Section 7.1 Representations and Warranties ………………………………………. 18
\nSection 7.2 Covenants …………………………………………………………. 19<\/p>\n
Section 9.1 Amendment Without Consent of Holders …………………………………. 25
\nSection 9.2 Amendment with Consent of Holders ……………………………………. 26
\nSection 9.3 Execution of Amendments …………………………………………….. 27
\nSection 9.4 Effect of Amendments ……………………………………………….. 27
\nSection 9.5 Reference to Amendments …………………………………………….. 27
\n<\/table>\n
\n ARTICLE X<\/p>\n
Miscellaneous<\/p>\n
Section 10.1 No Waiver …………………………………………………………. 27
\nSection 10.2 GOVERNING LAW ……………………………………………………… 28
\nSection 10.3 Notices …………………………………………………………… 28
\nSection 10.4 Successors and Assigns ……………………………………………… 28
\nSection 10.5 Counterparts ………………………………………………………. 29
\nSection 10.6 Severability ………………………………………………………. 29
\nSection 10.7 Expenses, Etc. …………………………………………………….. 29
\nSection 10.8 Security Interest Absolute ………………………………………….. 29
\nSection 10.9 Waiver of Jury Trial ……………………………………………….. 30<\/p>\n
EXHIBIT A
\nInstruction from Purchase Contract Agent to Collateral Agent ………………………….. A-1<\/p>\n
EXHIBIT B
\nInstruction to Purchase Contract Agent ……………………………………………… B-1<\/p>\n
EXHIBIT C
\nInstruction to Custodial Agent Regarding Remarketing …………………………………. C-1<\/p>\n
EXHIBIT D
\nInstruction to Custodial Agent Regarding Withdrawal from Remarketing …………………… D-1
\n<\/table>\n
iii
\n 5
\n PLEDGE AGREEMENT<\/p>\n
PLEDGE AGREEMENT, dated as of April 7, 2000 (this “Agreement”), among
\nMetLife, Inc., a Delaware corporation (the “Company”), The Bank of New York, a
\nNew York banking corporation, not individually but solely as collateral agent
\n(in such capacity, together with its successors in such capacity, the
\n“Collateral Agent”), as custodial agent (in such capacity, together with its
\nsuccessors in such capacity, the “Custodial Agent”) and as “securities
\nintermediary” as defined in Section 8-102(a)(14) of the Code (as defined herein)
\n(in such capacity, together with its successors in such capacity, the
\n“Securities Intermediary”), and Bank One Trust Company, N.A., not individually
\nbut solely as purchase contract agent and as attorney-in-fact of the Holders (as
\ndefined in the Purchase Contract Agreement) from time to time of the Securities
\n(as hereinafter defined) (in such capacity, together with its successors in such
\ncapacity, the “Purchase Contract Agent”) under the Purchase Contract Agreement
\n(as hereinafter defined).<\/p>\n
RECITALS<\/p>\n
The Company and the Purchase Contract Agent are parties to the Purchase
\nContract Agreement, dated as of the date hereof (as modified and supplemented
\nand in effect from time to time, the “Purchase Contract Agreement”), pursuant to
\nwhich there may be issued up to 17,500,000 Units of the Company (20,125,000 if
\nthe Underwriters’ over-allotment option pursuant to the Underwriting Agreement
\n(as defined in the Declaration) is exercised in full), having a Stated Amount of
\n$50 per Unit, all of which will initially be Normal Units.<\/p>\n
Each Normal Unit will be comprised of (a) a stock purchase contract
\n(the “Purchase Contract”) under which the holder will be required to purchase
\nfrom the Company and the Company will be required to sell to such holder not
\nlater than May 15, 2003 (the “Stock Purchase Date”), for $50.00, a number of
\nshares of common stock, $0.01 par value per share (the “Common Stock”), of the
\nCompany equal to the Settlement Rate (as defined below), and (b) either
\nbeneficial ownership of (x) a Capital Security (as defined below) or (y)
\nfollowing the remarketing of the Capital Securities in accordance with the
\nPurchase Contract Agreement and the Remarketing Agreement (as defined below),
\nthe appropriate Treasury Consideration (as defined in the Purchase Contract
\nAgreement).<\/p>\n
In accordance with the terms of the Purchase Contract Agreement, a
\nholder of Normal Units may separate the Capital Securities or the appropriate
\nTreasury Consideration, as applicable, from the related Purchase Contracts by
\nsubstituting for such Capital Securities or the appropriate Treasury
\nConsideration, as the case may be, Treasury
\n 6
\nSecurities (as defined in the Purchase Contract Agreement) that will pay in the
\naggregate an amount equal to the aggregate Stated Amount (as defined below) of
\nsuch Normal Units. Upon such separation, the Normal Units will become Stripped
\nUnits. Each Stripped Unit will be comprised of (a) a Purchase Contract under
\nwhich the holder will purchase from the Company not later than the Stock
\nPurchase Date, for $50.00, a number of shares of Common Stock of the Company
\nequal to the Settlement Rate, and (b) a 1\/20 undivided beneficial interest in a
\nzero-coupon U.S. Treasury Security (CUSIP No. 912833FS4) maturing on May 15,
\n2003 that will pay $1,000 on such maturity date (the “Treasury Securities”).<\/p>\n
Pursuant to the terms of the Declaration (as defined below), MetLife
\nCapital Trust I, a statutory business trust formed under the laws of the State
\nof Delaware (the “Trust”), will issue 17,500,000 (20,125,000 if the
\nUnderwriters’ over-allotment option pursuant to the Underwriting Agreement is
\nexercised in full) 8% Capital Securities (the “Capital Securities”) and 8%
\ncommon securities (the “Common Securities”), in each case having a stated
\nliquidation value equal to the Stated Amount.<\/p>\n
Pursuant to the terms of the Purchase Contract Agreement and the
\nPurchase Contracts, the Holders, from time to time, of the Securities have
\nirrevocably authorized the Purchase Contract Agent, as attorney-in-fact of such
\nHolders, among other things, to execute and deliver this Agreement on behalf of
\nsuch Holders and to grant the pledge provided hereby of the Capital Securities,
\nany Treasury Consideration and any Treasury Securities delivered in exchange
\ntherefor to secure each Holder’s obligations under the related Purchase
\nContract, as provided herein and subject to the terms hereof. Upon such pledge,
\nthe Capital Securities, any Treasury Consideration and the Treasury Securities
\nwill be beneficially owned by the Holders but will be owned of record by the
\nPurchase Contract Agent subject to the Pledge hereunder.<\/p>\n
Accordingly, the Company, the Collateral Agent, the Securities
\nIntermediary, the Custodial Agent and the Purchase Contract Agent, on its own
\nbehalf and as attorney-in-fact of the Holders from time to time of the
\nSecurities, agree as follows:<\/p>\n
ARTICLE I<\/p>\n
Definitions<\/p>\n
Section 1.1 Definitions. For all purposes of this agreement, except as
\notherwise expressly provided or unless the context otherwise requires:<\/p>\n
2
\n 7
\n (a) the terms defined in this Article have the meanings assigned to
\n them in this Article and include the plural as well as the singular;<\/p>\n
(b) the words “herein,” “hereof” and “hereunder” and other words of
\n similar import refer to this Agreement as a whole and not to any
\n particular Article, Section or other subdivision; and<\/p>\n
(c) the following terms have the meanings assigned to them in the
\n Purchase Contract Agreement: (i) Act, (ii) Certificate, (iii) Debentures,
\n (iv) Early Settlement, (v) Early Settlement Amount, (vi) Failed
\n Remarketing, (vii) First Supplemental Indenture, (viii) Holder, (ix)
\n Indenture, (x) Merger Early Settlement, (xi) Merger Early Settlement
\n Amount, (xii) Normal Unit, (xiii) Opinion of Counsel, (xiv) Outstanding
\n Securities, (xv) Remarketing Agent, (xvi) Remarketing Agreement, (xvii)
\n Remarketing Date, (xviii) Settlement Rate, (xix) Stated Amount, (xx)
\n Stripped Unit, (xxi) Subsequent Remarketing Date, (xxii) Termination
\n Event, (xxiii) Treasury Consideration, and (xxiv) Unit;<\/p>\n
“Agreement” means this instrument as originally executed or as it may
\nfrom time to time be supplemented or amended by one or more agreements
\nSupplemental hereto entered into pursuant to the applicable provisions hereof.<\/p>\n
“Bankruptcy Code” means Title 11 of the United States Code, or any
\nother law of the United States that from time to time provides a uniform system
\nof bankruptcy laws.<\/p>\n
“Business Day” means any day that is not a Saturday, Sunday or day on
\nwhich banking institutions and trust companies in The City of New York or at a
\nplace of payment are authorized or required by law, regulation or executive
\norder to close.<\/p>\n
“Capital Securities” has the meaning specified in the Recitals.<\/p>\n
“Code” has the meaning specified in Section 6.1 hereof.<\/p>\n
“Collateral” has the meaning specified in Section 2.1 hereof.<\/p>\n
“Collateral Account” means the securities account (number 245955)
\nmaintained at The Bank of New York in the name “Bank One Trust Company, N.A., as
\nPurchase Contract Agent on behalf of the holders of certain securities of
\nMetLife Capital Trust I, Collateral Account subject to the security interest of
\nThe Bank of New York, as Collateral Agent, for the benefit of MetLife, Inc., as
\npledgee” and any successor account.<\/p>\n
3
\n 8
\n “Collateral Agent” has the meaning specified in the first paragraph of
\nthis Agreement.<\/p>\n
“Common Stock” has the meaning specified in the Recitals.<\/p>\n
“Company” means the Person named as the “Company” in the first
\nparagraph of this Agreement until a successor shall have become such, and
\nthereafter “Company” shall mean such successor.<\/p>\n
“Custodial Agent” has the meaning specified in the first paragraph of
\nthis Agreement.<\/p>\n
“Debenture Trustee” means The Bank of New York, as trustee under the
\nIndenture (as defined in the Purchase Contract Agreement) and First Supplemental
\nIndenture (as defined in the Purchase Contract Agreement) until a successor is
\nappointed thereunder, and thereafter means such successor trustee.<\/p>\n
“Declaration” means the Amended and Restated Declaration of Trust,
\ndated as of April 7, 2000 among the Company, as sponsor, the trustees named
\ntherein and the holders from time to time of undivided beneficial interests in
\nthe assets of the Trust.<\/p>\n
“Intermediary” means any entity that in the ordinary course of its
\nbusiness maintains securities accounts for others and is acting in that
\ncapacity.<\/p>\n
“Person” means any individual, corporation, limited liability company,
\npartnership, joint venture, association, joint-stock company, trust,
\nunincorporated organization or government or any agency or political subdivision
\nthereof.<\/p>\n
“Pledge” has the meaning specified in Section 2.1 hereof.<\/p>\n
“Pledged Capital Securities” has the meaning specified in Section 2.1
\nhereof.<\/p>\n
“Pledged Treasury Consideration” has the meaning specified in Section
\n2.1 hereof.<\/p>\n
“Pledged Treasury Securities” has the meaning specified in Section 2.1
\nhereof.<\/p>\n
“Proceeds” means all interest, dividends, cash, instruments,
\nsecurities, financial assets (as defined in Sections 8-102(a)(9) of the Code)
\nand other property from time to time received, receivable or otherwise
\ndistributed upon the sale, exchange, collection or disposition of the Collateral
\nor any proceeds thereof.<\/p>\n
4
\n 9
\n “Purchase Contract” has the meaning specified in the Recitals.<\/p>\n
“Purchase Contract Agent” has the meaning specified in the first
\nparagraph of this Agreement.<\/p>\n
“Purchase Contract Agreement” has the meaning specified in the
\nRecitals.<\/p>\n
“Securities” means the Normal Units and Stripped Units collectively.<\/p>\n
“Securities Intermediary” has the meaning specified in the first
\nparagraph of this Agreement.<\/p>\n
“Security Entitlement” has the meaning set forth in Section 8-102(a)
\n(17) of the Code.<\/p>\n
“Separate Capital Securities” means any Capital Securities that are not
\nPledged Capital Securities.<\/p>\n
“Stock Purchase Date” has the meaning specified in the Recitals.<\/p>\n
“TRADES” means the Treasury\/Reserve Automated Debt Entry System
\nmaintained by the Federal Reserve Bank of New York pursuant to the TRADES
\nRegulations.<\/p>\n
“TRADES Regulations” means the regulations of the United States
\nDepartment of the Treasury, published at 31 C.F.R. Part 357, as amended from
\ntime to time. Unless otherwise defined herein, all terms defined in the TRADES
\nRegulations are used herein as therein defined.<\/p>\n
“Transfer” means, with respect to the Collateral and in accordance with
\nthe instructions of the Collateral Agent, the Purchase Contract Agent or the
\nHolder, as applicable:<\/p>\n
(i) in the case of Collateral consisting of securities which cannot be
\n delivered by book-entry or which the parties agree are to be delivered in
\n physical form, delivery in appropriate physical form to the recipient
\n accompanied by any duly executed instruments of transfer, assignments in
\n blank, transfer tax stamps and any other documents necessary to constitute
\n a legally valid transfer to the recipient;<\/p>\n
(ii) in the case of Collateral consisting of securities maintained in
\n book-entry form by causing a “securities intermediary” (as defined in
\n Section 8-102(a)(14) of the<\/p>\n
5
\n 10
\n Code) to (a) credit a “security entitlement” (as defined in Section
\n 8-102(a)(17) of the Code) with respect to such securities to a “securities
\n account” (as defined in Section 8-501(a) of the Code) maintained by or on
\n behalf of the recipient and (b) to issue a confirmation to the recipient
\n with respect to such credit. In the case of Collateral to be delivered to
\n the Collateral Agent, the Securities Intermediary shall be the securities
\n intermediary and the securities account shall be the Collateral Account.<\/p>\n
“Treasury Security” has the meaning specified in the Recitals.<\/p>\n
“Trust” has the meaning specified in the Recitals.<\/p>\n
ARTICLE II<\/p>\n
Pledge; Control and Perfection<\/p>\n
Section 2.1 The Pledge. The Holders from time to time acting through
\nthe Purchase Contract Agent, as their attorney-in-fact, and the Purchase
\nContract Agent, as such attorney-in-fact, hereby pledge and grant to the
\nCollateral Agent, for the benefit of the Company, as collateral security for the
\nperformance when due by such Holders of their respective obligations under the
\nrelated Purchase Contracts, a security interest in all of the right, title and
\ninterest of the Purchase Contract Agent and such Holders (a) in (i) the Capital
\nSecurities, Treasury Consideration and Treasury Securities constituting a part
\nof the Securities, (ii) any Treasury Securities delivered in exchange for any
\nCapital Securities or Treasury Consideration, as applicable, in accordance with
\nSection 4.1 hereof, and (iii) any Capital Securities or Treasury Consideration,
\nas applicable, delivered in exchange for any Treasury Securities in accordance
\nwith Section 4.2 hereof, in each case that have been Transferred to or otherwise
\nreceived by the Collateral Agent and not released by the Collateral Agent to
\nsuch Holders under the provisions of this Agreement; (b) in the Collateral
\nAccount and all securities, financial assets, security entitlements, cash and
\nother property credited thereto and all Security Entitlements related thereto;
\n(c) in any Debentures delivered to the Collateral Agent upon the occurrence of a
\nliquidation of the Trust as provided in Section 6.2; and (d) all Proceeds of the
\nforegoing (all of the foregoing, collectively, the “Collateral”). Prior to or
\nconcurrently with the execution and delivery of this Agreement, the Purchase
\nContract Agent, on behalf of the initial Holders of the Securities, shall cause
\nthe Capital Securities comprising a part of the Normal Units to be Transferred
\nto the Collateral Agent for the benefit of the Company. Such Capital Securities
\nshall be Transferred by physically delivering such securities to the Securities
\nIntermediary indorsed in blank and causing the Securities Intermediary to credit
\nthe Collateral Account with such securities and sending the Collateral Agent a
\nconfirmation of the deposit of such securities. Treasury Securities and Treasury
\nConsideration, as<\/p>\n
6
\n 11
\napplicable, shall be Transferred to the Collateral Account maintained by the
\nCollateral Agent at the Securities Intermediary by book-entry transfer to the
\nCollateral Account in accordance with the TRADES Regulations and other
\napplicable law and by the notation by the Securities Intermediary on its books
\nthat a Security Entitlement with respect to such Treasury Securities or Treasury
\nConsideration, has been credited to the Collateral Account. For purposes of
\nperfecting the pledge under applicable law, including, to the extent applicable,
\nthe TRADES Regulations or the Uniform Commercial Code as adopted and in effect
\nin any applicable jurisdiction, the Collateral Agent shall be the agent of the
\nCompany as provided herein. The pledge provided in this Section 2.1 is herein
\nreferred to as the “Pledge” and the Capital Securities (or the Debentures that
\nare delivered pursuant to Section 6.2 hereof), Treasury Consideration or
\nTreasury Securities subject to the Pledge, excluding any Capital Securities (or
\nthe Debentures that are delivered pursuant to Section 6.2 hereof), Treasury
\nConsideration or Treasury Securities released from the Pledge as provided in
\nSections 4.1 and 4.2 hereof, respectively, are hereinafter referred to as
\n“Pledged Capital Securities,” “Pledged Treasury Consideration” or the “Pledged
\nTreasury Securities,” respectively. Subject to the Pledge and the provisions of
\nSection 2.2 hereof, the Holders from time to time shall have full beneficial
\nownership of the Collateral. Whenever directed by the Collateral Agent acting on
\nbehalf of the Company, the Securities Intermediary shall have the right to
\nreregister the Capital Securities or any other Securities held in physical form
\nin its name.<\/p>\n
Except as may be required in order to release Capital Securities or
\nTreasury Consideration, as applicable, in connection with a Holder’s election to
\nconvert its investment from a Normal Unit to a Stripped Unit, or except as
\notherwise required to release Capital Securities as specified herein, neither
\nthe Collateral Agent, the Custodial Agent nor the Securities Intermediary shall
\nrelinquish physical possession of any certificate evidencing a Capital Security
\nprior to the termination of this Agreement. If it becomes necessary for the
\nSecurities Intermediary to relinquish physical possession of a certificate in
\norder to release a portion of the Capital Securities evidenced thereby from the
\nPledge, the Securities Intermediary shall use its best efforts to obtain
\nphysical possession of a replacement certificate evidencing any Capital
\nSecurities remaining subject to the Pledge hereunder registered to it or
\nendorsed in blank within fifteen days of the date it relinquished possession.
\nThe Securities Intermediary shall promptly notify the Company and the Collateral
\nAgent of the Securities Intermediary’s failure to obtain possession of any such
\nreplacement certificate as required hereby.<\/p>\n
Section 2.2 Control and Perfection. (a) In connection with the Pledge
\ngranted in Section 2.1, and subject to the other provisions of this Agreement,
\nthe Holders from time to time acting through the Purchase Contract Agent, as
\ntheir attorney-in-fact, hereby authorize and direct the Securities Intermediary
\n(without the necessity of obtaining the further consent of the Purchase Contract
\nAgent or any of the Holders), and the Securities<\/p>\n
7
\n 12
\nIntermediary agrees, to comply with and follow any instructions and entitlement
\norders (as defined in Section 8-102(a)(8) of the Code) that the Collateral Agent
\nmay deliver upon the written direction of the Company with respect to the
\nCollateral Account, the Collateral credited thereto and any Security
\nEntitlements with respect to any thereof. In the event the Securities
\nIntermediary receives from the Holders or the Purchase Contract Agent
\nentitlement orders which conflict with entitlement orders received from the
\nCollateral Agent, the Securities Intermediary shall follow the entitlement
\norders received from the Collateral Agent. Such instructions and entitlement
\norders may, without limitation, direct the Securities Intermediary to transfer,
\nredeem, assign, or otherwise deliver the Capital Securities, the Treasury
\nConsideration, the Treasury Securities, and any Security Entitlements with
\nrespect thereto or sell, liquidate or dispose of such assets through a broker
\ndesignated by the Company, and to pay and deliver any income, proceeds or other
\nfunds derived therefrom to the Company. The Holders from time to time acting
\nthrough the Purchase Contract Agent hereby further authorize and direct the
\nCollateral Agent, as agent of the Company, to, upon written direction of the
\nCompany, itself issue instructions and entitlement orders, and to otherwise take
\naction, with respect to the Collateral Account, the Collateral credited thereto
\nand any Security Entitlements with respect thereto, pursuant to the terms and
\nprovisions hereof, all without the necessity of obtaining the further consent of
\nthe Purchase Contract Agent or any of the Holders. The Collateral Agent shall be
\nthe agent of the Company and shall act as directed in writing by the Company.
\nWithout limiting the generality of the foregoing, the Collateral Agent shall
\nissue entitlement orders to the Securities Intermediary when and as directed in
\nwriting by the Company.<\/p>\n
(b) The Securities Intermediary hereby confirms and agrees that: (i)
\nall securities or other property underlying any financial assets credited to the
\nCollateral Account shall be registered in the name of the Securities
\nIntermediary, or its nominee, indorsed to the Securities Intermediary, or its
\nnominee, or in blank or credited to another Collateral Account maintained in the
\nname of the Securities Intermediary and in no case will any financial asset
\ncredited to the Collateral Account be registered in the name of the Purchase
\nContract Agent, the Collateral Agent, the Company or any Holder, payable to the
\norder of, or specially indorsed to, the Purchase Contract Agent, the Collateral
\nAgent, the Company or any Holder except to the extent the foregoing have been
\nspecially indorsed to the Securities Intermediary or in blank; (ii) all property
\ndelivered to the Securities Intermediary pursuant to this Pledge Agreement
\n(including, without limitation, any Capital Securities, the Treasury
\nConsideration or Treasury Securities) will be promptly credited to the
\nCollateral Account; (iii) the Collateral Account is an account to which
\nfinancial assets are or may be credited, and the Securities Intermediary shall,
\nsubject to the terms of this Agreement, treat the Purchase Contract Agent as
\nentitled to exercise the rights of any financial asset credited to the
\nCollateral Account; (iv) the Securities Intermediary has not entered into, and
\nuntil the termination of this Agreement will not enter into, any agreement<\/p>\n
8
\n 13
\nwith any other person relating to the Collateral Account and\/or any financial
\nassets credited thereto pursuant to which it has agreed to comply with
\nentitlement orders (as defined in Section 8-102(a)(8) of the Code) of such other
\nperson; and (v) the Securities Intermediary has not entered into, and until the
\ntermination of this Agreement will not enter into, any agreement with the
\nCompany, the Collateral Agent or the Purchase Contract Agent purporting to limit
\nor condition the obligation of the Securities Intermediary to comply with
\nentitlement orders as set forth in this Section 2.2 hereof.<\/p>\n
(c) The Securities Intermediary hereby agrees that each item of
\nproperty (whether investment property, financial asset, security, instrument or
\ncash) credited to the Collateral Account shall be treated as a “financial asset”
\nwithin the meaning of Section 8-102(a)(9) of the Code.<\/p>\n
(d) In the event of any conflict between this Agreement (or any portion
\nthereof) and any other agreement now existing or hereafter entered into, the
\nterms of this Agreement shall prevail.<\/p>\n
(e) The Purchase Contract Agent hereby irrevocably constitutes and
\nappoints the Collateral Agent and the Company, with full power of substitution,
\nas the Purchase Contract Agent’s attorney-in-fact to take on behalf of, and in
\nthe name, place and stead of the Purchase Contract Agent and the Holders, any
\naction necessary or desirable to perfect and to keep perfected the security
\ninterest in the Collateral referred to in Section 2.1. The grant of such
\npower-of-attorney shall not be deemed to require of the Collateral Agent any
\nspecific duties or obligations not otherwise assumed by the Collateral Agent
\nhereunder. Notwithstanding the foregoing, in no event shall the Collateral Agent
\nor Securities Intermediary be responsible for the preparation or filing of any
\nfinancing or continuation statements in the appropriate jurisdictions or
\nresponsible for maintenance or perfection of any Security Interest hereunder.<\/p>\n
ARTICLE III<\/p>\n
Distributions on Pledged Collateral<\/p>\n
So long as the Purchase Contract Agent is the registered owner of the
\nPledged Capital Securities or Pledged Treasury Consideration, it shall receive
\nall payments thereon. If the Pledged Capital Securities are reregistered, such
\nthat the Collateral Agent becomes the registered holder, all payments of the
\nStated Amount of or cash distributions on the Pledged Capital Securities and all
\npayments of the principal of, or cash distributions on, any Pledged Treasury
\nConsideration or Pledged Treasury Securities, that are received by<\/p>\n
9
\n 14
\nthe Collateral Agent and that are properly payable hereunder shall be paid by
\nthe Collateral Agent by wire transfer in same day funds:<\/p>\n
(i) In the case of (A) quarterly cash distributions on Normal Units
\n which include Pledged Capital Securities or Pledged Treasury Consideration
\n and (B) any payments with respect to any Capital Securities or Treasury
\n Consideration, as the case may be, that have been released from the Pledge
\n pursuant to Section 4.3 hereof, to the Purchase Contract Agent, for the
\n benefit of the relevant Holders of the Normal Units, to the account
\n designated by the Purchase Contract Agent for such purpose, no later than
\n 10:00 a.m., New York City time, on the Business Day such payment is
\n received by the Collateral Agent (provided that in the event such payment
\n is received by the Collateral Agent on a day that is not a Business Day or
\n after 9:00 a.m., New York City time, on a Business Day, then such payment
\n shall be made no later than 9:30 a.m., New York City time, on the next
\n succeeding Business Day);<\/p>\n
(ii) In the case of any payments with respect to any Treasury
\n Securities that have been released from the Pledge pursuant to Section 4.3
\n hereof, to the Holders of the Stripped Units to the accounts designated by
\n them in writing for such purpose no later than 2:00 p.m., New York City
\n time, on the Business Day such payment is received by the Collateral Agent
\n (provided that in the event such payment is received by the Collateral
\n Agent on a day that is not a Business Day or after 10 a.m., New York City
\n time, on a Business Day, then such payment shall be made no later than
\n 10:30 a.m., New York City time, on the next succeeding Business Day); and<\/p>\n
(iii) In the case of payments in respect of any Pledged Capital
\n Securities, Pledged Treasury Consideration or Pledged Treasury Securities,
\n to be paid upon settlement of such Holder’s obligations to purchase Common
\n Stock under the Purchase Contract, to the Company on the Stock Purchase
\n Date in accordance with the procedure set forth in Section 4.5(a) or
\n 4.5(b) hereof, in full satisfaction of the respective obligations of the
\n Holders under the related Purchase Contracts.<\/p>\n
All payments received by the Purchase Contract Agent as provided herein
\nshall be applied by the Purchase Contract Agent pursuant to the provisions of
\nthe Purchase Contract Agreement. If, notwithstanding the foregoing, the Purchase
\nContract Agent shall receive any payments of the Stated Amount on account of any
\nCapital Security or principal of any Treasury Consideration, as applicable,
\nthat, at the time of such payment, is a Pledged Capital Security or Pledged
\nTreasury Consideration, as the case may be, or a Holder of a Stripped Unit shall
\nreceive any payments of principal on account of any Treasury Securities that, at
\nthe time of such payment, are Pledged Treasury Securities, the Purchase Contract
\nAgent or such Holder shall hold the same as trustee of an express trust for the
\nbenefit of the Company (and promptly deliver the same over to the Company) for<\/p>\n
10
\n 15
\napplication to the obligations of the Holders under the related Purchase
\nContracts, and the Holders shall acquire no right, title or interest in any such
\npayments of Stated Amount or principal so received.<\/p>\n
ARTICLE IV<\/p>\n
Substitution, Release, Repledge and Settlement of Capital Securities<\/p>\n
Section 4.1 Substitution for Capital Securities or Treasury
\nConsideration and the Creation of Stripped Units. At any time on or prior to the
\nsecond Business Day immediately preceding the Stock Purchase Date, a Holder of
\nNormal Units shall have the right to substitute Treasury Securities for the
\nPledged Capital Securities or Pledged Treasury Consideration, as the case may
\nbe, securing such Holder’s obligations under the Purchase Contracts comprising a
\npart of such Normal Units, in integral multiples of 20 Normal Units, or after a
\nremarketing of the Capital Securities pursuant to the Purchase Contract
\nAgreement, in integral multiples of Normal Units such that Treasury Securities
\nto be deposited and the applicable Treasury Consideration to be released are in
\nintegral multiples of $1,000, by (a) Transferring to the Collateral Agent
\nTreasury Securities having an aggregate principal amount equal to the aggregate
\nStated Amount of such Normal Units and (b) delivering such Normal Units to the
\nPurchase Contract Agent, accompanied by a notice, substantially in the form of
\nExhibit B hereto, to the Purchase Contract Agent stating that such Holder has
\nTransferred Treasury Securities to the Collateral Agent pursuant to clause (a)
\nabove (stating the principal amount, the maturities and the CUSIP numbers of the
\nTreasury Securities Transferred by such Holder) and requesting that the Purchase
\nContract Agent instruct the Collateral Agent to release from the Pledge the
\nPledged Capital Securities or Pledged Treasury Consideration, as the case may
\nbe, related to such Normal Units, whereupon the Purchase Contract Agent shall
\npromptly give such instruction to the Collateral Agent in the form provided in
\nExhibit A. Upon receipt of Treasury Securities from a Holder of Normal Units and
\nthe related instruction from the Purchase Contract Agent, the Collateral Agent
\nshall release the Pledged Capital Securities or Pledged Treasury Consideration,
\nas the case may be, and shall promptly Transfer such Pledged Capital Securities
\nor Pledged Treasury Consideration, as the case may be, free and clear of any
\nlien, pledge or security interest created hereby, to the Purchase Contract
\nAgent. All items Transferred and\/or substituted by any Holder pursuant to this
\nSection 4.1, Section 4.2 or any other Section of this Agreement shall be
\nTransferred and\/or substituted free and clear of all liens, claims and
\nencumbrances.<\/p>\n
Section 4.2 Substitution for Treasury Securities and the Creation of
\nNormal Units. At any time on or prior to the second Business Day immediately
\npreceding the Stock Purchase Date, a Holder of Stripped Units shall have the
\nright to reestablish Normal<\/p>\n
11
\n 16
\nUnits (a) consisting of the Purchase Contracts and Capital Securities in
\nintegral multiples of 20 Normal Units, or (b) after a remarketing of the Capital
\nSecurities pursuant to the Purchase Contract Agreement, consisting of the
\nPurchase Contracts and the appropriate Treasury Consideration (identified and
\ncalculated by reference to the Treasury Consideration then comprising Normal
\nUnits) in integral multiples of Stripped Units such that the Treasury
\nConsideration to be deposited and the Treasury Securities to be released are in
\nintegral multiples of $1,000, by (x) Transferring to the Collateral Agent
\nCapital Securities or the appropriate Treasury Consideration, as the case may
\nbe, then comprising such number of Normal Units as is equal to such Stripped
\nUnits and (y) delivering such Stripped Units to the Purchase Contract Agent,
\naccompanied by a notice, substantially in the form of Exhibit B hereto, to the
\nPurchase Contract Agent stating that such Holder has transferred Capital
\nSecurities or Treasury Consideration to the Collateral Agent pursuant to clause
\n(a) above and requesting that the Purchase Contract Agent instruct the
\nCollateral Agent to release from the Pledge the Pledged Treasury Securities
\nrelated to such Stripped Units, whereupon the Purchase Contract Agent shall give
\nsuch instruction to the Collateral Agent in the form provided in Exhibit A. Upon
\nreceipt of the Capital Securities or the appropriate Treasury Consideration, as
\nthe case may be, from such Holder and the instruction from the Purchase Contract
\nAgent, the Collateral Agent shall release the Pledged Treasury Securities and
\nshall promptly Transfer such Treasury Securities, free and clear of any lien,
\npledge or security interest created hereby, to the Purchase Contract Agent.<\/p>\n
Section 4.3 Termination Event. Upon receipt by the Collateral Agent of
\nwritten notice from the Company or the Purchase Contract Agent that there has
\noccurred a Termination Event, the Collateral Agent shall release all Collateral
\nfrom the Pledge and shall promptly Transfer any Pledged Capital Securities or
\nPledged Treasury Consideration, as the case may be, and Pledged Treasury
\nSecurities to the Purchase Contract Agent for the benefit of the Holders of the
\nNormal Units and the Stripped Units, respectively, free and clear of any lien,
\npledge or security interest or other interest created hereby.<\/p>\n
If such Termination Event shall result from the Company’s becoming a
\ndebtor under the Bankruptcy Code, and if the Collateral Agent shall for any
\nreason fail promptly to effectuate the release and Transfer of all Pledged
\nCapital Securities, Pledged Treasury Consideration or of the Pledged Treasury
\nSecurities, as the case may be, as provided by this Section 4.3, the Purchase
\nContract Agent shall (i) use its best efforts to obtain an opinion of a
\nnationally recognized law firm reasonably acceptable to the Collateral Agent to
\nthe effect that, as a result of the Company’s being the debtor in such a
\nbankruptcy case, the Collateral Agent will not be prohibited from releasing or
\nTransferring the Collateral as provided in this Section 4.3, and shall deliver
\nsuch opinion to the Collateral Agent within ten days after the occurrence of
\nsuch Termination Event, and if (y) the Purchase Contract Agent shall be unable
\nto obtain such opinion within ten days after the occurrence of such<\/p>\n
12
\n 17
\nTermination Event or (z) the Collateral Agent shall continue, after delivery of
\nsuch opinion, to refuse to effectuate the release and Transfer of all Pledged
\nCapital Securities, Pledged Treasury Consideration or Pledged Treasury
\nSecurities, as the case may be, as provided in this Section 4.3, then the
\nPurchase Contract Agent shall within fifteen days after the occurrence of such
\nTermination Event commence an action or proceeding in the court with
\njurisdiction of the Company’s case under the Bankruptcy Code seeking an order
\nrequiring the Collateral Agent to effectuate the release and transfer of all
\nPledged Capital Securities, Pledged Treasury Consideration or Pledged Treasury
\nSecurities, as the case may be, as provided by this Section 4.3 or (ii) commence
\nan action or proceeding like that described in subsection (i)(z) hereof within
\nten days after the occurrence of such Termination Event.<\/p>\n
Section 4.4 Early Settlement; Merger Early Settlement. Upon written
\nnotice to the Collateral Agent by the Purchase Contract Agent that one or more
\nHolders of Securities have elected to effect Early Settlement or Merger Early
\nSettlement of their respective obligations under the Purchase Contracts forming
\na part of such Securities in accordance with the terms of the Purchase Contracts
\nand the Purchase Contract Agreement (setting forth the number of such Purchase
\nContracts as to which such Holders have elected to effect Early Settlement or
\nMerger Early Settlement), and that the Purchase Contract Agent has received from
\nsuch Holders, and paid to the Company as confirmed in writing by the Company,
\nthe related Early Settlement Amounts or Merger Early Settlement Amounts, as the
\ncase may be, pursuant to the terms of the Purchase Contracts and the Purchase
\nContract Agreement and that all conditions to such Early Settlement or Merger
\nEarly Settlement, as the case may be, have been satisfied, then the Collateral
\nAgent shall release from the Pledge, (a) Pledged Capital Securities or Pledged
\nTreasury Consideration, as the case may be, in the case of a Holder of Normal
\nUnits or (b) Pledged Treasury Securities, in the case of a Holder of Stripped
\nUnits, relating to such Purchase Contracts as to which such Holders have elected
\nto effect Early Settlement or Merger Early Settlement, and shall Transfer all
\nsuch Pledged Capital Securities, Pledged Treasury Consideration or Pledged
\nTreasury Securities, as the case may be, free and clear of the Pledge created
\nhereby, to the Purchase Contract Agent for the benefit of the Holders.<\/p>\n
Section 4.5 Remarketing; Application of Proceeds; Settlement. (a)
\nPursuant to the Purchase Contract Agreement, the Purchase Contract Agent shall
\nnotify, by 10:00 a.m., New York City time, on the third Business Day immediately
\npreceding the Remarketing Date or any Subsequent Remarketing Date, as the case
\nmay be, the Remarketing Agent and the Collateral Agent of the aggregate number
\nof Capital Securities comprising part of Normal Units to be remarketed. The
\nCollateral Agent shall, by 10:00 a.m., New York City time, on the first Business
\nDay immediately preceding the Remarketing Date or any Subsequent Remarketing
\nDate, as the case may be, without any instruction from Holders of Normal Units,
\ndeliver (i) the Pledged Capital Securities to be<\/p>\n
13
\n 18
\nremarketed to the Remarketing Agent for remarketing and (ii) the remaining
\nPledged Capital Securities to the Purchase Contract Agent for distribution to
\nthe Holders that have elected not to participate in the remarketing in
\naccordance with the Purchase Contract Agreement. The Remarketing Agent will
\ndeliver the Agent-purchased Treasury Consideration (as defined in the Purchase
\nContract Agreement) purchased from the proceeds of the remarketing to the
\nPurchase Contract Agent, which shall thereupon deliver such Agent-purchased
\nTreasury Consideration to the Collateral Agent. Upon receipt of the
\nAgent-purchased Treasury Consideration from the Purchase Contract Agent
\nfollowing a successful remarketing, the Collateral Agent, for the benefit of the
\nCompany, shall thereupon apply such Treasury Consideration to secure such
\nHolders’ obligations under the Purchase Contracts. On the Stock Purchase Date,
\nthe Collateral Agent shall apply that portion of the payments received in
\nrespect of the Pledged Treasury Consideration equal to the aggregate Stated
\nAmount of the related Normal Units to satisfy in full the obligations of such
\nHolders of Normal Units to pay the Purchase Price under the related Purchase
\nContracts. The remaining portion of such Proceeds, if any, shall be distributed
\nby the Collateral Agent to the Purchase Contract Agent for payment to such
\nHolders.<\/p>\n
Within three Business Days following a Failed Remarketing, the Capital
\nSecurities delivered to the Remarketing Agent and the Purchase Contract Agent
\npursuant to Section 4.5(a) shall be returned to the Collateral Agent, together
\nwith written notice from the Remarketing Agent of the Failed Remarketing. The
\nCollateral Agent, for the benefit of the Company, shall thereupon apply such
\nCapital Securities to secure the Normal Units Holders’ obligations under the
\nPurchase Contracts. The Remarketing Agent may make one or more attempts to
\nremarket the Capital Securities in accordance with the procedures set forth in
\nthe Purchase Contract Agreement and the Remarketing Agreement between the
\nRemarketing Date and the Stock Purchase Date, provided that the requirements of
\nSection 5.2(b)(ii) of the Purchase Contract Agreement have been met. If by the
\nStock Purchase Date the Remarketing Agent has failed to remarket the Capital
\nSecurities at 100.5% of the Remarketing Value (as described in the Purchase
\nContract Agreement), the Remarketing Agent shall advise the Collateral Agent in
\nwriting that it cannot remarket the related Pledged Capital Securities of such
\nHolders of Normal Units. The Collateral Agent, for the benefit of the Company
\nwill, at the written direction of the Company, retain or dispose of the Pledged
\nCapital Securities in accordance with applicable law and satisfy in full, from
\nany such disposition or retention, such Holders’ obligations to pay the Purchase
\nPrice for the Common Stock; provided, that if upon a Failed Remarketing, the
\nCollateral Agent exercises such rights for the benefit of the Company with
\nrespect to such Capital Securities, any accumulated and unpaid distributions on
\nsuch Capital Securities will become payable by the Company to the Purchase
\nContract Agent for payment to the Holder of the Normal Units to which such
\nCapital Securities relates in accordance with the Purchase Contract Agreement.<\/p>\n
14
\n 19
\n (b) In the event a Holder of Stripped Units has not made an Early
\nSettlement or Merger Early Settlement of the Purchase Contracts underlying its
\nStripped Units, such Holder shall be deemed to have elected to pay for the
\nshares of Common Stock to be issued under such Purchase Contracts from the
\npayments received in respect of the related Pledged Treasury Securities. Without
\nreceiving any instruction from any such Holder of Stripped Units, the Collateral
\nAgent shall apply such payments to the settlement of such Purchase Contracts on
\nthe Stock Purchase Date. In the event the payments received in respect of the
\nrelated Pledged Treasury Securities are in excess of the aggregate Purchase
\nPrice of the Purchase Contracts being settled thereby, the Collateral Agent
\nshall distribute such excess, when received, to the Purchase Contract Agent for
\nthe benefit of the Holders.<\/p>\n
(c) Pursuant to the Remarketing Agreement, on or prior to the second
\nBusiness Day immediately preceding the Remarketing Date, but no earlier than the
\nPayment Date immediately preceding the Remarketing Date, holders of Separate
\nCapital Securities may elect to have their Separate Capital Securities
\nremarketed by delivering their Separate Capital Securities, together with a
\nnotice of such election, substantially in the form of Exhibit C hereto, to the
\nCustodial Agent. On the third Business Day prior to the Remarketing Date, by 10
\na.m. NYC time, the Custodial Agent shall notify the Remarketing Agent of the
\nnumber of such Separate Capital Securities to be remarketed. The Custodial Agent
\nwill hold such Separate Capital Securities in an account separate from the
\nCollateral Account. A holder of Separate Capital Securities electing to have its
\nSeparate Capital Securities remarketed will also have the right to withdraw such
\nelection by written notice to the Custodial Agent, substantially in the form of
\nExhibit D hereto, on or prior to the first Business Day immediately preceding
\nthe Remarketing Date and any Subsequent Remarketing Date, upon which notice the
\nCustodial Agent will return such Separate Capital Securities to such holder. On
\nthe first Business Day immediately preceding the Remarketing Date and any
\nSubsequent Remarketing Date, the Custodial Agent will deliver to the Remarketing
\nAgent for remarketing all Separate Capital Securities delivered to the Custodial
\nAgent pursuant to this Section 4.5(c) and not withdrawn pursuant to the terms
\nhereof prior to such date. The portion of the proceeds from such remarketing
\nequal to the amount calculated in respect of such Separate Capital Securities as
\nset forth in Section 5.2(b) of the Purchase Contract Agreement will
\nautomatically be remitted by the Remarketing Agent to the Custodial Agent for
\nthe benefit of the holders of such Separate Capital Securities. In addition,
\nafter deducting as the remarketing fee an amount not exceeding 25 basis points
\n(.25%) of the total proceeds of such remarketing, the Remarketing Agent will
\nremit to the Custodial Agent the remaining portion of the proceeds, if any, for
\nthe benefit of such holders. If, despite using its reasonable best efforts, the
\nRemarketing Agent advises the Custodial Agent in writing that there has been a
\nFailed Remarketing, the Remarketing Agent will promptly return such Capital
\nSecurities to the Custodial Agent for redelivery to such holders. In the event
\nof a dissolution of the Trust and the distribution of the Debentures as
\ndescribed in the<\/p>\n
15
\n 20
\nDeclaration, all references to “Separate Capital Securities” in this Section
\n4.5(c) shall be deemed to be references to Debentures which are not pledged
\nhereunder or required to be part of the Collateral.<\/p>\n
ARTICLE V<\/p>\n
Voting Rights — Capital Securities<\/p>\n
The Purchase Contract Agent may exercise, or refrain from exercising,
\nany and all voting and other consensual rights pertaining to the Pledged Capital
\nSecurities or any part thereof for any purpose not inconsistent with the terms
\nof this Agreement and in accordance with the terms of the Purchase Contract
\nAgreement; provided, that the Purchase Contract Agent shall not exercise or, as
\nthe case may be, shall not refrain from exercising such right if, in the
\njudgment of the Company, such action would impair or otherwise have a material
\nadverse effect on the value of all or any of the Pledged Capital Securities; and
\nprovided, further, that the Purchase Contract Agent shall give the Company and
\nthe Collateral Agent at least five days’ prior written notice of the manner in
\nwhich it intends to exercise, or its reasons for refraining from exercising, any
\nsuch right. Upon receipt of any notices and other communications in respect of
\nany Pledged Capital Securities, including notice of any meeting at which holders
\nof Capital Securities are entitled to vote or solicitation of consents, waivers
\nor proxies of holders of Capital Securities, the Collateral Agent shall use
\nreasonable efforts to send promptly to the Purchase Contract Agent such notice
\nor communication, and as soon as reasonably practicable after receipt of a
\nwritten request therefor from the Purchase Contract Agent, execute and deliver
\nto the Purchase Contract Agent such proxies and other instruments in respect of
\nsuch Pledged Capital Securities (in form and substance satisfactory to the
\nCollateral Agent) as are prepared by the Purchase Contract Agent with respect to
\nthe Pledged Capital Securities.<\/p>\n
ARTICLE VI<\/p>\n
Rights and Remedies; Distribution of the Debentures<\/p>\n
Section 6.1 Rights and Remedies of the Collateral Agent. (a) In
\naddition to the rights and remedies available at law or in equity, after an
\nevent of default hereunder, the Collateral Agent shall have all of the rights
\nand remedies with respect to the Collateral of a secured party under the Uniform
\nCommercial Code (or any successor thereto) as in effect in the State of New York
\nfrom time to time (the “Code”) (whether or not the Code is in effect in the
\njurisdiction where the rights and remedies are asserted) and the TRADES<\/p>\n
16
\n 21
\nRegulations and such additional rights and remedies to which a secured party is
\nentitled under the laws in effect in any jurisdiction where any rights and
\nremedies hereunder may be asserted. Wherever reference is made in this Agreement
\nto any section of the Code, such reference shall be deemed to include a
\nreference to any provision of the Code which is a successor to, or amendment of,
\nsuch section. Without limiting the generality of the foregoing, such remedies
\nmay include, to the extent permitted by applicable law, (i) retention of the
\nPledged Capital Securities or other Collateral in full satisfaction of the
\nHolders’ obligations under the Purchase Contracts or (ii) sale of the Pledged
\nCapital Securities or other Collateral in one or more public or private sales at
\nthe written direction of the Company.<\/p>\n
(b) Without limiting any rights or powers otherwise granted by this
\nAgreement to the Collateral Agent, in the event the Collateral Agent is unable
\nto make payments to the Company on account of any Pledged Treasury Consideration
\nor Pledged Treasury Securities as provided in Article III hereof in satisfaction
\nof the obligations of the Holder of the Securities of which such Pledged
\nTreasury Consideration or Pledged Treasury Securities, as applicable, is a part
\nunder the related Purchase Contracts, the inability to make such payments shall
\nconstitute an event of default hereunder and the Collateral Agent shall have and
\nmay exercise, with reference to such Pledged Treasury Securities or such Pledged
\nTreasury Consideration, as applicable, and such obligations of such Holder, any
\nand all of the rights and remedies available to a secured party under the Code
\nand the TRADES Regulations after default by a debtor, and as otherwise granted
\nherein or under any other law.<\/p>\n
(c) Without limiting any rights or powers otherwise granted by this
\nAgreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
\nauthorized to receive and collect all payments of (i) the Stated Amount of or,
\ncash distributions on, the Pledged Capital Securities, or (ii) the principal
\namount of the Pledged Treasury Consideration or Pledged Treasury Securities,
\nsubject, in each case, to the provisions of Article III, and as otherwise
\ngranted herein.<\/p>\n
(d) The Purchase Contract Agent, individually and as attorney-in-fact
\nfor each Holder of Securities, agrees that, from time to time, upon the written
\nrequest of the Company or the Collateral Agent (acting upon the written request
\nof the Company), the Purchase Contract Agent or such Holder shall execute and
\ndeliver such further documents and do such other acts and things as the Company
\nor the Collateral Agent (acting upon the written request of the Company) may
\nreasonably request in order to maintain the Pledge, and the perfection and
\npriority thereof, and to confirm the rights of the Collateral Agent hereunder.
\nThe Purchase Contract Agent shall have no liability to any Holder for executing
\nany documents or taking any such acts requested by the Company or the Collateral
\nAgent (acting upon the written request of the Company) hereunder, except for<\/p>\n
17
\n 22
\nliability for its own negligent act, its own negligent failure to act, its bad
\nfaith or its own willful misconduct.<\/p>\n
Section 6.2 Distribution of the Debentures. Upon the occurrence of a
\nvoluntary or involuntary dissolution of the Trust, a principal amount of the
\nDebentures constituting the assets of the Trust and underlying the Capital
\nSecurities equal to the aggregate Stated Amount of the Pledged Capital
\nSecurities shall be delivered to the Collateral Agent in exchange for the
\nPledged Capital Securities. In the event the Collateral Agent receives such
\nDebentures in respect of Pledged Capital Securities upon the occurrence of a
\nvoluntary or involuntary dissolution of the Trust, the Collateral Agent shall
\nTransfer such Debentures to the Collateral Account in the manner specified
\nherein (including, without limitation, physical delivery thereof as set forth in
\nSection 2.1) for Pledged Capital Securities to secure the obligations of the
\nHolders of Normal Units to purchase the Company’s Common Stock under the related
\nPurchase Contracts. Thereafter, the Collateral Agent shall have such security
\ninterests, rights and obligations with respect to such Debentures as it had in
\nrespect of the Pledged Capital Securities as provided in Articles II, III, IV, V
\nand VI hereof, and any reference herein to the Capital Securities or Pledged
\nCapital Securities shall be deemed to be referring to such Debentures.<\/p>\n
Section 6.3 Substitutions. Whenever a Holder has the right to
\nsubstitute Treasury Securities, Capital Securities or Treasury Consideration, as
\nthe case may be, for Collateral held by the Collateral Agent, such substitution
\nshall not constitute a novation of the security interest created hereby.<\/p>\n
ARTICLE VII<\/p>\n
Representations and Warranties; Covenants<\/p>\n
Section 7.1 Representations and Warranties. The Holders from time to
\ntime, acting through the Purchase Contract Agent as their attorney-in-fact (it
\nbeing understood that the Purchase Contract Agent shall not be liable for any
\nrepresentation or warranty made by or on behalf of a Holder), hereby represent
\nand warrant to the Collateral Agent, which representations and warranties shall
\nbe deemed repeated on each day a Holder Transfers Collateral that:<\/p>\n
(a) such Holder has the power to grant a security interest in and lien
\n on the Collateral;<\/p>\n
(b) such Holder is the sole beneficial owner of the Collateral and, in
\n the case of Collateral delivered in physical form, is the sole holder of
\n such Collateral and is the<\/p>\n
18
\n 23
\n sole beneficial owner of, or has the right to Transfer, the Collateral it
\n Transfers to the Collateral Agent, free and clear of any security
\n interest, lien, encumbrance, call, liability to pay money or other
\n restriction other than the security interest and lien granted under
\n Section 2.1 hereof;<\/p>\n
(c) upon the Transfer of the Collateral to the Collateral Account, the
\n Collateral Agent, for the benefit of the Company, will have a valid and
\n perfected first priority security interest therein (assuming that any
\n central clearing operation or any Intermediary or other entity not within
\n the control of the Holder involved in the Transfer of the Collateral,
\n including the Collateral Agent, gives the notices and takes the action
\n required of it hereunder and under applicable law for perfection of that
\n interest and assuming the establishment and exercise of control pursuant
\n to Section 2.2 hereof); and<\/p>\n
(d) the execution and performance by the Holder of its obligations
\n under this Agreement will not result in the creation of any security
\n interest, lien or other encumbrance on the Collateral other than the
\n security interest and lien granted under Section 2.1 hereof or violate any
\n provision of any existing law or regulation applicable to it or of any
\n mortgage, charge, pledge, indenture, contract or undertaking to which it
\n is a party or which is binding on it or any of its assets.<\/p>\n
Section 7.2 Covenants. The Holders from time to time, acting through
\nthe Purchase Contract Agent as their attorney-in-fact (it being understood that
\nthe Purchase Contract Agent shall not be liable for any covenant made by or on
\nbehalf of a Holder), hereby covenant to the Collateral Agent that for so long as
\nthe Collateral remains subject to the Pledge:<\/p>\n
(a) neither the Purchase Contract Agent nor such Holders will create or
\n purport to create or allow to subsist any mortgage, charge, lien, pledge
\n or any other security interest whatsoever over the Collateral or any part
\n of it other than pursuant to this Agreement; and<\/p>\n
(b) neither the Purchase Contract Agent nor such Holders will sell or
\n otherwise dispose (or attempt to dispose) of the Collateral or any part of
\n it except for the beneficial interest therein, subject to the pledge
\n hereunder, transferred in connection with the Transfer of the Securities.<\/p>\n
19
\n 24
\n ARTICLE VIII<\/p>\n
The Collateral Agent, Custodial Agent and Securities Intermediary<\/p>\n
Section 8.1 Appointment, Powers and Immunities. The Collateral Agent
\nshall act as Agent for the Company hereunder with such powers as are
\nspecifically vested in the Collateral Agent by the terms of this Agreement,
\ntogether with such other powers as are reasonably incidental thereto. Each of
\nthe Collateral Agent, the Custodial Agent and the Securities Intermediary: (a)
\nshall have no duties or responsibilities except those expressly set forth in
\nthis Agreement and no implied covenants or obligations shall be inferred from
\nthis Agreement against any of them, nor shall any of them be bound by the
\nprovisions of any agreement by any party hereto beyond the specific terms
\nhereof; (b) shall not be responsible for any recitals contained in this
\nAgreement, or in any certificate or other document referred to or provided for
\nin, or received by it under, this Agreement, the Securities or the Purchase
\nContract Agreement, or for the value, validity, effectiveness, genuineness,
\nenforceability or sufficiency of this Agreement (other than as against the
\nCollateral Agent), the Securities or the Purchase Contract Agreement or any
\nother document referred to or provided for herein or therein or for any failure
\nby the Company or any other Person (except the Collateral Agent, the Custodial
\nAgent or the Securities Intermediary, as the case may be) to perform any of its
\nobligations hereunder or thereunder or for the perfection, priority or, except
\nas expressly required hereby, existence, validity, perfection or maintenance of
\nany security interest created hereunder; (c) shall not be required to initiate
\nor conduct any litigation or collection proceedings hereunder (except in the
\ncase of the Collateral Agent, pursuant to directions furnished under Section 8.2
\nhereof, subject to Section 8.6 hereof); (d) shall not be responsible for any
\naction taken or omitted to be taken by it hereunder or under any other document
\nor instrument referred to or provided for herein or in connection herewith or
\ntherewith, except for its own gross negligence, bad faith or willful misconduct;
\nand (e) shall not be required to advise any party as to selling or retaining, or
\ntaking or refraining from taking any action with respect to, the Securities or
\nother property deposited hereunder. Subject to the foregoing, during the term of
\nthis Agreement, the Collateral Agent shall take all reasonable action in
\nconnection with the safekeeping and preservation of the Collateral hereunder.<\/p>\n
No provision of this Agreement shall require the Collateral Agent, the
\nCustodial Agent or the Securities Intermediary to expend or risk its own funds
\nor otherwise incur any financial liability in the performance of any of its
\nduties hereunder. In no event shall the Collateral Agent, the Custodial Agent or
\nthe Securities Intermediary be liable for any amount in excess of the value of
\nthe Collateral or for any special, indirect, individual, consequential damages
\nor lost profits or loss of business, arising in connection with this Agreement.
\nNotwithstanding the foregoing, the Collateral Agent, the Custodial Agent,<\/p>\n
20
\n 25
\nthe Purchase Contract Agent and Securities Intermediary, each in its individual
\ncapacity, hereby waive any right of setoff, bankers lien, liens or perfection
\nrights as securities intermediary or any counterclaim with respect to any of the
\nCollateral.<\/p>\n
The Collateral Agent, Custodial Agent and Securities Intermediary shall
\nhave no liability whatsoever for the action or inaction of the Book-Entry System
\nor any Clearing Corporation. In no event shall the Book-Entry System or any
\nClearing Corporation be deemed an agent or subcustodian of the Collateral Agent,
\nCustodial Agent and Securities Intermediary. The Collateral Agent, Custodial
\nAgent and Securities Intermediary shall not be responsible or liable for any
\nfailure or delay in the performance of its obligations under this Agreement
\narising out of or caused, directly or indirectly, by circumstances beyond its
\nreasonable control, including, without limitation, acts of God; earthquakes;
\nfires; floods; wars; civil or military disturbances; sabotage; epidemics; riots;
\ninterruptions, loss or malfunctions of utilities, computer (hardware or
\nsoftware) or communications service; accidents; labor disputes; acts of civil or
\nmilitary authority; governmental actions; inability or obtain labor, material,
\nequipment or transportation.<\/p>\n
Section 8.2 Instructions of the Company. The Company shall have the
\nright, by one or more instruments in writing executed and delivered to the
\nCollateral Agent, the Custodial Agent or the Securities Intermediary, as the
\ncase may be, to direct the time, method and place of conducting any proceeding
\nfor the realization of any right or remedy available to the Collateral Agent, or
\nof exercising any power conferred on the Collateral Agent, the Custodial Agent
\nor the Securities Intermediary, as the case may be, or to direct the taking or
\nrefraining from taking of any action authorized by this Agreement; provided,
\nhowever, that (i) such direction shall not conflict with the provisions of any
\nlaw or of this Agreement and (ii) the Collateral Agent, the Custodial Agent and
\nthe Securities Intermediary shall receive indemnity satisfactory to it as
\nprovided herein. Nothing in this Section 8.2 shall impair the right of the
\nCollateral Agent in its discretion to take any action or omit to take any action
\nwhich it deems proper and which is not inconsistent with such direction.<\/p>\n
Section 8.3 Reliance by Collateral Agent. Each of the Securities
\nIntermediary, the Custodial Agent and the Collateral Agent shall be entitled
\nconclusively to rely upon any certification, order, judgment, opinion, notice or
\nother communication (including, without limitation, any thereof by telephone or
\nfacsimile) reasonably believed by it to be genuine and correct and to have been
\nsigned or sent by or on behalf of the proper Person or Persons (without being
\nrequired to determine the correctness of any fact stated therein), and upon
\nadvice and statements of legal counsel and other experts selected by the
\nCollateral Agent, the Custodial Agent or the Securities Intermediary, as the
\ncase may be. As to any matters not expressly provided for by this Agreement, the
\nCollateral Agent, the Custodial Agent and the Securities Intermediary shall in
\nall cases be fully protected in<\/p>\n
21
\n 26
\nacting, or in refraining from acting, hereunder in accordance with instructions
\ngiven by the Company in accordance with this Agreement.<\/p>\n
Section 8.4 Rights in Other Capacities. The Collateral Agent, the
\nCustodial Agent and the Securities Intermediary and their affiliates may
\n(without having to account therefor to the Company) accept deposits from, lend
\nmoney to, make their investments in and generally engage in any kind of banking,
\ntrust or other business with the Purchase Contract Agent, any Holder of
\nSecurities and any holder of Separate Capital Securities (and any of their
\nrespective subsidiaries or affiliates) as if it were not acting as the
\nCollateral Agent, the Custodial Agent or the Securities Intermediary, as the
\ncase may be, and the Collateral Agent, the Custodial Agent and the Securities
\nIntermediary and their affiliates may accept fees and other consideration from
\nthe Purchase Contract Agent, any Holder of Securities or any holder of Separate
\nCapital Securities without having to account for the same to the Company;
\nprovided that each of the Securities Intermediary, the Custodial Agent and the
\nCollateral Agent covenants and agrees with the Company that it shall not accept,
\nreceive or permit there to be created in favor of itself (and waives any right
\nof set-off or banker’s lien with respect to) and shall take no affirmative
\naction to permit there to be created in favor of any other Person, any security
\ninterest, lien or other encumbrance of any kind in or upon the Collateral and
\nthe Collateral shall not be commingled with any other assets of any such Person.<\/p>\n
Section 8.5 Non-Reliance on Collateral Agent. None of the Securities
\nIntermediary, the Custodial Agent or the Collateral Agent shall be required to
\nkeep itself informed as to the performance or observance by the Purchase
\nContract Agent or any Holder of Securities of this Agreement, the Purchase
\nContract Agreement, the Securities or any other document referred to or provided
\nfor herein or therein or to inspect the properties or books of the Purchase
\nContract Agent or any Holder of Securities. The Collateral Agent, the Custodial
\nAgent and the Securities Intermediary shall not have any duty or responsibility
\nto provide the Company or the Remarketing Agent with any credit or other
\ninformation concerning the affairs, financial condition or business of the
\nPurchase Contract Agent, any Holder of Securities or any holder of Separate
\nCapital Securities (or any of their respective subsidiaries or affiliates) that
\nmay come into the possession of the Collateral Agent, the Custodial Agent or the
\nSecurities Intermediary or any of their respective affiliates.<\/p>\n
Section 8.6 Compensation and Indemnity. The Company agrees: (i) to pay
\neach of the Collateral Agent, the Custodial Agent and the Securities
\nIntermediary from time to time such compensation as shall be agreed in writing
\nbetween the Company and the Collateral Agent, the Custodial Agent or the
\nSecurities Intermediary, as the case may be, for all services rendered by each
\nof them hereunder and (ii) to indemnify the Collateral Agent, the Custodial
\nAgent and the Securities Intermediary for, and to hold each of them<\/p>\n
22
\n 27
\nharmless from and against, any loss, liability or reasonable out-of-pocket
\nexpense incurred without gross negligence, willful misconduct or bad faith on
\nits part, arising out of or in connection with the acceptance or administration
\nof its powers and duties under this Agreement, including the reasonable
\nout-of-pocket costs and expenses (including reasonable fees and expenses of
\ncounsel) of defending itself against any claim or liability in connection with
\nthe exercise or performance of such powers and duties or collecting such
\namounts. The Collateral Agent, the Custodial Agent and the Securities
\nIntermediary shall each promptly notify the Company of any third party claim
\nwhich may give rise to the indemnity hereunder and give the Company the
\nopportunity to participate in the defense of such claim with counsel reasonably
\nsatisfactory to the indemnified party, and no such claim shall be settled
\nwithout the written consent of the Company, which consent shall not be
\nunreasonably withheld.<\/p>\n
Section 8.7 Failure to Act. In the event of any ambiguity in the
\nprovisions of this Agreement or any dispute between or conflicting claims by or
\namong the parties hereto or any other Person with respect to any funds or
\nproperty deposited hereunder, the Collateral Agent, the Custodial Agent and the
\nSecurities Intermediary shall be entitled, after prompt notice to the Company
\nand the Purchase Contract Agent, at its sole option, to refuse to comply with
\nany and all claims, demands or instructions with respect to such property or
\nfunds so long as such dispute or conflict shall continue, and neither the
\nCollateral Agent, the Custodial Agent nor the Securities Intermediary shall be
\nor become liable in any way to any of the parties hereto for its failure or
\nrefusal to comply with such conflicting claims, demands or instructions. The
\nCollateral Agent, the Custodial Agent and the Securities Intermediary shall be
\nentitled to refuse to act until either (i) such conflicting or adverse claims or
\ndemands shall have been finally determined by a court of competent jurisdiction
\nor settled by agreement between the conflicting parties as evidenced in a
\nwriting, satisfactory to the Collateral Agent, the Custodial Agent or the
\nSecurities Intermediary, as the case may be, or (ii) the Collateral Agent, the
\nCustodial Agent or the Securities Intermediary, as the case may be, shall have
\nreceived security or an indemnity satisfactory to the Collateral Agent, the
\nCustodial Agent or the Securities Intermediary, as the case may be, sufficient
\nto save the Collateral Agent, the Custodial Agent or the Securities
\nIntermediary, as the case may be, harmless from and against any and all loss,
\nliability or reasonable out-of-pocket expense which the Collateral Agent, the
\nCustodial Agent or the Securities Intermediary, as the case may be, may incur by
\nreason of its acting without bad faith, willful misconduct or gross negligence.
\nThe Collateral Agent, the Custodial Agent or the Securities Intermediary may in
\naddition elect to commence an interpleader action or seek other judicial relief
\nor orders as the Collateral Agent, the Custodial Agent or the Securities
\nIntermediary, as the case may be, may deem necessary. Notwithstanding anything
\ncontained herein to the contrary, neither the Collateral Agent, the Custodial
\nAgent nor the Securities Intermediary shall be required to take any action<\/p>\n
23
\n 28
\nthat is in its opinion contrary to law or to the terms of this Agreement, or
\nwhich would in its opinion subject it or any of its officers, employees or
\ndirectors to liability.<\/p>\n
Section 8.8 Resignation of Collateral Agent, Custodial Agent or
\nSecurities Intermediary. Subject to the appointment and acceptance of a
\nsuccessor Collateral Agent, Custodial Agent or Securities Intermediary as
\nprovided below, (a) the Collateral Agent, the Custodial Agent and the Securities
\nIntermediary may resign at any time by giving notice thereof to the Company and
\nthe Purchase Contract Agent as attorney-in-fact for the Holders of Securities,
\n(b) the Collateral Agent, the Custodial Agent and the Securities Intermediary
\nmay be removed at any time by the Company and (c) if the Collateral Agent, the
\nCustodial Agent or the Securities Intermediary fails to perform any of its
\nmaterial obligations hereunder in any material respect for a period of not less
\nthan 20 days after receiving written notice of such failure by the Purchase
\nContract Agent and such failure shall be continuing, the Collateral Agent, the
\nCustodial Agent or the Securities Intermediary may be removed by the Purchase
\nContract Agent. The Purchase Contract Agent shall promptly notify the Company of
\nany removal of the Collateral Agent, the Custodial Agent or the Securities
\nIntermediary pursuant to clause (c) of the immediately preceding sentence. Upon
\nany such resignation or removal, the Company shall have the right to appoint a
\nsuccessor Collateral Agent, Custodial Agent or Securities Intermediary, as the
\ncase may be. If no successor Collateral Agent, Custodial Agent or Securities
\nIntermediary, as the case may be, shall have been so appointed and shall have
\naccepted such appointment within 30 days after the retiring Collateral Agent’s,
\nCustodial Agent’s or Securities Intermediary’s giving of notice of resignation
\nor such removal, then the retiring Collateral Agent, Custodial Agent or
\nSecurities Intermediary, as the case may be, may at the Company’s expense
\npetition any court of competent jurisdiction for the appointment of a successor
\nCollateral Agent, Custodial Agent or Securities Intermediary, as the case may
\nbe. Each of the Collateral Agent, the Custodial Agent and the Securities
\nIntermediary shall be a bank which has an office in New York, New York with a
\ncombined capital and surplus of at least $50,000,000. Upon the acceptance of any
\nappointment as Collateral Agent, Custodial Agent or Securities Intermediary, as
\nthe case may be, hereunder by a successor Collateral Agent, Custodial Agent or
\nSecurities Intermediary, as the case may be, such successor shall thereupon
\nsucceed to and become vested with all the rights, powers, privileges and duties
\nof the retiring Collateral Agent, Custodial Agent or Securities Intermediary, as
\nthe case may be, and the retiring Collateral Agent, Custodial Agent or
\nSecurities Intermediary, as the case may be, shall take all appropriate action
\nto transfer any money and property held by it hereunder (including the
\nCollateral) to such successor. The retiring Collateral Agent, Custodial Agent or
\nSecurities Intermediary shall, upon such succession, be discharged from its
\nduties and obligations as Collateral Agent, Custodial Agent or Securities
\nIntermediary hereunder. After any retiring Collateral Agent’s, Custodial Agent’s
\nor Securities Intermediary’s resignation hereunder as Collateral Agent,
\nCustodial Agent or Securities Intermediary, the provisions of this Section 8.8
\nshall<\/p>\n
24
\n 29
\ncontinue in effect for its benefit in respect of any actions taken or omitted to
\nbe taken by it while it was acting as the Collateral Agent, Custodial Agent or
\nSecurities Intermediary. Any resignation or removal of the Collateral Agent
\nhereunder shall be deemed for all purposes of this Agreement as the simultaneous
\nresignation or removal of the Custodial Agent and the Securities Intermediary.<\/p>\n
Section 8.9 Right to Appoint Agent or Advisor. The Collateral Agent
\nshall have the right to appoint agents or advisors in connection with any of its
\nduties hereunder, and the Collateral Agent shall not be liable for any action
\ntaken or omitted by, or in reliance upon the advice of, such agents or advisors
\nselected in good faith. The appointment of agents (other than legal counsel)
\npursuant to this Section 8.9 shall be subject to prior consent of the Company,
\nwhich consent shall not be unreasonably withheld.<\/p>\n
Section 8.10 Survival. The provisions of this Article VIII shall
\nsurvive termination of this Agreement and the resignation or removal of the
\nCollateral Agent, the Custodial Agent or the Securities Intermediary.<\/p>\n
Section 8.11 Exculpation. Anything in this Agreement to the contrary
\nnotwithstanding, in no event shall any of the Collateral Agent, the Custodial
\nAgent or the Securities Intermediary or their officers, employees or agents be
\nliable under this Agreement to any third party for indirect, special, punitive
\nor consequential loss or damage of any kind whatsoever, including lost profits,
\nwhether or not the likelihood of such loss or damage was known to the Collateral
\nAgent, the Custodial Agent or the Securities Intermediary, or any of them,
\nincurred without any act or deed that is found to be attributable to gross
\nnegligence, bad faith or willful misconduct on the part of the Collateral Agent,
\nthe Custodial Agent or the Securities Intermediary.<\/p>\n
ARTICLE IX<\/p>\n
Amendment<\/p>\n
Section 9.1 Amendment Without Consent of Holders. Without the consent
\nof any Holders or the holders of any Separate Capital Securities, the Company,
\nthe Collateral Agent, the Custodial Agent, the Securities Intermediary and the
\nPurchase Contract Agent, at any time and from time to time, may amend this
\nAgreement, in form satisfactory to the Company, the Collateral Agent, the
\nCustodial Agent, the Securities Intermediary and the Purchase Contract Agent,
\nfor any of the following purposes:<\/p>\n
(1) to evidence the succession of another Person to the Company, and
\n the assumption by any such successor of the covenants of the Company; or<\/p>\n
25
\n 30
\n (2) to add to the covenants of the Company for the benefit of the
\n Holders, or to surrender any right or power herein conferred upon the
\n Company so long as such covenants or such surrender do not adversely
\n affect the validity, perfection or priority of the security interests
\n granted or created hereunder; or<\/p>\n
(3) to evidence and provide for the acceptance of appointment hereunder
\n by a successor Collateral Agent, Custodial Agent, Securities Intermediary
\n or Purchase Contract Agent; or<\/p>\n
(4) to cure any ambiguity, to correct or supplement any provisions
\n herein which may be inconsistent with any other such provisions herein, or
\n to make any other provisions with respect to such matters or questions
\n arising under this Agreement, provided such action shall not adversely
\n affect the interests of the Holders.<\/p>\n
Section 9.2 Amendment with Consent of Holders. With the consent of the
\nHolders of not less than a majority of the Purchase Contracts at the time
\noutstanding, by Act of said Holders delivered to the Company, the Purchase
\nContract Agent or the Collateral Agent, as the case may be, the Company, when
\nduly authorized, the Purchase Contract Agent, the Collateral Agent, the
\nCustodial Agent and the Securities Intermediary may amend this Agreement for the
\npurpose of modifying in any manner the provisions of this Agreement or the
\nrights of the Holders in respect of the Securities; provided, however, that no
\nsuch Supplemental agreement shall, without the consent of the Holder of each
\nOutstanding Security adversely affected thereby,<\/p>\n
(1) change the amount or type of Collateral underlying a Security
\n (except for the rights of holders of Normal Units to substitute the
\n Treasury Securities for the Pledged Capital Securities or the Pledged
\n Treasury Consideration, as the case may be, or the rights of Holders of
\n Stripped Units to substitute Capital Securities or the appropriate
\n Treasury Consideration, as applicable, for the Pledged Treasury
\n Securities), impair the right of the Holder of any Security to receive
\n distributions on the underlying Collateral or otherwise adversely affect
\n the Holder’s rights in or to such Collateral; or<\/p>\n
(2) otherwise effect any action that would require the consent of the
\n Holder of each Outstanding Security affected thereby pursuant to the
\n Purchase Contract Agreement if such action were effected by an agreement
\n Supplemental thereto; or<\/p>\n
(3) reduce the percentage of Purchase Contracts the consent of whose
\n Holders is required for any such amendment.<\/p>\n
26
\n 31
\n It shall not be necessary for any Act of Holders under this Section to
\napprove the particular form of any proposed amendment, but it shall be
\nsufficient if such Act shall approve the substance thereof.<\/p>\n
Section 9.3 Execution of Amendments. In executing any amendment
\npermitted by this Section, the Collateral Agent, the Custodial Agent, the
\nSecurities Intermediary and the Purchase Contract Agent shall receive and
\n(subject to Section 6.1 hereof, with respect to the Collateral Agent, and
\nSection 7.1 of the Purchase Contract Agreement, with respect to the Purchase
\nContract Agent) shall be fully protected in relying upon, an Opinion of Counsel
\nstating that the execution of such amendment is authorized or permitted by this
\nAgreement and that all conditions precedent, if any, to the execution and
\ndelivery of such amendment have been satisfied and, in the case of an amendment
\npursuant to Section 9.1, that such amendment does not adversely affect the
\nvalidity, perfection or priority of the security interests granted or created
\nhereunder.<\/p>\n
Section 9.4 Effect of Amendments. Upon the execution of any amendment
\nunder this Article IX, this Agreement shall be modified in accordance therewith,
\nand such amendment shall form a part of this Agreement for all purposes; and
\nevery Holder of Certificates theretofore or thereafter authenticated, executed
\non behalf of the Holders and delivered under the Purchase Contract Agreement
\nshall be bound thereby.<\/p>\n
Section 9.5 Reference to Amendments. Certificates authenticated,
\nexecuted on behalf of the Holders and delivered after the execution of any
\namendment pursuant to this Section may, and shall if required by the Collateral
\nAgent or the Purchase Contract Agent, bear a notation in form approved by the
\nPurchase Contract Agent and the Collateral Agent as to any matter provided for
\nin such amendment. If the Company shall so determine, new Certificates so
\nmodified as to conform, in the opinion of the Collateral Agent, the Custodial
\nAgent, the Securities Intermediary, the Purchase Contract Agent and the Company,
\nto any such amendment may be prepared and executed by the Company and
\nauthenticated, executed on behalf of the Holders and delivered by the Purchase
\nContract Agent in accordance with the Purchase Contract Agreement in exchange
\nfor outstanding Certificates.<\/p>\n
ARTICLE X<\/p>\n
Miscellaneous<\/p>\n
Section 10.1 No Waiver. No failure on the part of any party hereto or
\nany of its agents to exercise, and no course of dealing with respect to, and no
\ndelay in exercising, any right, power or remedy hereunder shall operate as a
\nwaiver thereof; nor shall any<\/p>\n
27
\n 32
\nsingle or partial exercise by any party hereto or any of its agents of any
\nright, power or remedy hereunder preclude any other or further exercise thereof
\nor the exercise of any other right, power or remedy. The remedies herein are
\ncumulative and are not exclusive of any remedies provided by law.<\/p>\n
Section 10.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
\nCONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
\nTO ITS PRINCIPLES OF CONFLICTS OF LAWS. Without limiting the foregoing, the
\nabove choice of law is expressly agreed to by the Securities Intermediary, the
\nCollateral Agent, the Custodial Agent and the Holders from time to time acting
\nthrough the Purchase Contract Agent, as their attorney-in-fact, in connection
\nwith the establishment and maintenance of the Collateral Account. The Company,
\nthe Collateral Agent, the Custodial Agent, the Securities Intermediary and the
\nHolders from time to time of the Securities, acting through the Purchase
\nContract Agent as their attorney-in-fact, hereby submit to the nonexclusive
\njurisdiction of the United States District Court for the Southern District of
\nNew York and of any New York state court sitting in New York City for the
\npurposes of all legal proceedings arising out of or relating to this Agreement
\nor the transactions contemplated hereby. The Company, the Collateral Agent, the
\nCustodial Agent and the Securities Intermediary and the Holders from time to
\ntime of the Securities, acting through the Purchase Contract Agent as their
\nattorney-in-fact, irrevocably waive, to the fullest extent permitted by
\napplicable law, any objection which they may now or hereafter have to the laying
\nof the venue of any such proceeding brought in such a court and any claim that
\nany such proceeding brought in such a court has been brought in an inconvenient
\nforum.<\/p>\n
Section 10.3 Notices. Unless otherwise stated herein, all notices,
\nrequests, consents and other communications provided for herein (including,
\nwithout limitation, any modifications of, or waivers or consents under, this
\nAgreement) shall be given or made in writing (including, without limitation, by
\ntelecopy) delivered to the intended recipient at the “Address for Notices”
\nspecified below its name on the signature pages hereof or, as to any party, at
\nsuch other address as shall be designated by such party in a notice to the other
\nparties. Except as otherwise provided in this Agreement, all such communications
\nshall be deemed to have been duly given when personally delivered or, in the
\ncase of a mailed notice or notice transmitted by telecopier, upon receipt, in
\neach case given or addressed as aforesaid.<\/p>\n
Section 10.4 Successors and Assigns. This Agreement shall be binding
\nupon and inure to the benefit of the respective successors and assigns of the
\nCompany, the Collateral Agent, the Custodial Agent, the Securities Intermediary
\nand the Purchase Contract Agent, and the Holders from time to time of the
\nSecurities, by their acceptance of the same, shall<\/p>\n
28
\n 33
\nbe deemed to have agreed to be bound by the provisions hereof and to have
\nratified the agreements of, and the grant of the Pledge hereunder by, the
\nPurchase Contract Agent.<\/p>\n
Section 10.5 Counterparts. This Agreement may be executed in any number
\nof counterparts, all of which taken together shall constitute one and the same
\ninstrument, and any of the parties hereto may execute this Agreement by signing
\nany such counterpart.<\/p>\n
Section 10.6 Severability. If any provision hereof is invalid and
\nunenforceable in any jurisdiction, then, to the fullest extent permitted by law,
\n(i) the other provisions hereof shall remain in full force and effect in such
\njurisdiction and shall be liberally construed in order to carry out the
\nintentions of the parties hereto as nearly as may be possible and (ii) the
\ninvalidity or unenforceability of any provision hereof in any jurisdiction shall
\nnot affect the validity or enforceability of such provision in any other
\njurisdiction.<\/p>\n
Section 10.7 Expenses, Etc. The Company agrees to reimburse the
\nCollateral Agent, the Securities Intermediary and the Custodial Agent for: (a)
\nall reasonable out-of-pocket costs and expenses of the Collateral Agent, the
\nSecurities Intermediary and the Custodial Agent (including, without limitation,
\nthe reasonable fees and expenses of counsel to the Collateral Agent, the
\nSecurities Intermediary and the Custodial Agent), in connection with (i) the
\nnegotiation, preparation, execution and delivery or performance of this
\nAgreement and (ii) any modification, supplement or waiver of any of the terms of
\nthis Agreement; (b) all reasonable costs and expenses of the Collateral Agent
\n(including, without limitation, reasonable fees and expenses of counsel) in
\nconnection with (i) any enforcement or proceedings resulting or incurred in
\nconnection with causing any Holder of Securities to satisfy its obligations
\nunder the Purchase Contracts forming a part of the Securities and (ii) the
\nenforcement of this Section 10.7; and (c) all transfer, stamp, documentary or
\nother similar taxes, assessments or charges levied by any governmental or
\nrevenue authority in respect of this Agreement or any other document referred to
\nherein and all costs, expenses, taxes, assessments and other charges incurred in
\nconnection with any filing, registration, recording or perfection of any
\nsecurity interest contemplated hereby.<\/p>\n
Section 10.8 Security Interest Absolute. All rights of the Collateral
\nAgent and security interests hereunder, and all obligations of the Holders from
\ntime to time hereunder, shall be absolute and unconditional irrespective of:<\/p>\n
(a) any lack of validity or enforceability of any provision of the
\n Purchase Contracts or the Securities or any other agreement or instrument
\n relating thereto;<\/p>\n
(b) any change in the time, manner or place of payment of, or any other
\n term of, or any increase in the amount of, all or any of the obligations
\n of Holders of Securities under the related Purchase Contracts, or any
\n other amendment or waiver of any term of, or any consent to any departure
\n from any requirement of, the Purchase Contract Agreement or any Purchase
\n Contract or any other agreement or instrument relating thereto; or<\/p>\n
(c) any other circumstance which might otherwise constitute a defense
\n available to, or discharge of, a borrower, a guarantor or a pledgor.<\/p>\n
Section 10.9 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES
\nTHAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
\nCOMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
\nUNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
\nANY LITIGATION DIRECTLY OR INDIRECTLY ARISING<\/p>\n
29
\n 34
\nOUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
\nduly executed as of the day and year first above written.<\/p>\n
METLIFE, INC.<\/p>\n
By: \/s\/ William J. Wheeler
\n ———————————-
\n Name:
\n Title:<\/p>\n
Address for Notices:<\/p>\n
MetLife, Inc.
\n One Madison Avenue
\n New York, New York 10010
\n Attention: Treasurer’s Office
\n Telecopy: (212) 578-0266<\/p>\n
BANK ONE TRUST COMPANY, N.A.,
\n as Purchase Contract Agent and as
\n attorney-in-fact of the Holders from
\n time to time of the Securities<\/p>\n
By: \/s\/ Janice Ott Rotunno
\n ———————————-
\n Name: JANICE OTT ROTUNNO
\n Title: VICE PRESIDENT AND
\n ASSISTANT SECRETARY<\/p>\n
Address for Notices:<\/p>\n
Bank One Trust Company, N.A.
\n One North State Street, 9th Floor
\n Chicago, Illinois 60602
\n Attention: Corporate Trust Services Division
\n Telecopy: (312) 407-1708<\/p>\n
30
\n 35
\n THE BANK OF NEW YORK, as Collateral
\n Agent, Custodial Agent and as Securities
\n Intermediary<\/p>\n
By: \/s\/David Kolibachuk
\n ———————————-
\n Name: David Kolibachuk
\n Title: Vice President<\/p>\n
Address for Notices:<\/p>\n
101 Barclay Street, Floor 12 East
\n New York, New York 10286
\n Attention: Corporate Trust Administration,
\n Dealing and Trading Group,
\n David Kolibachuk
\n Telecopy: (212) 815-7157<\/p>\n
31
\n 36
\n EXHIBIT A<\/p>\n
INSTRUCTION FROM PURCHASE CONTRACT
\n AGENT TO COLLATERAL AGENT<\/p>\n
The Bank of New York
\n101 Barclay Street, Floor 12E
\nNew York, NY 10286
\nAttention: Corporate Trust Administration,
\n Dealing and Trading Group<\/p>\n
Re: Equity Security Units of MetLife, Inc. (the
\n “Company”), and MetLife Capital Trust I<\/p>\n
We hereby notify you in accordance with Section [4.1] [4.2] of the
\nPledge Agreement, dated as of April 7, 2000, (the “Pledge Agreement”) among the
\nCompany, yourselves, as Collateral Agent, Custodial Agent and Securities
\nIntermediary and ourselves, as Purchase Contract Agent and as attorney-in-fact
\nfor the holders of [Normal Units] [Stripped Units] from time to time, that the
\nholder of Securities listed below (the “Holder”) has elected to substitute
\n[$_____ aggregate principal amount of Treasury Securities (CUSIP No. _____)]
\n[$_______stated liquidation amount of Capital Securities or $_____ principal
\namount of Treasury Consideration (CUSIP No. _____)] in exchange for the related
\n[Pledged Capital Securities or Pledged Treasury Consideration] [Pledged Treasury
\nSecurities] held by you in accordance with the Pledge Agreement and has
\ndelivered to us a notice stating that the Holder has Transferred [Treasury
\nSecurities] [Capital Securities or the Treasury Consideration] to you, as
\nCollateral Agent. We hereby instruct you, upon receipt of such [Pledged Treasury
\nSecurities] [Pledged Capital Securities or Pledged Treasury Consideration], to
\nrelease the [Capital Securities or the Treasury Consideration] [Treasury
\nSecurities] related to such [Normal Units] [Stripped Units] to us in accordance
\nwith the Holder’s instructions. Capitalized terms used herein but not defined
\nshall have the meaning set forth in the Pledge Agreement.<\/p>\n
Date:
\n ————————<\/p>\n
By: Bank One Trust Company, N.A.
\n ————————————
\n Name:
\n ———————————–
\n Title:
\n ———————————-<\/p>\n
A-1
\n 37
\nPlease print name and address of Registered Holder electing to substitute
\n[Treasury Securities] [Capital Securities or Treasury Consideration] for the
\n[Pledged Capital Securities or the Pledged Treasury Consideration] [Pledged
\nTreasury Securities]:<\/p>\n
———————————— ————————————–
\n Name Social Security or other Taxpayer
\n Identification Number, if any<\/p>\n
————————————
\n Address<\/p>\n
————————————<\/p>\n
————————————<\/p>\n
A-2
\n 38
\n EXHIBIT B<\/p>\n
INSTRUCTION TO PURCHASE CONTRACT AGENT<\/p>\n
Bank One Trust Company, N.A.
\nOne North State Street, 9th Floor
\nChicago, Illinois 60602
\nAttention: Corporate Trust Services Division<\/p>\n
Re: Equity Security Units of MetLife, Inc. (the
\n “Company”), and MetLife Capital Trust I<\/p>\n
The undersigned Holder hereby notifies you that it has delivered to The
\nBank of New York, as Collateral Agent, [$_______ aggregate principal amount of
\nTreasury Securities (CUSIP No. _____)] [$_______ aggregate stated liquidation
\namount of Capital Securities or $_____ principal amount of Treasury
\nConsideration (CUSIP No. _____)] in exchange for the related [Pledged Capital
\nSecurities or Pledged Treasury Consideration] [Pledged Treasury Securities] held
\nby the Collateral Agent, in accordance with Section 4.1 of the Pledge Agreement,
\ndated as of April 7, 2000 (the “Pledge Agreement”), between you, the Company and
\nthe Collateral Agent. The undersigned Holder hereby instructs you to instruct
\nthe Collateral Agent to release to you on behalf of the undersigned Holder the
\n[Pledged Capital Securities or the Pledged Treasury Consideration] [Pledged
\nTreasury Securities] related to such [Normal Units] [Stripped Units].
\nCapitalized terms used herein but not defined shall have the meaning set forth
\nin the Pledge Agreement.<\/p>\n
Date:
\n ———————–
\n Signature Guarantee:
\n ————————-<\/p>\n
Please print name and address of Registered Holder:<\/p>\n
———————————— ————————————–
\n Name Social Security or other Taxpayer
\n Identification Number, if any<\/p>\n
————————————
\n Address<\/p>\n
————————————<\/p>\n
————————————<\/p>\n
B-1
\n 39
\n EXHIBIT C<\/p>\n
INSTRUCTION TO CUSTODIAL AGENT REGARDING REMARKETING<\/p>\n
The Bank of New York
\n101 Barclay Street, Floor 12E
\nNew York, New York 10286
\nAttention: Corporate Trust Administration,
\n Dealing and Trading Group<\/p>\n
Re: Capital Securities of MetLife, Inc. (the “Company”) and
\n MetLife Capital Trust I<\/p>\n
The undersigned hereby notifies you in accordance with Section 4.5(c)
\nof the Pledge Agreement, dated as of April 7, 2000 (the “Pledge Agreement”),
\namong the Company, yourselves, as Collateral Agent, Securities Intermediary and
\nCustodial Agent, and Bank One Trust Company, N.A., as Purchase Contract Agent
\nand as attorney-in-fact for the Holders of Normal Units and Stripped Units from
\ntime to time, that the undersigned elects to deliver $__________ stated
\nliquidation amount of Capital Securities for delivery to the Remarketing Agent
\non the fourth Business Day immediately preceding the Remarketing Date or any
\nSubsequent Remarketing Date for remarketing pursuant to Section 4.5(c) of the
\nPledge Agreement. The undersigned will, upon request of the Remarketing Agent,
\nexecute and deliver any additional documents deemed by the Remarketing Agent or
\nby the Company to be necessary or desirable to complete the sale, assignment and
\ntransfer of the Capital Securities tendered hereby.<\/p>\n
The undersigned hereby instructs you, upon receipt of the proceeds of
\nsuch remarketing from the Remarketing Agent, net of amounts payable to the
\nRemarketing Agent in accordance with the Pledge Agreement, to deliver such
\nproceeds to the undersigned in accordance with the instructions indicated herein
\nunder “A. Payment Instructions.” The undersigned hereby instructs you, in the
\nevent of Failed Remarketing, upon receipt of the Capital Securities tendered
\nherewith from the Remarketing Agent, to be delivered to the person(s) and the
\naddress(es) indicated herein under “B. Delivery Instructions.”<\/p>\n
With this notice, the undersigned hereby (i) represents and warrants
\nthat the undersigned has full power and authority to tender, sell, assign and
\ntransfer the Capital Securities tendered hereby and that the undersigned is the
\nrecord owner of any Capital Securities tendered herewith in physical form or a
\nparticipant in The Depositary Trust Company (“DTC”) and the beneficial owner of
\nany Capital Securities tendered herewith by<\/p>\n
C-1
\n 40
\nbook-entry transfer to your account at DTC and (ii) agrees to be bound by the
\nterms and conditions of Section 4.5(c) of the Pledge Agreement. Capitalized
\nterms used herein but not defined shall have the meaning set forth in the Pledge
\nAgreement.<\/p>\n
Date:
\n ——————————-<\/p>\n
By:
\n ———————————-
\n Name:
\n ——————————–
\n Title:
\n ——————————-
\n Signature Guarantee:
\n —————–<\/p>\n
———————————— ————————————–
\n Name Social Security or other Taxpayer
\n Identification Number, if any<\/p>\n
————————————
\n Address<\/p>\n
————————————<\/p>\n
————————————<\/p>\n
A. PAYMENT INSTRUCTIONS<\/p>\n
Proceeds of the remarketing should be paid by check in the name of the person(s)
\nset forth below and mailed to the address set forth below.<\/p>\n
Name(s)
\n —————————————
\n (Please Print)<\/p>\n
Address
\n —————————————
\n (Please Print)<\/p>\n
———————————————-<\/p>\n
———————————————-
\n (Zip Code)<\/p>\n
———————————————-
\n(Tax Identification or Social Security Number)<\/p>\n
C-2
\n 41
\nB. DELIVERY INSTRUCTIONS<\/p>\n
In the event of a Failed Remarketing, Capital Securities which are in physical
\nform should be delivered to the person(s) set forth below and mailed to the
\naddress set forth below.<\/p>\n
Name(s)
\n —————————————
\n (Please Print)<\/p>\n
Address
\n —————————————
\n (Please Print)<\/p>\n
———————————————-<\/p>\n
———————————————-
\n (Zip Code)<\/p>\n
———————————————-
\n(Tax Identification or Social Security Number)<\/p>\n
In the event of a Failed Remarketing, Capital Securities which are in book-entry
\nform should be credited to the account at The Depository Trust Company set forth
\nbelow.<\/p>\n
——————————–
\n DTC Account Number<\/p>\n
Name of Account Party:
\n ——————————–<\/p>\n
C-3
\n 42
\n EXHIBIT D<\/p>\n
INSTRUCTION TO CUSTODIAL AGENT REGARDING
\n WITHDRAWAL FROM REMARKETING<\/p>\n
The Bank of New York
\n101 Barclay Street, Floor 12E
\nNew York, New York 10286
\nAttention: Corporate Trust Administration,
\n Dealing and Trading Group<\/p>\n
Re: Capital Securities of MetLife, Inc. (the “Company”) and
\n MetLife Capital Trust I<\/p>\n
The undersigned hereby notifies you in accordance with Section 4.5(c)
\nof the Pledge Agreement, dated as of April 7, 2000 (the “Pledge Agreement”),
\namong the Company, yourselves, as Collateral Agent, Securities Intermediary and
\nCustodial Agent and Bank One Trust Company, N.A., as Purchase Contract Agent and
\nas attorney-in-fact for the Holders of Normal Units and Stripped Units from time
\nto time, that the undersigned elects to withdraw the $_____ aggregate stated
\nliquidation amount of Capital Securities delivered to the Custodial Agent on
\n___________, 2003 for remarketing pursuant to Section 4.5(c) of the Pledge
\nAgreement. The undersigned hereby instructs you to return such Capital
\nSecurities to the undersigned in accordance with the undersigned’s instructions.
\nWith this notice, the Undersigned hereby agrees to be bound by the terms and
\nconditions of Section 4.5(c) of the Pledge Agreement. Capitalized terms used
\nherein but not defined shall have the meaning set forth in the Pledge Agreement.<\/p>\n
Date:
\n ————————<\/p>\n
By:
\n ———————————-
\n Name:
\n ——————————–
\n Title:
\n ——————————-
\n Signature Guarantee:
\n ——————<\/p>\n
——————————– ————————————–
\n Name Social Security or other Taxpayer
\n Identification Number, if any
\n——————————–
\n Address<\/p>\n
——————————–<\/p>\n
——————————–<\/p>\n
D-1
\n 43
\nA. DELIVERY INSTRUCTIONS<\/p>\n
In the event of a Failed Remarketing, Capital Securities which are in physical
\nform should be delivered to the person(s) set forth below and mailed to the
\naddress set forth below.<\/p>\n
Name(s)
\n ————————————–
\n (Please Print)<\/p>\n
Address
\n ————————————–
\n (Please Print)<\/p>\n
———————————————<\/p>\n
———————————————
\n (Zip Code)<\/p>\n
———————————————
\n(Tax Identification or Social Security Number)<\/p>\n
In the event of a Failed Remarketing, Capital Securities which are in book-entry
\nform should be credited to the account at The Depository Trust Company set forth
\nbelow.<\/p>\n
——————————–
\n DTC Account Number<\/p>\n
Name of Account Party:
\n ——————————–<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6850,8205],"corporate_contracts_industries":[9415,9445],"corporate_contracts_types":[9631,9629],"class_list":["post-43849","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bank-one-corp","corporate_contracts_companies-metlife-inc","corporate_contracts_industries-financial__banks","corporate_contracts_industries-insurance__life","corporate_contracts_types-securities__pledge","corporate_contracts_types-securities"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43849","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43849"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43849"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43849"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43849"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}