Exhibit 2.k.(iv)
S&C Draft of February 16, 1999
COLLATERAL AGREEMENT
Among
THE XXXXX XXXXXX 1994 TRUST,
As Pledgor,
THE CHASE MANHATTAN BANK, As Collateral Agent
and
XXXXX XXXXXX AUTOMATIC COMMON EXCHANGE SECURITY TRUST II
Dated as of
February 17, 1999
The following Table of Contents has been inserted for
convenience of reference only and does not constitute a part of the Collateral
Agreement.
TABLE OF CONTENTS
SECTION PAGE
1. The Security Interests..................................................................... 1
2. Definitions................................................................................ 3
3. Representations and Warranties of the Pledgor.............................................. 7
4. Representations and Warranties of the Collateral Agent .................................... 8
5. Certain Covenants of the Pledgor........................................................... 8
6. Administration of the Collateral and Valuation of the
Securities................................................................................. 10
7. Income and Voting Rights on Collateral..................................................... 16
8. Remedies upon Events of Default............................................................ 17
9. The Collateral Agent....................................................................... 20
10. Miscellaneous.............................................................................. 24
11. Termination of Collateral Agreement........................................................ 25
12. No Personal Liability of Trustees.......................................................... 25
Exhibit A - Notice of Pledge Value
Exhibit B - Certificate for Substituted Collateral
Exhibit C - Certificate for Additional Collateral
COLLATERAL AGREEMENT
THIS COLLATERAL AGREEMENT (the "Agreement"), dated as of
February 17, 1999, among The Xxxxx Xxxxxx 1994 Trust, a trust duly created under
the laws of the State of New York (the "Pledgor"), The Chase Manhattan Bank, a
New York banking corporation, as collateral agent (the "Collateral Agent")
hereunder for the benefit of Xxxxx Xxxxxx Automatic Common Exchange Security
Trust II, a trust duly created under the laws of the State of New York (such
trust and the trustees thereof acting in their capacity as such being referred
to herein as the "Trust" or "Purchaser"), and the Trust;
WITNESSETH:
WHEREAS, pursuant to the Purchase Agreement (the "Purchase
Agreement"), dated as of February 17, 1999, between the Pledgor and Purchaser,
the Pledgor has agreed to sell and Purchaser has agreed to purchase Class A
Common Stock, par value $.01 per share ("Class A Common Stock"), of The Xxxxx
Xxxxxx Companies Inc., a Delaware corporation (the "Company"), subject to the
terms and conditions of the Purchase Agreement;
NOW, THEREFORE, to secure the performance by the Pledgor of
its obligations under the Purchase Agreement and to secure the observance and
performance of the covenants and agreements contained herein and in the Purchase
Agreement, the parties hereto agree as follows:
1. The Security Interests.
In order to secure the observance and performance of the
covenants and agreements contained herein and in the Purchase Agreement:
(a) Security Interests. Effective upon and subject to the
receipt by the Pledgor of the Firm Purchase Price at the First Time of Delivery,
the Pledgor hereby grants, sells, conveys, assigns, transfers and pledges unto
the Collateral Agent, as agent of and for the benefit of the Trust, a security
interest in and to, and a lien upon and right of set-off against, all of its
right, title and interest in and to (i) the Pledged Items described in
paragraphs (b) and (c); (ii) all additions to and substi-
tutions for such Pledged Items; (iii) all income, products and proceeds and
collections received or to be received, or derived or to be derived, now or any
time hereafter from or in connection with the Pledged Items; and (iv) all powers
and rights now owned or hereafter acquired under or with respect to the Pledged
Items (such Pledged Items, additions, substitutions, products and proceeds,
collections, powers and rights being herein collectively called the
"Collateral"). The Collateral Agent shall have all of the rights, remedies and
recourses with respect to the Collateral afforded a secured party by the UCC, in
addition to, and not in limitation of, the other rights, remedies and recourses
afforded to the Collateral Agent by this Agreement.
(b) First Time of Delivery. At the First Time of Delivery, the
Pledgor shall either (1) deliver to the Collateral Agent in pledge hereunder one
or more certificates in registered form representing in the aggregate at least
[INSERT NUMBER OF FIRM SECURITIES] shares of the Class A Common Stock,
registered in the name of the Collateral Agent or its nominee or duly endorsed
in blank or accompanied by undated stock powers with respect thereto duly
endorsed in blank, or (2) if such shares of Class A Common Stock are not held in
certificated form but are held in book entry form by The Depository Trust
Company or other comparable depositary, transfer such shares of Class A Common
Stock to an account (other than an account of the Pledgor) designated by the
Collateral Agent with The Depositary Trust Company or such other depositary, as
applicable.
(c) Second Time of Delivery. Effective upon and subject to the
receipt by the Pledgor of the Additional Purchase Price, at the Second Time of
Delivery, the Pledgor shall either (1) deliver to the Collateral Agent in pledge
hereunder one or more certificates in registered form representing in the
aggregate Class A Common Stock representing the Additional Share Base Amount of
Class A Common Stock, registered in the name of the Collateral Agent or its
nominee or duly endorsed in blank or accompanied by undated stock powers with
respect thereto duly endorsed in blank, or (2) if such shares of Class A Common
Stock are not held in certificated form but are held in book entry form by The
Depository Trust Company or other comparable depositary, transfer such number of
shares of Class A Common Stock representing the Additional Share Base Amount of
Class A
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Common Stock to an account of the Collateral Agent or to an account (other than
an account of the Pledgor) designated by the Collateral Agent with The
Depositary Trust Company or such other depositary, as applicable.
2. Definitions.
Capitalized terms used and not otherwise defined herein shall
have the meanings ascribed to them in the Purchase Agreement. Capitalized terms
used herein shall have the meanings as follows:
"Authorized Representative" of the Pledgor means any trustee
or other representative as to whom Pledgor shall have delivered notice to the
Collateral Agent that such trustee or other representative is authorized to act
hereunder on behalf of Pledgor.
"Business Day" means any day except a Saturday, Sunday or
other day on which banking institutions in New York City are authorized or
obligated by law or regulation to close or a day on which the New York Stock
Exchange, Inc. is closed.
"Cash Delivery Obligations" means, at any time (A) if no
Reorganization Event shall have occurred prior to such time, zero, and (B) from
and after any Reorganization Event, the Dilution Adjustment (or successive
Dilution Adjustments) that shall have been applied to the Exchange Rate pursuant
to Section 6.1 of the Purchase Agreement at or prior to the Reorganization
Event, times the product of: (i) the Firm Share Base Amount plus the Additional
Share Base Amount (if any) and (ii) the Transaction Value of any Merger
Consideration other than Marketable Securities included in the Merger
Consideration, provided that if the Reorganization Event is a Cash Merger, the
Cash Delivery Obligations shall again be zero after the Seller has delivered the
Accelerated Portion to the Trust as required under the Purchase Agreement.
"Collateral" has the meaning specified in Section 1(a).
"Collateral Agent" means the financial institution identified
as such in the preliminary paragraph hereof, or any successor appointed in
accordance with Section 9.
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"Collateral Agreement" means this Collateral Agreement and
any exhibits hereto.
"Collateral Event of Default" has the meaning specified in
Section 6(e).
"Collateral Requirement" means, as of any date and with
respect to: (i) any Class A Common Stock, 100%; (ii) any Marketable Securities,
100%; (iii) any U.S. Government Securities pledged in respect of Cash Delivery
Obligations, 105%; and (iv) any other U.S. Government Securities, an aggregate
market value at the time of substitution and daily xxxx-to-market valuations
thereafter of not less than 150%, provided that upon and after any failure to
cure an Insufficiency Determination by 4:00 p.m. New York City time on the next
Business Day following telephonic notice of such Insufficiency Determination as
described in Section 6(e), which insufficiency shall be continuing on such next
business day, the Collateral Requirement relating to any U.S. Government
Securities shall be 200%. The portion of any pledged U.S. Government Securities
that shall be deemed at any time to be in respect of Cash Delivery Obligations
shall be as provided in Section 6(e).
"Distribution Date" has the meaning specified in the Trust
Agreement.
"Eligible Collateral" means (i) unless and until a
Reorganization Event shall occur, Class A Common Stock,(ii) U.S. Government
Securities, (iii) from and after any Reorganization Event, the Marketable
Securities distributed in such Reorganization Event, and (iv) if a Spin-Off
Distribution occurs, the Marketable Securities distributed in such Spin-Off
Distribution; provided, in each case, that the Pledgor has good and marketable
title thereto, free of all Liens (other than the Liens created by this
Collateral Agreement) and Transfer Restrictions and that the Collateral Agent
has a valid, first priority perfected security interest therein and first lien
thereon, and provided further that to the extent the number of shares of Class A
Common Stock or Marketable Securities pledged hereunder exceeds at any time the
Maximum Deliverable Number thereof, such excess shares shall not be Eligible
Collateral.
"Event of Default" means the occurrence of: (i) an
event described in clause (a) or (b) of Article VII of the
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Purchase Agreement, (ii) a Collateral Event of Default, (iii) a failure by
Pledgor to have caused the Collateral to meet the requirements described in
Section 5(d) on the Exchange Date or (iv) if a Reorganization Event shall have
occurred prior to the Exchange Date, failure by Pledgor to cause to be delivered
to Purchaser on the Exchange Date the consideration then required to be
delivered pursuant to Section 6.2 of the Purchase Agreement.
"Ineligible Collateral" means Collateral that does not
constitute "Eligible Collateral".
"Lien" means any lien, mortgage, security interest, pledge,
charge, encumbrance or adverse claim of any kind.
"Market Value" means, as of any date: (a) with respect to any
Class A Common Stock (except as otherwise provided in Section 6(e)(2)), the
Closing Price of the Class A Common Stock on such date; (b) with respect to any
U.S. Government Security, the product of (x)(i) the average unit bid price for
such security as published on the Trading Day prior to such date in the New York
edition of The Wall Street Journal or The New York Times or the average unit bid
price set forth on the applicable page of the Bloomberg system, or, if not so
published, (ii) the lower bid price quoted (which quotation shall be evidenced
in writing) on the Trading Day prior to such date by either of two nationally
recognized dealers making a market in such security which are members of the
National Association of Securities Dealers, Inc. and (y) the number of such
units comprised in the outstanding principal amount of such security; and (c)
with respect to any share of Marketable Securities, the Closing Price thereof on
the Trading Day prior to such date; provided that the "Market Value" of any
Ineligible Collateral shall be zero.
"Maximum Deliverable Number" means, on any date, with respect
to the Class A Common Stock, the product of the Firm Share Base Amount plus the
Additional Share Base Amount (if any), multiplied successively by each Dilution
Adjustment by which the Exchange Rate shall have been multiplied on or prior to
such date pursuant to the Dilution Adjustments provided for under Section 6.1 of
the Purchase Agreement. The Maximum Deliverable Number of Marketable Securities
of any class means, on any date, the product of (i) the Firm Share Base Amount
plus the Additional Share
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Base Amount (if any) and (ii) the number of Marketable Securities included in
the Merger Consideration in the applicable Reorganization Event or Spin-Off
Distribution for each share of Class A Common Stock, multiplied successively by
(x) each Dilution Adjustment by which the Exchange Rate with respect to the
Class A Common Stock shall have been multiplied on or prior to the date of such
Reorganization Event or Spin-Off Distribution Event pursuant to the adjustments
provided for under Article VI of the Purchase Agreement, and (y) each Dilution
Adjustment by which the Exchange Rate with respect to such Marketable Securities
shall have been multiplied on or prior to such date and after the date of such
Reorganization Event or Spin-Off Distribution pursuant to the adjustments
provided for under Article VI of the Purchase Agreement.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Pledge Value" means, as of any date, the sum of the aggregate
Market Value of each particular type of Collateral as of such date, divided by
the Collateral Requirement for such type of Collateral.
"Pledge Value Requirement" means, as of any date, (a) the
aggregate Market Value on such date of the Maximum Deliverable Number of shares
of Class A Common Stock on such date or, from and after a Reorganization Event,
the Maximum Deliverable Number of the Marketable Securities included in the
Merger Consideration in such Reorganization Event, plus (b) from and after a
Reorganization Event, the Cash Delivery Obligations, plus (c) from and after a
Spin-Off Distribution, the Market Value on such date of the Maximum Deliverable
Number of the Marketable Securities distributed in such Spin-Off Distribution.
"Pledged Items" means, as of any date, any and all securities
and instruments delivered by the Pledgor to be held by the Collateral Agent
under this Collateral Agreement as Collateral, whether Eligible Collateral or
Ineligible Collateral and whether or not then required to be held by the
Collateral Agent hereunder.
"Prior Collateral" has the meaning specified in
Section 6(b)(1).
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"Responsible Officer" means, when used with respect to the
Collateral Agent, any vice president, assistant vice president, assistant
treasurer or assistant secretary located in the division or department of the
Collateral Agent responsible for performing the obligations of the Collateral
Agent under this Collateral Agreement.
"Transfer Restriction" means, with respect to any item of
Collateral, any condition to or restriction on the ability of the holder thereof
to sell, assign or otherwise transfer such item of Collateral or to enforce the
provisions thereof or of any document related thereto whether set forth in such
item of Collateral itself or in any document related thereto, including, without
limitation, (i) any requirement that any sale, assignment or other transfer or
enforcement of such item of Collateral be consented to or approved by any
Person, including, without limitation, the issuer thereof or any other obligor
thereon, (ii) any limitations on the type or status, financial or otherwise, of
any purchaser, pledgee, assignee or transferee of such item of Collateral, (iii)
any requirement of the delivery of any certificate, consent, agreement, opinion
of counsel, notice or any other document of any Person to the issuer of, any
other obligor on or any registrar or transfer agent for, such item of
Collateral, prior to the sale, pledge, assignment or other transfer or
enforcement of such item of Collateral and (iv) any registration or
qualification requirement for such item of Collateral pursuant to any federal or
state securities law that has not been satisfied; provided that the required
delivery of any assignment from the seller, pledgor, assignor or transferor of
such item of Collateral, together with any evidence of the corporate or other
authority of such Person, shall not constitute a "Transfer Restriction".
"Trustee" or "Trustees" means any trustee or trustees of the
Trust identified on the signature pages hereto, or any successor as such trustee
or trustees.
"UCC" means the Uniform Commercial Code as in effect in the
State of New York.
"U.S. Government Securities" means direct obligations of the
United States of America that mature on a date that is one year or less from the
date such obligations are pledged hereunder, but in any event prior to the
Exchange Date then in effect.
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3. Representations and Warranties of the Pledgor.
The Pledgor hereby represents and warrants to the Collateral
Agent and the Trust that:
(a) No Transfer Restrictions. No Transfer Restrictions exist
with respect to or otherwise apply to the assignment of, or transfer by the
Pledgor of possession of, any items of Collateral to the Collateral Agent
hereunder, or the subsequent sale or transfer of such items of Collateral by the
Collateral Agent pursuant to the terms hereof.
(b) Title to Collateral; Perfected Security Interest. The
Pledgor has good and marketable title to the Pledged Items, free of all Liens
(other than the Lien created by this Collateral Agreement) and Transfer
Restrictions. Upon delivery of the Pledged Items described in paragraphs (b) and
(c) of Section 1 to the Collateral Agent hereunder, the Collateral Agent will
obtain a valid, first priority perfected security interest in, and a first lien
upon, such Pledged Items subject to no other Lien. None of the Collateral is or
shall be pledged by the Pledgor as collateral for any other purpose.
4. Representations and Warranties of the Collateral Agent.
The Collateral Agent represents and warrants to the Pledgor
and the Trust that:
(a) Corporate Existence and Power. The Collateral Agent is a
banking corporation, duly incorporated, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all corporate
powers and all material governmental licenses, authorizations, consents and
approvals required to enter into, and perform its obligations under, this
Collateral Agreement.
(b) Authorization and Non-Contravention. The execution,
delivery and performance by the Collateral Agent of this Collateral Agreement
have been duly authorized by all necessary corporate action on the part of the
Collateral Agent (no action by the shareholders of the Collateral Agent being
required) and do not and will not violate, contravene
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or constitute a default under any provision of applicable law or regulation or
of the charter or by-laws of the Collateral Agent or of any material agreement,
judgment, injunction, order, decree or other instrument binding upon the
Collateral Agent.
(c) Binding Effect. This Collateral Agreement constitutes a
valid and binding agreement of the Collateral Agent enforceable against the
Collateral Agent in accordance with its terms.
5. Certain Covenants of the Pledgor.
The Pledgor agrees that, so long as any of its obligations
under the Purchase Agreement remain outstanding:
(a) Title to Collateral. The Pledgor shall at all times
hereafter have good and marketable title to the Collateral pledged by it, free
of all Liens (other than the Liens created by this Collateral Agreement) and
Transfer Restrictions, and, subject to the terms of this Collateral Agreement,
will at all times hereafter have good, right and lawful authority to assign,
transfer and pledge such Collateral and all such additions thereto and
substitutions therefor under this Collateral Agreement.
(b) Pledge Value Requirement. The Pledgor shall cause the
aggregate Pledge Value of the Collateral to be equal to or greater than the
Pledge Value Requirement at all times, and shall pledge additional Collateral in
the manner described in Section 6(d) as necessary to cause such requirement to
be met.
(c) Pledge upon Reorganization Event. Upon the occurrence of
a Reorganization Event, the Pledgor shall immediately cause to be delivered to
the Collateral Agent, in the manner provided in Section 6(d): (i) cash in an
amount equal to 100% of Pledgor's Cash Delivery Obligations (or U.S. Government
Securities having an aggregate Market Value when pledged and at daily
xxxx-to-market valuations thereafter at least equal to 105% of the Cash Delivery
Obligations); and (ii) Marketable Securities in an amount at least equal to the
Maximum Deliverable Number thereof, or, at Pledgor's election, U.S. Government
Securities having an aggregate Market Value at least equal to 150% of such
Maximum Deliverable Number of Marketable Securities; in each case to be held as
substitute Collateral hereunder.
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(d) Pledge Upon Spin-Off Distribution. Upon the occurrence of
a Spin-Off Distribution, the Pledgor shall immediately cause to be delivered to
the Collateral Agent, in the manner provided in Section 5(d), Marketable
Securities in an amount at least equal to the Maximum Deliverable Number
thereof, or, at Pledgor's election, U.S. Government Securities having an
aggregate Market Value at least equal to 150% of such Maximum Deliverable Number
of Marketable Securities, in each case to be held as additional Collateral
hereunder.
(e) Pledge of Purchase Agreement Consideration.
Notwithstanding the Pledgor's right to substitute Collateral pursuant to Section
6(b), the Pledgor shall cause the Collateral to include, on the Exchange Date,
unless a Reorganization Event shall have occurred, a number of shares of Class A
Common Stock at least equal to the number of shares of Class A Common Stock and,
if a Spin-Off Distribution has occurred, the number of shares of Marketable
Securities distributed in such Spin-Off Distribution required to be delivered
under the Purchase Agreement on the Exchange Date.
(f) Further Assurances. The Pledgor shall, at its expense and
in such manner and form as the Trust or the Collateral Agent may reasonably
require, give, execute, deliver, file and record any financing statement,
notice, instrument, document, agreement or other papers that may be necessary or
desirable in order to create, preserve, perfect, substantiate or validate any
security interest granted pursuant hereto or to enable the Collateral Agent to
exercise and enforce its rights and the rights of the Trust hereunder with
respect to such security interest. To the extent permitted by applicable law,
the Pledgor hereby authorizes the Collateral Agent to execute and file, in the
name of the Pledgor or otherwise, UCC financing or continuation statements
(which may be carbon, photographic, photostatic or other reproductions of this
Agreement or of a financing statement relating to this Agreement) which the
Collateral Agent may reasonably deem necessary or appropriate to further
perfect, or maintain the perfection of, the security interests granted hereby.
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6. Administration of the Collateral and Valuation of the
Securities.
(a) Valuation of Collateral. The Collateral Agent shall
determine as of 4:00 p.m., New York City time, on each Business Day whether the
Pledge Value is at least equal to the Pledge Value Requirement and whether an
Insufficiency Determination or Collateral Event of Default shall have occurred
and, from and after any Reorganization Event, Spin-Off Distribution or
substitution of U.S. Government Securities for pledged Class A Common Stock or
Marketable Securities pursuant to paragraph (b) of this Section 6, shall
determine the Pledge Value and the Pledge Value Requirement on each Business Day
and shall provide written notice of the Pledge Value and the Pledge Value
Requirement, in the form of Exhibit A, to the Pledgor.
(b) Substitution of Collateral. Pledgor may substitute
Collateral in accordance with the following provisions:
(1) Unless an Event of Default or a failure by the Pledgor to
meet any of its obligations under Section 5(b) or (c) hereof has
occurred and is continuing, the Pledgor shall have the right at any
time and from time to time to deposit Eligible Collateral with the
Collateral Agent in substitution for Pledged Items previously deposited
hereunder ("Prior Collateral") and to obtain the release of such Prior
Collateral from the Lien hereof.
(2) If the Pledgor wishes to deposit Eligible Collateral with
the Collateral Agent in substitution for Prior Collateral, it shall (i)
give written notice to the Collateral Agent identifying the Prior
Collateral to be released from the Lien hereof, (ii) deliver to the
Collateral Agent concurrently with such Eligible Collateral a
certificate of the Pledgor substantially in the form of Exhibit B
hereto and dated the date of such delivery, (A) identifying the items
of Eligible Collateral being substituted for the Prior Collateral and
the Prior Collateral that is to be transferred to the Pledgor and (B)
certifying that the representations and warranties contained in such
Exhibit B hereto are true and correct on and as of the date thereof and
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(iii) deliver to the Collateral Agent concurrently with such Eligible
Collateral an opinion (dated the date of such delivery) of counsel
addressed to the Collateral Agent confirming the representations
contained in the second sentence of paragraph 3(b) of Exhibit B
hereto. The Pledgor hereby covenants and agrees to take all actions
required under Section 6(d) and any other actions necessary to create
for the benefit of the Collateral Agent a valid, first priority
perfected security interest in, and a first lien upon, such Eligible
Collateral deposited with the Collateral Agent in substitution for
Prior Collateral.
(3) No such substitution shall be made unless and until the
Collateral Agent shall have determined that the aggregate Pledge Value
of all of the Collateral at the time of such proposed substitution,
after giving effect to the proposed substitution, shall at least equal
the Pledge Value Requirement.
(c) Additional Collateral. The Pledgor may pledge additional
Collateral hereunder at any time and shall pledge additional collateral when
required under this Collateral Agreement. Concurrently with the delivery of any
additional Eligible Collateral, the Pledgor shall deliver (i) a certificate of
the Pledgor substantially in the form of Exhibit C hereto and dated the date of
such delivery, (A) identifying the additional items of Eligible Collateral being
pledged and (B) certifying that with respect to such items of additional
Eligible Collateral the representations and warranties contained in such Exhibit
C hereto are true and correct on and as of the date thereof and (ii) an opinion,
dated the date of such delivery, of counsel addressed to the Collateral Agent
confirming the representations contained in the second sentence of paragraph
2(b) of Exhibit C hereto. The Pledgor hereby covenants and agrees to take all
actions required under Section 6(d) and any other actions necessary to create
for the benefit of the Collateral Agent a valid, first priority perfected
security interest in, and a first lien upon, such additional Eligible
Collateral.
(d) Delivery of Collateral. The Pledgor shall deliver the
Collateral to the Collateral Agent in accordance with the following provisions:
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(1) Pledged Class A Common Stock. In the case of Collateral
consisting of Class A Common Stock, by either (1) delivery to the
Collateral Agent of one or more certificates representing such shares
of Class A Common Stock, registered in the name of the Collateral Agent
or its nominee or duly endorsed in blank or accompanied by undated
stock powers duly executed in blank, or (2) if such shares of Class A
Common Stock are not held in certificated form but are held in book
entry form by The Depository Trust Company or any other comparable
depositary, transfer of such shares of Common Stock to an account of
the Collateral Agent or to an account (other than an account of the
Pledgor) designated by the Collateral Agent with The Depository Trust
Company or such other depositary, as applicable;
(2) Pledged U.S. Government Securities. In the case of
Collateral consisting of U.S. Government Securities, by transfer
thereof through the Book Entry System of the Federal Reserve System to
the account of the Collateral Agent or to an account (other than an
account of the Pledgor) designated by the Collateral Agent; and
(3) Pledged Marketable Securities. In the case of Collateral
consisting of Marketable Securities, by either (1) delivery of
certificates evidencing such Marketable Securities, registered in the
name of the Collateral Agent or its nominee or duly endorsed in blank
or accompanied by stock powers duly executed in blank, or (2) if such
Marketable Securities are not held in certificated form but are held in
book entry form by The Depository Trust Company or any other comparable
depositary, by transfer to an account of the Collateral Agent or to an
account (other than an account of the Pledgor) designated by the
Collateral Agent or to an account (other than an account of the
Pledgor) designated by the Collateral Agent with The Depositary Trust
Company or such other depositary, as applicable. Each such delivery of
Marketable Securities shall be accompanied by an opinion of counsel
satisfactory to the Collateral Agent that the Collateral Agent has
obtained a valid, first priority perfected security interest in, and a
first lien upon, such Marketable Securities.
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Upon delivery of any Pledged Item under this Collateral Agreement, the
Collateral Agent shall examine such Pledged Item and any opinions and
certificates delivered pursuant to Sections 6(b) or (c) or otherwise pursuant to
the terms hereof in connection therewith to determine that they comply as to
form with the requirements for Eligible Collateral. The Pledgor hereby
designates the Collateral Agent as the person in whose name any Collateral held
in book entry form in the Federal Reserve System shall be registered.
(e) Insufficiency Determination.
(1) If as of 4:00 p.m., New York City time, on any Business
Day the Collateral Agent determines that the aggregate Pledge Value of the
Collateral is less than the Pledge Value Requirement (any such determination, an
"Insufficiency Determination"), the Collateral Agent shall promptly notify the
Pledgor of such determination by telephone call to an Authorized Representative
of the Pledgor followed by a written confirmation of such call.
(2) If, by 4:00 p.m., New York City time on the next Business
Day following the day on which telephonic notice shall have been given pursuant
to the preceding paragraph (e)(1), the Pledgor shall have failed to deliver, in
the manner set forth in paragraphs (c) and (d) of this Section 6, sufficient
additional Eligible Collateral so that, after giving effect to such delivery,
the aggregate Pledge Value of the Collateral, as of such next business day, is
at least equal to the Pledge Value Requirement, then (x) the Collateral
Requirement with respect to any U.S. Government Securities pledged hereunder
(other than in respect of Cash Delivery Obligations) shall be increased from
150% to 200%, and (y) unless a Collateral Event of Default shall have occurred
and be continuing, the Collateral Agent shall:
(i) commence sales, in the manner described in paragraph (3)
below, of such portion of the Collateral consisting of U.S. Government
Securities as may be required to be sold in order to generate proceeds
sufficient to purchase Class A Common Stock or, after a Reorganization
Event or Spin-Off Distribution, Marketable Securities of the applicable
type, as described in the following clause (ii); and
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(ii) commence purchases, in the manner described in paragraph
(3) below, of Class A Common Stock or, after a Reorganization Event or
Spin-Off Distribution, Marketable Securities of the applicable type, in
an amount sufficient to cause the aggregate Pledge Value of the
Collateral to be at least equal to the Pledge Value Requirement.
Notwithstanding the foregoing, the Collateral Agent shall discontinue sales and
purchases pursuant to the preceding clauses (i) and (ii), respectively, if at
any time a Collateral Event of Default shall have occurred and be continuing.
The Collateral Agent shall determine the Market Value and the Pledge Value of
the Collateral after each purchase of Class A Common Stock or Marketable
Securities pursuant to the preceding clause (ii) in order to determine whether
the Pledge Value Requirement is met and whether a Collateral Event of Default
has occurred. Solely for purposes of such calculation, the Market Value of the
Class A Common Stock or Marketable Securities shall be: (A) the most recent
sales price as reported in the composite transactions for the principal
securities exchange on which the Class A Common Stock or Marketable Securities,
as the case may be, are then listed or, if such securities are not so listed,
the last quoted ask price for such securities in the over-the-counter market as
reported by the NASDAQ National Market or, if not so reported, by the National
Quotation Bureau or a similar organization; or (B) if higher, in the case of
Class A Common Stock, the most recent available Closing Price.
A "Collateral Event of Default" shall mean,
at any time, the occurrence of any of the following: (A) if no U.S. Government
Securities shall be pledged as substitute Collateral at such time, failure of
the Collateral to include at least the Maximum Deliverable Number of shares of
Class A Common Stock at such time (or, if a Reorganization Event or Spin-Off
Distribution has occurred at or before such time, failure of the Collateral to
include the Maximum Deliverable Number of any Marketable Securities received in
connection with such Reorganization Event or Spin-Off Distribution at that
time); (B) if any U.S. Government Securities shall be pledged as substitute
collateral for shares of Class A Common Stock (or Marketable Securities) at that
time, failure of such U.S. Government Securities to have a Market Value at such
time of at least 105% of the Market Value of the Class A Common Stock (or
Marketable
-15-
Securities) times the difference between (x) the Maximum Deliverable Number of
shares of Class A Common Stock (or Marketable Securities) under the Contract at
such time and (y) the number of shares of Class A Common Stock (or Marketable
Securities) pledged as Collateral hereunder at such time; and (C) at any time
after a Reorganization Event in which consideration other than Marketable
Securities was delivered, failure of any U.S. Government Securities pledged as
collateral for Cash Delivery Obligations to have a Market Value at such time of
at least 105% of such Cash Delivery Obligations, if such failure is not cured
within one Business Day after notice of such failure is delivered to Seller. For
purposes of this Agreement, the portion of any pledged U.S. Government
Securities that shall be deemed to be in respect of Cash Delivery Obligations at
any time (and therefore not pledged as substitute Collateral) shall be a portion
having a Market Value equal to 105% of the Cash Delivery Obligations at such
time (or, if less, the aggregate Market Value of all U.S. Government Securities
pledged at such time).
(3) Collateral sold and Class A Common Stock or shares of
Marketable Securities purchased by the Collateral Agent pursuant to the
preceding paragraphs (e)(1) and (2) may be sold and purchased on any securities
exchange or in any over-the-counter market or in any private purchase
transaction, and at such price or prices, in each case as the Collateral Agent
may deem satisfactory. The Pledgor covenants and agrees that it will execute and
deliver such documents and take such other action as the Collateral Agent deems
necessary or advisable in order that any such sales and purchases may be made in
compliance with law.
(f) Release of Excess Collateral. If on any Business Day the
Collateral Agent determines that the aggregate Pledge Value of the Pledgor's
Eligible Collateral exceeds the Pledge Value Requirement and no Event of Default
or failure by the Pledgor to meet any of its obligations under Sections 5 or 6
hereof has occurred and is continuing, the Pledgor may obtain the release from
the Lien hereof of any Collateral having an aggregate Pledge Value on such
Business Day less than or equal to such excess, upon delivery to the Collateral
Agent of a written notice from an Authorized Representative of the Pledgor
indicating the items of Collateral to be released. Such Collateral shall be
released only after the Collateral Agent shall have determined that the
aggregate Pledge Value of all of the
-16-
Collateral remaining after such release as determined on such Business Day is at
least equal to the Pledge Value Requirement.
(g) Delivery of Purchase Agreement Consideration. On the
Exchange Date, unless (i) a Reorganization Event shall have occurred prior
thereto or, (ii) if permitted under the Purchase Agreement, Seller shall have
elected the Cash Settlement Alternative pursuant to Section 1.3(d) of the
Purchase Agreement and made the cash payment required by that Section, the
Collateral Agent shall deliver to the Trust Class A Common Stock and, if a
Spin-Off Distribution has occurred, Marketable Securities then held by it
hereunder representing the number of shares of Class A Common Stock and
Marketable Securities distributed in such Spin-Off Distribution then required to
be delivered by Pledgor under the Purchase Agreement. If a Reorganization Event
shall have occurred prior to the Exchange Date, then, (A) if such Reorganization
Event is a Cash Merger, the Collateral Agent shall deliver to the Trust all cash
or other assets then held by the Collateral Agent and required to be delivered
under the Purchase Agreement; and (B) in any other case, if so instructed by the
Pledgor by the close of business on the Business Day preceding the Exchange
Date, the Collateral Agent shall deliver to the Trust, to the extent permitted
to be delivered in lieu of cash required to be delivered on such date under
Section 6.2 of the Purchase Agreement, the Marketable Securities then held by
the Collateral Agent hereunder. Upon such delivery, the Trust shall hold such
Class A Common Stock or Marketable Securities, as the case may be, absolutely
and free from any claim or right whatsoever.
(h) Investment of Cash Collateral. The Collateral Agent shall
invest any cash received by it pursuant to Section 6.2 of the Purchase Agreement
in U.S. Treasury Securities maturing on or before February 22, 2002.
7. Income and Voting Rights on Collateral.
(a) Unless an Event of Default or failure by the Pledgor to
meet any of its obligations under Section 5(b) or (c) hereof has occurred and is
continuing, the Pledgor shall be entitled to receive for its own account all
dividends, interest and, if any, principal and premium relating to all of the
Collateral, unless the payment thereof to the Pledgor would reduce the aggregate
Pledge Value of the Collateral
-17-
below the Pledge Value Requirement. The Collateral Agent agrees to remit to the
Pledgor on the Business Day received or the first Business Day thereafter all
such payments received by it. If an Event of Default or failure by the Pledgor
to meet any of its obligations under Section 5(b) or (c) hereof has occurred and
is continuing, all such payments made or accrued after and during the
continuance of such default or failure shall be retained by the Collateral
Agent, and any such payments which are received by the Pledgor shall be received
in trust for the benefit of the Trust, shall be segregated from other funds of
the Pledgor and shall forthwith be paid over to the Collateral Agent. Any such
payments so retained by, or paid over to, the Collateral Agent shall be held by
the Collateral Agent as Collateral hereunder.
(b) Unless an Event of Default has occurred and is continuing,
the Pledgor shall have the right, from time to time, to vote and to give
consents, ratifications and waivers with respect to the Collateral, and the
Collateral Agent shall, upon receiving a written request from the Pledgor,
deliver to the Pledgor or as specified in such request such proxies, powers of
attorney, consents, ratifications and waivers in respect of any of the
Collateral which is registered in the name of the Collateral Agent or its
nominee as shall be specified in such request and be in form and substance
satisfactory to the Collateral Agent.
If an Event of Default shall have occurred and be continuing,
the Collateral Agent shall have the right to the extent permitted by law, and
the Pledgor shall take all such action as may be necessary or appropriate to
give effect to such right, to vote and to give consents, ratifications and
waivers, and take any other action with respect to any or all of the Collateral
with the same force and effect as if the Collateral Agent were the absolute and
sole owner thereof.
8. Remedies upon Events of Default.
(a) If any Event of Default shall have occurred and be
continuing, the Collateral Agent may exercise on behalf of the Trust all the
rights of a secured party under the UCC (whether or not in effect in the
jurisdiction where such rights are exercised) and, in addition, without being
required to give any notice, except as herein provided or as
-18-
may be required by mandatory provisions of law, shall: (i) deliver all
Collateral consisting of Class A Common Stock or Marketable Securities (but not,
in either case, in excess of the number of shares thereof deliverable under the
Purchase Agreement at such time) to the Trust on the date of such Event of
Default (in either case, the "Delivery Date"), whereupon the Trust shall hold
such Class A Common Stock or Marketable Securities absolutely free from any
claim or right of whatsoever kind, including any equity or right of redemption
of the Pledgor which may be waived, and the Pledgor, to the extent permitted by
law, hereby specifically waives all rights of redemption, stay or appraisal
which it has or may have under any law now existing or hereafter adopted; and
(ii) if such delivery shall be insufficient to satisfy in full all of the
obligations of Pledgor under the Purchase Agreement, sell all of the remaining
Collateral, or such lesser portion thereof as may be necessary to generate
proceeds sufficient to satisfy in full all of the obligations of Pledgor under
the Purchase Agreement, at public or private sale or at any broker's board or on
any securities exchange, for cash, upon credit or for future delivery, and at
such price or prices as the Collateral Agent may deem satisfactory. The Pledgor
covenants and agrees that it will execute and deliver such documents and take
such other action as the Collateral Agent reasonably deems necessary or
advisable in order that any such sale may be made in compliance with law. Upon
any such sale the Collateral Agent shall have the right to deliver, assign and
transfer to the purchaser thereof the Collateral so sold. Each purchaser at any
such sale shall hold the Collateral so sold absolutely and free from any claim
or right of whatsoever kind, including any equity or right of redemption of the
Pledgor which may be waived, and the Pledgor, to the extent permitted by law,
hereby specifically waives all rights of redemption, stay or appraisal which it
has or may have under any law now existing or hereafter adopted. The notice (if
any) of such sale required by Article 9 of the UCC shall (1) in case of a public
sale, state the time and place fixed for such sale, (2) in case of sale at a
broker's board or on a securities exchange, state the board or exchange at which
such sale is to be made and the day on which the Collateral, or the portion
thereof so being sold, will first be offered for sale at such board or exchange,
and (3) in the case of a private sale, state the day after which such sale may
be consummated. Any such public sale shall be held at such time or times within
ordinary business hours and at such place or places as the Collateral Agent
-19-
may fix in the notice of such sale. At any such sale the Collateral may be sold
in one lot as an entirety or in separate parcels, as the Collateral Agent may
determine. The Collateral Agent shall not be obligated to make any such sale
pursuant to any such notice. The Collateral Agent may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for the
sale, and such sale may be made at any time or place to which the same may be so
adjourned. In case of any sale of all or any part of the Collateral on credit or
for future delivery, the Collateral so sold may be retained by the Collateral
Agent until the selling price is paid by the purchaser thereof, but the
Collateral Agent shall not incur any liability in case of the failure of such
purchaser to take up and pay for the Collateral so sold and, in case of any such
failure, such Collateral may again be sold upon like notice. The Collateral
Agent, instead of exercising the power of sale herein conferred upon it, may
proceed by a suit or suits at law or in equity to foreclose the security
interests and sell the Collateral, or any portion thereof, under a judgment or
decree of a court or courts of competent jurisdiction.
(b) Power of Attorney. Upon any delivery or sale of all or any
part of any Collateral made either under the power of delivery or sale given
hereunder or under judgment or decree in any judicial proceedings for
foreclosure or otherwise for the enforcement of this Collateral Agreement, the
Collateral Agent is hereby irrevocably appointed the true and lawful attorney of
the Pledgor, in the name and stead of the Pledgor, to make all necessary deeds,
bills of sale and instruments of assignment, transfer or conveyance of the
property thus delivered or sold. For that purpose the Collateral Agent may
execute all such documents and instruments. This power of attorney shall be
deemed coupled with an interest, and the Pledgor hereby ratifies and confirms
all that its attorneys acting under such power, or such attorneys' successors or
agents, shall lawfully do by virtue of this Collateral Agreement. If so
requested by the Collateral Agent, by the Trustees or by any purchaser of the
Collateral or a portion thereof, the Pledgor shall further ratify and confirm
any such delivery or sale by executing and delivering to the Collateral Agent,
to the Trustees or to such purchaser or purchasers at the expense of the Pledgor
all proper deeds, bills of sale, instruments of
-20-
assignment, conveyance of transfer and releases as may be designated in any
such request.
(c) Application of Collateral and Proceeds. In the case
of an Event of Default, the Collateral Agent may proceed to realize upon the
security interest in the Collateral against any one or more of the types of
Collateral, at any one time, as the Collateral Agent shall determine in its sole
discretion subject to the foregoing provisions of this Section 8. The proceeds
of any sale of, or other realization upon, or other receipt from, any of the
remaining Collateral shall be applied by the Collateral Agent in the following
order of priorities:
first, to the payment to the Trust of an amount equal to: (A)
the aggregate Market Value of a number of shares of Class A Common
Stock and, if a Spin-Off Distribution has occurred, Marketable
Securities distributed in such Spin-Off Distribution equal to (1) the
number of shares of Class A Common Stock and Marketable Securities, as
the case may be, required to be delivered under the Purchase Agreement
on the Delivery Date minus (2) the number of shares of Class A Common
Stock and Marketable Securities, as the case may be, delivered by the
Collateral Agent to the Trust on the Delivery Date as described above;
or (B) from and after a Reorganization Event, the sum of (1) the Cash
Delivery Obligations on the Delivery Date and (2) the aggregate Market
Value on the Delivery Date of a number of Marketable Securities
distributed in such Reorganization Event equal to (x) the number
thereof permitted to be delivered on the Delivery Date under Section
6.2 of the Purchase Agreement minus (y) the number thereof delivered by
the Collateral Agent to the Trust on the Delivery Date as described
above;
second, to the payment to the Collateral Agent of the expenses
of such sale or other realization, including reasonable compensation to
the Collateral Agent and its agents and counsel, and all expenses,
liabilities and advances incurred or made by the Collateral Agent in
connection therewith, including brokerage fees in connection with the
sale by the Collateral Agent of any Pledged Item; and
finally, if all of the obligations of the Pledgor
hereunder and under the Purchase Agreement have been
-21-
fully discharged or sufficient funds have been set aside by the
Collateral Agent at the request of the Pledgor for the discharge
thereof, any remaining proceeds shall be released to the Pledgor.
9. The Collateral Agent.
The Collateral Agent accepts its duties and responsibilities
hereunder as agent for the Trust, on and subject to the following terms and
conditions:
(a) Performance of Duties. The Collateral Agent undertakes to
perform such duties and only such duties as are expressly set forth herein and,
beyond the exercise of reasonable care in the performance of such duties, no
implied covenants or obligations shall be read into this Collateral Agreement
against the Collateral Agent. No provision hereof shall be construed to relieve
the Collateral Agent from liability for its own grossly negligent action,
grossly negligent failure to act or its own wilful misconduct, subject to the
following:
(1) The Collateral Agent may consult with counsel, and the
advice or opinion of such counsel shall be full and complete
authorization and protection in respect of an action taken or suffered
hereunder in good faith and in accordance with such advice or opinion
of counsel.
(2) The Collateral Agent shall not be liable with respect to
any action taken, suffered or omitted by it in good faith (i)
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred on it by this Collateral Agreement or (ii)
in accordance with any direction or request of the Trustees.
(3) The Collateral Agent shall not be liable for any error of
judgment made in good faith by any of its officers, unless the
Collateral Agent was grossly negligent in ascertaining the pertinent
facts.
(4) In the absence of bad faith on its part, the Collateral
Agent may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any note, notice,
resolution, consent, certificate, affidavit, letter, telegram,
-22-
teletype message, statement, order or other document believed by it to
be genuine and correct and to have been signed or sent by the proper
Person or Persons.
(5) No provision of this Collateral Agreement shall require
the Collateral Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(6) The Collateral Agent may perform any duties hereunder
either directly or by or through agents or attorneys, and the
Collateral Agent shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care
by it hereunder. In furtherance thereof, any subsidiary owned or
controlled by the Collateral Agent, or its successors, as agent for the
Collateral Agent, may perform any or all of the duties of the
Collateral Agent relating to the valuation of securities and other
instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be personally
liable for any taxes or other governmental charges imposed upon or in
respect of (i) the collateral or (ii) the income or other distributions
thereon.
(8) Unless and until the Collateral Agent shall have received
notice from the Pledgor, or unless and until a Responsible Officer of
the Collateral Agent shall have actual knowledge to the contrary, the
Collateral Agent shall be entitled to deem and treat all Collateral
delivered to it hereunder as Eligible Collateral hereunder, provided
that the Collateral Agent has carried out the duties specified in
Section 6 with respect to such Collateral at the time of delivery
thereof.
The Collateral Agent shall not be responsible for the correctness of the
recitals and statements herein which are made by the Pledgor or for any
statement or certificate delivered by the Pledgor pursuant hereto. Except as
-23-
specifically provided herein, the Collateral Agent shall not be responsible for
the validity, sufficiency, collectibility or marketability of any Collateral
given to or held by it hereunder or for the validity or sufficiency of the
Purchase Agreement or the Lien on the Collateral purported to be created hereby.
(b) Knowledge. The Collateral Agent shall not be deemed to
have knowledge of any Event of Default (except a Collateral Event of Default),
unless and until a Responsible Officer of the Collateral Agent shall have actual
knowledge thereof or shall have received written notice thereof.
(c) Merger. Any corporation or association into which the
Collateral Agent may be converted or merged, or with which it may be
consolidated, or to which it may sell or transfer its agency business and assets
as a whole or substantially as a whole, or any corporation or association
resulting from any such conversion, sale, merger, consolidation or transfer to
which it is a party, shall be and become a successor Collateral Agent hereunder
and vested with all of the title to the Collateral and all of the powers,
discretions, immunities, privileges and other matters as was its predecessor
without, except as provided above, the execution or filing of any instrument or
any further act, deed or conveyance on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
(d) Resignation. The Collateral Agent and any successor
Collateral Agent may at any time resign by giving thirty days' written notice by
registered or certified mail to the Pledgor and notice to the Trust in
accordance with the provisions of Section 10(d) hereof. Such resignation shall
take effect upon the appointment of a successor Collateral Agent by the Trust.
(e) Removal. The Collateral Agent may be removed at any time
by an instrument or concurrent instruments in writing delivered to the
Collateral Agent and to the Pledgor and signed by the Trust.
(f) Appointment of Successor. (1) If the Collateral Agent
hereunder shall resign or be removed, or be dissolved or shall be in the course
of dissolution or liquidation or otherwise become incapable of action hereunder,
or if it shall be taken under the control of any
-24-
public officer or officers or of a receiver appointed by a court, a successor
may be appointed by the Trust by an instrument or concurrent instruments in
writing signed by the Trust or by its attorneys in fact fully authorized. A copy
of such instrument or concurrent instruments shall be sent by registered mail to
the Pledgor.
(2) Every such temporary or permanent successor Collateral
Agent appointed pursuant to the provisions hereof shall be a trust company or
bank in good standing, having a reported capital and surplus of not less than
$100,000,000 and capable of holding the Collateral in the State of New York, if
there be such an institution willing, qualified and able to accept the duties of
the Collateral Agent hereunder upon customary terms.
(g) Acceptance by Successor. Every temporary or permanent
successor Collateral Agent appointed hereunder shall execute, acknowledge and
deliver to its predecessor and also to the Pledgor an instrument in writing
accepting such appointment hereunder, whereupon such successor, without any
further act, deed or conveyance, shall become fully vested with all the estates,
properties, rights, powers, duties and obligations of its predecessors. Such
predecessor shall, nevertheless, on the written request of its successor or the
Pledgor, execute and deliver an instrument transferring to such successor all
the estates, properties, rights and powers of such predecessor hereunder. Every
predecessor Collateral Agent shall deliver all Collateral held by it as the
Collateral Agent hereunder to its successor. Should any instrument in writing
from the Pledgor be required by a successor Collateral Agent for more fully and
certainly vesting in such successor the estates, properties, rights, powers,
duties and obligations hereby vested or intended to be vested in the
predecessor, any and all such instruments in writing shall, at the request of
the temporary or permanent successor Collateral Agent, be forthwith executed,
acknowledged and delivered by the Pledgor.
10. Miscellaneous.
(a) Benefit of Agreement; Successors and Assigns. Whenever any
of the parties hereto is referred to, such reference shall be deemed to include
the successors and assigns of such party. All the covenants and agreements
herein contained by or on behalf of the Pledgor and the
-25-
Collateral Agent shall bind, and inure to the benefit of, their respective
successors and assigns whether so expressed or not, and shall be enforceable by
and inure to the benefit of the Trust and its successors and assigns.
(b) Separability. To the extent permitted by law, the
unenforceability or invalidity of any provision or provisions of this Collateral
Agreement shall not render any other provision or provisions herein contained
unenforceable or invalid.
(c) Amendments and Waivers. Any term, covenant, agreement or
condition of this Collateral Agreement may be amended or compliance therewith
may be waived (either generally or in a particular instance and either
retrospectively or prospectively) but only by a writing signed by the Collateral
Agent, the Pledgor and the Trust.
(d) Notices. (1) Any notice provided for herein, unless
otherwise specified, shall be in writing (including transmittals by telex or
telecopier) and shall be given to a party at the address set forth opposite such
party's name on the signature pages hereto or at such other address as may be
designated by notice duly given in accordance with this Section 10(d) to each
other party hereto.
(2) Each such notice given pursuant to paragraph (1) shall be
effective (i) if sent by certified mail (return receipt requested), 72 hours
after being deposited in the United States mail, postage prepaid; (ii) if given
by telex or telecopier, when such telex or telecopied notice is transmitted; or
(iii) if given by any other means, when delivered at the address specified in
this Section 10(d).
(e) Governing Law. This Collateral Agreement shall in all
respects be construed in accordance with and governed by the laws of the State
of New York; provided that as to Pledged Items located in any jurisdiction other
than the State of New York, the Collateral Agent on behalf of the Trust shall
have all of the rights to which a secured party is entitled under the laws of
such other jurisdiction.
(f) Counterparts. This Collateral Agreement may be executed,
acknowledged and delivered in any number of counterparts and such counterparts
taken together shall constitute one and the same instrument.
-26-
11. Termination of Collateral Agreement.
This Collateral Agreement and the rights hereby granted by the
Pledgor in the Collateral shall cease, terminate and be void upon fulfillment of
all of the obligations of the Pledgor under the Purchase Agreement, and the
Pledgor shall have no further liability hereunder upon such termination. Any
Collateral remaining at the time of such termination (including any Class A
Common Stock held following Seller's election of the Cash Settlement Alternative
and payment in respect thereof pursuant to the Purchase Agreement, if permitted
thereunder) shall be fully released and discharged from the Lien hereof and
delivered to the Pledgor by the Collateral Agent, all at the expense of the
Pledgor.
12. No Personal Liability of Trustees.
By executing this Collateral Agreement none of the Trustees
assumes any personal liability hereunder.
-27-
IN WITNESS WHEREOF, the Pledgor has caused this Collateral
Agreement to be duly executed on its behalf, and the Collateral Agent has caused
this Collateral Agreement to be duly executed on its behalf, as of the date
hereof.
PLEDGOR:
THE XXXXX XXXXXX 1994 TRUST
By
--------------------------------
Xxxxxxx X. Xxxxxx
By
--------------------------------
Xxxxxx X. Xxxxxx
By
--------------------------------
Xxx X. Xxxxxx
each a Trustee of the Xxxxx
Xxxxxx 1994 Trust
Addresses for Notices:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: 212-572-6745
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: 000-000-0000
x/x Xxxxxxxxx, Xxxxxxx, Xxxx & Tyler
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx X. Xxxxxx
Telecopy: 000-000-0000
With copies to:
The Xxxxx Xxxxxx Companies Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telecopy: 000-000-0000
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: 000-000-0000
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telecopy: 000-000-0000
COLLATERAL AGENT:
The Chase Manhattan Bank,
as Collateral Agent
By
----------------------------
Name:
Title:
Address for Notices:
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Collateral Management
Services
THE TRUST:
XXXXX XXXXXX AUTOMATIC COMMON
EXCHANGE SECURITY TRUST II
---------------------------------
Xxxxxx X. Xxxxxxx,
as Trustee
---------------------------------
Xxxxxxx X. Xxxxxx III,
as Trustee
---------------------------------
Xxxxx X. X'Xxxxx,
as Trustee
Address for Notices:
c/o Xxxxxx X. Xxxxxxx,
Managing Trustee
Xxxxxxx & Associates
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telecopier: 000-000-0000
-30-
Exhibit A
to
Collateral Agreement
NOTICE OF PLEDGE VALUE
To: 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: 212-572-6745
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: 000-000-0000
x/x Xxxxxxxxx, Xxxxxxx, Xxxx & Xxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx X. Xxxxxx
Telecopy: 000-000-0000
The Chase Manhattan Bank, as Collateral Agent (the "Collateral
Agent") under the Collateral Agreement, dated as of February 17, 1999 (the
"Collateral Agreement"), among the Pledgor, the Collateral Agent and Xxxxx
Xxxxxx Automatic Common Exchange Security Trust II, hereby notifies you,
pursuant to Section 6(a) of the Collateral Agreement, that as of 4:00 p.m. New
York City time on _________ __, ____:
1. The Pledge Value was $__________; and
2. The Pledge Value Requirement was $__________.
Terms used and not otherwise defined herein shall have the
meanings set forth in the Collateral Agreement.
THE CHASE MANHATTAN BANK,
as Collateral Agent
By:__________________________
Name:
Title:
cc: The Xxxxx Xxxxxx Companies Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telecopy: 000-000-0000
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: 000-000-0000
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telecopy: 000-000-0000
-2-
Exhibit B
to
Collateral Agreement
CERTIFICATE FOR SUBSTITUTED COLLATERAL
The undersigned, The Xxxxx Xxxxxx 1994 Trust (the "Pledgor"),
hereby certifies, pursuant to Section 6(b) of the Collateral Agreement, dated as
of February 17, 1999, among the Pledgor, The Chase Manhattan Bank, as Collateral
Agent, and Xxxxx Xxxxxx Automatic Common Exchange Security Trust II (the
"Collateral Agreement"; terms defined in the Collateral Agreement being used
herein as defined therein), that:
1. The Pledgor is delivering the following securities to the
Collateral Agent to be held by the Collateral Agent as substituted Collateral
(the "Substituted Collateral"):
[INSERT DESCRIPTION OF SUBSTITUTE COLLATERAL]
2. The Pledgor requests that the Collateral Agent transfer to
the Pledgor the following Prior Collateral, pursuant to Section 6(b) of the
Collateral Agreement:
[INSERT DESCRIPTION OF PRIOR COLLATERAL]
3. The Pledgor hereby represents and warrants to the
Collateral Agent and the Trust that:
(a) Consents to Transfer. No Transfer Restrictions exist with
respect to or otherwise apply to the assignment of, or transfer by the Pledgor
of possession of, any items of Substituted Collateral to the Collateral Agent
under the Collateral Agreement, or the subsequent sale or transfer of such items
of Substituted Collateral by the Collateral Agent pursuant to the terms of the
Collateral Agreement.
(b) Title to Collateral; Perfected Security Interest. The
Pledgor has good and marketable title to the Substituted Collateral, free of all
Liens (other than the Lien created by the Collateral Agreement) and Transfer
Restrictions. Upon delivery of the Collateral to the Collateral Agent, the
Collateral Agent will obtain a valid, first priority perfected security interest
in, and a first lien upon, such Substituted Collateral subject to no other Lien.
None of such Substituted Collateral is or shall be pledged by the Pledgor as
collateral for any other purpose.
This Certificate may be relied upon by the Trust as fully and
to the same extent as if this Certificate had been specifically addressed to the
Trust.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate this _____ day of ____________, ____.
----------------------------------
Name:
Title:
-2-
Exhibit C
to
Collateral Agreement
CERTIFICATE FOR ADDITIONAL COLLATERAL
The undersigned, The Xxxxx Xxxxxx 1994 Trust (the "Pledgor"),
hereby certifies, pursuant to Section 6(c) of the Collateral Agreement, dated as
of February 17, 1999, among the Pledgor, The Chase Manhattan Bank, as Collateral
Agent and Xxxxx Xxxxxx Automatic Common Exchange Security Trust II (the
"Collateral Agreement"; terms defined in the Collateral Agreement being used
herein as defined therein), that:
1. The Pledgor is delivering the following securities to the
Collateral Agent to be held by the Collateral Agent as additional Collateral
(the "Additional Collateral"):
[INSERT DESCRIPTION OF ADDITIONAL COLLATERAL]
2. The Pledgor hereby represents and warrants to the
Collateral Agent that:
(a) Consents to Transfer. No Transfer Restrictions exist with
respect to or otherwise apply to the assignment of, or transfer by the Pledgor
of possession of, any items of Additional Collateral to the Collateral Agent
under the Collateral Agreement, or the subsequent sale or transfer of such items
of Additional Collateral by the Collateral Agent pursuant to the terms of the
Collateral Agreement.
(b) Title to Collateral; Perfected Security Interest. The
Pledgor has good and marketable title to the Additional Collateral, free of all
Liens (other than the Lien created by the Collateral Agreement) and Transfer
Restrictions. Upon delivery of the Collateral to the Collateral Agent, the
Collateral Agent will obtain a valid, first priority perfected security interest
in, and a first lien upon, such additional Collateral subject to no other Lien.
None of such Additional Collateral is or shall be pledged by the Pledgor as
collateral for any other purpose.
This Certificate may be relied upon by the Trust as fully and
to the same extent as if this Certificate had been specifically addressed to the
Trust.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate this _____ day of ____________, ____.
-------------------------------------
Name:
Title:
-2-
