EXHIBIT 4.15
FORM OF PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of August [__], 1999 among BANK UNITED CORP., a
Delaware 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 2,300,000 PIES (the "Securities").
Each Corporate PIES, 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 [_________], 2002, 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 B Preferred Stock of the Company
(each a "Share"), having a liquidation preference equal to the Stated Amount and
being subject to mandatory redemption on [________], 2004.
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:
Section 1. DEFINITIONS. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
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(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) Board Resolution, (4) Cash
Settlement, (5) Certificate, (6) Common Stock, (7) Contract Adjustment Payments,
(8) Corporate PIES, (9) Early Settlement, (10) Early Settlement Amount, (11)
Early Settlement Date, (12) Holder, (13) Opinion of Counsel, (14) Outstanding
Securities, (15) PIES, (16) Purchase Contract, (17) Purchase Contract Settlement
Date, (18) Purchase Price, (19) Remarketing Agent, (20) Remarketing Agreement,
(21) Settlement Rate, (22) Shares, (23) Termination Event, (24) Treasury PIES
and (25) Underwriting Agreement; and
(e) the following terms have the meanings given to them in this section
1(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 the City of New York 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 PIES from time to time, (B) any Treasury Securities and security
entitlements relating thereto delivered from time to time upon establishment of
Treasury PIES 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.
"FAILED REMARKETING" has the meaning specified in Section 5.4(b) of the
Purchase Contract Agreement.
"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
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 Moody's
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.
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"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.
"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:
(a) in the case of certificated securities in registered form, delivery as
provided in ss. 8-301(a) of the Code, indorsed to the transferee or in blank by
an effective indorsement;
(b) in the case of Treasury Securities, registration of the transferee as
the owner of such Treasury Securities on TRADES; and
(c) 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 _____ ___, 2002.
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"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].
Section 2. 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 Section 4 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.
Section 3. 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 amount of the Pledged Treasury Securities or securities entitlements
thereto shall be distributed to the Purchase Contract
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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 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.
Section 4. 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
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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, indorsed 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
indorsed 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
Section 6, 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.
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.
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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 Section 4 to the Collateral Agent have been granted in order to
perfect its security interests in the Collateral Account, are powers coupled
with an interest and will be affected neither by the bankruptcy of the Purchase
Contract Agent or any Holder nor by the lapse of time. The obligations of the
Securities Intermediary under this Section 4 shall continue in effect until the
termination of the Pledge.
Section 5. INITIAL DEPOSIT; ESTABLISHMENT OF TREASURY PIES AND
REESTABLISHMENT OF CORPORATE PIES.
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 PIES, 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. (a0 At any time on or prior to
the seventh Business Day immediately preceding the Purchase Contract Settlement
Date, a Holder of Corporate PIES shall have the right to establish or
reestablish Treasury PIES by substitution of Treasury Securities or security
entitlements thereto for the Pledged Shares comprising a part of such Holder's
Corporate PIES in integral multiples of 20 Corporate PIES by:
(1 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
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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 PIES; and
(2 delivering the related Corporate PIES 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.
(b0 Upon credit to the Collateral Account of Treasury Securities or
security entitlements thereto delivered by a Holder of Corporate PIES 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.
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 PIES shall have the right to reestablish
Corporate PIES by substitution of Shares or security entitlements thereto for
Pledged Treasury Securities in integral multiples of 20 Treasury PIES by:
(1 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 PIES; and
(2 delivering the related Treasury PIES 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
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Pledged Treasury Securities from the Pledge by Transfer to the Purchase Contract
Agent for distribution to such Holder.
(b0 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
(2 any Pledged Treasury Securities
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.
(b0 If such Termination Event shall result from the Company's becoming a
debtor under the Bankruptcy Code, and if the Collateral Agent shall for any
reason fail promptly to effectuate the release and Transfer of all Pledged
Shares or the Pledged Treasury Securities, as the case may be, as provided by
this Section 5.4, the Purchase Contract Agent shall:
(1 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
(2 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.
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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 PIES or
Treasury PIES 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 PIES, and the Business Day immediately preceding the
Purchase Contract Settlement Date, in the case of the Treasury PIES, 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 PIES, or (2) Pledged Treasury Securities in the
case of a Holder of Treasury PIES with a liquidation or principal amount equal
to the product of (x) the Stated Amount times (y) the 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.
(b0 If a Holder of a Corporate PIES 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.
(c0 If a Holder of a Treasury PIES 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.
(d0 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
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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 PIES and (ii) the amount of cash that it has received
with respect to the Cash Settlement of Treasury PIES.
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 Pledge, (a) Pledged Shares, in the case of a Holder of
Corporate PIES, or (b) Pledged Treasury Securities, in the case of a Holder of
Treasury PIES, 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 PIES 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 PIES 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
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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 PIES 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 Holder of Treasury
PIES, 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.
Section 6. VOTING RIGHTS' 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.
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Section 7. 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, (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 Section 3 hereof, in satisfaction of the
Obligations of the Holder of the Securities of which such Pledged Treasury
Securities is a part under the related Purchase Contracts, the 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 Section 3 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 PIES, 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
15
Collateral Account, such substitution shall not constitute a novation of the
security interest created hereby.
Section 8. 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 (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 Section 2 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 Section 4
hereof); and
(d) the execution and performance by the Holder of its
obligations under this Agreement will not result in the
creation of any security interest, lien or other
encumbrance on the Collateral other than the security
interest and lien granted under Section 2 hereof or violate
any provision of any existing law or regulation applicable
to it or of any mortgage, charge, pledge, indenture,
contract or undertaking to which it is a party or which is
binding on it or any of its assets.
Section 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
16
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.
Section 9. 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
17
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 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.
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
18
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: (i) to 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) to 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 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.
19
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 Section 9 shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was acting as the
Collateral Agent.
(b) 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
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
20
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 Section 9 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the 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 Section 9 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.
Section 10. 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
21
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 PIES to substitute the
Treasury Securities for the Pledged Shares or the rights of Holders of
Treasury PIES 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
(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 PIES or only the Treasury PIES, 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.
22
It shall not be necessary for any Act of Holders under this Section to approve
the particular form of any proposed amendment, but it shall be sufficient if
such Act shall approve the substance thereof.
Section 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 Holders and
delivered by the Purchase Contract Agent in accordance with the Purchase
Contract Agreement in exchange for Outstanding Security Certificates.
Section 11. 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 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,
23
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.
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
24
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:
(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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
[____________________], as Purchase
BANK UNITED CORP., Contract Agent and as
a Delaware 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:
_________________ ___________________
_________________ ___________________
Attention: Attention:
Telecopy: Telecopy:
[_____________________], [_________________________]
as Collateral Agent as Securities Intermediary
By: By:
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
_________________ ___________________
_________________ ___________________
Attention: Attention:
Telecopy: Telecopy:
EXHIBIT A
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Establishment of Treasury PIES)
[Securities Intermediary]
Attention:
Telecopy:
Re: ________ PIES of Bank United Corp.
(the "Company")
Please refer to the Pledge Agreement dated as of August [__], 1999 (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 PIES 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:
3
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
__________________
__________________
EXHIBIT B
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Establishment of Treasury PIES)
[Securities Intermediary]
Attention:
Telecopy:
Re: ________ PIES of Bank United Corp.
(the "Company")
Securities Account No. [________] entitled
"[_____________________], as Collateral Agent, Securities
Account ([_____________________])" (the "Collateral
Account")
Please refer to the Pledge Agreement, dated as of August [__], 1999 (the
"Pledge Agreement"), among the Company, you, as Securities Intermediary,
[_____________________], as Purchase Contract Agent and as attorney-in-fact for
the holders of PIES 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 PIES (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:
2
Please print name and address of Holder:
_____________________ _______________________________
Name Social Security or other
Taxpayer Identification Number,
if any
_____________________
Address
_____________________
_____________________
EXHIBIT C
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Reestablishment of Corporate PIES)
[Collateral Agent]
Attention:
Telecopy:
Re: ________ PIES of Bank United Corp.
(the "Company")
Please refer to the Pledge Agreement, dated as of August [ ], 1999 (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 PIES 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 PIES of such Holder in accordance with Section 5.3(a) of the Pledge
Agreement.
[Purchase Contract Agent]
Date: ____________________________ By:_______________________________
Name:
Title:
2
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
____________________
____________________
EXHIBIT D
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Reestablishment of Corporate PIES)
[Securities Intermediary]
Attention:
Telecopy:
Re: ________ PIES of Bank United Corp.
(the "Company")
Securities Account No. _________ entitled
"[_____________________], as Collateral Agent, Securities
Account ([_____________________])" (the "Collateral
Account")
Please refer to the Pledge Agreement, dated as of August [__], 1999 (the
"Pledge Agreement"), among the Company, you, as Securities Intermediary,
[_____________________], as Purchase Contract Agent and as attorney-in-fact for
the holders of PIES 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 PIES (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
_______________________
_______________________
EXHIBIT E
NOTICE OF CASH SETTLEMENT FROM SECURITIES INTERMEDIARY
TO PURCHASE CONTRACT AGENT
(Cash Settlement Amounts)
[Purchase Contract Agent]
Telecopier No.:
Attention:
Re: ________ PIES of Bank United Corp.
(the "Company")
Please refer to the Pledge Agreement, dated as of August [ ], 1999 (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 PIES 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 PIES.
[Securities Intermediary]
Date: ___________________ By:________________________________
Name:
Title:
================================================================================
DRAFT 8/2/99
BANK UNITED CORP.
and
[___________________________], as Collateral Agent
and
[___________________________], as Securities Intermediary
and
[___________________________], as Purchase Contract Agent
PLEDGE AGREEMENT
Dated as of August [ ], 1999
================================================================================
TABLE OF CONTENTS
Page
Section 1. Definitions......................................................1
Section 2. Pledge...........................................................5
2.1 Pledge...............................................................5
2.2 Control; Financing Statement.........................................5
2.3 Termination..........................................................5
Section 3. 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
Section 4. 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
Section 5. Initial Deposit; Establishment of Treasury PIES and
Reestablishment of Corporate PIES..............................8
5.1 Initial Deposit of Shares............................................8
5.2 Establishment of Treasury PIES.......................................8
5.3 Reestablishment of Corporate PIES....................................9
5.4 Termination Event...................................................10
5.5 Cash Settlement.....................................................11
5.6 Early Settlement....................................................12
5.7 Application of Proceeds Settlement..................................12
Section 6. Voting Rights' Pledged Shares...................................13
i
Section 7. Rights and Remedies.............................................14
7.1 Rights and Remedies of the Collateral Agent.........................14
7.2 Substitutions.......................................................15
Section 8. Representations and Warranties; Covenants.......................15
8.1 Representations and Warranties......................................15
8.2 Covenants...........................................................16
Section 9. 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
Section 10. 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
Section 11. 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
ii
PAGE
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EXHIBIT A Instruction from Purchase Contract Agent to Collateral Agent
(Establishment of Treasury PIES)
EXHIBIT B Instruction from Collateral Agent to Securities Intermediary
(Establishment of Treasury PIES)
EXHIBIT C Instruction from Purchase Contract Agent to Collateral Agent
(Reestablishment of Corporate PIES)
EXHIBIT D Instruction from Collateral Agent to Securities Intermediary
(Reestablishment of Corporate PIES)
EXHIBIT E Notice of Cash Settlement from the Securities Intermediary to the
Purchase Contract Agent.
iii