Exhibit 4.3
AMERICAN ELECTRIC POWER COMPANY, INC.,
THE BANK OF NEW YORK,
as Collateral Agent, Custodial Agent
and Securities Intermediary
AND
THE BANK OF NEW YORK
as Forward Purchase Contract Agent
PLEDGE AGREEMENT
Dated as of June 11, 2002
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions...................................................... 2
ARTICLE II
PLEDGE; CONTROL AND PERFECTION
SECTION 2.1 The Pledge....................................................... 4
SECTION 2.2 Control and Perfection........................................... 6
ARTICLE III
PAYMENTS ON PLEDGED COLLATERAL
SECTION 3.1 Payments......................................................... 8
SECTION 3.2 Application of Payments.......................................... 9
ARTICLE IV
SUBSTITUTION, RELEASE, REPLEDGE AND SETTLEMENT OF NOTES
SECTION 4.1 Collateral Substitution and the Creation of Stripped Units....... 9
SECTION 4.2 Collateral Substitution and the Re-Creation of Equity Units...... 10
SECTION 4.3 Termination Event................................................ 11
SECTION 4.4 Early Settlement; Merger Early Settlement; Cash Settlement. ..... 11
SECTION 4.5 Remarketing; Application of Proceeds; Settlement................. 12
ARTICLE V
VOTING RIGHTS-- NOTES
SECTION 5.1 Exercise by Forward Purchase Contract Agent...................... 15
ARTICLE VI
RIGHTS AND REMEDIES; TAX EVENT REDEMPTION
SECTION 6.1 Rights and Remedies of the Collateral Agent...................... 15
SECTION 6.2 Substitutions.................................................... 16
SECTION 6.3 Tax Event Redemption............................................. 17
ARTICLE VII
REPRESENTATIONS AND WARRANTIES; COVENANTS
SECTION 7.1 Representations and Warranties................................... 17
SECTION 7.2 Covenants........................................................ 18
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ARTICLE VIII
THE COLLATERAL AGENT
SECTION 8.1 Appointment, Powers and Immunities............................... 18
SECTION 8.2 Instructions of the Company...................................... 20
SECTION 8.3 Reliance......................................................... 20
SECTION 8.4 Rights in Other Capacities....................................... 21
SECTION 8.5 Non-Reliance on Collateral Agent................................. 21
SECTION 8.6 Compensation and Indemnity....................................... 21
SECTION 8.7 Failure to Act................................................... 22
SECTION 8.8 Resignation...................................................... 23
SECTION 8.9 Right to Appoint Agent or Advisor................................ 24
SECTION 8.10 Survival......................................................... 24
SECTION 8.11 Exculpation...................................................... 24
ARTICLE IX
AMENDMENT
SECTION 9.1 Amendment Without Consent of Holders............................. 25
SECTION 9.2 Amendment with Consent of Holders................................ 25
SECTION 9.3 Execution of Amendments.......................................... 26
SECTION 9.4 Effect of Amendments............................................. 26
SECTION 9.5 Reference to Amendments.......................................... 26
ARTICLE X
MISCELLANEOUS
SECTION 10.1 No Waiver........................................................ 27
SECTION 10.2 GOVERNING LAW.................................................... 27
SECTION 10.3 Notices.......................................................... 27
SECTION 10.4 Successors and Assigns........................................... 28
SECTION 10.5 Counterparts..................................................... 28
SECTION 10.6 Severability..................................................... 28
SECTION 10.7 Expenses, Etc.................................................... 28
SECTION 10.8 Security Interest Absolute....................................... 29
SECTION 10.9 Waiver of Jury Trial............................................. 29
EXHIBIT A Instruction from Forward Purchase Contract Agent to Collateral Agent
EXHIBIT B Instruction to Forward Purchase Contract Agent
EXHIBIT C Instruction to Custodial Agent Regarding Remarketing
EXHIBIT D Instruction to Custodial Agent Regarding Withdrawal from Remarketing
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PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of June 11, 2002 (this
"Agreement"), among American Electric Power Company, Inc., a New York
corporation (the "Company"), The Bank of New York, a New York banking
corporation, not individually but solely as collateral agent (in such
capacity, together with its successors in such capacity, the
"Collateral Agent"), as custodial agent (in such capacity, together
with its successors in such capacity, the "Custodial Agent") and as
"securities intermediary" as defined in Section 8-102(a)(14) of the
Code (as defined herein) (in such capacity, together with its
successors in such capacity, the "Securities Intermediary"), and The
Bank of New York, not individually but solely as forward purchase
contract agent and as attorney-in-fact of the Holders from time to time
of the Equity Units and Stripped Units (in such capacity, together with
its successors in such capacity, the "Forward Purchase Contract Agent")
under the Forward Purchase Contract Agreement (as defined herein).
RECITALS
WHEREAS, the Company and the Forward Purchase Contract Agent
are parties to the Forward Purchase Contract Agreement, dated as of the
date hereof (as modified and supplemented and in effect from time to
time, the "Forward Purchase Contract Agreement"), pursuant to which
there may be issued 6,000,000 Equity Units of the Company (or 6,900,000
Equity Units if the Underwriters exercise their over-allotment option
in full) each having a Stated Amount of $50 per Unit, all of which will
initially be Equity Units.
WHEREAS, each Equity Unit will be comprised of (a) a Forward
Purchase Contract and (b) either beneficial ownership of (i) a Note,
(ii) following the successful remarketing of the Notes in accordance
with the Forward Purchase Contract Agreement and the Remarketing
Agreement, the appropriate Treasury Consideration or (iii) following a
Tax Event Redemption in accordance with the Forward Purchase Contract
Agreement, an Applicable Ownership Interest in the Treasury Portfolio.
WHEREAS, in accordance with the terms of the Forward Purchase
Contract Agreement, a Holder of Equity Units may separate the Notes
from the related Forward Purchase Contracts by substituting for such
Notes Treasury Securities that will pay in the aggregate an amount
equal to the amount due on the Stock Purchase Date under such Forward
Purchase Contracts. Upon such separation, the Equity Units will become
Stripped Units. Each Stripped Unit will be comprised of (a) a Forward
Purchase Contract and (b) a 1/20 undivided beneficial interest in a
Treasury Security.
WHEREAS, pursuant to the terms of the Forward Purchase
Contract Agreement and the Forward Purchase Contracts, the Holders,
from time to time, of the Equity Units and Stripped Units have
irrevocably authorized the Forward 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
plIedge provided hereby of the Notes, any Treasury Consideration, any
Treasury Securities and any Applicable
Ownership Interest in the Treasury Portfolio delivered in exchange
therefor to secure each Holder's obligations under the related Forward
Purchase Contracts, as provided herein and subject to the terms hereof.
NOW, THEREFORE, the Company, the Collateral Agent, the
Securities Intermediary, the Custodial Agent and the Forward Purchase
Contract Agent, on its own behalf and as attorney-in-fact of the
Holders from time to time of the Equity Units and Stripped Units, agree
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) capitalized terms used but not defined herein are used as
defined in the Forward Purchase Contract Agreement;
(b) the defined terms in this Agreement have the meanings
assigned to them in this Article and include the plural as well as the
singular; and
(c) 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.
"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.
"Code" has the meaning specified in Section 6.1(a) hereof.
"Collateral" has the meaning specified in Section 2.1(a)
hereof.
"Collateral Account" means the securities account (number
_________) maintained at ______________________ in the name "The Bank
of New York, a New York banking corporation, as Forward Purchase
Contract Agent on behalf of the holders of certain securities of
American Electric Power Company, Inc., Collateral Account subject to
the American Electric Power Company, Inc., as pledgee" and any
successor account.
"Collateral Agent" has the meaning specified in the first
paragraph of this Agreement.
"Company" means the Person named as the "Company" in the first
paragraph of this Agreement until a successor shall have become such
pursuant to the applicable
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provisions of the Forward Purchase Contract Agreement, and thereafter
"Company" shall mean such successor.
"Custodial Agent" has the meaning specified in the first
paragraph of this Agreement.
"Forward Purchase Contract Agent" has the meaning specified in
the first paragraph of this Agreement.
"Forward Purchase Contract Agreement" has the meaning
specified in the Recitals.
"Intermediary" means any entity that in the ordinary course of
its business maintains securities accounts for others and is acting in
that capacity.
"Pledge" has the meaning specified in Section 2.1(c) hereof.
"Pledged Applicable Ownership Interest in the Treasury
Portfolio" has the meaning specified in Section 2.1(c) hereof.
"Pledged Notes" has the meaning specified in Section 2.1(c)
hereof.
"Pledged Treasury Consideration" has the meaning specified in
Section 2.1(c) hereof.
"Pledged Treasury Securities" has the meaning specified in
Section 2.1(c) hereof.
"Proceeds" means all interest, dividends, cash, instruments,
securities, financial assets (as defined in Section 8-102(a)(9) of the
Code) and other property from time to time received, receivable or
otherwise distributed upon the sale, exchange, collection or
disposition of the Collateral or any proceeds thereof.
"Securities Intermediary" has the meaning specified in the
first paragraph of this Agreement.
"Security Entitlement" has the meaning specified in Section
8-102(a)(17) of the Code.
"Separate Notes" means any Notes that are not Pledged Notes.
"Supplemental Indenture" means that third supplemental
indenture dated as of June 11, 2002, between the Company and The Bank
of New York, as trustee (the "Trustee"), to the indenture dated as of
May 1, 2001, between the Company and the Trustee.
"Tax Event Redemption Date" means the date upon which a Tax
Event Redemption is to occur.
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"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, with respect to the Collateral and in
accordance with the instructions of the Collateral Agent, the Forward
Purchase Contract Agent or the Holder, as applicable:
(i) in the case of Collateral consisting of
securities which cannot be delivered by book-entry or which
the parties agree are to be delivered in physical form,
delivery in appropriate physical form to the recipient
accompanied by any duly executed instruments of transfer,
assignments in blank, transfer tax stamps and any other
documents necessary to constitute a legally valid transfer to
the recipient;
(ii) in the case of Collateral consisting of
securities maintained in book-entry form, delivery by causing
a "securities intermediary" (as defined in Section
8-102(a)(14) of the Code) to (a) credit a "security
entitlement" (as defined in Section 8-102(a)(17) of the Code)
with respect to such securities to a "securities account" (as
defined in Section 8-501(a) of the Code) maintained by or on
behalf of the recipient and (b) to issue a confirmation to the
recipient with respect to such credit. In the case of
Collateral to be delivered to the Collateral Agent, the
securities intermediary shall be the Securities Intermediary
and the securities account shall be the Collateral Account. In
addition, any Transfer of Treasury Securities and Treasury
Consideration hereunder shall be made in accordance with the
TRADES Regulations and other applicable law.
ARTICLE II
PLEDGE; CONTROL AND PERFECTION
SECTION 2.1 The Pledge.
(a) The Holders from time to time acting through the Forward
Purchase Contract Agent, as their attorney-in-fact, and the Forward
Purchase Contract Agent, as such attorney-in-fact, hereby pledge and
grant to the Collateral Agent, for the benefit of the Company, as
collateral security for the performance when due by such Holders of
their respective obligations under the related Forward Purchase
Contracts, a security interest in all of the right, title and interest
of the Forward Purchase Contract Agent and such Holders in:
(i) (A) the Notes, Treasury Consideration, Treasury
Securities and any Applicable Ownership Interest in the
Treasury Portfolio constituting a part of the Equity Units or
Stripped Units, (B) any Treasury Securities delivered in
exchange for any Notes in accordance with Section 4.1 hereof,
and (C) any Notes delivered
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in exchange for any Treasury Securities in accordance with
Section 4.2 hereof, in each case that have been Transferred to
or otherwise received by the Collateral Agent and not released
by the Collateral Agent to such Holders under the provisions
of this Agreement;
(ii) the Collateral Account and all securities,
financial assets, security entitlements, cash and other
property credited thereto and all Security Entitlements
related thereto; and
(iii) all Proceeds of the foregoing (all of the
foregoing, collectively, the "Collateral").
(b) Prior to or concurrently with the execution and delivery
of this Agreement, the Forward Purchase Contract Agent, on behalf of
the initial Holders of the Equity Units, shall cause the Notes
comprising a part of the Equity Units to be Transferred to the
Collateral Agent for the benefit of the Company.
(c) The pledge provided in this Section 2.1 is herein referred
to as the "Pledge" and the Notes (or the Notes that are delivered
pursuant to Section 4.2 hereof), Treasury Consideration, Treasury
Securities or Applicable Ownership Interest in the Treasury Portfolio
subject to the Pledge, excluding any Notes or Treasury Securities
released from the Pledge as provided in Sections 4.1, 4.2 and 4.3
hereof, respectively, are herein referred to as "Pledged Notes,"
"Pledged Treasury Consideration," "Pledged Treasury Securities" or
"Pledged Applicable Ownership Interest in the Treasury Portfolio,"
respectively. Subject to the Pledge and Section 2.2 hereof, the Holders
from time to time shall have full beneficial ownership of the
Collateral. For purposes of perfecting the Pledge under applicable law,
including, to the extent applicable, the TRADES Regulations or the
Uniform Commercial Code as adopted and in effect in any applicable
jurisdiction, the Collateral Agent shall be the agent of the Company as
provided herein. Whenever directed by the Collateral Agent acting on
behalf of the Company, the Securities Intermediary shall have the right
to reregister in its name the Notes or any other securities held in
physical form.
(d) Except as may be required in order to release Notes in
connection with a Tax Event Redemption or with a Holder's election to
convert Equity Units to Stripped Units, or except as otherwise required
to release Notes as specified herein, neither the Collateral Agent, the
Custodial Agent nor the Securities Intermediary shall relinquish
physical possession of any certificate evidencing a Note prior to the
termination of this Agreement. If it becomes necessary for the
Securities Intermediary to relinquish physical possession of a
certificate in order to release a portion of the Notes evidenced
thereby from the Pledge, the Company or the Forward Purchase Contract
Agent shall use its commercially reasonable best efforts to arrange for
the Securities Intermediary to obtain physical possession of a
replacement certificate evidencing any Notes remaining subject to the
Pledge hereunder registered to the Securities Intermediary or endorsed
in blank within fifteen days of the date the Securities Intermediary
relinquished possession. The Securities Intermediary shall promptly
notify the Company and the Collateral Agent of
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the Securities Intermediary's failure to obtain possession of any such
replacement certificate as required hereby.
SECTION 2.2 Control and Perfection.
(a) In connection with the Pledge granted in Section 2.1, and
subject to the other provisions of this Agreement, the Holders from
time to time acting through the Forward Purchase Contract Agent, as
their attorney-in-fact, hereby authorize and direct the Securities
Intermediary (without the necessity of obtaining the further consent of
the Forward Purchase Contract Agent or any of the Holders), and the
Securities Intermediary agrees, to comply with and follow any
instructions and entitlement orders (as defined in Section 8-102(a)(8)
of the Code) that the Collateral Agent may deliver with respect to the
Collateral Account, the Collateral credited thereto and any Security
Entitlements with respect thereto. In the event the Securities
Intermediary receives from the Holders or the Forward Purchase Contract
Agent entitlement orders which conflict with entitlement orders
received from the Collateral Agent, the Securities Intermediary shall
follow the entitlement orders received from the Collateral Agent. Such
instructions and entitlement orders may, without limitation, direct the
Securities Intermediary to transfer, redeem, assign, or otherwise
deliver the Notes, the Treasury Consideration, the Treasury Securities,
any Applicable Ownership Interest in the Treasury Portfolio and any
Security Entitlements with respect thereto or sell, liquidate or
dispose of such assets through a broker designated by the Company, and
to pay and deliver any income, proceeds or other funds derived
therefrom to the Company. The Holders from time to time acting through
the Forward Purchase Contract Agent hereby further authorize and direct
the Collateral Agent itself, as agent of the Company, to issue
instructions and entitlement orders, and to otherwise take action, with
respect to the Collateral Account, the Collateral credited thereto and
any Security Entitlements with respect thereto, pursuant to the terms
and provisions hereof, all without the necessity of obtaining the
further consent of the Forward Purchase Contract Agent or any of the
Holders. The Collateral Agent shall be the agent of the Company and
shall act only in accordance with the terms hereof. Without limiting
the generality of the foregoing, the Collateral Agent shall issue
entitlement orders to the Securities Intermediary as directed in
writing by the Company.
(b) The Securities Intermediary hereby confirms and agrees
that:
(i) all securities or other property underlying any
financial assets credited to the Collateral Account shall be
registered in the name of the Securities Intermediary, or its
nominee, endorsed to the Securities Intermediary, or its
nominee, or in blank and in no case will any financial asset
credited to the Collateral Account be registered in the name
of the Forward Purchase Contract Agent, the Collateral Agent
as such, the Company or any Holder, payable to the order of,
or specially endorsed to, the Forward Purchase Contract Agent,
the Collateral Agent as such, the Company or any Holder except
to the extent the foregoing have been specially endorsed to
the Securities Intermediary or in blank;
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(ii) all property delivered to the Securities
Intermediary pursuant to this Agreement (including, without
limitation, any Notes, Treasury Consideration, Treasury
Securities or Applicable Ownership Interest in the Treasury
Portfolio) will be promptly credited to the Collateral
Account;
(iii) the Collateral Account is an account to which
financial assets are or may be credited, and the Securities
Intermediary shall, subject to the terms of this Agreement,
treat the Forward Purchase Contract Agent as entitled to
exercise the rights of any financial asset credited to the
Collateral Account;
(iv) the Securities Intermediary has not entered
into, and until the termination of this Agreement will not
enter into, any agreement with any other Person relating to
the Collateral Account and/or any financial assets credited
thereto pursuant to which it has agreed to comply with
entitlement orders (as defined in Section 8-102(a)(8) of the
Code) of such other Person;
(v) the Securities Intermediary has not entered into,
and until the termination of this Agreement will not enter
into, any agreement with the Company, the Collateral Agent or
the Forward Purchase Contract Agent purporting to limit or
condition the obligation of the Securities Intermediary to
comply with entitlement orders as set forth in this Section
2.2;
(vii) 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" within the meaning of Section 8-102(a)(9) of
the Code; and
(vii) in the event of any conflict between this
Agreement (or any portion thereof) and any other agreement now
existing or hereafter entered into, the terms of this
Agreement shall prevail.
(c) The Forward Purchase Contract Agent hereby irrevocably
constitutes and appoints the Collateral Agent and the Company, with
full power of substitution, as the Forward Purchase Contract Agent's
attorney-in-fact to take on behalf of, and in the name, place and stead
of, the Forward Purchase Contract Agent and the Holders, any action
necessary or desirable to perfect and to keep perfected the security
interest in the Collateral referred to in Section 2.1. The grant of
such power-of-attorney shall not be deemed to require of the Collateral
Agent any specific duties or obligations not otherwise assumed by the
Collateral Agent hereunder. Notwithstanding the foregoing, in no event
shall the Collateral Agent or Securities Intermediary be responsible
for the preparation or filing of any financing or continuation
statements in the appropriate jurisdictions or responsible for
maintenance or perfection of any security interest hereunder.
(d) The Forward Purchase Contract Agent shall file with the
Internal Revenue Service and deliver to the Holders Forms 1099 (or
successor or comparable forms), to the extent required by law, with
respect to payments by the Holders. Neither the Securities Intermediary
nor the Collateral Agent shall have any tax reporting duties hereunder.
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ARTICLE III
PAYMENTS ON PLEDGED COLLATERAL
SECTION 3.1 Payments.
So long as the Forward Purchase Contract Agent is the registered owner
of the Pledged Notes, Pledged Treasury Consideration, Pledged Applicable
Ownership Interest in the Treasury Portfolio or Pledged Treasury
Securities, it shall receive all payments thereon. If the Pledged Notes are
reregistered, such that the Collateral Agent becomes the registered holder,
all payments of the principal of, or interest or other amounts on, the
Pledged Notes and all payments of the principal of, or cash distributions
on, any Pledged Treasury Consideration, Pledged Treasury Securities or
Pledged Applicable Ownership Interest in the Treasury Portfolio that are
received by the Collateral Agent and that are properly payable hereunder,
shall be paid by the Collateral Agent by wire transfer in same day funds:
(i) in the case of (A) any interest payments with respect to
the Pledged Notes, the Pledged Treasury Consideration or the
appropriate Pledged Applicable Ownership Interest in the Treasury
Portfolio (as specified in clause (B) of the definition of Applicable
Ownership Interest), as the case may be, with respect to Equity Units
which include Pledged Notes, Pledged Treasury Consideration or the
appropriate Pledged Applicable Ownership Interest in the Treasury
Portfolio, as the case may be, and (B) any payments of principal or,
if applicable, the appropriate Applicable Ownership Interest in the
Treasury Portfolio (as specified in clause (A) of the definition of
Applicable Ownership Interest) with respect to any Notes, Treasury
Consideration or the appropriate Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, that have been released from
the Pledge pursuant to Section 4.3 hereof, to the Forward Purchase
Contract Agent, for the benefit of the relevant Holders of the Equity
Units, to the account designated by the Forward Purchase Contract
Agent for such purpose, no later than 10:00 a.m., New York City time,
on the Business Day such payment is received by the Collateral Agent
(provided that in the event such payment is received by the Collateral
Agent on a day that is not a Business Day or after 9:00 a.m., New York
City time, on a Business Day, then such payment shall be made no later
than 9:30 a.m., New York City time, on the next succeeding Business
Day);
(ii) in the case of any payments with respect to any Treasury
Securities that have been released from the Pledge pursuant to Section
4.3 hereof, to the Holders of the Stripped Units to the accounts
designated by them in writing for such purpose no later than 2:00
p.m., New York City time, on the Business Day such payment is received
by the Collateral Agent (provided that in the event such payment is
received by the Collateral Agent on a day that is not a Business Day
or after 10:00 a.m., New York City time, on a Business Day, then such
payment
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shall be made no later than 10:30 a.m., New York City time, on the
next succeeding Business Day); and
(iii) in the case of payments in respect of any Pledged Notes,
Pledged Treasury Consideration, Pledged Treasury Securities or the
appropriate Pledged Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) in the Treasury Portfolio,
as the case may be, to be paid upon settlement of the Holders'
obligations to purchase Common Stock under the Forward Purchase
Contract, to the Company on the Stock Purchase Date in accordance with
the procedure set forth in Section 4.5(a) or 4.5(b) hereof, in full
satisfaction of the respective obligations of the Holders under the
related Forward Purchase Contracts.
SECTION 3.2 Application of Payments.
All payments received by the Forward Purchase Contract Agent as
provided herein shall be applied by the Forward Purchase Contract Agent
pursuant to the provisions of the Forward Purchase Contract Agreement. If,
notwithstanding the foregoing, the Forward Purchase Contract Agent shall
receive any payments of principal on account of any Note, Treasury
Consideration or the appropriate Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) in the Treasury
Portfolio, as applicable, that, at the time of such payment, is a Pledged
Note, Pledged Treasury Consideration or Pledged Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) in the
Treasury Portfolio, as the case may be, or a Holder of Stripped Units shall
receive any payments of principal on account of any Treasury Securities
that, at the time of such payment, are Pledged Treasury Securities, the
Forward Purchase Contract Agent or such Holder shall hold the same as
trustee of an express trust for the benefit of the Company (and promptly
deliver the same over to the Company) for application to the obligations of
the Holders under the related Forward Purchase Contracts, and the Holders
shall acquire no right, title or interest in any such payments of principal
so received.
ARTICLE IV
SUBSTITUTION, RELEASE, REPLEDGE AND SETTLEMENT OF NOTES
SECTION 4.1 Collateral Substitution and the Creation of Stripped Units.
Unless a successful remarketing or a Tax Event Redemption has
occurred, at any time on or prior to the tenth Business Day immediately
preceding the Stock Purchase Date, a Holder of Equity Units shall have the
right to substitute Treasury Securities for the Pledged Notes securing such
Holder's obligations under the Forward Purchase Contracts comprising a part
of such Equity Units, in integral multiples of 20 Equity Units by (a)
Transferring to the Collateral Agent Treasury Securities having an
aggregate principal amount equal to the aggregate Stated Amount of such
Equity Units and (b) delivering such Equity Units to the Forward Purchase
Contract Agent, accompanied by a
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notice, substantially in the form of Exhibit B hereto, to the Forward
Purchase Contract Agent stating that such Holder has Transferred Treasury
Securities to the Collateral Agent pursuant to clause (a) above (stating
the principal amount and the CUSIP numbers of the Treasury Securities
Transferred by such Holder) and requesting that the Forward Purchase
Contract Agent instruct the Collateral Agent to release from the Pledge the
Pledged Notes related to such Equity Units, whereupon the Forward Purchase
Contract Agent shall promptly give such instruction in writing to the
Collateral Agent in the form provided in Exhibit A; provided that such
Holder may not substitute such Treasury Securities for such Pledged Notes
pursuant to this Section 4.1 during the period from four Business Days
prior to any Remarketing Period until the expiration of three Business Days
after the end of such Remarketing Period. Upon receipt of Treasury
Securities from a Holder of Equity Units and the related written
instruction from the Forward Purchase Contract Agent, the Collateral Agent
shall release the Pledged Notes and shall promptly Transfer such Pledged
Notes free and clear of any lien, pledge or security interest created
hereby, to the Forward Purchase Contract Agent. All items Transferred
and/or substituted by any Holder pursuant to this Section 4.1, Section 4.2
or any other Section of this Agreement shall be Transferred and/or
substituted free and clear of all liens, claims and encumbrances.
SECTION 4.2 Collateral Substitution and the Re-Creation of Equity
Units.
Unless a successful remarketing or a Tax Event Redemption has
occurred, at any time on or prior to the tenth Business Day immediately
preceding the Stock Purchase Date, a Holder of Stripped Units shall have
the right to reestablish Equity Units consisting of the Forward Purchase
Contracts and Notes in integral multiples of 20 Equity Units by (x)
Transferring to the Collateral Agent Notes having an aggregate principal
amount equal to the aggregate stated amount of such Stripped Units and (y)
delivering such Stripped Units to the Forward Purchase Contract Agent,
accompanied by a notice, substantially in the form of Exhibit B hereto, to
the Forward Purchase Contract Agent stating that such Holder has
Transferred Notes to the Collateral Agent pursuant to clause (x) above and
requesting that the Forward Purchase Contract Agent instruct the Collateral
Agent to release from the Pledge the Pledged Treasury Securities related to
such Stripped Units, whereupon the Forward Purchase Contract Agent shall
give such instruction to the Collateral Agent in the form provided in
Exhibit A; provided that such Holder of Stripped Units shall not have the
right to reestablish Equity Units pursuant to this Section 4.2 during the
period from four Business Days prior to any Remarketing Period until the
expiration of three Business Days after the end of such Remarketing Period.
Upon receipt of the Notes from such Holder and the instruction from the
Forward Purchase Contract Agent, the Collateral Agent shall release the
Pledged Treasury Securities and shall promptly Transfer such Pledged
Treasury Securities, free and clear of any lien, pledge or security
interest created hereby, to the Forward Purchase Contract Agent.
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SECTION 4.3 Termination Event.
(a) Upon receipt by the Collateral Agent of written notice from the
Company or the Forward Purchase Contract Agent that there has occurred a
Termination Event, the Collateral Agent shall release all Collateral from
the Pledge and shall promptly Transfer any Pledged Notes, Pledged Treasury
Consideration or Pledged Applicable Ownership Interest in the Treasury
Portfolio, as the case may be, and Pledged Treasury Securities to the
Forward Purchase Contract Agent for the benefit of the Holders of the
Equity Units and the Stripped Units, respectively, free and clear of any
lien, pledge or security interest or other interest created hereby.
(b) If such Termination Event shall result from the Company's becoming
a debtor under the Bankruptcy Code, and if the Collateral Agent shall for
any reason fail promptly to effectuate the release and Transfer of all
Pledged Notes, Pledged Treasury Consideration, Pledged Applicable Ownership
Interest in the Treasury Portfolio, or Pledged Treasury Securities, as the
case may be, as provided by this Section 4.3, the Forward Purchase Contract
Agent shall:
(i) use its best efforts to obtain, at the expense of the
Company, an opinion of a nationally recognized law firm reasonably
acceptable to the Collateral Agent to the effect that, as a result of
the Company's being the debtor in such a bankruptcy case, the
Collateral Agent will not be prohibited from releasing or Transferring
the Collateral as provided in this Section 4.3, and shall deliver such
opinion to the Collateral Agent within ten days after the occurrence
of such Termination Event, and if (y) the Forward Purchase Contract
Agent shall be unable to obtain such opinion within ten days after the
occurrence of such Termination Event or (z) the Collateral Agent shall
continue, after delivery of such opinion, to refuse to effectuate the
release and Transfer of all Pledged Notes, Pledged Treasury
Consideration, Pledged Applicable Ownership Interest in the Treasury
Portfolio or Pledged Treasury Securities, as the case may be, as
provided in this Section 4.3, then the Forward Purchase Contract Agent
shall within fifteen days after the occurrence of such Termination
Event commence an action or proceeding in the court with jurisdiction
of the Company's case under the Bankruptcy Code seeking an order
requiring the Collateral Agent to effectuate the release and Transfer
of all Pledged Notes, Pledged Treasury Consideration, Pledged
Applicable Ownership Interest in the Treasury Portfolio or Pledged
Treasury Securities, as the case may be, as provided by this Section
4.3 or
(ii) commence an action or proceeding like that described in
subsection (i)(z) hereof within ten days after the occurrence of such
Termination Event.
SECTION 4.4 Early Settlement; Merger Early Settlement; Cash Settlement.
Upon written notice to the Collateral Agent by the Forward Purchase
Contract Agent that one or more Holders of Equity Units or Stripped Units
have elected to effect
11
Early Settlement, Merger Early Settlement or Cash Settlement of their
respective obligations under the Forward Purchase Contracts forming a part
of such Equity Units or Stripped Units in accordance with the terms of the
Forward Purchase Contracts and the Forward Purchase Contract Agreement
(setting forth the number of such Forward Purchase Contracts as to which
such Holders have elected to effect Early Settlement, Merger Early
Settlement or Cash Settlement), and that the Collateral Agent has received
from such Holders, and paid to the Company, the related Early Settlement
Amounts, Merger Early Settlement Amounts or Cash Settlement Amounts, as the
case may be, pursuant to the terms of the Forward Purchase Contracts and
the Forward Purchase Contract Agreement and that all conditions to such
Early Settlement, Merger Early Settlement or Cash Settlement, as the case
may be, have been satisfied, then the Collateral Agent shall release from
the Pledge (a) Pledged Notes, Pledged Treasury Consideration or Pledged
Applicable Ownership Interest in the Treasury Portfolio, as the case may
be, in the case of a Holder of Equity Units or (b) Pledged Treasury
Securities, in the case of a Holder of Stripped Units, relating to such
Forward Purchase Contracts as to which such Holders have elected to effect
Early Settlement, Merger Early Settlement or Cash Settlement, and shall
Transfer all such Pledged Notes, Pledged Treasury Consideration, Pledged
Applicable Ownership Interest in the Treasury Portfolio or Pledged Treasury
Securities, as the case may be, free and clear of the Pledge created
hereby, to the Forward Purchase Contract Agent for the benefit of such
Holders.
SECTION 4.5 Remarketing; Application of Proceeds; Settlement.
(a) Pursuant to the Forward Purchase Contract Agreement, the Forward
Purchase Contract Agent shall notify, by 10:00 a.m., New York City time, on
the third Business Day preceding the Remarketing Date or the first day of
any subsequent Remarketing Period, as the case may be, the Remarketing
Agent and the Collateral Agent of the aggregate number of Notes comprising
part of Equity Units to be remarketed. The Collateral Agent shall, by 10:00
a.m., New York City time, on the third Business Day immediately preceding
the Remarketing Date or the first day of any subsequent Remarketing Period,
as the case may be, without any instruction from Holders of Equity Units,
Transfer the Pledged Notes to be remarketed to the Remarketing Agent for
remarketing. Upon completion of a successful remarketing which occurs prior
to the fourth Business Day preceding the Stock Purchase Date, after
deducting as the remarketing fee an amount not exceeding 25 basis points
(0.25%) of the total proceeds of such remarketing of Pledged Notes, the
Remarketing Agent will Transfer the Agent-purchased Treasury Consideration
purchased from the proceeds of the remarketing to the Forward Purchase
Contract Agent, which shall thereupon Transfer such Agent-purchased
Treasury Consideration to the Collateral Agent. Upon receipt of the
Agent-purchased Treasury Consideration from the Forward Purchase Contract
Agent following a successful remarketing, (i) the Collateral Agent, for the
benefit of the Company, shall thereupon hold in the Collateral Account such
Agent-purchased Treasury Consideration (as defined in the Forward Purchase
Contract Agreement) to secure such Equity Units Holders' obligations under
the Forward Purchase Contracts and to fund the quarterly interest payment
or payments due to Equity Units Holders on the Stock Purchase Date,
12
and (ii) the remaining portion, if any, of the proceeds of such successful
remarketing shall be distributed by the Remarketing Agent to the Forward
Purchase Contract Agent for payment to such Equity Units Holders
participating in such remarketing. On the Stock Purchase Date, the
Collateral Agent shall, at the direction of the Company, (i) apply that
portion of the payments received in respect of the Pledged Treasury
Consideration equal to the aggregate Stated Amount of the related Equity
Units to satisfy in full the obligations of such Equity Units Holders to
pay the Purchase Price under the related Forward Purchase Contracts and
(ii) apply the remaining portion to pay the quarterly interest payment due
to Equity Units Holders on such Stock Purchase Date, which quarterly
interest payment shall be paid on the Pledged Notes in an amount equal to
the Coupon Rate for such quarterly interest payment. Upon completion of a
successful remarketing which occurs on or after the fourth Business Day
preceding the Stock Purchase Date, after deducting as the remarketing fee
an amount not exceeding 25 basis points (0.25%) of the total proceeds of
such remarketing of Pledged Notes, the Remarketing Agent will deliver the
proceeds of such remarketing to the Forward Purchase Contract Agent, which
shall thereupon deliver such proceeds to the Collateral Agent. Upon receipt
of the proceeds from the Forward Purchase Contract Agent following a
successful remarketing, (i) the Collateral Agent, for the benefit of the
Company, shall thereupon apply such proceeds in direct settlement of the
Equity Units Holders' obligations under the Forward Purchase Contracts and
(ii) the remaining portion, if any, of the proceeds of such successful
remarketing shall be distributed by the Remarketing Agent to the Forward
Purchase Contract Agent for payment to such Equity Units Holders
participating in such remarketing.
(b) The Remarketing Agent shall make one or more attempts to remarket
the Notes in accordance with the procedures set forth in the Forward
Purchase Contract Agreement and the Remarketing Agreement. If by 4:00 p.m.,
New York City time, on the third Business Day immediately preceding the
Stock Purchase Date, the Remarketing Agent has failed to remarket the Notes
at approximately, but not less than, 100.25% of the Remarketing Value (as
described in the Forward Purchase Contract Agreement), the Last Failed
Remarketing shall be deemed to have occurred. Within three Business Days
following the Last Failed Remarketing, the Notes delivered to the
Remarketing Agent pursuant to Section 4.5(a) hereof shall be returned to
the Collateral Agent, together with written notice from the Remarketing
Agent of such Last Failed Remarketing. In this case, the Remarketing Agent
shall advise the Collateral Agent in writing that it cannot remarket the
related Pledged Notes of such Holders of Equity Units and the Holders of
Equity Units that have not made a Cash Settlement, Early Settlement or
Merger Early Settlement shall be deemed to have directed the Company to
retain or dispose of the Pledged Notes in satisfaction of their obligations
under the Forward Purchase Contracts. The Collateral Agent, for the benefit
of the Company will, at the written direction of the Company, retain or
dispose of the Pledged Notes in accordance with applicable law and satisfy
in full, from any such disposition or retention, such Holders' obligations
to pay the Purchase Price for the Common Stock; provided, that if upon the
Last Failed Remarketing, the Collateral Agent exercises such rights for the
benefit of the Company with respect to such Notes, any accrued and unpaid
interest on such Notes will become
13
payable by the Company to the Forward Purchase Contract Agent for payment
to the Holders of the Equity Units to which such Notes relate in accordance
with the Forward Purchase Contract Agreement.
(c) In the event a Holder of Stripped Units has not effected a Cash
Settlement, Early Settlement or Merger Early Settlement of the Forward
Purchase Contracts underlying its Stripped Units, such Holder shall be
deemed to have elected to pay for the shares of Common Stock to be issued
under such Forward Purchase Contracts from the payments received in respect
of the related Pledged Treasury Securities. Without receiving any
instruction from any such Holder, the Collateral Agent shall apply such
payments to the settlement of such Forward Purchase Contracts on the Stock
Purchase Date. In the event the payments received in respect of the related
Pledged Treasury Securities are in excess of the aggregate Purchase Price
under the Forward Purchase Contracts being settled thereby, the Collateral
Agent shall distribute such excess, when received, to the Forward Purchase
Contract Agent for the benefit of such Holders of the Stripped Units.
(d) On or prior to the fourth Business Day preceding the Remarketing
Date or the first day of any subsequent Remarketing Period, but no earlier
than the Payment Date immediately preceding the last Payment Date before
the Stock Purchase Date, holders of Separate Notes may elect to have their
Separate Notes remarketed by Transferring their Separate Notes and
delivering a notice of such election, substantially in the form of Exhibit
C hereto, to the Custodial Agent. On the third Business Day prior to the
Remarketing Date or the first day of any subsequent Remarketing Period, by
10:00 a.m., New York City time, the Custodial Agent shall notify the
Remarketing Agent of the number of such Separate Notes to be remarketed.
The Custodial Agent will hold such Separate Notes in an account separate
from the Collateral Account. A holder of Separate Notes electing to have
its Separate Notes remarketed will also have the right to withdraw such
election by written notice to the Custodial Agent, substantially in the
form of Exhibit D hereto, on or prior to the fourth Business Day
immediately preceding the applicable Remarketing Date or first day of a
subsequent Remarketing Period, upon which notice the Custodial Agent will
return such Separate Notes to such holder. On the third Business Day
immediately preceding the Remarketing Date or the first day of any
subsequent Remarketing Period, the Custodial Agent at the written direction
of the Remarketing Agent will deliver to the Remarketing Agent for
remarketing all Separate Notes delivered to the Custodial Agent pursuant to
this Section 4.5(d) and not withdrawn pursuant to the terms hereof prior to
such date. After deducting as the remarketing fee an amount not exceeding
25 basis points (0.25%) of the total proceeds of such remarketing of such
Separate Notes, the Remarketing Agent will remit to the Custodial Agent the
portion of the proceeds from such remarketing, if successful, equal to the
amount calculated in respect of such Separate Notes as set forth in Section
1.6 of the Supplemental Indenture. If, despite using its commercially
reasonable best efforts, the Remarketing Agent advises the Custodial Agent
in writing that there has been a Failed Remarketing, the Remarketing Agent
will promptly return such Separate Notes to the Custodial Agent for
redelivery to such holders of such Separate Notes.
14
ARTICLE V
VOTING RIGHTS -- NOTES
SECTION 5.1 Exercise by Forward Purchase Contract Agent.
Subject to the terms of the Forward Purchase Contract Agreement, the
Forward Purchase Contract Agent may exercise, or refrain from exercising,
any and all voting and other consensual rights pertaining to the Pledged
Notes or any part thereof for any purpose not inconsistent with the terms
of this Agreement and in accordance with the terms of the Forward Purchase
Contract Agreement; provided, that the Forward Purchase Contract Agent
shall not exercise or, as the case may be, shall not refrain from
exercising such right if, in the judgment of the Company, such action would
impair or otherwise have a material adverse affect on the value of all or
any of the Pledged Notes; and provided, further, that the Forward 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 Notes, including notice of any meeting at which holders of Notes
are entitled to vote or solicitation of consents, waivers or proxies of
holders of Notes, the Collateral Agent shall use reasonable efforts to send
promptly to the Forward Purchase Contract Agent such notice or
communication, and as soon as reasonably practicable after receipt of a
written request therefor from the Forward Purchase Contract Agent, execute
and deliver to the Forward Purchase Contract Agent such proxies and other
instruments in respect of such Pledged Notes (in form and substance
satisfactory to the Collateral Agent) as are prepared by the Forward
Purchase Contract Agent with respect to the Pledged Notes.
ARTICLE VI
RIGHTS AND REMEDIES; TAX EVENT REDEMPTION
SECTION 6.1 Rights and Remedies of the Collateral Agent.
(a) In addition to the rights and remedies available at law or in
equity, after an event of default under the Forward Purchase Contracts, the
Collateral Agent shall have all of the rights and remedies with respect to
the Collateral of a secured party under the Uniform Commercial Code (or any
successor thereto) as in effect in the State of New York from time to time
(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. Wherever reference is made in this Agreement to
any section of the Code, such reference shall be deemed to include a
reference to any provision of the Code, which is a successor to, or
amendment of, such section. Without limiting the generality of the
foregoing, such remedies may include, to the extent permitted by applicable
law, (i) retention of the Pledged Notes or other Collateral in full
satisfaction of the Holders'
15
obligations under the Forward Purchase Contracts or (ii) sale of the
Pledged Notes or other Collateral in one or more public or private sales,
in each case at the written direction of the Company.
(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 any Pledged Treasury
Consideration, Pledged Applicable Ownership Interest in the Treasury
Portfolio or Pledged Treasury Securities as provided in Article III hereof
in satisfaction of the obligations of the Holder of the Equity Units or
Stripped Units of which such Pledged Treasury Consideration, Pledged
Applicable Ownership Interest in the Treasury Portfolio or Pledged Treasury
Securities, as applicable, are a part under the related Forward Purchase
Contracts, the inability to make such payments shall constitute an event of
default under the Forward Purchase Contracts and the Collateral Agent shall
have and may exercise, with reference to such Pledged Treasury
Consideration, Pledged Applicable Ownership Interest in the Treasury
Portfolio or Pledged Treasury Securities, as applicable, 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) the
principal amount of, or interest on, the Pledged Notes, or (ii) the
principal amount of, or interest (if any) on, the Pledged Treasury
Consideration, Pledged Applicable Ownership Interest in the Treasury
Portfolio or Pledged Treasury Securities, subject, in each case, to the
provisions of Article III, and as otherwise granted herein.
(d) The Forward Purchase Contract Agent, individually and as
attorney-in-fact for each Holder of Equity Units and Stripped Units, agrees
that, from time to time, upon the written request of the Company or the
Collateral Agent (acting upon the written request of the Company), the
Forward Purchase Contract Agent or such Holder shall execute and deliver
such further documents and do such other acts and things as the Company or
the Collateral Agent (acting upon the written request of the Company) 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 Forward Purchase Contract Agent shall have no liability to
any Holder for executing any documents or taking any such acts requested by
the Company or the Collateral Agent (acting upon the written request of the
Company) hereunder, except for liability for its own negligent act, its own
negligent failure to act, its bad faith or its own willful misconduct.
SECTION 6.2 Substitutions.
Whenever a Holder has the right to substitute Treasury Securities or
Notes for Collateral held by the Collateral Agent, such substitution shall
not constitute a novation of the security interest created hereby.
16
SECTION 6.3 Tax Event Redemption.
Upon the occurrence of a Tax Event Redemption prior to the earlier of
a successful remarketing of the Pledged Notes or the Stock Purchase Date,
the aggregate Redemption Price payable on the Tax Event Redemption Date
with respect to such Pledged Notes shall be delivered to the Collateral
Agent by the Trustee at or prior to 12:00 p.m., New York City time, by wire
transfer in immediately available funds at such place and at such account
as may be designated by the Collateral Agent in exchange for the Pledged
Notes. In the event the Collateral Agent receives such Redemption Price,
the Collateral Agent will, at the written direction of the Company, apply
an amount, out of such Redemption Price, equal to the aggregate Tax Event
Redemption Principal Amount with respect to the Pledged Notes to purchase
from the Quotation Agent the Treasury Portfolio and promptly remit the
remaining portion of such Redemption Price to the Forward Purchase Contract
Agent for payment to the Holders of Equity Units. The Collateral Agent
shall Transfer the Treasury Portfolio to the Collateral Account to secure
the obligation of all Holders of Equity Units to purchase Common Stock of
the Company under the Forward Purchase Contracts constituting a part of
such Equity Units, in substitution for the Pledged Notes. Thereafter the
Collateral Agent shall have such security interests, rights and obligations
with respect to the Treasury Portfolio as it had in respect of the Pledged
Notes as provided in Articles II, III, IV, V and VI, and any reference
herein to the Notes shall be deemed to be a reference to such Treasury
Portfolio, and any reference herein to interest on the Notes shall be
deemed to be a reference to distributions on such Treasury Portfolio.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES; COVENANTS
SECTION 7.1 Representations and Warranties.
The Holders from time to time, acting through the Forward Purchase
Contract Agent as their attorney-in-fact (it being understood that the
Forward Purchase Contract Agent shall not be liable for any representation
or warranty made by or on behalf of a Holder), hereby represent and warrant
to the Collateral Agent, which representations and warranties shall be
deemed repeated on each day a Holder Transfers Collateral that:
(a) such Holder has the power to grant a security interest in and lien
on the Collateral;
(b) such Holder is the sole beneficial owner of the Collateral and, in
the case of Collateral delivered in physical form, is the sole holder of
such Collateral and is the sole beneficial owner of, or has the right to
Transfer, the Collateral it Transfers to the Collateral Agent, free and
clear of any security interest, lien, encumbrance, call, liability to pay
money or other restriction other than the security interest and lien
granted under Section 2.1 hereof;
17
(c) upon the Transfer of the Collateral 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 Intermediary or other entity not within
the control of the Holder involved in the Transfer of the Collateral,
including the Collateral Agent, gives the notices and takes the action
required of it hereunder and under applicable law for perfection of that
interest and assuming the establishment and exercise of control pursuant to
Section 2.2 hereof); and
(d) the execution and performance by the Holder of its obligations
under this Agreement will not result in the creation of any security
interest, lien or other encumbrance on the Collateral other than the
security interest and lien granted under Section 2.1 hereof or violate any
provision of any existing law or regulation applicable to it or of any
mortgage, charge, pledge, indenture, contract or undertaking to which it is
a party or which is binding on it or any of its assets.
SECTION 7.2 Covenants.
The Holders from time to time, acting through the Forward Purchase
Contract Agent as their attorney-in-fact (it being understood that the
Forward 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 Forward 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 Forward 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 sale or other
disposition of the Equity Units and Stripped Units.
ARTICLE VIII
THE COLLATERAL AGENT
SECTION 8.1 Appointment, Powers and Immunities.
(a) 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. Each of the Collateral Agent, the Custodial Agent and
the Securities Intermediary:
(i) shall have no duties or responsibilities except those
expressly set forth in this Agreement and no implied covenants or
obligations shall be inferred
18
from this Agreement against any of them, nor shall any of them be
bound by the provisions of any agreement by any party hereto beyond
the specific terms hereof;
(ii) 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 Equity
Units or Stripped Units or the Forward Purchase Contract Agreement, or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement (other than as against the Collateral
Agent, the Custodial Agent or the Securities Intermediary, as the case
may be), the Equity Units or Stripped Units or the Forward 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, the Custodial Agent or the
Securities Intermediary, as the case may be) to perform any of its
obligations hereunder or thereunder or for the perfection, priority
or, except as expressly required hereby, existence, validity,
perfection or maintenance of any security interest created hereunder;
(iii) shall not be required to initiate or conduct any litigation
or collection proceedings hereunder (except in the case of the
Collateral Agent, pursuant to written directions furnished under
Section 8.2 hereof, subject to Section 8.6 hereof);
(iv) 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 gross negligence or willful misconduct;
and
(v) shall not be required to advise any party as to selling or
retaining, or taking or refraining from taking any action with respect
to, the Equity Units or Stripped Units 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.
(b) No provision of this Agreement shall require the Collateral Agent,
the Custodial Agent or the Securities Intermediary 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, the
Custodial Agent or the Securities Intermediary be liable for any amount in
excess of the value of the Collateral or for any special, indirect,
individual or consequential damages or lost profits or loss of business,
arising in connection with this Agreement even if the Collateral Agent, the
Custodial Agent or the Securities Intermediary has been advised of the
likelihood of such loss or damage being incurred and regardless of the form
of action. Notwithstanding the foregoing, the Collateral Agent, the
Custodial Agent, the Forward Purchase Contract Agent and the Securities
Intermediary, each in its individual capacity, hereby waive any right of
setoff,
19
banker's lien, liens or perfection rights as securities intermediary or any
counterclaim with respect to any of the Collateral.
(c) The Collateral Agent, Custodial Agent and Securities Intermediary
shall have no liability whatsoever for the action or inaction of any
Clearing Agency or any book-entry system thereof. In no event shall any
Clearing Agency or any book-entry system thereof be deemed an agent or
subcustodian of the Collateral Agent, Custodial Agent and Securities
Intermediary. The Collateral Agent, Custodial Agent and Securities
Intermediary shall not be responsible or liable for any failure or delay in
the performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable
control, including, without limitation, acts of God; earthquakes; fires;
floods; war (whether declared or undeclared); terrorism; civil or military
disturbances; sabotage; epidemics; riots; interruptions, loss or
malfunctions of utilities, computer (hardware or software) or
communications service; accidents; labor disputes; acts of civil or
military authority; governmental actions; or inability to obtain labor,
material, equipment or transportation.
SECTION 8.2 Instructions of the Company.
The Company shall have the right, by one or more instruments in
writing executed and delivered to the Collateral Agent, the Custodial Agent
or the Securities Intermediary, as the case may be, 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, the Custodial Agent or the
Securities Intermediary, as the case may be, 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,
the Custodial Agent and the Securities Intermediary shall each receive
indemnity reasonably satisfactory to it as provided herein. Nothing in this
Section 8.2 shall impair the right of the Collateral Agent in its
discretion to take any action or omit to take any action which it deems
proper and which is not inconsistent with such direction.
SECTION 8.3 Reliance.
Each of the Collateral Agent, the Custodial Agent and the Securities
Intermediary shall be entitled conclusively to rely upon any certification,
order, judgment, opinion, notice or other communication (including, without
limitation, any thereof by telephone or facsimile) reasonably 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, the
Custodial Agent or the Securities Intermediary, as the case may be. As to
any matters not expressly provided for by this Agreement, the Collateral
Agent, the Custodial Agent and the Securities Intermediary shall in all
cases be fully protected in acting, or in refraining from acting,
20
hereunder in accordance with instructions given by the Company in
accordance with this Agreement.
SECTION 8.4 Rights in Other Capacities.
The Collateral Agent, the Custodial Agent and the Securities
Intermediary and their affiliates may (without having to account therefor
to the Company) accept deposits from, lend money to, make investments in
and generally engage in any kind of banking, trust or other business with
the Forward Purchase Contract Agent, any Holder of Equity Units or Stripped
Units and any holder of Separate Notes (and any of their respective
subsidiaries or affiliates) as if it were not acting as the Collateral
Agent, the Custodial Agent or the Securities Intermediary, as the case may
be, and the Collateral Agent, the Custodial Agent and the Securities
Intermediary and their affiliates may accept fees and other consideration
from the Forward Purchase Contract Agent, any Holder of Equity Units or
Stripped Units or any holder of Separate Notes without having to account
for the same to the Company; provided that each of the Collateral Agent,
the Custodial Agent and the Securities Intermediary covenants and agrees
with the Company that, except as provided in this Agreement, it shall not
accept, receive or permit there to be created in favor of itself (and
waives any right of set-off or banker's lien with respect to) 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 and the Collateral shall not be commingled with
any other assets of any such Person.
SECTION 8.5 Non-Reliance on Collateral Agent.
None of the Collateral Agent, the Custodial Agent or the Securities
Intermediary shall be required to keep itself informed as to the
performance or observance by the Forward Purchase Contract Agent or any
Holder of Equity Units or Stripped Units of this Agreement, the Forward
Purchase Contract Agreement, the Equity Units or Stripped Units or any
other document referred to or provided for herein or therein or to inspect
the properties or books of the Forward Purchase Contract Agent or any
Holder of Equity Units or Stripped Units. The Collateral Agent, the
Custodial Agent and the Securities Intermediary shall not have any duty or
responsibility to provide the Company or the Remarketing Agent with any
credit or other information concerning the affairs, financial condition or
business of the Forward Purchase Contract Agent, any Holder of Equity Units
or Stripped Units or any holder of Separate Notes (or any of their
respective subsidiaries or affiliates) that may come into the possession of
the Collateral Agent, the Custodial Agent or the Securities Intermediary or
any of their respective affiliates.
SECTION 8.6 Compensation and Indemnity.
The Company agrees:
(a) to pay each of the Collateral Agent, the Custodial Agent and the
Securities Intermediary from time to time such compensation as shall be
agreed in writing between the Company and the Collateral Agent, the
Custodial Agent or the Securities
21
Intermediary, as the case may be, for all services rendered by each of them
hereunder, and
(b) to indemnify the Collateral Agent, the Custodial Agent, the
Securities Intermediary and their officers, directors and agents for, and
to hold each of them harmless from and against, any loss, liability or
reasonable out-of-pocket expense incurred without gross negligence or
willful misconduct 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 or collecting such amounts. The Collateral Agent, the
Custodial Agent and the Securities Intermediary shall each promptly notify
the Company of any third-party claim which may give rise to the indemnity
hereunder and give the Company the opportunity to participate in the
defense of such claim with counsel reasonably satisfactory to the
indemnified party, and no such claim shall be settled without the written
consent of the Company, which consent shall not be unreasonably withheld.
The provisions of this Section 8.6 shall survive the resignation or removal
of the Collateral Agent, the Custodial Agent and the Securities
Intermediary or the termination of this Agreement.
SECTION 8.7 Failure to Act.
In the event of any ambiguity in the provisions of this Agreement or
any dispute between or conflicting claims by or among the parties hereto or
any other Person with respect to any funds or property deposited hereunder,
the Collateral Agent, the Custodial Agent and the Securities Intermediary
shall be entitled, after prompt notice to the Company and the Forward
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 none of the
Collateral Agent, the Custodial Agent or the Securities Intermediary shall
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, the Custodial 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, reasonably satisfactory to the
Collateral Agent, the Custodial Agent or the Securities Intermediary, as
the case may be, or (ii) the Collateral Agent, the Custodial Agent or the
Securities Intermediary, as the case may be, shall have received security
or an indemnity reasonably satisfactory to the Collateral Agent, the
Custodial Agent or the Securities Intermediary, as the case may be,
sufficient to save the Collateral Agent, the Custodial Agent or the
Securities Intermediary, as the case may be, harmless from and against any
and all loss, liability or reasonable out-of-pocket expense which the
Collateral Agent, the Custodial Agent or the Securities Intermediary, as
the case may be, may incur by reason of its acting without willful
misconduct or gross negligence. The Collateral Agent, the Custodial Agent
or the Securities Intermediary may in addition elect to commence an
interpleader action or seek other judicial relief or orders as the
Collateral
22
Agent, the Custodial Agent or the Securities Intermediary, as the case may
be, may deem necessary. Notwithstanding anything contained herein to the
contrary, none of the Collateral Agent, the Custodial Agent or the
Securities Intermediary shall be required to take any action that is in its
opinion contrary to law or to the terms of this Agreement, or which would
in its opinion subject it or any of its officers, employees or directors to
liability.
SECTION 8.8 Resignation.
Subject to the appointment and acceptance of a successor Collateral
Agent, the Custodial Agent or Securities Intermediary, as provided below,
(a) the Collateral Agent, Custodial Agent and the Securities Intermediary
may resign at any time by giving notice thereof to the Company and the
Forward Purchase Contract Agent as attorney-in-fact for the Holders of
Equity Units and Stripped Units, (b) the Collateral Agent, the Custodial
Agent and the Securities Intermediary may be removed at any time by the
Company and (c) if the Collateral Agent, the Custodial Agent or 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 Forward Purchase
Contract Agent and such failure shall be continuing, the Collateral Agent,
the Custodial Agent or the Securities Intermediary may be removed by the
Forward Purchase Contract Agent. The Forward Purchase Contract Agent shall
promptly notify the Company of any removal of the Collateral Agent, the
Custodial Agent or the Securities Intermediary pursuant to clause (c) of
the immediately preceding sentence. The Company shall promptly notify the
Forward Purchase Contract Agent of any removal of the Collateral Agent, the
Custodial Agent or the Securities Intermediary pursuant to clause (b) of
the second preceding sentence. Upon notice of any such resignation or
removal, the Company shall have the right to appoint a successor Collateral
Agent, the Custodial Agent or Securities Intermediary, as the case may be.
If no successor Collateral Agent, Custodial Agent or Securities
Intermediary, as the case may be, shall have been so appointed and shall
have accepted such appointment within 30 days after the retiring Collateral
Agent's, the Custodial Agent's or Securities Intermediary's giving of
notice of resignation or such removal, then the retiring Collateral Agent,
the Custodial Agent or Securities Intermediary, as the case may be, may at
the Company's expense petition any court of competent jurisdiction for the
appointment of a successor Collateral Agent, the Custodial Agent or
Securities Intermediary, as the case may be. Each of the Collateral Agent,
the Custodial Agent and 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 $500,000,000 or any affiliate of a bank holding company having
such capital and surplus. Upon the acceptance of any appointment as
Collateral Agent, Custodial Agent or Securities Intermediary, as the case
may be, hereunder by a successor Collateral Agent, Custodial Agent or
Securities Intermediary, as the case may be, such successor shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Collateral Agent, Custodial Agent or Securities
Intermediary, as the case may be, and the retiring Collateral Agent,
Custodial Agent or Securities Intermediary, as the case may be, shall take
all appropriate action to transfer any money and property held
23
by it hereunder (including the Collateral) to such successor after the
payment of any outstanding fees, expenses and indemnities due and owing to
such retiring party. The retiring Collateral Agent, Custodial Agent or
Securities Intermediary shall, upon such succession, be discharged from its
duties and obligations as Collateral Agent, Custodial Agent or Securities
Intermediary hereunder. After any retiring Collateral Agent's, Custodial
Agent's or Securities Intermediary's resignation hereunder as Collateral
Agent, Custodial Agent or Securities Intermediary, the provisions of this
Section 8.8, and Section 8.6 hereof, 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, Custodial Agent or Securities
Intermediary. Any resignation or removal of the Collateral Agent hereunder
shall be deemed for all purposes of this Agreement as the simultaneous
resignation or removal of the Custodial Agent and the Securities
Intermediary hereunder.
Any corporation into which the Collateral Agent, the Custodial Agent
or the Securities Intermediary, in its individual capacity, may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Collateral Agent in its individual capacity shall be a party, or any
corporation to which substantially all of the corporate trust business of
the Collateral Agent in its individual capacity may be transferred, shall
be the Collateral Agent, the Custodial Agent, the Securities Intermediary,
as the case may be respectively, under this Agreement without further act.
SECTION 8.9 Right to Appoint Agent or Advisor.
The Collateral Agent shall have the right to appoint or consult with
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 (other than legal counsel) pursuant to
this Section 8.9 shall be subject to prior consent of the Company, which
consent shall not be unreasonably withheld.
SECTION 8.10 Survival.
The provisions of this Article VIII shall survive termination of this
Agreement and the resignation or removal of the Collateral Agent, the
Custodial Agent or the Securities Intermediary.
SECTION 8.11 Exculpation.
Anything in this Agreement to the contrary notwithstanding, in no
event shall any of the Collateral Agent, the Custodial Agent or the
Securities Intermediary or their officers, employees or agents be liable
under this Agreement to any third party for indirect, special, punitive or
consequential loss or damage of any kind whatsoever, including lost
profits, whether or not the likelihood of such loss or damage was known to
the Collateral Agent, the Custodial Agent or the Securities Intermediary,
or any of them, and regardless of the form of action.
24
ARTICLE IX
AMENDMENT
SECTION 9.1 Amendment Without Consent of Holders.
Without the consent of any Holders or the holders of any
Separate Notes, the Company, when authorized by a Board Resolution, the
Collateral Agent, the Custodial Agent, the Securities Intermediary and
the Forward 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 Custodial Agent, the Securities Intermediary and
the Forward Purchase Contract Agent, for any of the following purposes:
(i) to evidence the succession of another Person to
the Company, and the assumption by any such successor of the
covenants of the Company; or
(ii) to add to the covenants of the Company for the
benefit of the Holders, or to surrender any right or power
herein conferred upon the Company so long as such covenants or
such surrender does not adversely affect the validity,
perfection or priority of the security interests granted or
created hereunder; or
(iii) to evidence and provide for the acceptance of
appointment hereunder by a successor Collateral Agent,
Custodial Agent, Securities Intermediary or Forward Purchase
Contract Agent; or
(iv) to cure any ambiguity, to correct or supplement
any provisions herein which may be inconsistent with any other
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 or
(v) to permit the substitution by Holders of
designated Company debt instruments for the Pledged Notes as
Collateral under this Agreement.
SECTION 9.2 Amendment with Consent of Holders.
With the consent of the Holders of not less than a majority of
the Forward Purchase Contracts at the time outstanding voting together
as one class, by Act of said Holders delivered to the Company, the
Forward Purchase Contract Agent or the Collateral Agent, as the case
may be, the Company, when duly authorized by a Board Resolution, the
Forward Purchase Contract Agent, the Collateral Agent, the Custodial
Agent and the Securities Intermediary 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 Equity Units or Stripped
Units; provided, however, that no amendment agreement shall, without
the consent of the Holder of each Outstanding Unit affected thereby,
25
(i) change the amount or type of Collateral
underlying a Unit (except as provided in Section 9.1(v)) for
the rights of holders of Equity Units to substitute the
Treasury Securities for the Pledged Notes or the rights of
Holders of Stripped Units to substitute Notes for the Pledged
Treasury Securities), unless not adverse to the Holders,
impair the right of the Holder of any Equity Units or Stripped
Units to receive distributions on the underlying Collateral or
otherwise adversely affect the Holder's rights in or to such
Collateral; or
(ii) otherwise effect any action that would require
the consent of the Holder of each Outstanding Units affected
thereby pursuant to the Forward Purchase Contract Agreement if
such action were effected by an agreement supplemental
thereto; or
(iii) reduce the percentage of Forward Purchase
Contracts the consent of whose Holders is required for any
such amendment.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed amendment, but it shall be
sufficient if such Act shall approve the substance thereof.
SECTION 9.3 Execution of Amendments.
In executing any amendment permitted by this Section, the
Collateral Agent, the Custodial Agent, the Securities Intermediary and
the Forward Purchase Contract Agent shall receive and (subject to
Section 8.1 hereof, with respect to the Collateral Agent, and Section
7.1 of the Forward Purchase Contract Agreement, with respect to the
Forward Purchase Contract Agent) shall be fully protected in relying
upon, an officer's certificate and 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 and, in the case of
an amendment pursuant to Section 9.1, that such amendment does not
adversely affect the validity, perfection or priority of the security
interests granted or created hereunder.
SECTION 9.4 Effect of Amendments.
Upon the execution of any amendment under this Article IX,
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 Forward
Purchase Contract Agreement shall be bound thereby.
SECTION 9.5 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
Forward Purchase Contract Agent, bear a notation in form approved by
the Forward Purchase Contract Agent and the Collateral Agent as to any
26
matter provided for in such amendment. If the Company shall so
determine, new Certificates so modified as to conform, in the opinion
of the Collateral Agent, the Forward 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 Forward Purchase Contract Agent in accordance with the
Forward Purchase Contract Agreement in exchange for outstanding
Certificates.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 No Waiver.
No failure on the part of any party hereto 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 any
party hereto 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 10.2 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Without limiting the
foregoing, the above choice of law is expressly agreed to by the
Securities Intermediary, the Collateral Agent, the Custodial Agent and
the Holders from time to time acting through the Forward Purchase
Contract Agent, as their attorney-in-fact, in connection with the
establishment and maintenance of the Collateral Account, which law, for
purposes of the Code, shall be deemed to be the law governing all
Security Entitlements related thereto. In addition, such parties agree
that, for purposes of the Code, New York shall be the Securities
Intermediary's jurisdiction. The Company, the Collateral Agent and the
Holders from time to time of the Equity Units and Stripped Units,
acting through the Forward Purchase Contract Agent as their
attorney-in-fact, hereby submit to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New York and
of any New York state court sitting in New York City for the purposes
of all legal proceedings arising out of or relating to this Agreement
or the transactions contemplated hereby. The Company, the Collateral
Agent and the Holders from time to time, acting through the Forward
Purchase Contract Agent as their attorney-in-fact, irrevocably waive,
to the fullest extent permitted by applicable law, any objection which
they may now or hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient
forum.
SECTION 10.3 Notices.
Unless otherwise stated herein, all notices, requests,
consents and other communications provided for herein (including,
without limitation, any modifications of,
27
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 personally
delivered or, in the case of a mailed notice or notice transmitted by
telecopier, upon receipt, in each case given or addressed as aforesaid.
SECTION 10.4 Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit
of the respective successors and assigns of the Company, the Collateral
Agent, the Custodial Agent, the Securities Intermediary and the Forward
Purchase Contract Agent, and the Holders from time to time of the
Equity Units and Stripped 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 Forward Purchase Contract Agent.
SECTION 10.5 Counterparts.
This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by
signing any such counterpart.
SECTION 10.6 Severability.
If any provision hereof is invalid and unenforceable in any
jurisdiction, then, to the fullest extent permitted by law, (i) the
other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii)
the invalidity or unenforceability of any provision hereof in any
jurisdiction shall not affect the validity or enforceability of such
provision in any other jurisdiction.
SECTION 10.7 Expenses, Etc.
The Company agrees to reimburse the Collateral Agent, the
Securities Intermediary and the Custodial Agent for:
(a) all reasonable out-of-pocket costs and all reasonable
expenses of the Collateral Agent, the Custodial Agent and the
Securities Intermediary (including, without limitation, the reasonable
fees and expenses of counsel to the Collateral Agent, the Custodial
Agent and the Securities Intermediary), in connection with (i) the
negotiation, preparation, execution and delivery or performance of this
Agreement and (ii) any modification, supplement or waiver of any of the
terms of this Agreement;
28
(b) all reasonable costs and expenses of the Collateral Agent
(including, without limitation, reasonable fees and expenses of
counsel) in connection with (i) any enforcement or proceedings
resulting or incurred in connection with causing any Holder of Equity
Units or Stripped Units to satisfy its obligations under the Forward
Purchase Contracts forming a part of the Equity Units and Stripped
Units and (ii) the enforcement of this Section 10.7; and
(c) all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority
in respect of this Agreement or any other document referred to herein
and all costs, expenses, taxes, assessments and other charges incurred
in connection with any filing, registration, recording or perfection of
any security interest contemplated hereby.
SECTION 10.8 Security Interest Absolute.
All rights of the Collateral Agent and security interests
hereunder, and all obligations of the Holders from time to time
hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any provision of
the Forward Purchase Contracts or the Equity Units or Stripped 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 Equity Units or Stripped Units under the
related Forward Purchase Contracts, or any other amendment or waiver of
any term of, or any consent to any departure from any requirement of,
the Forward Purchase Contract Agreement or any Forward 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.
SECTION 10.9 Waiver of Jury Trial.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
29
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
AMERICAN ELECTRIC POWER COMPANY, INC.
By:________________________________
Name:
Title:
Address for Notices:
American Electric Power Company, Inc.
1 Riverside Plaza
Columbus, Ohio 43215
Attention: General Counsel
Telecopy: (614) 223-1687
30
THE BANK OF NEW YORK, as Forward
Purchase Contract Agent and as
attorney-in-fact of the Holders from
time to time of the Equity Units and
Stripped Units
By:___________________________
Name:
Title:
Address for Notices:
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Department
Telecopy: (212) 328-8243
THE BANK OF NEW YORK, as
Collateral Agent, Custodial Agent and
Securities Intermediary
By:___________________________
Name:
Title:
Address for Notices:
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Department
Telecopy: (212) 328-8243
31
EXHIBIT A
INSTRUCTION FROM FORWARD PURCHASE CONTRACT
AGENT TO COLLATERAL AGENT
The Bank of New York,
as Collateral Agent
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Department
Re: Equity Units of American Electric Power Company, Inc. (the
"Company")
We hereby notify you in accordance with Section [4.1] [4.2] of the
Pledge Agreement, dated as of June 11, 2002 (the "Pledge Agreement"), among
the Company, you, as Collateral Agent, Custodial Agent and Securities
Intermediary and us, as Forward Purchase Contract Agent and as
attorney-in-fact for the holders of [Equity Units] [Stripped Units] from
time to time, that the holder of Equity Units or Stripped Units listed
below (the "Holder") has elected to substitute $_____ aggregate principal
amount of Treasury Securities (CUSIP No. 912803AG8) in exchange for the
related [Pledged Notes] [Pledged Treasury Securities] held by you in
accordance with the Pledge Agreement and has delivered to us a notice
stating that the Holder has Transferred [Treasury Securities] [Notes] to
you, as Collateral Agent. We hereby instruct you, upon receipt of such
[Pledged Treasury Securities] [Pledged Notes], and upon the payment by such
Holder of any applicable fees, to release the [Notes] [Treasury Securities]
related to such [Equity Units] [Stripped Units] to us in accordance with
the Holder's instructions. Capitalized terms used herein but not defined
shall have the meaning set forth in the Pledge Agreement.
Date: _________________________
THE BANK OF NEW YORK,
as Forward Purchase Contract Agent
By:________________________________
Name:
Title:
A-1
Please print name, Social Security or other Taxpayer Identification
Number, if any, and address of registered Holder electing to substitute
[Treasury Securities] [Notes] for the [Pledged Notes] [Pledged Treasury
Securities]:
Name:
Social Security or other Taxpayer
Identification Number, if any:
Address:
A-2
EXHIBIT B
INSTRUCTION TO FORWARD PURCHASE CONTRACT AGENT
The Bank of New York,
As Forward Purchase Contract Agent
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Department
Telecopy: (212) 328-8243
Re: Equity Units of American Electric Power Company, Inc. (the
"Company")
The undersigned Holder hereby notifies you that it has delivered to
The Bank of New York, as Collateral Agent, Custodial Agent and Securities
Intermediary [$_______ aggregate principal amount of Notes] [$_______
aggregate principal amount of Treasury Securities (CUSIP No. 912803AG8)] in
exchange for the related [Pledged Notes] [Pledged Treasury Securities] held
by the Collateral Agent, in accordance with Section [4.1] [4.2] of the
Pledge Agreement, dated June 11, 2002 (the "Pledge Agreement"), among you,
the Company and the Collateral Agent. The undersigned Holder has paid the
Collateral Agent all applicable fees relating to such exchange. The
undersigned Holder hereby instructs you to instruct the Collateral Agent to
release to you on behalf of the undersigned Holder the [Pledged Notes]
[Pledged Treasury Securities] related to such [Equity Units] [Stripped
Units]. Capitalized terms used herein but not defined shall have the
meaning set forth in the Pledge Agreement.
Date: ___________________ Signature:___________________________
Signature Guarantee:
___________________________
Name:
Social Security or other Taxpayer
Identification Number, if any:
Address:
B-1
EXHIBIT C
INSTRUCTION TO CUSTODIAL AGENT REGARDING REMARKETING
The Bank of New York,
as Custodial Agent
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Department
Re: Notes of American Electric Power Company, Inc. (the "Company")
The undersigned hereby notifies you in accordance with Section 4.5(d)
of the Pledge Agreement, dated as of June 11, 2002 (the "Pledge
Agreement"), among the Company, yourselves, as Collateral Agent, Securities
Intermediary and Custodial Agent, and The Bank of New York, as Forward
Purchase Contract Agent and as attorney-in-fact for the Holders of Equity
Units and Stripped Units from time to time, that the undersigned elects to
deliver $________ aggregate principal amount of Notes for delivery to the
Remarketing Agent [on the fourth Business Day immediately preceding the
Remarketing Date], [on the first day of the next scheduled Remarketing
Period] for remarketing pursuant to Section 4.5(d) of the Pledge Agreement.
The undersigned will, upon request of the Remarketing Agent, execute and
deliver any additional documents deemed by the Remarketing Agent or by the
Company to be necessary or desirable to complete the sale, assignment and
transfer of the Notes tendered hereby.
The undersigned hereby instructs you, upon receipt of the proceeds of
such remarketing from the Remarketing Agent, net of amounts payable to the
Remarketing Agent in accordance with the Pledge Agreement, to deliver such
proceeds to the undersigned in accordance with the instructions indicated
herein under "A. Payment Instructions." The undersigned hereby instructs
you, in the event of a Failed Remarketing, upon receipt of the Notes
tendered herewith from the Remarketing Agent, to deliver the Notes to the
person(s) at the address indicated herein under "B. Delivery Instructions."
Notwithstanding the foregoing, in the event that such Failed Remarketing
constitutes the Last Failed Remarketing, you shall retain all such Notes.
With this notice, the undersigned hereby (i) represents and warrants
that the undersigned has full power and authority to tender, sell, assign
and transfer the Notes tendered hereby and that the undersigned is the
record owner of any Notes tendered herewith in physical form or a
participant in The Depository Trust Company ("DTC") and the beneficial
owner of any Notes tendered herewith by book-entry transfer to your account
at DTC and (ii) agrees to be bound by the terms and conditions of Section
4.5(d) of the Pledge Agreement. Capitalized terms used herein but not
defined shall have the meaning set forth in the Pledge Agreement.
C-1
Date: ___________________ Signature:___________________________
Signature Guarantee:
_________________________
Name:
Social Security or other Taxpayer
Identification Number, if any:
Address:
C-2
A. PAYMENT INSTRUCTIONS
Proceeds of the remarketing should be paid by check in the name of the
person(s) set forth below and mailed to the address set forth below.
Name(s):
________________________________
(Please Print)
Address:
________________________________
(Zip Code) (Please Print)
(Taxpayer Identification or Social Security
Number):
B. DELIVERY INSTRUCTIONS
In the event of a Failed Remarketing, Notes which are in physical form
should be mailed to the person(s) set forth below at the address set forth
below.
Name(s):
________________________________
(Please Print)
Address:
________________________________
(Zip Code) (Please Print)
(Taxpayer Identification or Social Security
Number):
In the event of a Failed Remarketing, Notes which are in book-entry
form should be credited to the account at The Depository Trust Company set
forth below.
Name of Account Party: DTC Account Number:
C-3
EXHIBIT D
INSTRUCTION TO CUSTODIAL AGENT REGARDING
WITHDRAWAL FROM REMARKETING
The Bank of New York,
as Collateral Agent
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Department
Re: Notes of American Electric Power Company, Inc. (the
"Company")
The undersigned hereby notifies you in accordance with Section 4.5(d)
of the Pledge Agreement, dated as of June 11, 2002 (the "Pledge
Agreement"), among the Company, yourselves, as Collateral Agent, Securities
Intermediary and Custodial Agent and The Bank of New York, as Forward
Purchase Contract Agent and as attorney-in-fact for the Holders of Equity
Units and Stripped Units from time to time, that the undersigned elects to
withdraw the $_____ aggregate principal amount of Notes delivered to the
Custodial Agent on ___________, ____ for remarketing pursuant to Section
4.5(d) of the Pledge Agreement. The undersigned hereby instructs you to
return such Notes to the undersigned in accordance with the undersigned's
instructions. With this notice, the undersigned hereby agrees to be bound
by the terms and conditions of Section 4.5(d) of the Pledge Agreement.
Capitalized terms used herein but not defined shall have the meaning set
forth in the Pledge Agreement.
Name(s):
________________________________
(Please Print)
Address:
________________________________
(Zip Code) (Please Print)
(Taxpayer Identification or Social Security
Number):
A. DELIVERY INSTRUCTIONS
In the event of a Failed Remarketing, Notes which are in physical form
should be mailed to the person(s) set forth below at the address set forth
below.
Name(s):
________________________________
D-1
(Please Print)
Address:
________________________________
(Zip Code) (Please Print)
(Taxpayer Identification or Social Security
Number):
In the event of a Failed Remarketing, Notes which are in book-entry
form should be credited to the account at The Depository Trust Company set
forth below.
Name of Account Party: DTC Account Number:
D-2