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Exhibit 4(xvi)
DOMINION RESOURCES, INC.
and
[___________________________], as Collateral Agent
and
[___________________________], as Securities Intermediary
and
[___________________________], as Purchase Contract Agent
PLEDGE AGREEMENT
Dated as of _______ [ ], ____
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TABLE OF CONTENTS
Page
Article I. Definitions......................................................................... 1
Article II Pledge.............................................................................. 5
2.1 Pledge.............................................................................. 5
2.2 Control; Financing Statement........................................................ 5
2.3 Termination......................................................................... 5
Article III Distributions on Pledged Collateral................................................. 5
3.1 Income Distributions................................................................ 5
3.2 Principal Payments Following Termination Event...................................... 5
3.3 Principal Payments Prior To or On Purchase Contract Settlement Date................. 6
3.4 Payments to Purchase Contract Agent................................................. 6
3.5 Assets Not Properly Released........................................................ 6
Article IV Control............................................................................. 6
4.1 Establishment of Collateral Account................................................. 6
4.2 Treatment as Financial Assets....................................................... 7
4.3 Sole Control by Collateral Agent.................................................... 7
4.4 Securities Intermediary's Location.................................................. 7
4.5 No Other Claims..................................................................... 7
4.6 Investment and Release.............................................................. 7
4.7 Statements and Confirmations........................................................ 8
4.8 Tax Allocations..................................................................... 8
4.9 No Other Agreements................................................................. 8
4.10 Powers Coupled With An Interest..................................................... 8
Article V Initial Deposit; Establishment of Treasury SPUS and Reestablishment of
Corporate SPUS...................................................................... 8
5.1 Initial Deposit of Shares........................................................... 8
5.2 Establishment of Treasury SPUS...................................................... 8
5.3 Reestablishment of Corporate SPUS................................................... 9
5.4 Termination Event................................................................... 10
5.5 Cash Settlement..................................................................... 11
5.6 Early Settlement.................................................................... 12
5.7 Application of Proceeds Settlement.................................................. 12
Article VI Voting Rights of Pledged Shares..................................................... 13
Article VII Rights and Remedies................................................................. 14
7.1 Rights and Remedies of the Collateral Agent......................................... 14
7.2 Substitutions....................................................................... 15
Article VIII Representations and Warranties; Covenants........................................... 15
8.1 Representations and Warranties...................................................... 15
8.2 Covenants........................................................................... 16
Article IX The Collateral Agent and the Securities Intermediary................................ 16
9.1 Appointment, Powers and Immunities.................................................. 16
9.2 Instructions of the Company......................................................... 17
9.3 Reliance by Collateral Agent and Securities Intermediary............................ 17
9.4 Rights in Other Capacities.......................................................... 17
9.5 Non-Reliance on Collateral Agent and Securities Intermediary........................ 18
9.6 Compensation and Indemnity.......................................................... 18
9.7 Failure to Act...................................................................... 18
9.8 Resignation of Collateral Agent and Securities Intermediary......................... 19
9.9 Right to Appoint Agent or Advisor................................................... 20
9.10 Survival............................................................................ 20
9.11 Exculpation......................................................................... 20
Article X Amendment........................................................................... 20
10.1 Amendment Without Consent of Holders................................................ 20
10.2 Amendment with Consent of Holders................................................... 21
10.3 Execution of Amendments............................................................. 22
10.4 Effect of Amendments................................................................ 22
10.5 Reference to Amendments............................................................. 22
Article XI Miscellaneous....................................................................... 22
11.1 No Waiver........................................................................... 22
11.2 Governing Law....................................................................... 22
11.3 Notices............................................................................. 23
11.4 Successors and Assigns.............................................................. 23
11.5 Counterparts........................................................................ 23
11.6 Severability........................................................................ 23
11.7 Expenses, etc....................................................................... 23
11.8 Security Interest Absolute.......................................................... 24
EXHIBIT A Instruction from Purchase Contract Agent to Collateral Agent
(Establishment of Treasury SPUS)
EXHIBIT B Instruction from Collateral Agent to Securities Intermediary
(Establishment of Treasury SPUS)
EXHIBIT C Instruction from Purchase Contract Agent to Collateral Agent
(Reestablishment of Corporate SPUS)
EXHIBIT D Instruction from Collateral Agent to Securities Intermediary
(Reestablishment of Corporate SPUS)
EXHIBIT E Notice of Cash Settlement from the Securities Intermediary to the
Purchase Contract Agent.
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PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT is dated as of _______ [__], ____ among DOMINION
RESOURCES, INC., a Virginia corporation (the "Company"),
[________________________], not individually but solely as collateral agent (in
such capacity, together with its successors in such capacity, the "Collateral
Agent"), [________________________], not individually but solely in its capacity
as a securities intermediary with respect to the Collateral Account (in such
capacity, together with its successors in such capacity, the "Securities
Intermediary"), and [____________________], a [___________________], not
individually but solely as purchase contract agent and as attorney-in-fact of
the Holders from time to time of the Securities (in such capacity, together with
its successors in such capacity, the "Purchase Contract Agent") under the
Purchase Contract Agreement (as defined herein).
RECITALS
The Company and the Purchase Contract Agent are parties to the Purchase
Contract Agreement, dated as of the date hereof (as modified and supplemented
and in effect from time to time, the "Purchase Contract Agreement"), pursuant to
which there may be issued up to [insert number] SPUS (the "Securities").
Each Corporate SPUS, at issuance, consists of a unit comprised of (a) one
stock purchase contract (each, a "Purchase Contract") under which (i) the Holder
will purchase from the Company on [_________], 20__, for an amount equal to
[$50] (the "Stated Amount"), a number of shares of Common Stock equal to the
Settlement Rate and (ii) the Company will pay the Holder Contract Adjustment
Payments, if any, and (b) a share of Series ___ Preferred Stock of the Company
(each a "Share"), having a liquidation preference equal to the Stated Amount and
being subject to mandatory redemption on [________], 20__.
Pursuant to the terms of the Purchase Contract Agreement and the Purchase
Contracts, the Holders 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 herein of the Collateral Account to secure the
Obligations.
Accordingly, the Company, the Collateral Agent, the Securities Intermediary
and the Purchase Contract Agent, on its own behalf and as attorney-in-fact of
the Holders from time to time of the Securities, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision;
(c) the following terms which are defined in the Code shall have the
meanings set forth therein: "certificated security," "control," "financial
asset," "entitlement order," "securities account" and "security entitlement";
(d) the following terms have the meanings assigned to them in the
Purchase Contract Agreement: (1) Act, (2) Agent, (3) Cash Settlement, (4)
Certificate, (5) Common Stock, (6) Company Resolution, (7) Contract Adjustment
Payments, (8) Corporate SPUS, (9) Early Settlement, (10) Early Settlement
Amount, (11) Early Settlement Date, (12) Failed Remarketing, (13) Holder, (14)
Opinion of Counsel, (15) Outstanding Securities, (16) Purchase Contract, (17)
Purchase Contract Settlement Date, (18) Purchase Price, (19) Remarketing Agent,
(20) Remarketing Agreement, (21) Settlement Rate, (22) Shares, (23) XXXX, (00)
Termination Event, (25) Treasury SPUS and (26) Underwriting Agreement; and
(e) the following terms have the meanings given to them in this
clause (e):
"Agreement" means this Pledge Agreement, as the same may be amended,
modified or supplemented from time to time.
"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 (i) a Saturday or Sunday or a day
on which banking institutions in New York City are authorized or required by law
or executive order to remain closed for business.
"Cash" means any coin or currency of the United States as at the time shall
be legal tender for payment of public and private debts.
"Code" means the Uniform Commercial Code as in effect in the State of New
York from time to time.
"Collateral Account" means the collective reference to (1) Securities
Account No. [_____] entitled "[__________________], as Collateral Agent,
Securities Account ([___________])" maintained by the Securities Intermediary
for the Purchase Contract Agent on behalf of and as attorney-in-fact for the
Holders, (2) all investment property and other financial assets from time to
time credited to the Collateral Account, including, without limitation, (A)
Shares and security entitlements relating thereto which are a component of the
Corporate SPUS from time to time, (B) any Treasury Securities and security
entitlements relating thereto delivered from time to time upon establishment of
Treasury SPUS in accordance with Section 5.2 hereof and (C) payments made by
Holders pursuant to Section 5.5 hereof (collectively, the
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"Collateral"), (3) all Proceeds of any of the foregoing (whether such Proceeds
arise before or after the commencement of any proceeding under any applicable
bankruptcy, insolvency or other similar law, by or against the pledgor or with
respect to the pledgor) and (4) all powers and rights now owned or hereafter
acquired under or with respect to the Collateral Account.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor shall have become such, and thereafter
"Company" shall mean such successor.
"Obligations" means, with respect to each Holder, the collective reference
to all obligations and liabilities of such Holder under such Holder's Purchase
Contract and this Agreement or any other document made, delivered or given in
connection herewith or therewith, in each case whether on account of principal,
interest (including, without limitation, interest accruing before and after the
filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to such Holder, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding),
fees, indemnities, costs, expenses or otherwise (including, without limitation,
all fees and disbursements of counsel to the Company or the Collateral Agent or
the Securities Intermediary that are required to be paid by the Holder pursuant
to the terms of any of the foregoing agreements).
"Permitted Investments" means any one of the following which shall mature
not later than the next succeeding Business Day: (i) any evidence of
indebtedness with an original maturity of 365 days or less issued, or directly
and fully guaranteed or insured, by the United States of America or any agency
or instrumentality thereof (provided that the full faith and credit of the
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United States of America is pledged in support of the timely payment thereof or
such indebtedness constitutes a general obligation of it); (ii) deposits,
certificates of deposit or acceptances with an original maturity of 365 days or
less of any institution which is a member of the Federal Reserve System having
combined capital and surplus and undivided profits of not less than $200.0
million at the time of deposit; (iii) investments with an original maturity of
365 days or less of any Person that are fully and unconditionally guaranteed by
a bank referred to in clause (ii); (iv) repurchase agreements and reverse
repurchase agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by any
agency thereof and backed as to timely payment by the full faith and credit of
the United States Government; (v) investments in commercial paper, other than
commercial paper issued by the Company or its affiliates, of any corporation
incorporated under the laws of the United States or any State thereof, which
commercial paper has a rating at the time of purchase at least equal to "A-1" by
Standard & Poor's Ratings Services ("S&P") or at least equal to "P-1" by Xxxxx'x
Investors Service, Inc. ("Moody's"); and (vi) investments in money market funds
registered under the Investment Company Act of 1940, as amended, rated in the
highest applicable rating category by S&P or Moody's.
"Person" means any legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Pledge" means the lien and security interest created by this Agreement.
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"Pledged Shares" means the Shares and security entitlements with respect
thereto from time to time credited to the Collateral Account and not then
released from the Pledge.
"Pledged Treasury Securities" means Treasury Securities and security
entitlements with respect thereto from time to time credited to the Collateral
Account and not then released from the Pledge.
"Proceeds" has the meaning ascribed thereto in the Code and includes,
without limitation, all interest, dividends, cash, instruments, securities,
financial assets (as defined in ss. 8-102(a)(9) of the Code) and other property
received, receivable or otherwise distributed upon the sale, exchange,
collection or disposition of any financial assets from time to time held in the
Collateral Account.
"Purchase Contract Agent" has the meaning specified in the paragraph
preceding the recitals of this Agreement.
"Trades" means the Treasury/Reserve Automated Debt Entry System maintained
by the Federal Reserve Bank of New York pursuant to the TRADES Regulations.
"TRADES Regulations" means the regulations of the United States Department
of the Treasury, published at 31 C.F.R. Part 357, as amended from time to time.
Unless otherwise defined herein, all terms defined in the TRADES Regulations are
used herein as therein defined.
"Transfer" means:
(1) in the case of certificated securities in registered form,
delivery as provided in ss. 8-301(a) of the Code, endorsed to the
transferee or in blank by an effective endorsement;
(2) in the case of Treasury Securities, registration of the
transferee as the owner of such Treasury Securities on TRADES; and in
the case of security entitlements, including, without limitation,
security entitlements with respect to Treasury Securities, a
securities intermediary indicating by book entry that such security
entitlement has been credited to the transferee's securities account.
"Treasury Security" means a zero-coupon U.S. Treasury Security (CUSIP
Number ________) which are the principal strips of the __% U.S. Treasury
Securities which mature on _____ ___, 20___.
"Value" with respect to any item of Collateral on any date means, as to (i)
Cash, the face amount thereof, (ii) Treasury Securities, the aggregate principal
amount thereof at maturity and (iii) Shares, [the liquidation preference
thereof].
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ARTICLE II
PLEDGE
Section 2.1 Pledge.
Each Holder, acting through the Purchase Contract Agent as such Holder's
attorney-in-fact, hereby pledges and grants to the Collateral Agent, as agent of
and for the benefit of the Company, a continuing first priority security
interest in and to, and a lien upon and right of set off against, all of such
Holder's right, title and interest in and to the Collateral Account to secure
the prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of the Obligations. The Collateral Agent
shall have all of the rights, remedies and recourses with respect to the
Collateral afforded a secured party by the Code, in addition to, and not in
limitation of, the other rights, remedies and recourses afforded to the
Collateral Agent by this Agreement.
Section 2.2 Control; Financing Statement.
(a) The Collateral Agent shall have control of the Collateral
Account pursuant to the provisions of Article IV of this Agreement.
(b) On the date of initial issuance of the Securities, the
Purchase Contract Agent shall deliver to the Collateral Agent a financing
statement prepared by the Company for filing in the Office of the Secretary of
State of the State of [New York], signed by the Purchase Contract Agent, as
attorney-in-fact for the Holders, as debtors, and describing the Collateral.
Section 2.3 Termination.
This Agreement and the Pledge created hereby shall terminate, with respect
to a Holder, upon the satisfaction of such Holder's Obligations. Upon
termination, the Securities Intermediary shall Transfer the Collateral to the
Purchase Contract Agent for distribution to the Holders in accordance with their
respective interests, free and clear of any lien, pledge or security interest
created hereby.
ARTICLE III
DISTRIBUTIONS ON PLEDGED COLLATERAL.
Section 3.1 Income Distributions.
All income distributions, including dividends, received by the Securities
Intermediary on account of the Shares or Permitted Investments from time to time
held in the Collateral Account shall be distributed to the Purchase Contract
Agent for the benefit of the applicable Holders as provided in the Purchase
Contracts.
Section 3.2 Principal Payments Following Termination Event.
All payments received by the Securities Intermediary following a
Termination Event of (1) the principal amount of Pledged Shares or securities
entitlements thereto or (2) the principal
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amount of the Pledged Treasury Securities or securities entitlements thereto
shall be distributed to the Purchase Contract Agent for the benefit of the
Holders for distribution to such Holders in accordance with their respective
interests.
Section 3.3 Principal Payments Prior To Or On Purchase Contract Settlement
Date.
(a) Subject to the provisions of Section 7.2, and except as
provided in clause 3.3(b) below, if no Termination Event shall have occurred,
all payments received by the Securities Intermediary of (1) the liquidation
preference with respect to the Pledged Shares or security entitlements thereto
or (2) the principal amount of Pledged Treasury Securities or security
entitlements thereto shall be held and invested in Permitted Investments until
the Purchase Contract Settlement Date and on the Purchase Contract Settlement
Date distributed to the Company as provided in Section 5.7 hereof. Any balance
remaining in the Collateral Account shall be distributed to the Purchase
Contract Agent for the benefit of the applicable Holders for distribution to
such Holders in accordance with their respective interests.
(b) All payments received by the Securities Intermediary of (1)
the liquidation preference of Shares or security entitlements thereto or (2) the
principal amount of Treasury Securities or security entitlements thereto that in
each case have been released from the Pledge shall be distributed to the
Purchase Contract Agent for the benefit of the Holders to be distributed to such
Holders in accordance with their respective interests.
Section 3.4 Payments To Purchase Contract Agent.
Payments to the Purchase Contract Agent hereunder shall be made to the
account designated by the Purchase Contract Agent for such purpose not later
than 12:00 p.m., New York City time, on the Business Day such payment is
received by the Securities Intermediary; provided, however, that if such payment
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is received 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.
Section 3.5 Assets Not Properly Released.
If the Purchase Contract Agent or any Holder shall receive any payments of
the liquidation amount or principal payments on account of financial assets
credited to the Collateral Account and not released therefrom in accordance with
this Agreement, the Purchase Contract Agent or such Holder shall hold the same
as trustee of an express trust for the benefit of the Company and, upon receipt
of an Officers' Certificate (as defined in the Purchase Contract Agreement) of
the Company so directing, promptly deliver the same to the Securities
Intermediary for credit to the Collateral Account or to the Company for
application to the obligations of the Holders under the related Purchase
Contracts, and the Purchase Contract Agent and Holders shall acquire no right,
title or interest in any such payments of liquidation or principal amounts so
received.
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ARTICLE IV
CONTROL
Section 4.1 Establishment Of Collateral Account.
The Securities Intermediary hereby confirms that (a) the Securities
Intermediary has established the Collateral Account, (b) the Collateral Account
is a securities account, (c) subject to the terms of this Agreement, the
Securities Intermediary shall treat the Purchase Contract Agent as entitled to
exercise the rights that comprise any financial asset credited to the Collateral
Account, (d) all property delivered to the Securities Intermediary pursuant to
this Agreement or the Purchase Contract Agreement will be credited promptly to
the Collateral Account and (e) all securities or other property underlying any
financial assets credited to the Collateral Account shall be registered in the
name of the Securities Intermediary, endorsed to the Securities Intermediary, or
in blank or credited to another securities account maintained in the name of the
Securities Intermediary, and in no case will any financial asset credited to the
Collateral Account be registered in the name of the Purchase Contract Agent or
any Holder, payable to the order of the Purchase Contract Agent or any Holder or
specially endorsed to the Purchase Contract Agent or any Holder.
Section 4.2 Treatment as Financial Assets.
Each item of property (whether investment property, financial asset,
security, instrument or cash) credited to the Collateral Account shall be
treated as a financial asset.
Section 4.3 Sole Control by Collateral Agent.
Except as provided in Article VI, at all times prior to the termination of
the Pledge, the Collateral Agent shall have sole control of the Collateral
Account, and the Securities Intermediary shall take instructions and directions
with respect to the Collateral Account solely from the Collateral Agent. If at
any time the Securities Intermediary shall receive an entitlement order issued
by the Collateral Agent and relating to the Collateral Account, the Securities
Intermediary shall comply with such entitlement order without further consent by
the Purchase Contract Agent or any Holder or any other Person. Until termination
of the Pledge, the Securities Intermediary will not comply with any entitlement
orders issued by the Purchase Contract Agent or any Holder.
Section 4.4 Securities Intermediary's Location.
The Collateral Account and the rights and obligations of the Securities
Intermediary, the Collateral Agent, the Purchase Contract Agent and the Holders
with respect thereto shall be governed by the laws of the State of New York.
Regardless of any provision in any other agreement, for purposes of the Code,
New York shall be deemed to be the Securities Intermediary's location, and the
Collateral Account (as well as the securities entitlements related thereto)
shall be governed by the laws of the State of New York.
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Section 4.5 No Other Claims.
Except for the claims and interest of the Collateral Agent and of the
Purchase Contract Agent and the Holders in the Collateral Account, the
Securities Intermediary does not know of any claim to, or interest in, the
Collateral Account or in any financial asset credited thereto. If any person
asserts any lien, encumbrance or adverse claim (including any writ, garnishment,
judgment, warrant of attachment, execution or similar process) against the
Collateral Account or in any financial asset carried therein, the Securities
Intermediary will promptly notify the Collateral Agent and the Purchase Contract
Agent.
Section 4.6 Investment and Release.
All proceeds of financial assets from time to time deposited in the
Collateral Account shall be invested and reinvested as provided in this
Agreement. At all times prior to termination of the Pledge, no property shall be
released from the Collateral Account except in accordance with this Agreement or
upon written instructions of the Collateral Agent.
Section 4.7 Statements and Confirmations.
The Securities Intermediary will promptly send copies of all statements,
confirmations and other correspondence concerning the Collateral Account and any
financial assets credited thereto simultaneously to each of the Purchase
Contract Agent and the Collateral Agent at their addresses for notices under
this Agreement.
Section 4.8 Tax Allocations.
All items of income, gain, expense and loss recognized in the Collateral
Account shall be reported to the Internal Revenue Service and all state and
local taxing authorities under the names and taxpayer identification numbers of
the Holders that are the beneficial owners thereof.
Section 4.9 No Other Agreements.
The Securities Intermediary has not entered into and prior to the
termination of the Pledge will not enter into any agreement with any other
Person relating to the Collateral Account or any financial assets credited
thereto, including, without limitation, any agreement to comply with entitlement
orders of any Person other than the Collateral Agent.
Section 4.10 Powers Coupled With an Interest.
The rights and powers granted in this Article IV to the Collateral Agent
have been granted in order to perfect its security interests in the Collateral
Account, are powers coupled with an interest and will be affected neither by the
bankruptcy of the Purchase Contract Agent or any Holder nor by the lapse of
time. The obligations of the Securities Intermediary under this Article IV shall
continue in effect until the termination of the Pledge.
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ARTICLE V
INITIAL DEPOSIT; ESTABLISHMENT OF TREASURY SPUS AND
REESTABLISHMENT OF CORPORATE SPUS.
Section 5.1 Initial Deposit of Shares.
Prior to or concurrently with the execution and delivery of this Agreement,
the Purchase Contract Agent, on behalf of the initial Holders of the Corporate
SPUS, shall Transfer to the Securities Intermediary, for credit to the
Collateral Account, the Shares or security entitlements relating to such Shares,
and the Securities Intermediary shall indicate by book entry that a securities
entitlement to such Shares has been credited to the Collateral Account.
Section 5.2 Establishment of Treasury Pies.
(a) At any time on or prior to the seventh Business Day
immediately preceding the Purchase Contract Settlement Date, a Holder of
Corporate SPUS shall have the right to establish or reestablish Treasury SPUS by
substitution of Treasury Securities or security entitlements thereto for the
Pledged Shares comprising a part of such Holder's Corporate SPUS in integral
multiples of 20 Corporate SPUS by:
(i) Transferring to the Securities Intermediary for credit
to the Collateral Account Treasury Securities or security
entitlements thereto having a Value equal to the liquidation
preference of the Pledged Shares to be released, accompanied by a
notice, substantially in the form of Exhibit C to the Purchase
Contract Agreement, whereupon the Purchase Contract Agent shall
deliver to the Collateral Agent a notice, substantially in the
form of Exhibit A hereto, (A) stating that such Holder has
Transferred Treasury Securities or security entitlements thereto
to the Securities Intermediary for credit to the Collateral
Account, (B) stating the Value of the Treasury Securities or
security entitlements thereto Transferred by such Holder and (C)
requesting that the Collateral Agent release from the Pledge the
Pledged Shares that are a component of such Corporate SPUS; and
(ii) delivering the related Corporate SPUS to the Purchase
Contract Agent. Upon receipt of such notice and confirmation that
Treasury Securities or security entitlements thereto have been
credited to the Collateral Account as described in such notice,
the Collateral Agent shall instruct the Securities Intermediary
by a notice, substantially in the form of Exhibit B hereto, to
release such Pledged Shares from the Pledge by Transfer to the
Purchase Contract Agent for distribution to such Holder, free and
clear of any lien, pledge or security interest created hereby.
(b) Upon credit to the Collateral Account of Treasury Securities
or security entitlements thereto delivered by a Holder of Corporate SPUS and
receipt of the related instruction from the Collateral Agent, the Securities
Intermediary shall release the Pledged Shares and shall promptly transfer the
same to the Purchase Contract Agent for distribution to such Holder, free and
clear of any lien, pledge or security interest created hereby.
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Section 5.3 Reestablishment of Corporate Pies.
(a) At any time on or prior to the seventh Business Day
immediately preceding the Purchase Contract Settlement Date, a Holder of
Treasury SPUS shall have the right to reestablish Corporate SPUS by substitution
of Shares or security entitlements thereto for Pledged Treasury Securities in
integral multiples of 20 Treasury SPUS by:
(i) Transferring to the Securities Intermediary for credit
to the Collateral Account Shares or security entitlements thereto
having a liquidation preference equal to the Value of the Pledged
Treasury Securities to be released, accompanied by a notice,
substantially in the form of Exhibit C to the Purchase Contract
Agreement, whereupon the Purchase Contract Agent shall deliver to
the Collateral Agent a notice, substantially in the form of
Exhibit C hereto, stating that such Holder has Transferred Shares
or security entitlements thereto to the Securities Intermediary
for credit to the Collateral Account and requesting that the
Collateral Agent release from the Pledge the Pledged Treasury
Securities related to such Treasury SPUS; and
(ii) delivering the related Treasury SPUS to the Purchase
Contract Agent.
Upon receipt of such notice and confirmation that Shares or security
entitlements thereto have been credited to the Collateral Account as described
in such notice, the Collateral Agent shall instruct the Securities Intermediary
by a notice in the form provided in Exhibit D to release such Pledged Treasury
Securities from the Pledge by Transfer to the Purchase Contract Agent for
distribution to such Holder.
(b) Upon credit to the Collateral Account of Shares or security
entitlements thereto and receipt of the related instruction from the Collateral
Agent, the Securities Intermediary shall release the applicable Pledged Treasury
Securities and shall promptly Transfer the same to the Purchase Contract Agent
for distribution to such Holder, free and clear of any lien, pledge or security
interest created hereby.
Section 5.4 Termination Event.
(a) Upon receipt by the Collateral Agent of written notice from
the Company or the Purchase Contract Agent that a Termination Event has
occurred, the Collateral Agent shall release all Collateral from the Pledge and
shall promptly Transfer: (1 any Pledged Shares; and
(i) any Pledged Treasury Securities
(ii) to the Purchase Contract Agent for the benefit of the
Holders, for distribution to such Holders in accordance with
their respective interests, free and clear of any lien, pledge or
security interest or other interest created hereby.
(b) If such Termination Event shall result from the Company's
becoming a debtor under the Bankruptcy Code, and if the Collateral Agent shall
for any reason fail promptly
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to effectuate the release and Transfer of all Pledged Shares or the Pledged
Treasury Securities, as the case may be, as provided by this Section 5.4, 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 5.4, and shall deliver
such opinion to the Collateral Agent within ten days after the
occurrence of such Termination Event, and if (A) the Purchase
Contract Agent shall be unable to obtain such opinion within ten
days after the occurrence of such Termination Event or (B) the
Collateral Agent shall continue, after delivery of such opinion,
to refuse to effectuate the release and Transfer of all Pledged
Shares, all the Pledged Treasury Securities or the Proceeds of
any of the foregoing, as the case may be, as provided in this
Section 5.4, then the Purchase Contract Agent shall within
fifteen days after the occurrence of such Termination Event
commence an action or proceeding in the court having jurisdiction
of the Company's case under the Bankruptcy Code seeking an order
requiring the Collateral Agent to effectuate the release and
transfer of all Pledged Shares or all the Pledged Treasury
Securities, as the case may be, as provided by this Section 5.4;
or
(ii) commence an action or proceeding like that described in
clause 5.4(b)(1)(B) hereof within ten days after the occurrence
of such Termination Event.
Section 5.5 Cash Settlement.
(a) Upon receipt by the Collateral Agent of
(1) a notice from the Purchase Contract Agent promptly
after the receipt by the Purchase Contract Agent of a notice that
a Holder of a Corporate SPUS or Treasury SPUS has elected, in
accordance with the procedures specified in Section 5.4(a)(i) or
(d)(i) of the Purchase Contract Agreement, respectively, to
settle its Purchase Contract with cash and
(2) payment by such Holder by deposit in the Collateral
Account on or prior to 11:00 a.m., New York City time, on the
fifth Business Day immediately preceding the Purchase Contract
Settlement Date, in the case of Corporate SPUS, and the Business
Day immediately preceding the Purchase Contract Settlement Date,
in the case of the Treasury SPUS, of the Purchase Price in lawful
money of the United States by certified or cashier's check or
wire transfer of immediately available funds payable to or upon
the order of the Securities Intermediary, then the Collateral
Agent shall (i) instruct the Securities Intermediary promptly to
invest any such Cash in Permitted Investments and (ii) release
from the Pledge (1) Pledged Shares in the case of a Holder of
Corporate SPUS, or (2) Pledged Treasury Securities in the case of
a Holder of Treasury SPUS with a liquidation or principal amount
equal to the product of (x) the Stated Amount times (y) the
11
number of such Purchase Contracts as to which such Holders have
elected to effect a cash settlement pursuant to this Section
5.5(a) and shall instruct the Securities Intermediary to Transfer
all such Pledged Shares or Pledged Treasury Securities, as the
case may be, to the Purchase Contract Agent for the benefit of
such Holders, in each case free and clear of the Pledge created
hereby, for distribution to such Holders in accordance with their
respective interests. Upon receipt of the proceeds upon the
maturity of the Permitted Investments on the Purchase Contract
Settlement Date, the Collateral Agent shall (A instruct the
Securities Intermediary to pay the portion of such proceeds and
deliver any certified or cashier's checks received, in an
aggregate amount equal to the Purchase Price, to the Company on
the Purchase Contract Settlement Date, and (B) instruct the
Securities Intermediary to release any amounts in respect of the
interest earned from such Permitted Investments to the Purchase
Contract Agent for distribution to the relevant Holders in
accordance with their respective interests.
(b) If a Holder of a Corporate SPUS notifies the Purchase
Contract Agent as provided in paragraph 5.4(a)(i) of the Purchase Contract
Agreement of its intention to pay the Purchase Price in cash, but fails to make
such payment as required by paragraph 5.4(a)(ii) of the Purchase Contract
Agreement, such Holder shall be deemed to have consented to the disposition of
the Pledged Shares of such Holder in accordance with paragraph 5.4(a)(iii) of
the Purchase Contract Agreement.
(c) If a Holder of a Treasury SPUS notifies the Purchase
Contract Agent as provided in paragraph 5.4(d)(i) of the Purchase Contract
Agreement of its intention to pay the Purchase Price in cash, but fails to make
such payment as required by paragraph 5.4(d)(ii) of the Purchase Contract
Agreement, such Holder shall be deemed to have elected to pay the Purchase Price
in accordance with paragraph 5.4(d)(iii) of the Purchase Contract Agreement.
(d) Prior to 3:00 p.m., New York City time, on the fourth
Business Day immediately preceding the Purchase Contract Settlement Date, the
Securities Intermediary shall deliver to the Purchase Contract Agent a notice,
substantially in the form of Exhibit E hereto, stating (i) the amount of cash
that it has received with respect to the Cash Settlement of Corporate SPUS and
(ii) the amount of cash that it has received with respect to the Cash Settlement
of Treasury SPUS.
Section 5.6 Early Settlement.
Upon written notice to the Collateral Agent by the Purchase Contract Agent
that one or more Holders of Securities have elected to effect Early Settlement
of their respective obligations under the Purchase Contracts forming a part of
such Securities in accordance with the terms of the Purchase Contracts and the
Purchase Contract Agreement (setting forth the number of such Purchase Contracts
as to which such Holders have elected to effect Early Settlement), and that the
Purchase Contract Agent has received from such Holders, and paid to the Company
as confirmed in writing by the Company, the related Early Settlement Amounts
pursuant to the terms of the Purchase Contracts and the Purchase Contract
Agreement and that all conditions to such Early Settlement have been satisfied,
then the Collateral Agent shall release from the
12
Pledge, (a) Pledged Shares, in the case of a Holder of Corporate SPUS, or (b)
Pledged Treasury Securities, in the case of a Holder of Treasury SPUS, with a
Value equal to the product of (i) the Stated Amount times (ii) the number of
Purchase Contracts as to which such Holders have elected to effect Early
Settlement and shall instruct the Securities Intermediary to Transfer all such
Pledged Shares or Pledged Treasury Securities, as the case may be, to the
Purchase Contract Agent for the benefit of such Holders, in each case free and
clear of the Pledge created hereby, for distribution to such Holders in
accordance with their respective interests.
Section 5.7 Application of Proceeds Settlement.
(a) If a Holder of Corporate SPUS has not elected to make an
effective Cash Settlement by notifying the Purchase Contract Agent in the manner
provided for in Section 5.4(a)(i) in the Purchase Contract Agreement, or has
given such notice but failed to deliver the required cash prior to 11:00 a.m.,
New York City time, on the fifth Business Day immediately preceding the Purchase
Contract Settlement Date, such Holder shall be deemed to have elected to pay for
the shares of Common Stock to be issued under such Purchase Contract(s) from the
Proceeds of the related Pledged Shares. In such event, the Collateral Agent
shall instruct the Securities Intermediary to Transfer the related Pledged
Shares to the Remarketing Agent for remarketing. Upon receiving such Pledged
Shares, the Remarketing Agent, pursuant to the terms of the Remarketing
Agreement, will use its reasonable efforts to remarket such Pledged Shares on
such date at a price of 100.50% of the aggregate liquidation preference of such
Pledged Shares. The Remarketing Agent will deposit in the Collateral Account the
portion of the Proceeds of such remarketing equal to 100% the aggregate
liquidation preference of the remarketed Pledged Shares and, pursuant to the
Remarketing Agreement, shall retain the portion of the Proceeds equal to 0.50%
of the aggregate liquidation preference of the remarketed Pledged Shares. On the
Purchase Contract Settlement Date, the Collateral Agent shall instruct the
Securities Intermediary to apply a portion of the Proceeds from such remarketing
equal to the aggregate liquidation preference of such Pledged Shares to satisfy
in full the obligations of such Holders of Corporate SPUS to pay the Purchase
Price to purchase the Common Stock under the related Purchase Contracts. The
balance of the Proceeds from such remarketing on deposit in the Collateral
Account shall be transferred to the Purchase Contract Agent for distribution to
the Holders in accordance with their respective interests. If the Remarketing
Agent advises the Collateral Agent in writing that there has been a Failed
Remarketing, thus resulting in an event of default under the Purchase Contract
Agreement and hereunder, the Collateral Agent, for the benefit of the Company
shall, at the written direction of the Company, dispose of the Pledged Shares in
accordance with applicable law and satisfy in full, from such disposition, such
Holders' obligations to pay the Purchase Price for the Common Stock.
(b) If a Holder of Treasury SPUS has not elected to make an
effective cash settlement by notifying the Purchase Contract Agent in the manner
provided for in Section 5.4(d)(i) of the Purchase Contract Agreement, or has
given such notice but failed to make such payment in the manner required by
Section 5.4(d)(ii) of the Purchase Contract Agreement, such Holder shall be
deemed to have elected to pay for the shares of Common Stock to be issued under
such Purchase Contract(s) from the Proceeds of the related Pledged Treasury
Securities. Upon maturity of the Pledged Treasury Securities, the Securities
Intermediary, at the written direction of the Collateral Agent, shall invest the
Cash Proceeds of the maturing Pledged Treasury Securities in Permitted
Investments. Without receiving any instruction from any such
13
Holder of Treasury SPUS, the Collateral Agent shall apply the Proceeds of the
related Pledged Treasury Securities to the settlement of such Purchase Contracts
on the Purchase Contract Settlement Date. In the event the sum of the Proceeds
from the related Pledged Treasury Securities and the investment earnings from
the investment in Permitted Investments is in excess of the aggregate Purchase
Price of the Purchase Contracts being settled thereby, the Collateral Agent
shall instruct the Securities Intermediary to distribute such excess, when
received, to the Purchase Contract Agent for the benefit of such Holders for
distribution to such Holders in accordance with their respective interests.
ARTICLE VI
VOTING RIGHTS OF PLEDGED SHARES.
The Purchase Contract Agent may exercise, or refrain from exercising, any
and all voting and other consensual rights pertaining to the Pledged Shares 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
Purchase Contract Agent, such action would impair or otherwise have a material
adverse effect on the value of all or any of the Pledged Shares; 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 Shares, including notice of any meeting at which holders of the Shares
are entitled to vote or solicitation of consents, waivers or proxies of holders
of the Shares, the Collateral Agent shall use reasonable efforts to send
promptly to the Purchase Contract Agent such notice or communication, and as
soon as reasonably practicable after receipt of a written request therefor from
the Purchase Contract Agent, execute and deliver to the Purchase Contract Agent
such proxies and other instruments in respect of such Pledged Shares (in form
and substance satisfactory to the Collateral Agent) as are prepared by the
Purchase Contract Agent with respect to the Pledged Shares.
ARTICLE VII
RIGHTS AND REMEDIES.
Section 7.1 Rights and Remedies of the Collateral Agent.
(a) In addition to the rights and remedies specified in Section
5.5 hereof or otherwise available at law or in equity, after an event of default
(as specified in Section 7.1(b) below) hereunder the Collateral Agent shall have
all of the rights and remedies with respect to the Collateral of a secured party
under the Code (whether or not the Code is in effect in the jurisdiction where
the rights and remedies are asserted) and the TRADES Regulations and such
additional rights and remedies to which a secured party is entitled under the
laws in effect in any jurisdiction where any rights and remedies hereunder may
be asserted. Without limiting the generality of the foregoing, such remedies may
include, to the extent permitted by applicable law,
14
(i) retention of the Pledged Shares in full satisfaction of
the Holders' obligations under the Purchase Contracts or
(ii) sale of the Pledged Shares in one or more public or
private sales.
(b) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, in the event the Collateral Agent is unable
to make payments to the Company on account of principal payments of any Pledged
Treasury Securities as provided in Article III 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 inability to make
such payments shall constitute an event of default hereunder and the Collateral
Agent shall have and may exercise, with reference to such Pledged Treasury
Securities and such Obligations of such Holder, any and all of the rights and
remedies available to a secured party under the Code and the TRADES Regulations
after default by a debtor, and as otherwise granted herein or under any other
law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
authorized to receive and collect all payments of (i) dividends on the Pledged
Shares and (ii) the principal amount of the Pledged Treasury Securities,
subject, in each case, to the provisions of Article III hereof, 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 Treasury SPUS, 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 acts, its own negligent failure to act or its
own willful misconduct.
Section 7.2 Substitutions.
Whenever a Holder has the right to substitute Treasury Securities, Shares
or security entitlements to either of them for financial assets held in the
Collateral Account, such substitution shall not constitute a novation of the
security interest created hereby.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES; COVENANTS.
Section 8.1 Representations and Warranties.
Each Holder from time to time, acting through the Purchase Contract Agent as
attorney-in-fact (it being understood that the Purchase Contract Agent shall not
be liable for any representation or warranty made by or on behalf of a Holder),
hereby represent and warrant to the Collateral Agent
15
(with respect to his interest in the Collateral), which representations and
warranties shall be deemed repeated on each day a Holder Transfers Collateral
that:
(a) such Holder has the power to grant a security interest in
and lien on the Collateral;
(b) such Holder is the sole beneficial owner of the Collateral
and, in the case of Collateral delivered in physical form, is the sole holder of
such Collateral and is the sole beneficial owner of, or has the right to
Transfer, the Collateral it Transfers to the Securities Intermediary for credit
to the Collateral Account, free and clear of any security interest, lien,
encumbrance, call, liability to pay money or other restriction other than the
security interest and lien granted under Article II hereof;
(c) upon the Transfer of the Collateral to the Securities
Intermediary for credit to the Collateral Account, the Collateral Agent, for the
benefit of the Company, will have a valid and perfected first priority security
interest therein (assuming that any central clearing operation or any securities
intermediary or other entity not within the control of the Holder involved in
the Transfer of the Collateral, including the Collateral Agent and the
Securities Intermediary, gives the notices and takes the action required of it
hereunder and under applicable law for perfection of that interest and assuming
the establishment and exercise of control pursuant to Article IV hereof); and
(d) the execution and performance by the Holder of its
obligations under this Agreement will not result in the creation of any security
interest, lien or other encumbrance on the Collateral other than the security
interest and lien granted under Article II hereof or violate any provision of
any existing law or regulation applicable to it or of any mortgage, charge,
pledge, indenture, contract or undertaking to which it is a party or which is
binding on it or any of its assets.
Section 8.2 Covenants.
The Purchase Contract Agent and the Holders from time to time, acting
through the Purchase Contract Agent as their attorney-in-fact (it being
understood that the Purchase Contract Agent shall not be liable for any covenant
made by or on behalf of a Holder), hereby covenant to the Collateral Agent that
for so long as the Collateral remains subject to the Pledge:
(a) neither the Purchase Contract Agent nor such Holders will
create or purport to create or allow to subsist any mortgage, charge, lien,
pledge or any other security interest whatsoever over the Collateral or any part
of it other than pursuant to this Agreement; and
(b) neither the Purchase Contract Agent nor such Holders will
sell or otherwise dispose (or attempt to dispose) of the Collateral or any part
of it except for the beneficial interest therein, subject to the Pledge
hereunder, transferred in connection with the Transfer of the Securities.
16
ARTICLE IX
THE COLLATERAL AGENT AND THE
SECURITIES INTERMEDIARY.
It is hereby agreed as follows:
Section 9.1 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 or for the perfection, priority or,
except as expressly required hereby, maintenance of any security interest
created hereunder;
(c) shall not be required to initiate or conduct any litigation
or collection proceedings hereunder (except pursuant to directions furnished
under Section 9.2 hereof, subject to Section 9.6 hereof);
(d) shall not be responsible for any action taken or omitted to
be taken by it hereunder or under any other document or instrument referred to
or provided for herein or in connection herewith or therewith, except for its
own negligence or willful misconduct; and
(e) shall not be required to advise any party as to selling or
retaining, or taking or refraining from taking any action with respect to, any
securities or other property deposited hereunder. Subject to the foregoing,
during the term of this Agreement, the Collateral Agent shall take all
reasonable action in connection with the safekeeping and preservation of the
Collateral hereunder.
No provision of this Agreement shall require the Collateral Agent to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder. In no event shall the Collateral
Agent be liable for any amount in excess of the Value of the Collateral.
Notwithstanding the foregoing, each of the Collateral Agent and the Securities
Intermediary in its individual capacity hereby waives any right of setoff,
bankers lien, liens or
17
perfection rights as securities intermediary or any counterclaim with respect to
any of the Collateral.
Section 9.2 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 9.2 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 9.3 Reliance by Collateral Agent and Securities Intermediary.
Each of the Securities Intermediary and the Collateral Agent shall be
entitled to rely upon any certification, order, judgment, opinion, notice or
other communication (including, without limitation, any thereof by telephone,
telecopy, telex or facsimile) believed by it to be genuine and correct and to
have been signed or sent by or on behalf of the proper Person or Persons
(without being required to determine the correctness of any fact stated therein)
and upon advice and statements of legal counsel and other experts selected by
the Collateral Agent and the Securities Intermediary. As to any matters not
expressly provided for by this Agreement, the Collateral Agent and the
Securities Intermediary shall in all cases be fully protected in acting, or in
refraining from acting, hereunder in accordance with instructions given by the
Company in accordance with this Agreement.
Section 9.4 Rights In Other Capacities.
The Collateral Agent and the Securities Intermediary and their affiliates
may (without having to account therefor to the Company) accept deposits from,
lend money to, make their investments in and generally engage in any kind of
banking, trust or other business with the Purchase Contract Agent, any other
Person interested herein 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, the Securities Intermediary and
their affiliates may accept fees and other consideration from the Purchase
Contract Agent and any Holder of Securities without having to account for the
same to the Company; provided that each of the Securities Intermediary and the
--------
Collateral Agent covenants and agrees with the Company that it shall not accept,
receive or permit there to be created in favor of itself and shall take no
affirmative action to permit there to be created in favor of any other Person,
any security interest, lien or other encumbrance of any kind in or upon the
Collateral other than the lien created by the Pledge.
18
Section 9.5 Non-Reliance on Collateral Agent and Securities Intermediary.
Neither the Securities Intermediary nor the Collateral Agent shall be
required to keep itself informed as to the performance or observance by the
Purchase Contract Agent or any Holder of Securities of this Agreement, the
Purchase Contract Agreement, the Securities or any other document referred to or
provided for herein or therein or to inspect the properties or books of the
Purchase Contract Agent or any Holder of Securities. Neither the Collateral
Agent nor the Securities Intermediary shall have any duty or responsibility to
provide the Company with any credit or other information concerning the affairs,
financial condition or business of the Purchase Contract Agent or any Holder of
Securities (or any of their respective affiliates) that may come into the
possession of the Collateral Agent or the Securities Intermediary or any of
their respective affiliates.
Section 9.6 Compensation and Indemnity.
The Company agrees to: (i) pay the Collateral Agent and the Securities
Intermediary from time to time such compensation as shall be agreed in writing
between the Company and the Collateral Agent or the Securities Intermediary, as
the case may be, for all services rendered by them hereunder and (ii) indemnify
the Collateral Agent and the Securities Intermediary for, and to hold each of
them harmless from and against, any loss, liability or reasonable out-of-pocket
expense incurred without negligence, willful misconduct or bad faith on its
part, arising out of or in connection with the acceptance or administration of
its powers and duties under this Agreement, including the reasonable out-of-
pocket costs and expenses (including reasonable fees and expenses of counsel) of
defending itself against any claim or liability in connection with the exercise
or performance of such powers and duties.
Section 9.7 Failure to Act.
In the event of any ambiguity in the provisions of this Agreement or any
dispute between or conflicting claims by or among the parties hereto or any
other Person with respect to any funds or property deposited hereunder, the
Collateral Agent and the Securities Intermediary shall be entitled, after prompt
notice to the Company and the Purchase Contract Agent, at its sole option, to
refuse to comply with any and all claims, demands or instructions with respect
to such property or funds so long as such dispute or conflict shall continue,
and the Collateral Agent and the Securities Intermediary shall not be or become
liable in any way to any of the parties hereto for its failure or refusal to
comply with such conflicting claims, demands or instructions. The Collateral
Agent and the Securities Intermediary shall be entitled to refuse to act until
either (i) such conflicting or adverse claims or demands shall have been finally
determined by a court of competent jurisdiction or settled by agreement between
the conflicting parties as evidenced in a writing satisfactory to the Collateral
Agent or the Securities Intermediary or (ii) the Collateral Agent or the
Securities Intermediary shall have received security or an indemnity
satisfactory to it sufficient to save it harmless from and against any and all
loss, liability or reasonable out-of-pocket expense which it may incur by reason
of its acting. The Collateral Agent and the Securities Intermediary may in
addition elect to commence an interpleader action or seek other judicial relief
or orders as the Collateral Agent or the Securities Intermediary may deem
necessary. Notwithstanding anything contained herein to the contrary, neither
the Collateral
19
Agent nor the Securities Intermediary shall be required to take any action that
is in its opinion contrary to law or to the terms of this Agreement, or which
would in its opinion subject it or any of its officers, employees or directors
to liability.
Section 9.8 Resignation of Collateral Agent and Securities Intermediary.
(a) Subject to the appointment and acceptance of a successor
Collateral Agent as provided below, (i) the Collateral Agent may resign at any
time by giving notice thereof to the Company and the Purchase Contract Agent as
attorney-in-fact for the Holders of Securities, (ii) the Collateral Agent may be
removed at any time by the Company and (iii) 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 (iii) 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] and shall not be the Purchase
Contract Agent or any of its affiliates. 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 Article IX 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.
Subject to the appointment and acceptance of a successor Securities
Intermediary as provided below, (i) the Securities Intermediary may resign at
any time by giving notice thereof to the Company and the Purchase Contract Agent
as attorney-in-fact for the Holders of Securities, (ii) the Securities
Intermediary may be removed at any time by the Company and (iii) if the
Securities Intermediary fails to perform any of its material obligations
hereunder in any material respect for a period of not less than 20 days after
receiving written notice of such failure by the Purchase Contract Agent and such
failure shall be continuing, the Securities Intermediary may be removed by the
Purchase Contract Agent. The Purchase Contract Agent shall promptly notify the
Company of any removal of the Securities Intermediary pursuant to clause (iii)
of the immediately preceding sentence. Upon any such resignation or removal, the
Company shall have the right to appoint a successor Securities Intermediary. If
no successor Securities Intermediary shall have been so appointed and shall have
accepted such appointment within 30 days after the retiring Securities
Intermediary's giving of notice of resignation or such removal, then the
20
retiring Securities Intermediary may petition any court of competent
jurisdiction for the appointment of a successor Securities Intermediary. The
Securities Intermediary shall be a bank which has an office in New York, New
York with a combined capital and surplus of at least [$50,000,000] and shall not
be the Purchase Contract Agent or any of its affiliates. Upon the acceptance of
any appointment as Securities Intermediary hereunder by a successor Securities
Intermediary, such successor Securities Intermediary shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Securities Intermediary, and the retiring Securities Intermediary shall
take all appropriate action to transfer any money and property held by it
hereunder (including the Collateral) to such successor Securities Intermediary.
The retiring Securities Intermediary shall, upon such succession, be discharged
from its duties and obligations as Securities Intermediary hereunder. After any
retiring Securities Intermediary's resignation hereunder as Securities
Intermediary, the provisions of this Article IX 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 Securities Intermediary.
Section 9.9 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 9.9 shall be subject to prior consent of the Company,
which consent shall not be unreasonably withheld.
Section 9.10 Survival.
The provisions of this Article IX shall survive termination of this
Agreement and the resignation or removal of the Collateral Agent or the
Securities Intermediary.
Section 9.11 Exculpation.
Anything in this Agreement to the contrary notwithstanding, in no event
shall the Collateral Agent or the Securities Intermediary or their officers,
directors, employees or agents be liable under this Agreement to any third party
for indirect, special, punitive, or consequential loss or damage of any kind
whatsoever, including lost profits, whether or not the likelihood of such loss
or damage was known to the Collateral Agent or the Securities Intermediary, or
any of them, incurred without any act or deed that is found to be attributable
to gross negligence or willful misconduct on the part of the Collateral Agent or
the Securities Intermediary.
21
ARTICLE X
AMENDMENT.
Section 10.1 Amendment Without Consent of Holders.
Without the consent of any Holders, the Company, the Collateral Agent, the
Securities Intermediary and the Purchase Contract Agent, at any time and from
time to time, may amend this Agreement, in form satisfactory to the Company, the
Collateral Agent, the Securities Intermediary 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;
(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 Pledge created hereunder;
(3) to evidence and provide for the acceptance of
appointment hereunder by a successor Collateral Agent, Securities
Intermediary or Purchase Contract Agent; or
(4) to cure any ambiguity (or formal defect), to correct or
supplement any provisions herein which may be inconsistent with
any other such provisions herein, or to make any other provisions
with respect to such matters or questions arising under this
Agreement, provided such action shall not adversely affect the
interests of the Holders.
Section 10.2 Amendment with Consent of Holders.
With the consent of the Holders of not less than a majority of the Purchase
Contracts at the time outstanding, by Act of said Holders delivered to the
Company, the Purchase Contract Agent, the Securities Intermediary or the
Collateral Agent, as the case may be, the Company, when duly authorized, the
Purchase Contract Agent, the Securities Intermediary and the Collateral Agent
may amend this Agreement for the purpose of modifying in any manner the
provisions of this Agreement or the rights of the Holders in respect of the
Securities; provided, however, that no such supplemental agreement shall,
-------- -------
without the unanimous consent of the Holders of each Outstanding Security
adversely affected thereby,
(1) change the amount or type of Collateral underlying a
Security (except for the rights of holders of Corporate SPUS to
substitute the Treasury Securities for the Pledged Shares or the
rights of Holders of Treasury SPUS to substitute Shares for the
Pledged Treasury Securities), impair the right of the Holder of
any Security to receive distributions on the underlying
Collateral or otherwise adversely affect the Holder's rights in
or to such Collateral; or
22
(2) otherwise effect any action that would require the
consent of the Holder of each Outstanding Security affected
thereby pursuant to the Purchase Contract Agreement if such
action were effected by an agreement supplemental thereto; or
(3) reduce the percentage of Purchase Contracts the consent
of whose Holders is required for any such amendment;
provided that if any amendment or proposal referred to above would adversely
--------
affect only the Corporate SPUS or only the Treasury SPUS, then only the affected
class of Holder as of the record date for the Holders entitled to vote thereon
will be entitled to vote on such amendment or proposal, and such amendment or
proposal shall not be effective except with the consent of Holders of not less
than a majority of such class; provided that the unanimous consent of the
--------
Holders of each outstanding Purchase Contract of such class affected thereby
shall be required to approve any amendment or proposal specified in clauses
(1) - - (3) above.
It shall not be necessary for any Act of Holders under this Article to
approve the particular form of any proposed amendment, but it shall be
sufficient if such Act shall approve the substance thereof.
Section 10.3 Execution of Amendments.
In executing any amendment permitted by this Section, the Collateral Agent,
the Securities Intermediary and the Purchase Contract Agent shall be entitled to
receive and (subject to Section 7.1 of the Purchase Contract Agreement with
respect to the Purchase Contract Agent) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent, if
any, to the execution and delivery of such amendment have been satisfied.
Section 10.4 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 10.5 Reference to Amendments.
Certificates authenticated, executed on behalf of the Holders and delivered
after the execution of any amendment pursuant to this Section may, and shall if
required by the Collateral Agent or the Purchase Contract Agent, bear a notation
in form approved by the Purchase Contract Agent and the Collateral Agent as to
any matter provided for in such amendment. If the Company shall so determine,
new 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
23
Holders and delivered by the Purchase Contract Agent in accordance with the
Purchase Contract Agreement in exchange for Outstanding Security Certificates.
ARTICLE XI
MISCELLANEOUS.
Section 11.1 No Waiver.
No failure on the part of the Collateral Agent or any of its agents to exercise,
and no course of dealing with respect to, and no delay in exercising, any right,
power or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise by the Collateral Agent or any of its agents of any
right, power or remedy hereunder preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. The remedies herein are
cumulative and are not exclusive of any remedies provided by law.
Section 11.2 Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to its conflicts of laws
principles. Without limiting the foregoing, the above choice of law is expressly
agreed to by the Company, the Securities Intermediary, the Collateral Agent and
the Holders from time to time acting through the Purchase Contract Agent, as
their attorney-in-fact, in connection with the establishment and maintenance of
the Collateral Account. The Company, the Collateral Agent, the Securities
Intermediary 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, the Securities Intermediary 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 11.3 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.
24
Section 11.4 Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the Company, the Collateral Agent, the
Securities Intermediary and the Purchase Contract Agent, and the Holders from
time to time of the Securities, by their acceptance of the same, shall be deemed
to have agreed to be bound by the provisions hereof and to have ratified the
agreements of, and the grant of the Pledge hereunder by, the Purchase Contract
Agent.
Section 11.5 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 11.6 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 11.7 Expenses, Etc.
The Company agrees to reimburse the Collateral Agent and the Securities
Intermediary for: (a) all reasonable out-of-pocket costs and expenses of the
Collateral Agent and the Securities Intermediary (including, without limitation,
the reasonable fees and expenses of counsel to the Collateral Agent and the
Securities Intermediary), in connection with (i) the negotiation, preparation,
execution and delivery or performance of this Agreement and (ii) any
modification, supplement or waiver of any of the terms of this Agreement; (b)
all reasonable costs and expenses of the Collateral Agent and the Securities
Intermediary (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 11.7; and (c) all transfer, stamp,
documentary or other similar taxes, assessments or charges levied by any
governmental or revenue authority in respect of this Agreement or any other
document referred to herein and all costs, expenses, taxes, assessments and
other charges incurred in connection with any filing, registration, recording or
perfection of any security interest contemplated hereby.
Section 11.8 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:
25
(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 the 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.
26
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
[____________________], DOMINION RESOURCES, INC.,
as Purchase Contract Agent and as a Virginia corporation
attorney-in-fact of the Holders from
time to time of the Securities
By: By:
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Attention:
Telecopy: Telecopy: (804) 819-_____
[_____________________], [_________________________]
as Collateral Agent as Securities Intermediary
By: By:
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
Attention: Attention:
Telecopy: Telecopy:
27
EXHIBIT A
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Establishment of Treasury SPUS)
[Securities Intermediary]
Attention:
Telecopy:
Re: ________ SPUS of Dominion Resources, Inc. (the "Company")
Please refer to the Pledge Agreement dated as of _______ [__], ____ (the
"Pledge Agreement"), among the Company, you, as Collateral Agent,
[_____________________], as Securities Intermediary, and the undersigned, as
Purchase Contract Agent and as attorney-in-fact for the holders of SPUS from
time to time. Capitalized terms used herein but not defined shall have the
meaning set forth in the Pledge Agreement.
We hereby notify you in accordance with Section 5.2 of the Pledge Agreement
that the holder of securities named below (the "Holder") has elected to
substitute $__________ Value of Treasury Securities or security entitlements
thereto in exchange for an equal Value of Pledged Shares and has delivered to
the undersigned a notice stating that the Holder has Transferred such Treasury
Securities or security entitlements thereto to the Securities Intermediary, for
credit to the Collateral Account.
We hereby request that you instruct the Securities Intermediary, upon
confirmation that such Treasury Securities or security entitlements thereto have
been credited to the Collateral Account, to release to the undersigned an equal
Value of Pledged Shares in accordance with Section 5.2 of the Pledge Agreement.
[Purchase Contract Agent]
Date:
By:
Name:
Title:
Please print name and address of Holder electing to substitute Treasury
Securities or security entitlements thereto for the Pledged Shares:
__________________
Name
_______________________________________
Social Security or other Taxpayer Identification Number, if any
__________________
Address
__________________
__________________
2
EXHIBIT B
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Establishment of Treasury SPUS)
[Securities Intermediary]
Attention:
Telecopy:
Re: ________ SPUS of Dominion Resources, Inc. (the "Company") Securities
Account No. [________] entitled "[_____________________], as Collateral
Agent, Securities Account ([_____________________])" (the "Collateral
Account")
Please refer to the Pledge Agreement, dated as of _______ [__], ____ (the
"Pledge Agreement"), among the Company, you, as Securities Intermediary,
[_____________________], as Purchase Contract Agent and as attorney-in-fact for
the holders of SPUS from time to time, and the undersigned, as Collateral Agent.
Capitalized terms used herein but not defined shall have the meanings set forth
in the Pledge Agreement.
When you have confirmed that $__________ Value of Treasury Securities or
security entitlements thereto has been credited to the Collateral Account by or
for the benefit of _________, as Holder of SPUS (the "Holder"), you are hereby
instructed to release from the Collateral Account an equal Value of Shares or
security entitlements thereto by Transfer to the Purchase Contract Agent.
[Collateral Agent]
Dated:
By:
Name:
Title:
Please print name and address of Holder:
_____________________
Name
_______________________________________
Social Security or other Taxpayer Identification Number, if any
_____________________
Address
_____________________
_____________________
2
EXHIBIT C
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Reestablishment of Corporate SPUS)
[Collateral Agent]
Attention:
Telecopy:
Re: ________ SPUS of Dominion Resources, Inc. (the "Company")
Please refer to the Pledge Agreement, dated as of _______ [ ], ____ (the
"Pledge Agreement"), among the Company, you, as Collateral Agent,
[_____________________], as Securities Intermediary, and the undersigned, as
Purchase Contract Agent and as attorney-in-fact for the holders of SPUS from
time to time. Capitalized terms used herein but not defined shall have the
meanings set forth in the Pledge Agreement.
We hereby notify you in accordance with Section 5.3(a) of the Pledge
Agreement that the holder of securities listed below (the "Holder") has elected
to substitute $__________ Value of Shares or security entitlements thereto in
exchange for $__________ Value of Pledged Treasury Securities and has delivered
to the undersigned a notice stating that the Holder has Transferred such Shares
or security entitlements thereto to the Securities Intermediary, for credit to
the Collateral Account.
We hereby request that you instruct the Securities Intermediary, upon
confirmation that such Shares or security entitlements thereto have been
credited to the Collateral Account, to release to the undersigned $__________
Value of Treasury Securities or security entitlements thereto related to _____
Treasury SPUS of such Holder in accordance with Section 5.3(a) of the Pledge
Agreement.
[Purchase Contract Agent]
Date:
By:
Name:
Title:
Please print name and address of Holder electing to substitute Pledged
Shares or security entitlements thereto for Pledged Treasury Securities:
____________________
Name
_______________________________________
Social Security or other Taxpayer Identification Number, if any
____________________
Address
____________________
____________________
2
EXHIBIT D
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Reestablishment of Corporate SPUS)
[Securities Intermediary]
Attention:
Telecopy:
Re: ________ SPUS of Dominion Resources, Inc. (the "Company")
Securities Account No. _________ entitled "[_____________________], as
Collateral Agent, Securities Account ([_____________________])" (the
"Collateral Account")
Please refer to the Pledge Agreement, dated as of _______ [__], ____ (the
"Pledge Agreement"), among the Company, you, as Securities Intermediary,
[_____________________], as Purchase Contract Agent and as attorney-in-fact for
the holders of SPUS from time to time, and the undersigned, as Collateral Agent.
Capitalized terms used herein but not defined shall have the meanings set forth
in the Pledge Agreement.
When you have confirmed that $_________ Value of Shares or security
entitlements thereto has been credited to the Collateral Account by or for the
benefit of _________, as Holder of SPUS (the "Holder"), you are hereby
instructed to release from the Collateral Account $__________ Value of Treasury
Securities or security entitlements thereto by Transfer to the Purchase Contract
Agent.
[Collateral Agent]
Dated:
By:
Name:
Title:
Please print name and address of Holder:
_______________________
Name
_______________________________________
Social Security or other Taxpayer Identification Number, if any
_______________________
Address
_______________________
_______________________
2
EXHIBIT E
NOTICE OF CASH SETTLEMENT FROM SECURITIES
INTERMEDIARY TO PURCHASE CONTRACT AGENT
(Cash Settlement Amounts)
[Purchase Contract Agent]
Telecopier No.:
Attention:
Re: ________ SPUS of Dominion Resources, Inc. (the "Company")
Please refer to the Pledge Agreement, dated as of _______ [ ], ____ (the
"Pledge Agreement"), by and among you, the Company, [_____________________], as
Collateral Agent and the undersigned, as Securities Intermediary. Unless
otherwise defined herein, terms defined in the Pledge Agreement are used herein
as defined therein
In accordance with Section 5.5(d) of the Pledge Agreement, we hereby notify
you that as of 11:00 a.m., [(ON THE FIFTH BUSINESS DAY IMMEDIATELY PRECEDING THE
PURCHASE CONTRACT SETTLEMENT DATE)], we have received (i) $_____ in immediately
available funds paid in an aggregate amount equal to the Purchase Price to the
Company on the Purchase Contract Settlement Date with respect to __________
Corporate SPUS and (ii) $_________ in immediately available funds paid in an
aggregate amount equal to the Purchase Price to the Company on the Purchase
Contract Settlement Date with respect to ______ Treasury SPUS.
[Securities Intermediary]
Date:
By:
Name:
Title:
