section 10.7. Expenses, etc. The Company agrees to reimburse the
Collateral Agent for: (a) all reasonable out-of-pocket costs and expenses of
the Collateral Agent (including, without limitation, the reasonable fees and
expenses of counsel to the Collateral Agent), in connection with (i) the
negotiation, preparation, execution and delivery or performance of this
Agreement and (ii) any modification, supplement or waiver of any of the terms
of this Agreement; (b) all reasonable costs and expenses of the Collateral
Agent (including, without limitation, reasonable fees and expenses of counsel)
in connection with (i) any enforcement or proceedings resulting or incurred in
connection with causing any Holder of Securities to satisfy its obligations
under the Purchase Contracts forming a part of the Securities and (ii) the
enforcement of this Section 10.7; and (c) all transfer, stamp, documentary or
other similar taxes, assessments or charges levied by any governmental or
revenue authority in respect of this Agreement or any other document referred
to herein and all costs, expenses, taxes, assessments and other charges
incurred in connection with any filing, registration, recording or perfection
of any security interest contemplated hereby.
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Section 10.8. Security Interest Absolute. All rights of the
Collateral Agent and security interests hereunder, and all obligations of the
Holders from time to time hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of any provision of
the Purchase Contracts or the Securities or any other agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
any other term of, or any increase in the amount of, all or any of the
obligations of Holders of Securities under the related Purchase
Contracts, or any other amendment or waiver of any term of, or any
consent to any departure from any requirement of, the Purchase
Contract Agreement or any Purchase Contract or any other agreement or
instrument relating thereto; or
(c) any other circumstance which might otherwise constitute a
defense available to, or discharge of, a borrower, a guarantor or a
pledgor.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
MCN CORPORATION
By:_________________________
Name: Xxxxxxxxx Xxxxxxx
Title: Senior Vice President
and Treasurer
Address for Notices:
MCN CORPORATION
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000
The First National Bank of Chicago
as Purchase Contract Agent and as
attorney-in-fact of the Holders
from time to time of the Securities
By:__________________________
Name:
Title:
Address for Notices:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Ser-
vices Division
Telecopy: (000) 000-0000
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The Chase Manhattan Bank
as Collateral Agent and as
Securities Intermediary
By:_____________________
Name: X. X'Xxxxx
Title: Senior Trust Officer
Address for Notices:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Admin-
istration Department
Telecopy: (000) 000-0000
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EXHIBIT A
INSTRUCTION TO COLLATERAL AGENT
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
Administration Department
Re: FELINE PRIDES (the "Securities") consisting of, at
issuance, __% Trust Originated Preferred Securities
(the "Preferred Securities") of MCN Financing III
and Purchase Contracts (the "Purchase Contracts") of
MCN Corporation doing business as MCN Energy Group
Inc. (the "Company")
The First National Bank of Chicago (the "Purchase Contract Agent")
hereby notifies you (the "Collateral Agent"), with reference to the Pledge
Agreement dated as of March , 1997 (the "Pledge Agreement"; any capitalized
term used herein and not defined shall have its respective meaning set forth in
the Pledge Agreement) among the Company, the Collateral Agent and the
Purchase Contract Agent, as purchase contract agent and as attorney-in-fact for
the Holders from time to time, pursuant to which the Purchase Contract Agent,
on behalf of such Holders, has pledged the Pledged Preferred Securities
constituting part of the Securities as security for such Holders' obligations
under the related Purchase Contracts, that [holder of securities] (the
"Holder") has elected to substitute $_______ aggregate principal amount of
Treasury Securities in exchange for the Pledged Preferred Securities in
accordance with the Pledge Agreement and has delivered such Treasury Securities
and 20 Income PRIDES to the Purchase Contract Agent, together with a notice
stating that the holder of securities has Transferred Treasury Securities to
the Collateral Agent. The Purchase Contract Agent hereby instructs the
Collateral Agent, upon receipt of such Pledged Treasury Securities, to release
the Preferred Securities related to such Income PRIDES to the Purchase Contract
Agent for the benefit of the Holder in accordance with the Holder's
instructions.
IN WITNESS WHEREOF, the undersigned, on behalf of the Purchase
Contract Agent, has executed and delivered this Instruction as of the _____ day
of _______, ____.
THE FIRST NATIONAL BANK OF CHICAGO
By:______________________
Name:
Title:
A-1
