EXHIBIT 10
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MONSANTO COMPANY
XXXXXXX, XXXXX & CO.,
as Call Option Holder
FIRST UNION NATIONAL BANK
as Collateral Agent and Securities Intermediary
AND
FIRST NATIONAL BANK OF CHICAGO
as Unit Agent and as Attorney-In-Fact
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PLEDGE AGREEMENT
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Dated as of November __, 1998
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PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of November __, 1998, among MONSANTO COMPANY, a
Delaware corporation (the "Company", as such term is more fully defined in the
Master Unit Agreement referred to below), XXXXXXX, SACHS & CO., as Call Option
Holder, FIRST UNION NATIONAL BANK, as Collateral Agent and in its capacity as a
"securities intermediary" as defined in Section 8-102(a)(14) of the Code (as
defined herein) (in such capacity, the "Securities Intermediary"), and FIRST
NATIONAL BANK OF CHICAGO, as Unit Agent and as attorney-in-fact of the Holders
from time to time of the Units.
RECITALS
The Company and the Unit Agent are parties to the Master Unit Agreement,
dated as of the date hereof (as the same may be supplemented or amended from
time to time in accordance with the terms thereof, the "Master Unit Agreement").
The Master Unit Agreement contemplates that the Debentures or Treasury
Securities that from time to time underlie the Units be pledged to the
Collateral Agent to secure the obligations of the Holders of Units under the
Purchase Contracts and Call Options that underlie such Units.
Pursuant to the terms of the Principal Agreements and the Unit
Certificates, the Holders from time to time of the Units irrevocably authorize
the Unit Agent, as attorney-in-fact of such Holders, to execute and deliver
this Agreement on behalf of such Holders and to grant the pledge provided hereby
of the Pledged Securities underlying such Units as provided herein and subject
to the terms hereof.
Accordingly, the Company, the Call Option Holder, the Collateral Agent and
the Unit Agent, in its capacity as Unit Agent and as attorney-in-fact of the
Holders from time to time of the Units, agree as follows:
Section 1. Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) capitalized terms used herein and not defined are used herein as
defined in the Master Unit Agreement;
(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; and
(c) all other terms contained herein shall, unless the context
indicates otherwise, have the meanings assigned to such terms by the Code
(as defined herein) to the extent the same are defined therein.
"Aggregate Call Option Exercise Consideration" has the meaning specified in
the Call Option Agreement.
"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.
"Applicable Treasury Regulations" means Part 357 of Title 31 of the Code of
Federal Regulations (31 CFR (S)(S) 357 et seq.) and any other regulations of the
United States Treasury Department from time to time applicable to the transfer
or pledge of book-entry Treasury Securities.
"Code" has the meaning specified in Section 2 hereof.
"Collateral" has the meaning specified in Section 2 hereof.
"Collateral Account" means the trust account (number [______]) maintained
at [__________________] in the name of "[____________________], as Collateral
Agent".
"Date of Deemed Receipt" means, with respect to any payment received by the
Collateral Agent, the date of receipt thereof; provided, however, that if such
payment is received on a date which is not a Quarterly Payment Date and is not
either a payment in respect of defaulted interest on Debentures or a payment
comprising a part of the Aggregate Call Option Exercise Consideration, "Date of
Deemed Receipt" means, with respect to such payment, the Quarterly Payment Date
next succeeding such date of receipt.
"Pledged Securities" means all Debentures constituting a part of the Units
and any Treasury Securities delivered in exchange for Debentures in accordance
with Section 5(b) and (c) hereof (or securities entitlements thereto) in each
case that have been delivered to the Collateral Agent and not released by the
Collateral Agent to the Unit Agent under the provisions of this Agreement.
"Proceeds" means all interest, dividends, cash, instruments, securities,
financial assets (as defined in Article 8 of the Code) and other property and
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Securities.
Section 2. The Pledge. The Holders from time to time of the Units acting
through the Unit Agent, as their attorney-in-fact, hereby pledge to the
Collateral Agent (for the benefit of the Company and the Call Option Holder as
their interests may appear), and grant to the Collateral Agent, for the benefit
of the Company and the Call Option Holder (as their interests may appear) a
security interest in all of the right, title and interest of such Holders in and
to (i) the Pledged Securities, (ii) the Collateral Account and all securities,
financial assets and other property credited thereto and all security
entitlements related thereto and (iii) all proceeds from each of the foregoing
(collectively, the "Collateral"), as collateral security to ensure the
performance when due by such Holders of their respective obligations under the
Purchase Contracts and Call Options underlying such Units. Concurrently with
the execution of this Agreement, the initial Holders of the first
[__________________] Normal Units issued under the Master Unit Agreement, the
Unit Agent and the Collateral Agent are causing [____________] Debentures to be
delivered to, and registered in the name of, the Collateral Agent, and such
Debentures will thereupon constitute Pledged Securities forming a part of such
Normal Units. As used in this Section 2, the term "delivery" shall have the
meaning ascribed to it in the Uniform Commercial Code as in effect in the State
of New York (the "Code"). In the event that any or all of the additional
[__________] Normal Units that may be issued as a result of an exercise of the
overallotment option of the underwriters under the Underwriting Agreement are
issued pursuant to the Master Unit Agreement at or after the execution of this
Agreement, the initial Holders of such Normal Units, the Unit Agent and the
Collateral Agent shall cause a number of Debentures equal to the number of such
Normal Units to be delivered to, and registered in the name of, the Collateral
Agent, and such Debentures will thereupon constitute Pledged Securities forming
a part of such Normal Units. In addition, the execution hereof by the Unit Agent
and the Collateral Agent shall constitute an acknowledgment by the Collateral
Agent and Securities Intermediary of the Pledge and of the Securities
Intermediary's holding of such Debentures or other Pledged Securities
substituted therefor in accordance with the provisions hereof subject to the
Pledge and of the Securities Intermediary's crediting such Debentures or other
Pledged Securities to the Collateral Account for purposes of perfecting the
Pledge under applicable law, including, to the extent applicable, the Uniform
Commercial Code as adopted and in effect in any applicable jurisdiction and the
Applicable Treasury Regulations. Subject to the Pledge, the Holders from time
to time of the Units shall have full beneficial ownership of the Pledged
Securities underlying such Units, and shall be entitled (directly or through the
Collateral Agent) to all of the rights provided by such Pledged Securities, and
the Company and the Call Option Holder shall have no rights with respect to such
Pledged Securities other than their respective security interests therein.
Section 3. Payments in Respect of the Pledged Securities. Any payment
received by the Collateral Agent in respect of the Pledged Securities underlying
any Normal Units or Stripped Units shall be paid by the Collateral Agent, by
wire transfer in same day funds no
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later than [1:00 p.m.], New York City time, on the Date of Deemed Receipt (or,
if the Date of Deemed Receipt is not a Business Day or if such payment is
received by the Collateral Agent after noon, New York City time, on the Date of
Deemed Receipt, then such payment shall be made by the Collateral Agent no later
than [10:00 a.m.], New York City time, on the next succeeding Business Day), as
follows:
(a) in the case of payments not scheduled to fall on and that are not
in respect of amounts due on the Stock Purchase Date or Early Settlement
Date, as applicable, to the Unit Agent, to the account designated by it for
payments in respect of Normal Units or the account designated by it for
payments in respect of Stripped Units, as the case may be; and
(b) in the case of payments scheduled to fall on or that are in
respect of amounts due on the Stock Purchase Date or Early Settlement Date,
as applicable, (i) with respect to payments received in respect of Units
which are Paid Units (as specified in the notice from the Unit Agent
referred to in Section 4), to the Unit Agent, to the account designated by
it for payments in respect of Paid Units which are Normal Units or the
account designated by it for payments in respect of Paid Units which are
Stripped Units, as the case may be; and (ii) with respect to payments
received in respect of Units which are Unpaid Units (as specified in the
notice from the Unit Agent referred to in Section 4), (x) first, to the
Company, to the account designated by it for such purpose, in an amount
equal to the aggregate amount payable to the Company in respect of such
Unpaid Units, and (y) second, to the extent of any amount remaining after
the payment (if any) referred to in (x) above, to the Unit Agent, to the
account designated by it for payments in respect of Unpaid Units which are
Normal Units; provided, however, that if the Company disputes the notice
from the Unit Agent referred to in Section 4 and notifies the Collateral
Agent in writing, prior to noon, New York City time, on the Stock Purchase
Date or Early Settlement Date, as applicable, that the number of Paid Units
or the number of Unpaid Units (or both) is different from that indicated in
such notice, the foregoing payments with respect to any Paid Units or
Unpaid Units subject to dispute shall not be paid until such dispute is
resolved.
All payments received by the Unit Agent as provided herein shall be
applied by the Unit Agent pursuant to the provisions of the Master Unit
Agreement.
Section 4. Notice with Respect to Numbers of Paid Units and Unpaid Units;
Exercise of Debenture Put Options with Respect to Unpaid Units. By [11:00
a.m.], New York City time, on the Stock Purchase Date or Early Settlement Date,
as applicable, the Unit Agent shall, as provided in the Master Unit Agreement,
notify the Company and the Collateral Agent as to the number of Normal Units and
the number of Stripped Units, respectively, which are Paid Units and the number
of Normal Units and the number of Stripped Units,
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respectively, which are Unpaid Units. Promptly after receiving such
notification, the Collateral Agent, on behalf of such Holder, shall, as Put
Agent, exercise the Debenture Put Option with respect thereto. The payment
received by the Collateral Agent from the exercise of any Debenture Put Option
shall then be applied by the Collateral Agent in accordance with Section 3(b).
Section 5. Release and Substitution of Pledged Securities. (a) Upon
notice to the Collateral Agent by the Company or the Unit Agent that there has
occurred a Termination Event, the Collateral Agent shall release all Pledged
Securities from the Pledge and shall transfer, without recourse, such released
Pledged Securities, free and clear of any lien, pledge or security interest
created hereby, to the Unit Agent for delivery by the Unit Agent pursuant to the
provisions of the Master Unit Agreement.
(b) Upon notice to the Collateral Agent by the Call Option Holder that the
Call Option Holder is exercising the Call Options in accordance with the terms
of the Call Option Agreement with respect to the Debentures underlying the
Normal Units, provided that the Collateral Agent receives the requisite
Aggregate Call Option Exercise Consideration on the Call Settlement Date
specified in such notice, the Collateral Agent shall release such Debentures
from the Pledge and transfer, without recourse, such released Debentures, free
and clear of any lien, pledge or security interest created hereby, to the Call
Option Holder or its designee as specified in such notice, whereupon (i) the
Treasury Securities constituting all or a part of the Aggregate Call Option
Exercise Consideration so received by the Collateral Agent shall be subject to
the Pledge with respect to the Normal Units and (ii) the Pledge shall cease to
constitute a security interest for the benefit of the Call Option Holder.
(c) In connection with a Stripped Unit Creation, upon request by the Unit
Agent to the Collateral Agent to release the then Pledged Securities underlying
the number of Normal Units indicated in such request, provided that the
Collateral Agent has received (i) the Treasury Securities and cash required by
Section 309(a)(i) of the Master Unit Agreement for a Stripped Unit Creation
relating to such Normal Units and (ii) if the Call Options underlying such
Normal Units remain exercisable on the date of receipt of such instruction, an
instrument from the Call Option Holder releasing its security interest in the
Pledged Securities underlying such Normal Units and agreeing that such Call
Options no longer underlie such Normal Units (or the Stripped Units they
become), the Collateral Agent shall release such Pledged Securities from the
Pledge and transfer, without recourse, such released Pledged Securities, free
and clear of any lien, pledge or security interest created hereby, to the Unit
Agent for delivery by the Unit Agent pursuant to the provisions of the Master
Unit Agreement, whereupon the Treasury Securities so received by the Collateral
Agent in connection with such Stripped Unit Creation shall be subject to the
Pledge and constitute the Pledged Securities underlying the Stripped Units so
created.
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(d) In connection with the delivery to the Collateral Agent of Treasury
Securities pursuant to Section 5(b) or (c), such delivery shall be by Federal
Reserve Bank-Wire to the account of the Securities Intermediary designated by it
for such purpose, and the Securities Intermediary and the Call Option Holder or
transferring Holder of Normal Units, as the case may be, shall take appropriate
action (i) so that the applicable Federal Reserve Bank through which such
Treasury Securities have been purchased will reflect such transfer and the
Securities Intermediary shall credit a security entitlement with respect to such
Treasury Securities in the Collateral Account in accordance with Applicable
Treasury Regulations and (ii) as may be required to perfect the Pledge under
Applicable Treasury Regulations and applicable law.
(e) On the Stock Purchase Date or Early Settlement Date, as applicable, the
Collateral Agent shall release the Debentures underlying Units which are Paid
Units (as specified in the notice from the Unit Agent referred to in Section 4)
from the Pledge and transfer, without recourse, such released Debentures, free
and clear of any lien, pledge or security interest created hereby, to the Unit
Agent for delivery pursuant to the provisions of the Master Unit Agreement;
provided, however, that if the Company disputes the notice from the Unit Agent
referred to in Section 4 and notifies the Collateral Agent, prior to noon, New
York City time, on the Stock Purchase Date or Early Settlement Date, as
applicable, that the number of Paid Units is different from that indicated in
such notice, the foregoing release with respect to any Paid Units subject to
dispute shall not be made until such dispute is resolved.
Section 6. Rights and Remedies. (a) 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 said Code is in effect in the jurisdiction where
the rights and remedies are asserted) and, with respect to Pledged Securities
which are Treasury Securities, the Applicable Treasury 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 due to the Company pursuant to the Purchase Contracts
underlying any Units, the Collateral Agent shall have and shall exercise, upon
the written direction of the Company and, if the Call Options are outstanding,
the Call Option Holder, with reference to the Pledged Securities underlying such
Units and the obligations of the Holders of such Units, any and all of the
rights and remedies available to a secured party under the Code and the
Applicable Treasury Regulations after default by a debtor, and as otherwise
granted herein or under any other law.
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(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 principal of or distributions
or interest on the Pledged Securities, in each case subject to the provisions
hereof.
(d) The Unit Agent, the Call Option Holder and each Holder of Units agree
that, from time to time, upon the written request of the Collateral Agent, the
Unit Agent, the Call Option Holder or such Holder of Units 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.
Section 7. The Collateral Agent. The Collateral Agent, the Company and
the Call Option Holder hereby agree among themselves as follows (it being
understood and agreed that, except as provided in Section 7.08, neither the Unit
Agent nor any Holder of Units shall have any rights or duties under this Section
7):
7.01 Appointment, Powers and Immunities. The Collateral Agent shall act
hereunder as agent for the Company and the Call Option Holder, 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 to the
Company or the Call Option Holder for any recitals contained in this Agreement,
or in any certificate or other document referred to or provided for in, or
received by it under, this Agreement, the Units, the Master Unit Agreement, or
the Call Option Agreement or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement (other than as
against the Collateral Agent), the Units, the Master Unit Agreement or the Call
Option Agreement or any other document referred to or provided for herein or
therein or for any failure by the Company, the Call Option Holder, 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 7.02 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 wilful 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 Units or any property deposited
hereunder. Subject to the foregoing, during the term of this
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Agreement the Collateral Agent shall take all reasonable action in connection
with the safekeeping and preservation of the Pledged Securities 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 Pledged Securities.
7.02 Instructions of the Company. The Company (or, with respect to
matters relating to the Call Options, the Call Option Holder) 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 any right or remedy available to the Collateral Agent, or of
exercising any power conferred on the Collateral Agent, or to direct the taking
or refraining from taking of any action authorized by this Agreement; provided,
however, that (a) the Company shall not give any direction that in any way
adversely affects the rights of the Call Option Holder hereunder or under the
Call Options and the Call Option Holder shall not give any direction that in any
way adversely affects the rights of the Company hereunder or under the Purchase
Contracts, (b) such direction shall not conflict with the provisions of any law
or of this Agreement and (c) the Collateral Agent shall be adequately
indemnified as provided herein. Nothing in this Section 7.02 shall impair the
right of the Collateral Agent in its discretion to take any action or omit to
take any action which it deems proper and which is not inconsistent with such
direction.
7.03 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, telegram or cable) 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. 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 or the Call Option Holder, as the case may be, in
accordance with this Agreement.
7.04 Rights in Other Capacities. The Collateral Agent and its affiliates
may (without having to account therefor to the Company or the Call Option
Holder) accept deposits from, lend money to, make investments in and generally
engage in any kind of banking, trust or other business with the Company, the
Call Option Holder, the Unit Agent and any Holder of Units 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 Company, the Call Option Holder,
the Unit Agent and any Holder of Units without having to account for the same to
the Company or the Call Option Holder, provided that the Collateral Agent
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covenants and agrees with the Company and the Call Option Holder 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 Pledged Securities, except as contemplated by the terms hereof.
7.05 Non-Reliance on Collateral Agent. The Collateral Agent shall not be
required to keep itself informed as to the performance or observance by the Unit
Agent or any Holder of Units of this Agreement, the Master Unit Agreement, the
Call Option Agreement, the Units or any other document referred to or provided
for herein or therein or to inspect the properties or books of the Unit Agent or
any Holder of Units. The Collateral Agent shall not have any duty or
responsibility to provide the Company or the Call Option Holder with any credit
or other information concerning the affairs, financial condition or business of
the Unit Agent or any Holder of Units that may come into the possession of the
Collateral Agent or any of its affiliates.
7.06 Compensation and Indemnity. The Company agrees: (a) to pay the
Collateral Agent from time to time reasonable compensation for all services
rendered by it hereunder and (b) to indemnify the Collateral Agent for, and to
hold it harmless against, any loss, liability or expense including taxes (other
than taxes based upon, measured by or determined by the income of the Collateral
Agent) 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 of defending itself
against any claim or liability in connection with the exercise or performance of
such powers and duties. The provisions of this Section 7.06 shall survive the
resignation or removal of the Collateral Agent and the termination of this
Agreement.
7.07 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
undersigned 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 undersigned 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 (a) such conflicting or adverse claims or
demands shall have been finally determined by a court of competent jurisdiction
or settled by agreement between the conflicting parties as evidenced in a
writing satisfactory to the Collateral Agent or (b) 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
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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.
7.08 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, the Unit
Agent and, if the Call Options are exercisable or have been exercised but not
settled, the Call Option Holder, (b) the Collateral Agent may be removed at any
time by the Company (provided, that, if the Call Options are exercisable or have
been exercised but not settled, the Call Option Holder shall have consented to
such removal), 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 notice of such failure by the Unit Agent and such
failure shall be continuing, the Collateral Agent may be removed by the Unit
Agent. The Unit Agent shall promptly notify the Company and, if the Call
Options are exercisable or have been exercised but not settled, the Call Option
Holder of any removal of the Collateral Agent pursuant to clause (c) of the
immediately preceding sentence. Upon any such resignation or removal, the
Company and, if the Call Options are exercisable or have been exercised but not
settled, the Call Option Holder 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 Pledged Securities) 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 7 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.
7.09 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 such agents or advisors selected in good faith.
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7.10 Survival. The provisions of this Section 7 shall survive termination
of this Agreement and the resignation or removal of the Collateral Agent.
Section 8 Miscellaneous.
8.01 Amendments. This Agreement may be amended in the manner set forth in
Section 801 of the Master Unit Agreement for supplemental agreements. In
executing any amendment permitted by this Section, the Collateral Agent shall be
entitled to receive and (subject to Section 7.01 hereof) 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 is for a purpose
set forth in Section 801 of the Master Unit Agreement, and that all conditions
precedent herein and in the Principal Agreements related to such amendment have
been satisfied.
8.02 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.
8.03 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF. The Company, the Call Option Holder, the Collateral
Agent and the Holders from time to time of the Units, acting through the Unit
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 Call Option Holder, the Collateral Agent
and the Holders from time to time of the Units, acting through the Unit 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.
8.04 Legal Holidays. In any case where any Quarterly Payment Date or the
Stock Purchase Date shall not be a Business Day, then (notwithstanding any other
provision of this Agreement or of the Units) the actions required by this
Agreement to occur on such date shall not occur on such date, but instead shall
occur on the next succeeding Business Day
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with the same force and effect as if they had occurred on such Quarterly Payment
Date or Stock Purchase Date, as the case may be; except that if such next
succeeding Business Day is in the next calendar year, such actions shall occur
on the immediately preceding Business Day with the same force and effect as if
made on such Quarterly Payment Date or Stock Purchase Date.
8.05 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.
8.06 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the Company,
the Call Option Holder, the Collateral Agent and the Unit Agent, and the Holders
from time to time of the Units, by their acceptance of the same, shall be deemed
to have agreed to be bound by the provisions hereof and to have ratified the
agreements of, and the grant of the Pledge hereunder by, the Unit Agent, as
their attorney-in-fact.
8.07 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.
8.08 Severability. If any provision hereof is invalid or unenforceable in
any jurisdiction, then, to the fullest extent permitted by law, (a) 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 (b) 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.
8.09 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
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or proceedings resulting or incurred in connection with causing any Holder of
Units to satisfy its obligations under the Purchase Contracts or Call Options
forming a part of the Units and (ii) the enforcement of this Section 8.09; 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.
8.10 Security Interest Absolute. All rights of the Collateral Agent and
security interests hereunder, and all obligations of the Holders from time to
time of the Units hereunder, shall be absolute and unconditional irrespective
of:
(a) any lack of validity or enforceability of any provision of the
Units or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or any
other term of, or any increase in the amount of, all or any of the
obligations of Holders of Units under the related Purchase Contracts or
Call Options or any other amendment or waiver of any term of, or any
consent to any departure from any requirement of, the Master Unit Agreement
or any Units 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.
[SIGNATURE PAGE FOLLOWS]
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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.
MONSANTO COMPANY
By:
--------------------------------------
Name:
Title:
Address for Notices:
Attention:
Telecopy:
XXXXXXX, XXXXX & CO.,
as Call Option Holder
(Xxxxxxx, Sachs & Co.)
Address for Notices:
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Registration Department
Telecopy: 212-357-1557
FIRST NATIONAL BANK OF CHICAGO,
as Unit Agent and as attorney-in-fact of the
Holders from time to time of the Units
By:
--------------------------------------
Name:
Title:
Address for Notices:
Attention:
Telecopy:
FIRST UNION NATIONAL BANK,
as Collateral Agent
By:
--------------------------------------
Name:
Title:
Address for Notices:
Attention:
Telecopy:
