Pledge Agreement among El Paso Corporation, The Bank of New York, and JPMorgan Chase Bank dated June 26, 2002
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This agreement is between El Paso Corporation, The Bank of New York (as collateral agent, custodial agent, and securities intermediary), and JPMorgan Chase Bank (as purchase contract agent and attorney-in-fact for holders of certain security units). It sets out the terms for pledging notes and other collateral to secure obligations under equity security units and stripped units issued by El Paso Corporation. The agreement details the rights, duties, and procedures for managing, substituting, and releasing collateral, as well as the roles of the agents involved.
EX-4.C 7 h97915exv4wc.txt PLEDGE AGREEMENT DATED 6/26/2002 EXHIBIT 4.C EL PASO CORPORATION, THE BANK OF NEW YORK, AS COLLATERAL AGENT, CUSTODIAL AGENT AND SECURITIES INTERMEDIARY AND JPMORGAN CHASE BANK AS PURCHASE CONTRACT AGENT AND ATTORNEY-IN-FACT OF THE HOLDERS FROM TIME TO TIME OF THE EQUITY SECURITY UNITS AND STRIPPED UNITS PLEDGE AGREEMENT DATED AS OF JUNE 26, 2002 TABLE OF CONTENTS
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-ii- EXHIBITS Exhibit A Instruction from Purchase Contract Agent to Collateral Agent Regarding Creation of Stripped Units or Recreation of Equity Security Units Exhibit B Instruction from Holder to Purchase Contract Agent Regarding Creation of Stripped Units or Recreation of Equity Security Units Exhibit C Instruction from Holder of Separate Notes to Custodial Agent Regarding Remarketing Exhibit D Instruction from Holder of Separate Notes to Custodial Agent Regarding Withdrawal from Remarketing -iii- PLEDGE AGREEMENT PLEDGE AGREEMENT, dated as of June 26, 2002 (this "Agreement"), among El Paso Corporation, a Delaware corporation (the "Company"), The Bank of New York, a New York banking corporation, not individually but solely as collateral agent (in such capacity, together with its successors in such capacity, the "Collateral Agent"), as custodial agent (in such capacity, together with its successors in such capacity, the "Custodial Agent") and as "securities intermediary" as defined in Section 8-102(a)(14) of the Code (as defined herein) (in such capacity, together with its successors in such capacity, the "Securities Intermediary"), and JPMorgan Chase Bank, a New York banking corporation, not individually but solely as purchase contract agent (in such capacity, together with its successors in such capacity, the "Purchase Contract Agent") and as attorney-in-fact of the Holders from time to time of the Equity Security Units and Stripped Units under the Purchase Contract Agreement (as defined herein). RECITALS WHEREAS, the Company and the Purchase Contract Agent are parties to the Purchase Contract Agreement, dated as of the date hereof (as modified and supplemented and in effect from time to time, the "Purchase Contract Agreement"), pursuant to which there may be issued 10,000,000 Equity Security Units of the Company (up to 11,500,000 Equity Security Units if the over-allotment option of the Underwriters (as defined in the Underwriting Agreement) is exercised pursuant to the Underwriting Agreement), each having a Stated Amount of $50. WHEREAS, each Equity Security Unit will be comprised of (a) a Purchase Contract and (b) either beneficial ownership of (i) a Note, (ii) following the successful remarketing of the Notes in accordance with the Purchase Contract Agreement and the Remarketing Agreement, the Treasury Consideration or (iii) following a Tax Event Redemption in accordance with the Purchase Contract Agreement, an Applicable Ownership Interest in the Treasury Portfolio. WHEREAS, in accordance with the terms of the Purchase Contract Agreement, a Holder of Equity Security Units may withdraw the Notes from the related Purchase Contracts by substituting for such Notes Treasury Securities that will pay in the aggregate an amount equal to the amount due on the Stock Purchase Date under such Purchase Contracts. Upon such substitution, the Equity Security Units will become Stripped Units. Each Stripped Unit will be comprised of (a) a Purchase Contract and (b) a 1/20 undivided beneficial interest in a Treasury Security. WHEREAS, pursuant to the terms of the Purchase Contract Agreement and the Purchase Contracts, the Holders, from time to time, of the Equity Security Units and Stripped Units have irrevocably authorized the Purchase Contract Agent, as attorney-in-fact of such Holders, among other things, to execute and deliver this Agreement on behalf of such Holders and to grant the pledge provided hereby of the Notes, any Treasury Consideration, any Applicable Ownership Interests in the Treasury Portfolio and any Treasury Securities to secure each Holder's obligations under the related Purchase Contracts, as provided herein and subject to the terms hereof. NOW, THEREFORE, the Company, the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Purchase Contract Agent, on its own behalf and as attorney-in-fact of the Holders from time to time of the Equity Security Units and Stripped Units, agree as follows: ARTICLE I DEFINITIONS SECTION 1.1 Definitions. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) capitalized terms used but not defined herein are used as defined in the Purchase Contract Agreement; (b) the defined terms in this Agreement have the meanings assigned to them in this Article and include the plural as well as the singular; and (c) the words "herein," "hereof" and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision. "Agreement" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more agreements supplemental hereto entered into pursuant to the applicable provisions hereof. "Code" has the meaning specified in Section 6.1(a) hereof. "Collateral" has the meaning specified in Section 2.1(a) hereof. "Collateral Account" means the securities account (number 188353) maintained at The Bank of New York in the name "JPMorgan Chase Bank, a New York banking corporation, as Purchase Contract Agent on behalf of the holders of certain securities of El Paso Corporation, Collateral Account subject to the Pledge in favor of El Paso Corporation, as pledgee" and any successor account. "Collateral Agent" has the meaning specified in the first paragraph of this Agreement. "Collateral Substitution" has the meaning specified in Section 4.1(a) hereof. "Company" means the Person named as the "Company" in the first paragraph of this Agreement until a successor shall have become such pursuant to the applicable 2 provisions of the Purchase Contract Agreement, and thereafter "Company" shall mean such successor. "Custodial Agent" has the meaning specified in the first paragraph of this Agreement. "Intermediary" means any entity that in the ordinary course of its business maintains securities accounts for others and is acting in that capacity. "Pledge" has the meaning specified in Section 2.1(c) hereof. "Pledged Applicable Ownership Interests in the Treasury Portfolio" has the meaning specified in Section 2.1(c) hereof. "Pledged Notes" has the meaning specified in Section 2.1(c) hereof. "Pledged Treasury Consideration" has the meaning specified in Section 2.1(c) hereof. "Pledged Treasury Securities" has the meaning specified in Section 2.1(c) hereof. "Proceeds" has the meaning specified in Section 9-102(a)(64) of the Code, including, without limitation, all interest, dividends, cash, instruments, securities, financial assets (as defined in Section 8-102(a)(9) of the Code) and other property from time to time received, receivable or otherwise distributed upon the sale, exchange, collection or disposition of the Collateral or any proceeds thereof. "Purchase Contract Agent" has the meaning specified in the first paragraph of this Agreement. "Purchase Contract Agreement" has the meaning specified in the Recitals. "Securities Intermediary" has the meaning specified in the first paragraph of this Agreement. "Security Entitlement" has the meaning specified in Section 8-102(a)(17) of the Code. "Separate Notes" means any Notes that are not Pledged Notes. "TRADES Regulations" means the regulations of the United States Department of the Treasury, published at 31 C.F.R. Part 357, as amended from time to time. Unless otherwise defined herein, all terms defined in the TRADES Regulations are used herein as therein defined. "Transfer" means, with respect to the Collateral and in accordance with the instructions of the Collateral Agent, the Purchase Contract Agent or the Holder, as applicable: 3 (i) in the case of Collateral consisting of securities which cannot be delivered by book-entry or which the parties agree are to be delivered in physical form, delivery in appropriate physical form to the recipient accompanied by any duly executed instruments of transfer, assignments in blank, transfer tax stamps and any other documents necessary to constitute a legally valid transfer to the recipient; (ii) in the case of Collateral consisting of securities maintained in book-entry form, delivery by causing a "securities intermediary" (as defined in Section 8-102(a)(14) of the Code) to (a) credit a Security Entitlement with respect to such securities to a "securities account" (as defined in Section 8-501(a) of the Code) maintained by or on behalf of the recipient and (b) to issue a confirmation to the recipient with respect to such credit. In the case of Collateral to be delivered to the Collateral Agent, the securities intermediary shall be the Securities Intermediary and the securities account shall be the Collateral Account. In addition, any Transfer of Treasury Consideration, Applicable Ownership Interests in the Treasury Portfolio and Treasury Securities hereunder shall be made in accordance with the TRADES Regulations and other applicable law. ARTICLE II PLEDGE; CONTROL AND PERFECTION SECTION 2.1 The Pledge. (a) The Holders from time to time acting through the Purchase Contract Agent, as their attorney-in-fact, and the Purchase Contract Agent, as such attorney-in-fact, hereby pledge and grant to the Collateral Agent, for the benefit of the Company, as collateral security for the performance when due by such Holders of their respective obligations under the related Purchase Contracts, a continuing first priority perfected security interest in, and lien upon and right of set off against, all of the right, title and interest of the Purchase Contract Agent and such Holders in and to: (i) (A) the Notes, Treasury Consideration, Applicable Ownership Interests in the Treasury Portfolio and Treasury Securities constituting a part of the Equity Security Units or Stripped Units, (B) any Treasury Securities delivered in exchange for any Notes in accordance with Section 4.1 hereof, and (C) any Notes delivered in exchange for any Treasury Securities in accordance with Section 4.2 hereof, in each case that have been Transferred to or otherwise received by the Collateral Agent and not released by the Collateral Agent to such Holders under the provisions of this Agreement; (ii) the Collateral Account and all securities, financial assets, security entitlements, cash and other property credited thereto and all Security Entitlements related thereto; and 4 (iii) all Proceeds of the foregoing (all of the foregoing, collectively, the "Collateral"). (b) Prior to or concurrently with the execution and delivery of this Agreement, the Purchase Contract Agent, on behalf of the initial Holders of the Equity Security Units, shall cause the Notes comprising a part of the Equity Security Units to be Transferred to the Collateral Agent for the benefit of the Company, for credit to the Collateral Account and the Securities Intermediary shall indicate by book-entry that a Securities Entitlement to such Notes has been credited to the Collateral Account. (c) The pledge provided in this Section 2.1 is herein referred to as the "Pledge" and the Notes (or the Notes that are delivered pursuant to Section 4.2 hereof), Treasury Consideration, Applicable Ownership Interests in the Treasury Portfolio or Treasury Securities subject to the Pledge, excluding any Notes or Treasury Securities released from the Pledge as provided in Sections 4.1, 4.2 and 4.3 hereof, respectively, are herein referred to as "Pledged Notes," "Pledged Treasury Consideration," "Pledged Applicable Ownership Interests in the Treasury Portfolio" or "Pledged Treasury Securities" respectively. Subject to the Pledge and Section 2.2 hereof, the Holders from time to time shall have full beneficial ownership of the Collateral. For purposes of perfecting the Pledge under applicable law, including, to the extent applicable, the TRADES Regulations or the Uniform Commercial Code as adopted and in effect in any applicable jurisdiction, the Collateral Agent shall be the agent of the Company as provided herein. Whenever directed by the Collateral Agent acting on behalf of the Company, the Securities Intermediary shall have the right to reregister in its name the Notes or any other securities held in physical form. (d) Except as may be required in order to release Notes in connection with a Tax Event Redemption or with a Holder's election to create Stripped Units from Equity Security Units, or except as otherwise required to release Notes as specified herein, neither the Collateral Agent nor the Securities Intermediary shall relinquish physical possession of any certificate evidencing a Note prior to the termination of this Agreement. If it becomes necessary for the Securities Intermediary to relinquish physical possession of a certificate in order to release a portion of the Notes evidenced thereby from the Pledge, the Company or the Purchase Contract Agent shall use its commercially reasonable best efforts to arrange for the Securities Intermediary to obtain physical possession of a replacement certificate evidencing any Notes remaining subject to the Pledge hereunder registered to the Securities Intermediary or endorsed in blank within fifteen days of the date the Securities Intermediary relinquished possession. The Securities Intermediary shall promptly notify the Company and the Collateral Agent of the Securities Intermediary's failure to obtain possession of any such replacement certificate as required hereby. SECTION 2.2 Control and Perfection. (a) In connection with the Pledge granted in Section 2.1, and subject to the other provisions of this Agreement, the Holders from time to time acting through the Purchase 5 Contract Agent, as their attorney-in-fact, hereby authorize and direct the Securities Intermediary (without the necessity of obtaining the further consent of the Purchase Contract Agent or any of the Holders), and the Securities Intermediary agrees, to comply with and follow any instructions and entitlement orders (as defined in Section 8-102(a)(8) of the Code) that the Collateral Agent may deliver with respect to the Collateral Account, the Collateral credited thereto and any Security Entitlements with respect thereto. In the event the Securities Intermediary receives from the Holders or the Purchase Contract Agent entitlement orders which conflict with entitlement orders received from the Collateral Agent, the Securities Intermediary shall follow the entitlement orders received from the Collateral Agent. Instructions and entitlement orders may, without limitation, direct the Securities Intermediary to transfer, redeem, assign, or otherwise deliver the Notes, the Treasury Consideration, the Applicable Ownership Interests in the Treasury Portfolio, the Treasury Securities and any Security Entitlements with respect thereto or sell, liquidate or dispose of such assets through a broker designated by the Company, and to pay and deliver any income, proceeds or other funds derived therefrom to the Company. The Holders from time to time acting through the Purchase Contract Agent hereby further authorize and direct the Collateral Agent itself, as agent of the Company, to issue instructions and entitlement orders, and to otherwise take action, with respect to the Collateral Account, the Collateral credited thereto and any Security Entitlements with respect thereto, pursuant to the terms and provisions hereof, all without the necessity of obtaining the further consent of the Purchase Contract Agent or any of the Holders. The Collateral Agent shall be the agent of the Company and shall act only in accordance with the terms hereof. Without limiting the generality of the foregoing, the Collateral Agent shall issue entitlement orders to the Securities Intermediary as directed in writing by the Company. (b) The Securities Intermediary hereby confirms and agrees that: (i) all securities or other property underlying any financial assets credited to the Collateral Account shall be registered in the name of the Securities Intermediary, or its nominee, endorsed to the Securities Intermediary, or its nominee, or in blank and in no case will any financial asset credited to the Collateral Account be registered in the name of the Purchase Contract Agent, the Collateral Agent as such, the Company or any Holder, payable to the order of, or specially endorsed to, the Purchase Contract Agent, the Collateral Agent as such, the Company or any Holder except to the extent the foregoing have been specially endorsed to the Securities Intermediary or in blank; (ii) all property delivered to the Securities Intermediary pursuant to this Agreement (including, without limitation, any Notes, Treasury Consideration, Applicable Ownership Interests in the Treasury Portfolio or Treasury Securities) will be promptly credited to the Collateral Account; (iii) the Collateral Account is an account to which financial assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Agreement, comply with entitlement orders originated by the Collateral 6 Agent on behalf of the Company without further consent by the Purchase Contract Agent; (iv) the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Collateral Account and/or any financial assets credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the Code) of such other Person; (v) the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Company, the Collateral Agent or the Purchase Contract Agent purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in this Section 2.2; (vi) each item of property (whether investment property, financial asset, security, instrument or cash) credited to the Collateral Account shall be treated as a "financial asset" within the meaning of Section 8-102(a)(9) of the Code; and (vii) in the event of any conflict between this Agreement (or any portion thereof) and any other agreement now existing or hereafter entered into, the terms of this Agreement shall prevail. (c) The Purchase Contract Agent hereby irrevocably constitutes and appoints the Collateral Agent and the Company, with full power of substitution, as the Purchase Contract Agent's attorney-in-fact to take on behalf of, and in the name, place and stead of, the Purchase Contract Agent and the Holders, any action necessary or desirable to perfect and to keep perfected the security interest in the Collateral referred to in Section 2.1. The grant of such power-of-attorney shall not be deemed to require of the Collateral Agent any specific duties or obligations not otherwise assumed by the Collateral Agent hereunder. Notwithstanding the foregoing, in no event shall the Collateral Agent or Securities Intermediary be responsible for the preparation or filing of any financing or continuation statements in the appropriate jurisdictions or responsible for maintenance or perfection of any security interest hereunder. (d) The Purchase Contract Agent shall file with the Internal Revenue Service and deliver to the Holders Forms 1099 (or successor or comparable forms), to the extent required by law, with respect to payments to the Holders. Neither the Securities Intermediary nor the Collateral Agent shall have any tax reporting duties hereunder. 7 ARTICLE III PAYMENTS ON PLEDGED COLLATERAL SECTION 3.1 Payments. So long as the Purchase Contract Agent is the registered owner of the Pledged Notes, Pledged Treasury Consideration, Pledged Applicable Ownership Interests in the Treasury Portfolio or Pledged Treasury Securities, it shall receive all payments thereon, but nevertheless subject to the Pledge thereof pursuant to Section 2.1 hereof. If the Pledged Notes are reregistered, such that the Collateral Agent becomes the registered holder, all payments of the principal of, or interest or other amounts on, the Pledged Notes and all payments of the principal of, or cash distributions on, any Pledged Treasury Consideration, Pledged Applicable Ownership Interests in the Treasury Portfolio or Pledged Treasury Securities that are received by the Collateral Agent and that are properly payable hereunder, shall be paid by the Collateral Agent by wire transfer in same day funds: (i) in the case of (A) any interest payments with respect to the Pledged Notes, the Pledged Treasury Consideration (as specified in clause (1) of the definition of Remarketing Value) or the Pledged Applicable Ownership Interests (as specified in clause (B) of the definition of Applicable Ownership Interest) in the Treasury Portfolio, as the case may be, with respect to Equity Security Units which include Pledged Notes, Pledged Treasury Consideration or Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, and (B) any payments of principal with respect to any Notes, Treasury Consideration (as specified in clause (2) of the definition of Remarketing Value) or Applicable Ownership Interests (as specified in clause (A) of the definition of Applicable Ownership Interest) in the Treasury Portfolio, as the case may be, that have been released from the Pledge pursuant to Section 4.3 hereof, to the Purchase Contract Agent, for the benefit of the Holders of the Equity Security Units, to the account designated by the Purchase Contract Agent for such purpose, which shall be ABA #021000021, Account #323332749, Registered Bond Incoming Wire A/C, not later than 10:00 a.m., New York City time, on the Business Day such payment is received by the Collateral Agent (provided that in the event such payment is received by the Collateral Agent on a day that is not a Business Day or after 9:00 a.m., New York City time, on a Business Day, then such payment shall be made not later than 9:30 a.m., New York City time, on the next succeeding Business Day); (ii) in the case of any payments with respect to any Treasury Securities that have been released from the Pledge pursuant to Section 4.3 hereof, to the Holders of the Stripped Units to the accounts designated by the Purchase Contract Agent in writing for such purpose not later than 2:00 p.m., New York City time, on the Business Day such payment is received by the Collateral Agent (provided that in the event such payment is received by the Collateral Agent on a day that is 8 not a Business Day or after 10:00 a.m., New York City time, on a Business Day, then such payment shall be made not later than 10:30 a.m., New York City time, on the next succeeding Business Day); and (iii) in the case of payments in respect of any Pledged Notes, Pledged Treasury Consideration (as specified in clause (2) of the definition of Remarketing Value), the Pledged Applicable Ownership Interests (as specified in clause (A) of the definition of Applicable Ownership Interest) in the Treasury Portfolio or Pledged Treasury Securities, as the case may be, to be paid upon settlement of the Holders' obligations to purchase Common Stock under the Purchase Contract, to the Company on the Stock Purchase Date in accordance with the procedure set forth in Section 4.5(a) or 4.5(b) hereof, in full satisfaction of the respective obligations of the Holders under the related Purchase Contracts. SECTION 3.2 Application of Payments. All payments received by the Purchase Contract Agent as provided herein shall be applied by the Purchase Contract Agent pursuant to the provisions of the Purchase Contract Agreement. If, notwithstanding the foregoing, the Purchase Contract Agent shall receive any payments of principal on account of any Note, Treasury Consideration (as specified in clause (2) of the definition of Remarketing Value) or Applicable Ownership Interest (as specified in clause (A) of the definition of Applicable Ownership Interest) in the Treasury Portfolio, as applicable, that, at the time of such payment, is a Pledged Note, Pledged Treasury Consideration (as specified in clause (2) of the definition of Remarketing Value) or Pledged Applicable Ownership Interest (as specified in clause (A) of the definition of Applicable Ownership Interest) in the Treasury Portfolio, as the case may be, or a Holder of Stripped Units shall receive any payments of principal on account of any Treasury Securities that, at the time of such payment, are Pledged Treasury Securities, the Purchase Contract Agent or such Holder shall hold the same as trustee of an express trust for the benefit of the Company (and promptly deliver the same over to the Company) for application to the obligations of the Holders under the related Purchase Contracts, and the Holders shall acquire no right, title or interest in any such payments of principal so received. ARTICLE IV SUBSTITUTION, RELEASE, REPLEDGE AND SETTLEMENT OF NOTES SECTION 4.1 Collateral Substitution and the Creation of Stripped Units. (a) Unless a successful remarketing or a Tax Event Redemption has occurred, at any time (i) other than during the period that commences at 5:00 p.m., New York City time, on May 5, 2005 and ends at 9:00 a.m., New York City time, on May 19, 2005 and during the period that commences at 5:00 p.m., New York City time, on June 22, 2005 and ends at 9:00 a.m., New York City time, on July 7, 2005 and (ii) prior to 5:00 p.m., New York City time, on the eleventh Business Day immediately preceding the Stock 9 Purchase Date, a Holder of Equity Security Units shall have the right to substitute Treasury Securities for the Pledged Notes securing such Holder's obligations under the Purchase Contracts comprising a part of such Equity Security Units (a "Collateral Substitution"), in integral multiples of 20 Equity Security Units by (a) Transferring to the Collateral Agent Treasury Securities having an aggregate principal amount equal to the aggregate Stated Amount of such Equity Security Units and (b) delivering instructions to the Purchase Contract Agent, in its capacity as custodian for the Depositary, to decrease the number of Equity Security Units evidenced by the Global Equity Security Units Certificate(s) (or, if the Equity Security Units are held in certificated form, such Equity Security Units) to the Purchase Contract Agent, accompanied by a notice, substantially in the form of Exhibit B hereto, to the Purchase Contract Agent stating that such Holder has Transferred Treasury Securities to the Collateral Agent pursuant to clause (a) above (stating the principal amount and the CUSIP numbers of the Treasury Securities Transferred by such Holder) and requesting that the Purchase Contract Agent instruct the Collateral Agent to release from the Pledge the Pledged Notes related to such Equity Security Units, whereupon the Purchase Contract Agent shall promptly give such instruction in writing to the Collateral Agent in the form provided in Exhibit A. Upon receipt of Treasury Securities from a Holder of Equity Security Units and the related written instruction from the Purchase Contract Agent, the Collateral Agent shall release the Pledged Notes and shall promptly Transfer such Pledged Notes free and clear of any lien, pledge or security interest created hereby, to the Purchase Contract Agent. All items Transferred and/or substituted by any Holder pursuant to this Section 4.1, Section 4.2 or any other Section of this Agreement shall be Transferred and/or substituted free and clear of all liens, claims and encumbrances. (b) Holders who elect to withdraw the Pledged Notes from the related Purchase Contracts by substituting Treasury Securities for such Pledged Notes shall be responsible for any fees or expenses payable to the Collateral Agent for its services as Collateral Agent in respect of the substitution, and the Company shall not be responsible for any such fees or expenses. (c) In the event a Holder making a Collateral Substitution fails to effect a book-entry transfer of the Equity Security Units or fails to deliver an Equity Security Units Certificate to the Purchase Contract Agent after depositing Treasury Securities with the Collateral Agent, the Pledged Notes constituting a part of such Equity Security Units, and any distributions on such Pledged Notes shall be held in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder, until such Equity Security Units are so transferred or the Equity Security Units Certificate is so delivered, as the case may be, or, with respect to an Equity Security Units Certificate, such Holder provides evidence satisfactory to the Company and the Purchase Contract Agent that such Equity Security Units Certificate has been destroyed, lost or stolen, together with any indemnity that may be required by the Purchase Contract Agent and the Company. 10 SECTION 4.2 The Recreation of Equity Security Units. (a) Unless a successful remarketing or a Tax Event Redemption has occurred, at any time (i) other than during the period that commences at 5:00 p.m., New York City time, on May 5, 2005 and ends at 9:00 a.m., New York City time, on May 19, 2005 and during the period that commences at 5:00 p.m., New York City time, on June 22, 2005 and ends at 9:00 a.m., New York City time, on July 7, 2005 and (ii) prior to 5:00 p.m., New York City time, on the eleventh Business Day immediately preceding the Stock Purchase Date, a Holder of Stripped Units shall have the right to recreate Equity Security Units consisting of the Purchase Contracts and Notes in integral multiples of 20 Equity Security Units by (x) Transferring to the Collateral Agent Separate Notes having an aggregate principal amount equal to the aggregate stated amount of such Stripped Units and (y) delivering instructions to the Purchase Contract Agent, in its capacity as custodian for the Depositary, to decrease the number of Stripped Units evidenced by the Global Stripped Units Certificate(s) (or, if the Stripped Units are held in certificated form, such Stripped Units) to the Purchase Contract Agent, accompanied by a notice, substantially in the form of Exhibit B hereto, to the Purchase Contract Agent stating that such Holder has Transferred Notes to the Collateral Agent pursuant to clause (x) above and requesting that the Purchase Contract Agent instruct the Collateral Agent to release from the Pledge the Pledged Treasury Securities related to such Stripped Units, whereupon the Purchase Contract Agent shall give such instruction to the Collateral Agent in the form provided in Exhibit A. Upon receipt of the Separate Notes from such Holder and the instruction from the Purchase Contract Agent, the Collateral Agent shall release the Pledged Treasury Securities and shall promptly Transfer such Pledged Treasury Securities, free and clear of any lien, pledge or security interest created hereby, to the Purchase Contract Agent. (b) Holders of Stripped Units who recreate Equity Security Units by substituting Notes for the Treasury Securities shall be responsible for any fees or expenses payable to the Collateral Agent for its services as Collateral Agent in respect of the substitution, and the Company shall not be responsible for any such fees or expenses. (c) In the event a Holder who recreates Equity Security Units fails to effect a book-entry transfer of the Stripped Units or fails to deliver a Stripped Units Certificate to the Purchase Contract Agent after depositing Notes with the Collateral Agent, the Treasury Securities constituting a part of such Stripped Units, and any distributions on such Treasury Securities shall be held in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder, until such Stripped Units are so transferred or the Stripped Units Certificate is so delivered, as the case may be, or, with respect to a Stripped Units Certificate, such Holder provides evidence satisfactory to the Company and the Purchase Contract Agent that such Stripped Units Certificate has been destroyed, lost or stolen, together with any indemnity that may be required by the Purchase Contract Agent and the Company. 11 SECTION 4.3 Termination Event. (a) Upon receipt by the Collateral Agent of written notice from the Company or the Purchase Contract Agent that there has occurred a Termination Event, the Collateral Agent shall release all Collateral from the Pledge and shall promptly Transfer any Pledged Notes, Pledged Treasury Consideration or Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, and Pledged Treasury Securities to the Purchase Contract Agent for the benefit of the Holders of the Equity Security Units and the Stripped Units, respectively, free and clear of any lien, pledge or security interest or other interest created hereby. (b) If such Termination Event shall result from the Company's becoming a debtor under the Bankruptcy Code, and if the Collateral Agent shall for any reason fail promptly to effectuate the release and Transfer of all Pledged Notes, Pledged Treasury Consideration, Pledged Applicable Ownership Interests in the Treasury Portfolio, or Pledged Treasury Securities, as the case may be, as provided by this Section 4.3, the Purchase Contract Agent shall: (i) use its best efforts to obtain, at the expense of the Company, an opinion of a nationally recognized law firm reasonably acceptable to the Collateral Agent to the effect that, as a result of the Company's being the debtor in such a bankruptcy case, the Collateral Agent will not be prohibited from releasing or Transferring the Collateral as provided in this Section 4.3, and shall deliver such opinion to the Collateral Agent within ten days after the occurrence of such Termination Event, and if (y) the Purchase Contract Agent shall be unable to obtain such opinion within ten days after the occurrence of such Termination Event or (z) the Collateral Agent shall continue, after delivery of such opinion, to refuse to effectuate the release and Transfer of all Pledged Notes, Pledged Treasury Consideration, Pledged Applicable Ownership Interests in the Treasury Portfolio or Pledged Treasury Securities, as the case may be, as provided in this Section 4.3, then the Purchase Contract Agent shall within fifteen days after the occurrence of such Termination Event commence an action or proceeding in the court with jurisdiction of the Company's case under the Bankruptcy Code seeking an order requiring the Collateral Agent to effectuate the release and Transfer of all Pledged Notes, Pledged Treasury Consideration, Pledged Applicable Ownership Interests in the Treasury Portfolio or Pledged Treasury Securities, as the case may be, as provided by this Section 4.3; or (ii) commence an action or proceeding like that described in subsection (i)(z) hereof within ten days after the occurrence of such Termination Event. SECTION 4.4 Early Settlement; Merger Early Settlement; Cash Settlement. Upon written notice to the Collateral Agent by the Purchase Contract Agent that one or more Holders of Equity Security Units or Stripped Units have elected to effect 12 Early Settlement, Merger Early Settlement or Cash Settlement of their respective obligations under the Purchase Contracts forming a part of such Equity Security Units or Stripped Units in accordance with the terms of the Purchase Contract Agreement (setting forth the number of such Purchase Contracts as to which such Holders have elected to effect Early Settlement, Merger Early Settlement or Cash Settlement), and that, with respect to Early Settlement and Merger Early Settlement, the Purchase Contract Agent has received and, with respect to Cash Settlement, the Collateral Agent has received from such Holders, and paid to the Company, the related Early Settlement Amounts, Merger Early Settlement Amounts or Cash Settlement Amounts, as the case may be, pursuant to the terms of the Purchase Contract Agreement and that all conditions to such Early Settlement or Merger Early Settlement or Cash Settlement, as the case may be, have been satisfied, then the Collateral Agent shall release from the Pledge (a) Pledged Notes, Pledged Treasury Consideration or Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, in the case of a Holder of Equity Security Units or (b) Pledged Treasury Securities, in the case of a Holder of Stripped Units, relating to such Purchase Contracts as to which such Holders have elected to effect Early Settlement, Merger Early Settlement or Cash Settlement, and shall Transfer all such Pledged Notes, Pledged Treasury Consideration, Pledged Applicable Ownership Interests in the Treasury Portfolio or Pledged Treasury Securities, as the case may be, free and clear of the Pledge created hereby, to the Purchase Contract Agent for the benefit of such Holders. SECTION 4.5 Remarketing; Application of Proceeds; Settlement. (a) The Collateral Agent shall notify, not later than 10:00 a.m., New York City time, on the third Business Day preceding the Initial Remarketing Date or the first day of any subsequent Remarketing Period, as applicable, the Remarketing Agent of the aggregate number of Pledged Notes to be remarketed. The Collateral Agent shall, not later than 10:00 a.m., New York City time, on the third Business Day immediately preceding the Initial Remarketing Date or the first day of any subsequent Remarketing Period, as applicable, without any instruction from Holders of Equity Security Units, Transfer the Pledged Notes to the Remarketing Agent for remarketing. Upon the occurrence of a successful remarketing, the Remarketing Agent will deliver the Treasury Consideration purchased from the proceeds of the successful remarketing attributable to the Pledged Notes to the Purchase Contract Agent, which shall thereupon deliver such Treasury Consideration to the Collateral Agent. Upon receipt of such Treasury Consideration from the Purchase Contract Agent, the Collateral Agent, for the benefit of the Company, shall thereupon hold in the Collateral Account such Treasury Consideration to secure such Equity Security Units Holders' obligations under the Purchase Contracts and to fund the quarterly payment due to Equity Security Units Holders on the Stock Purchase Date in an amount equal to the quarterly interest payment on the Notes, calculated at the initial annual interest rate. On the Stock Purchase Date, the Collateral Agent shall, at the direction of the Company, (i) apply that portion of the payments received in respect of the Pledged Treasury Consideration equal to the aggregate Stated Amount of the related Equity Security Units to satisfy in full the obligations of such Equity Security Units Holders to pay the Purchase Price under the 13 related Purchase Contracts and (ii) apply the remaining portion to pay the quarterly payment due to Equity Security Units Holders on such Stock Purchase Date in an amount equal to the quarterly interest payment on the Notes, calculated at the initial annual interest rate. (b) The Remarketing Agent shall make one or more attempts to remarket the Notes in accordance with the procedures set forth in the Purchase Contract Agreement and the Remarketing Agreement. If by 4:00 p.m., New York City time, on the fifth Business Day immediately preceding the Stock Purchase Date, the Remarketing Agent has failed to remarket the Notes at approximately, but not less than, 100.5% of the Remarketing Value, the Last Failed Remarketing shall be deemed to have occurred. Within three Business Days following the Last Failed Remarketing, the Pledged Notes delivered to the Remarketing Agent pursuant to Section 4.5(a) hereof shall be returned to the Collateral Agent. In this case, the Remarketing Agent shall advise the Collateral Agent in writing that it cannot remarket the related Pledged Notes of such Holders of Equity Security Units, and the Holders of Equity Security Units that have not made an Early Settlement, Merger Early Settlement or Cash Settlement shall be deemed to have directed the Company to sell or deliver the Pledged Notes in full satisfaction of their obligations under the Purchase Contracts. Pursuant to the written direction of the Company, the Collateral Agent, for the benefit of the Company, will sell or deliver the Pledged Notes in accordance with the Company's written direction to satisfy in full, from any such sale or delivery, such Holders' obligations under the related Purchase Contracts to pay the Purchase Price for the Common Stock; provided, that if upon the Last Failed Remarketing, the Collateral Agent sells or delivers the Pledged Notes in accordance with the written direction of the Company, any accrued and unpaid interest on such Notes will become payable by the Company to the Purchase Contract Agent for payment to the Holders of the Equity Security Units to which such Notes relate in accordance with the Purchase Contract Agreement. (c) In the event a Holder of Stripped Units has not effected a Cash Settlement, Early Settlement or Merger Early Settlement of the Purchase Contracts underlying its Stripped Units, such Holder shall be deemed to have elected to pay for the shares of Common Stock to be issued under such Purchase Contracts from the payments received in respect of the related Pledged Treasury Securities. Without receiving any instruction from any such Holder, the Collateral Agent shall apply such payments to the settlement of such Purchase Contracts on the Stock Purchase Date pursuant to the written instruction of the Purchase Contract Agent. In the event the payments received in respect of the related Pledged Treasury Securities are in excess of the aggregate Purchase Price under the Purchase Contracts being settled thereby, the Collateral Agent shall distribute such excess, when received, to the Purchase Contract Agent for the benefit of such Holders of the Stripped Units. (d) At any time after the Payment Date immediately preceding the Initial Remarketing Date and prior to 11:00 a.m., New York City time, on the fourth Business Day immediately preceding the Initial Remarketing Date or the first day of any subsequent Remarketing Period, as applicable, holders of Separate Notes may elect to 14 have their Separate Notes remarketed by Transferring their Separate Notes and delivering a notice of such election, substantially in the form of Exhibit C hereto, to the Custodial Agent. On the third Business Day immediately preceding the Initial Remarketing Date or the first day of any subsequent Remarketing Period, as applicable, by 10:00 a.m., New York City time, the Custodial Agent shall notify the Remarketing Agent of the number of such Separate Notes to be remarketed. The Custodial Agent will hold such Separate Notes in an account separate from the Collateral Account. A holder of Separate Notes electing to have its Separate Notes remarketed will also have the right to withdraw such election by written notice to the Custodial Agent, substantially in the form of Exhibit D hereto, prior to 11:00 a.m., New York City time, on the fourth Business Day immediately preceding the Initial Remarketing Date or first day of a subsequent Remarketing Period, as applicable, upon which notice the Custodial Agent will return such Separate Notes to such holder. On the third Business Day immediately preceding the Initial Remarketing Date or the first day of any subsequent Remarketing Period, as applicable, the Custodial Agent at the written direction of the Remarketing Agent will deliver to the Remarketing Agent for remarketing all Separate Notes delivered to the Custodial Agent pursuant to this Section 4.5(d) and not withdrawn pursuant to the terms hereof. After deducting as the remarketing fee an amount not exceeding 25 basis points (0.25%) of the total proceeds of such remarketing of such Separate Notes, the Remarketing Agent will remit to the Custodial Agent the portion of the proceeds from such remarketing, if successful, equal to the amount calculated in respect of such Separate Notes as set forth in Section 2.06 of the Supplemental Indenture. If, despite using its commercially reasonable best efforts, the Remarketing Agent advises the Custodial Agent in writing that there has been a Failed Remarketing, the Remarketing Agent will promptly return such Separate Notes to the Custodial Agent for redelivery to such holders of such Separate Notes. The Custodial Agent shall be entitled to rely without further inquiry on any written instructions received from a holder of Separate Notes and shall have no liability with respect thereto. For purposes of this Section 4.5(d), a "holder" of a Separate Note shall mean the Person in whose name such Separate Note is registered on the books of the registrar for the Notes. ARTICLE V VOTING RIGHTS -- NOTES SECTION 5.1 Exercise by Purchase Contract Agent. Subject to the terms of the Purchase Contract Agreement, the Purchase Contract Agent may exercise, or refrain from exercising, any and all voting and other consensual rights pertaining to the Pledged Notes or any part thereof for any purpose not inconsistent with the terms of this Agreement and in accordance with the terms of the Purchase Contract Agreement; provided, that the Purchase Contract Agent shall give the Company and the Collateral Agent at least five days' prior written notice of the manner in which it intends to exercise, or its reasons for refraining from exercising, any such right. Upon receipt of any notices and other communications in respect of any Pledged Notes, including notice of any meeting at which holders of Notes are entitled to vote or 15 solicitation of consents, waivers or proxies of holders of Notes, the Collateral Agent shall use reasonable efforts to send promptly to the Purchase Contract Agent such notice or communication, and as soon as reasonably practicable after receipt of a written request therefor from the Purchase Contract Agent, execute and deliver to the Purchase Contract Agent such proxies and other instruments in respect of such Pledged Notes (in form and substance satisfactory to the Collateral Agent) as are prepared by the Purchase Contract Agent with respect to the Pledged Notes. ARTICLE VI RIGHTS AND REMEDIES; TAX EVENT REDEMPTION SECTION 6.1 Rights and Remedies of the Collateral Agent. (a) In addition to the rights and remedies available at law or in equity, after an event of default (as specified in Section 6.1(b)) hereunder, the Collateral Agent on behalf of the Company shall have all of the rights and remedies with respect to the Collateral of a secured party under the Uniform Commercial Code (or any successor thereto) as in effect in the State of New York from time to time (the "Code") (whether or not the Code is in effect in the jurisdiction where the rights and remedies are asserted) and the TRADES Regulations and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted. Wherever reference is made in this Agreement to any section of the Code, such reference shall be deemed to include a reference to any provision of the Code, which is a successor to, or amendment of, such section. Without limiting the generality of the foregoing, such remedies may include, to the extent permitted by applicable law, (i) retention of the Pledged Notes or other Collateral in full satisfaction of the Holders' obligations under the Purchase Contracts or (ii) sale of the Pledged Notes or other Collateral in one or more public or private sales, in each case at the written direction of the Company. (b) Without limiting any rights or powers otherwise granted by this Agreement to the Collateral Agent, in the event the Collateral Agent is unable to make payments to the Company on account of any Pledged Treasury Consideration, Pledged Applicable Ownership Interests in the Treasury Portfolio or Pledged Treasury Securities as provided in Article III hereof in satisfaction of the obligations of the Holder of the Equity Security Units or Stripped Units of which such Pledged Treasury Consideration, Pledged Applicable Ownership Interests in the Treasury Portfolio or Pledged Treasury Securities, as applicable, are a part under the related Purchase Contracts, the inability to make such payments shall constitute an event of default hereunder and the Collateral Agent on behalf of the Company shall have and may exercise, with reference to such Pledged Treasury Consideration, Pledged Applicable Ownership Interests in the Treasury Portfolio or Pledged Treasury Securities, as applicable, and such obligations of such Holder, any and all of the rights and remedies available to a secured party under the Code and the TRADES Regulations after default by a debtor, and as otherwise granted herein or under any other law. 16 (c) Without limiting any rights or powers otherwise granted by this Agreement to the Collateral Agent, the Collateral Agent on behalf of the Company is hereby irrevocably authorized to receive and collect all payments of (i) the principal amount of, or interest on, the Pledged Notes, or (ii) the principal amount of, or interest (if any) on, the Pledged Treasury Consideration, Pledged Applicable Ownership Interests in the Treasury Portfolio or Pledged Treasury Securities, subject, in each case, to the provisions of Article III, and as otherwise granted herein. (d) The Purchase Contract Agent, individually and as attorney-in-fact for each Holder of Equity Security Units and Stripped Units, agrees that, from time to time, upon the written request of the Company or the Collateral Agent (acting upon the written request of the Company), the Purchase Contract Agent or such Holder shall execute and deliver such further documents and do such other acts and things as the Company or the Collateral Agent (acting upon the written request of the Company) may reasonably request in order to maintain the Pledge, and the perfection and priority thereof, and to confirm the rights of the Collateral Agent hereunder. Notwithstanding the foregoing, in no event shall the Purchase Contract Agent be responsible for the preparation or filing of financing or continuation statements in the appropriate jurisdictions or responsible for maintenance or perfection of any security interest hereunder. The Purchase Contract Agent shall have no liability to any Holder for executing any documents or taking any such acts requested by the Company or the Collateral Agent (acting upon the written request of the Company) hereunder, except for liability for its own negligent act, its own negligent failure to act, its bad faith or its own willful misconduct. SECTION 6.2 Substitutions. Whenever a Holder has the right to substitute Treasury Securities or Notes for Collateral held by the Collateral Agent, such substitution shall not constitute a novation of the security interest created hereby. SECTION 6.3 Tax Event Redemption. Upon the occurrence of a Tax Event Redemption prior to the earlier of the date of a successful remarketing of the Pledged Notes or the Stock Purchase Date, the aggregate Redemption Price payable on the Tax Event Redemption Date with respect to such Pledged Notes shall be delivered to the Collateral Agent by the Trustee at or prior to 12:00 p.m., New York City time, by wire transfer in immediately available funds at such place and at such account as may be designated by the Collateral Agent in exchange for the Pledged Notes. In the event the Collateral Agent receives such Redemption Price, the Collateral Agent will, at the written direction of the Company, apply an amount, out of such Redemption Price, equal to the aggregate Redemption Amount with respect to the Pledged Notes to purchase from the Quotation Agent the Treasury Portfolio and promptly remit the remaining portion of such Redemption Price to the Purchase Contract Agent for payment to the Holders of Equity Security Units. The Collateral Agent shall Transfer the Treasury Portfolio to the Collateral Account to secure the obligation of all Holders of Equity Security Units to purchase Common Stock of the Company under the Purchase 17 Contracts constituting a part of such Equity Security Units, in substitution for the Pledged Notes. Thereafter the Collateral Agent shall have such security interests, rights and obligations with respect to the Treasury Portfolio as it had in respect of the Pledged Notes as provided in Articles II, III, IV, V and VI, and any reference herein to the Notes shall be deemed to be a reference to such Treasury Portfolio, and any reference herein to interest on the Notes shall be deemed to be a reference to distributions on such Treasury Portfolio. ARTICLE VII REPRESENTATIONS AND WARRANTIES; COVENANTS SECTION 7.1 Representations and Warranties. The Holders from time to time, acting through the Purchase Contract Agent as their attorney-in-fact (it being understood that the Purchase Contract Agent shall not be liable for any representation or warranty made by or on behalf of a Holder), hereby represent and warrant to the Collateral Agent and the Company, which representations and warranties shall be deemed repeated on each day a Holder Transfers Collateral that: (a) such Holder has the power to grant a security interest in and lien on the Collateral; (b) such Holder is the sole beneficial owner of the Collateral and, in the case of Collateral delivered in physical form, is the sole holder of such Collateral and is the sole beneficial owner of, or has the right to Transfer, the Collateral it Transfers to the Collateral Agent, free and clear of any security interest, lien, encumbrance, call, liability to pay money or other restriction other than the security interest and lien granted under Section 2.1 hereof; (c) upon the Transfer of the Collateral to the Collateral Account, the Collateral Agent, for the benefit of the Company, will have a valid and perfected first priority security interest therein (assuming that any central clearing operation or any Intermediary or other entity not within the control of the Holder involved in the Transfer of the Collateral, including the Collateral Agent, gives the notices and takes the action required of it hereunder and under applicable law for perfection of that interest and assuming the establishment and exercise of control pursuant to Section 2.2 hereof); and (d) the execution and performance by the Holder of its obligations under this Agreement will not result in the creation of any security interest, lien or other encumbrance on the Collateral other than the security interest and lien granted under Section 2.1 hereof or violate any provision of any existing law or regulation applicable to it or of any mortgage, charge, pledge, indenture, contract or undertaking to which it is a party or which is binding on it or any of its assets. 18 SECTION 7.2 Covenants. The Holders from time to time, acting through the Purchase Contract Agent as their attorney-in-fact (it being understood that the Purchase Contract Agent shall not be liable for any covenant made by or on behalf of a Holder), hereby covenant to the Collateral Agent and the Company that for so long as the Collateral remains subject to the Pledge: (a) neither the Purchase Contract Agent nor such Holders will create or purport to create or allow to subsist any mortgage, charge, lien, pledge or any other security interest whatsoever over the Collateral or any part of it other than pursuant to this Agreement; and (b) neither the Purchase Contract Agent nor such Holders will sell or otherwise dispose (or attempt to dispose) of the Collateral or any part of it except for the beneficial interest therein, subject to the pledge hereunder, transferred in connection with the sale or other disposition of the Equity Security Units and Stripped Units. ARTICLE VIII THE COLLATERAL AGENT, THE CUSTODIAL AGENT AND THE SECURITIES INTERMEDIARY SECTION 8.1 Appointment, Powers and Immunities. (a) The Collateral Agent, the Custodial Agent and the Securities Intermediary shall act as agent for the Company hereunder with such powers as are specifically vested in the Collateral Agent, the Custodial Agent and the Securities Intermediary by the terms of this Agreement, together with such other powers as are reasonably incidental thereto, and shall have no duties, fiduciary or otherwise, to any other Person. Each of the Collateral Agent, the Custodial Agent and the Securities Intermediary: (i) shall have no duties or responsibilities except those expressly set forth in this Agreement and no implied covenants or obligations shall be inferred from this Agreement against any of them, nor shall any of them be bound by the provisions of any agreement by any party hereto beyond the specific terms hereof; (ii) shall not be responsible for any recitals contained in this Agreement, or in any certificate or other document referred to or provided for in, or received by it under, this Agreement, the Equity Security Units or Stripped Units or the Purchase Contract Agreement, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement (other than as against the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be), the Equity Security Units or Stripped Units or the Purchase Contract Agreement or any other document referred to or provided for herein or therein or for any failure by the Company or any other Person (except the Collateral Agent, the Custodial Agent or the Securities Intermediary, 19 as the case may be) to perform any of its obligations hereunder or thereunder or for the attachment, perfection, priority or, except as expressly required hereby, existence, validity, perfection or maintenance of any lien or security interest created hereunder; (iii) shall not be required to initiate or conduct any litigation or collection proceedings hereunder (except in the case of the Collateral Agent, pursuant to written directions furnished under Section 8.2 hereof, subject to Section 8.6 hereof); (iv) shall not be responsible for any action taken or omitted to be taken by it hereunder or under any other document or instrument referred to or provided for herein or in connection herewith or therewith, except for its own gross negligence or willful misconduct; and (v) shall not be required to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, the Equity Security Units or Stripped Units or other property deposited hereunder. Subject to the foregoing, during the term of this Agreement, the Collateral Agent shall take all reasonable action in connection with the safekeeping and preservation of the Collateral hereunder. (b) No provision of this Agreement shall require the Collateral Agent, the Custodial Agent or the Securities Intermediary to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. In no event shall the Collateral Agent, the Custodial Agent or the Securities Intermediary be liable for any amount in excess of the value of the Collateral or for any special, indirect, individual or consequential damages or lost profits or loss of business, arising in connection with this Agreement even if the Collateral Agent, the Custodial Agent or the Securities Intermediary has been advised of the likelihood of such loss or damage being incurred and regardless of the form of action. Notwithstanding the foregoing, the Collateral Agent, the Custodial Agent, the Purchase Contract Agent and the Securities Intermediary, each in its individual capacity, hereby waive any right of setoff, banker's lien, liens or perfection rights as securities intermediary or any counterclaim with respect to any of the Collateral. (c) The Collateral Agent, Custodial Agent and Securities Intermediary shall have no liability whatsoever for the action or inaction of any Clearing Agency or any book-entry system thereof. In no event shall any Clearing Agency or any book-entry system thereof be deemed an agent or subcustodian of the Collateral Agent, Custodial Agent and Securities Intermediary. The Collateral Agent, Custodial Agent and Securities Intermediary shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fires; floods; war (whether declared or undeclared); terrorism; civil or 20 military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation. (d) Notwithstanding anything to the contrary contained in this Article VIII, the Securities Intermediary shall have the duties and responsibilities of a securities intermediary under Article 8 of the Code, including without limitation, Sections 8-504, 8-505, 8-506, 8-507, 8-508 and 8-509. SECTION 8.2 Instructions of the Company. The Company shall have the right, by one or more instruments in writing executed and delivered to the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be, to direct the time, method and place of conducting any proceeding for the realization of any right or remedy available to the Collateral Agent, or of exercising any power conferred on the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be, or to direct the taking or refraining from taking of any action authorized by this Agreement; provided, however, that (i) such direction shall not conflict with the provisions of any law or of this Agreement and (ii) the Collateral Agent, the Custodial Agent and the Securities Intermediary shall each receive indemnity reasonably satisfactory to it as provided herein. Nothing contained in this Section 8.2 shall impair the right of the Collateral Agent in its discretion to take any action or omit to take any action which it deems proper and which is not inconsistent with such direction. SECTION 8.3 Reliance. Each of the Collateral Agent, the Custodial Agent and the Securities Intermediary shall be entitled conclusively to rely upon any certification, order, judgment, opinion, notice or other communication (including, without limitation, any thereof by telephone or facsimile) reasonably believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper Person or Persons (without being required to determine the correctness of any fact stated therein), and upon advice and statements of legal counsel and other experts selected by the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be. As to any matters not expressly provided for by this Agreement, the Collateral Agent, the Custodial Agent and the Securities Intermediary shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions given by the Company in accordance with this Agreement. SECTION 8.4 Rights in Other Capacities. The Collateral Agent, the Custodial Agent and the Securities Intermediary and their affiliates may (without having to account therefor to the Company) accept deposits from, lend money to, make investments in and generally engage in any kind of banking, trust or other business with the Purchase Contract Agent, any Holder of Equity Security 21 Units or Stripped Units and any holder of Separate Notes (and any of their respective subsidiaries or affiliates) as if it were not acting as the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be, and the Collateral Agent, the Custodial Agent and the Securities Intermediary and their affiliates may accept fees and other consideration from the Purchase Contract Agent, any Holder of Equity Security Units or Stripped Units or any holder of Separate Notes without having to account for the same to the Company; provided that each of the Collateral Agent, the Custodial Agent and the Securities Intermediary covenants and agrees with the Company that, except as provided in this Agreement, it shall not accept, receive or permit there to be created in favor of itself (and waives any right of set-off or banker's lien with respect to) and shall take no affirmative action to permit there to be created in favor of any other Person, any security interest, lien or other encumbrance of any kind in or upon the Collateral and the Collateral shall not be commingled with any other assets of any such Person. SECTION 8.5 Non-Reliance on Collateral Agent. None of the Collateral Agent, the Custodial Agent or the Securities Intermediary shall be required to keep itself informed as to the performance or observance by the Purchase Contract Agent or any Holder of Equity Security Units or Stripped Units of this Agreement, the Purchase Contract Agreement, the Equity Security Units or Stripped Units or any other document referred to or provided for herein or therein or to inspect the properties or books of the Purchase Contract Agent or any Holder of Equity Security Units or Stripped Units. The Collateral Agent, the Custodial Agent and the Securities Intermediary shall not have any duty or responsibility to provide the Company or the Remarketing Agent with any credit or other information concerning the affairs, financial condition or business of the Purchase Contract Agent, any Holder of Equity Security Units or Stripped Units or any holder of Separate Notes (or any of their respective subsidiaries or affiliates) that may come into the possession of the Collateral Agent, the Custodial Agent or the Securities Intermediary or any of their respective affiliates. SECTION 8.6 Compensation and Indemnity. The Company agrees to: (a) pay each of the Collateral Agent, the Custodial Agent and the Securities Intermediary from time to time such compensation as shall be agreed in writing between the Company and the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be, for all services rendered by each of them hereunder, and (b) indemnify the Collateral Agent, the Custodial Agent, the Securities Intermediary and their officers, directors and agents for, and to hold each of them harmless from and against, any loss, liability or reasonable out-of-pocket expense incurred without gross negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of its powers and duties under this Agreement, including the reasonable out-of-pocket costs and expenses (including 22 reasonable fees and expenses of counsel) incurred enforcing the Company's indemnification obligation hereunder or defending itself against any claim or liability in connection with the exercise or performance of such powers and duties or collecting such amounts. The Collateral Agent, the Custodial Agent and the Securities Intermediary shall each promptly notify the Company of any third-party claim which may give rise to the indemnity hereunder and give the Company the opportunity to participate in the defense of such claim with counsel reasonably satisfactory to the indemnified party (provided, however, that if there shall exist a conflict or potential conflict of interest between the Company on the one hand and the Collateral Agent, the Custodial Agent or the Securities Intermediary on the other hand, in the conduct of any such defense which makes it impracticable for a single counsel to represent the Company and the Collateral Agent, the Custodial Agent or the Securities Intermediary, each of the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be, shall have the right to select separate counsel to participate in the defense of such claim), and no such claim shall be settled without the written consent of the Company, which consent shall not be unreasonably withheld. The provisions of this Section 8.6 shall survive the resignation or removal of the Collateral Agent, the Custodial Agent and the Securities Intermediary or the termination of this Agreement. SECTION 8.7 Failure to Act. In the event of any ambiguity in the provisions of this Agreement or any dispute between or conflicting claims by or among the parties hereto or any other Person with respect to any funds or property deposited hereunder, the Collateral Agent, the Custodial Agent and the Securities Intermediary shall be entitled, after prompt notice to the Company and the Purchase Contract Agent, at its sole option, to refuse to comply with any and all claims, demands or instructions with respect to such property or funds so long as such dispute or conflict shall continue, and none of the Collateral Agent, the Custodial Agent or the Securities Intermediary shall be or become liable in any way to any of the parties hereto for its failure or refusal to comply with such conflicting claims, demands or instructions. The Collateral Agent, the Custodial Agent and the Securities Intermediary shall be entitled to refuse to act until either: (i) such conflicting or adverse claims or demands shall have been finally determined by a court of competent jurisdiction or settled by agreement between the conflicting parties as evidenced in a writing, reasonably satisfactory to the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be; or (ii) the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be, shall have received security or an indemnity reasonably satisfactory to the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be, sufficient to save the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be, harmless from and against any and all loss, liability or reasonable out-of-pocket expense which the Collateral Agent, the Custodial Agent or the Securities 23 Intermediary, as the case may be, may incur by reason of its acting without willful misconduct or gross negligence. The Collateral Agent, the Custodial Agent or the Securities Intermediary may in addition elect to commence an interpleader action or seek other judicial relief or orders as the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be, may deem necessary. Notwithstanding anything contained herein to the contrary, none of the Collateral Agent, the Custodial Agent or the Securities Intermediary shall be required to take any action that is in its opinion contrary to law or to the terms of this Agreement, or which would in its opinion subject it or any of its officers, employees or directors to liability. SECTION 8.8 Resignation. Subject to the appointment and acceptance of a successor Collateral Agent, the Custodial Agent or Securities Intermediary, as provided below: (a) the Collateral Agent, Custodial Agent and the Securities Intermediary may resign at any time by giving notice thereof to the Company and the Purchase Contract Agent as attorney-in-fact for the Holders of Equity Security Units and Stripped Units; (b) the Collateral Agent, the Custodial Agent and the Securities Intermediary may be removed at any time by the Company; and (c) if the Collateral Agent, the Custodial Agent or the Securities Intermediary fails to perform any of its material obligations hereunder in any material respect for a period of not less than 20 days after receiving written notice of such failure by the Purchase Contract Agent and such failure shall be continuing, the Collateral Agent, the Custodial Agent or the Securities Intermediary may be removed by the Purchase Contract Agent. The Purchase Contract Agent shall promptly notify the Company of any removal of the Collateral Agent, the Custodial Agent or the Securities Intermediary pursuant to clause (c) of the immediately preceding sentence. The Company shall promptly notify the Purchase Contract Agent of any removal of the Collateral Agent, the Custodial Agent or the Securities Intermediary pursuant to clause (b) of the second preceding sentence. Upon notice of any such resignation or removal, the Company shall have the right to appoint a successor Collateral Agent, Custodial Agent or Securities Intermediary, as the case may be and shall give the Purchase Contract Agent prompt notice thereof. If no successor Collateral Agent, Custodial Agent or Securities Intermediary, as the case may be, shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Collateral Agent's, the Custodial Agent's or Securities Intermediary's giving of notice of resignation or such removal, then the retiring Collateral Agent, the Custodial Agent or Securities Intermediary, as the case may be, may at the Company's expense petition any court of competent jurisdiction for the appointment of a successor Collateral Agent, the Custodial Agent or Securities Intermediary, as the case may be. Each of the Collateral Agent, the Custodial Agent and the Securities Intermediary shall be a bank 24 which has an office in New York, New York with a combined capital and surplus of at least $50,000,000 or any affiliate of a bank holding company having such capital and surplus. Upon the acceptance of any appointment as Collateral Agent, Custodial Agent or Securities Intermediary, as the case may be, hereunder by a successor Collateral Agent, Custodial Agent or Securities Intermediary, as the case may be, such successor shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, Custodial Agent or Securities Intermediary, as the case may be, and the retiring Collateral Agent, Custodial Agent or Securities Intermediary, as the case may be, shall take all appropriate action to transfer any money and property held by it hereunder (including the Collateral) to such successor after the payment of any outstanding fees, expenses and indemnities due and owing to such retiring party. The retiring Collateral Agent, Custodial Agent or Securities Intermediary shall, upon such succession, be discharged from its duties and obligations as Collateral Agent, Custodial Agent or Securities Intermediary hereunder. After any retiring Collateral Agent's, Custodial Agent's or Securities Intermediary's resignation hereunder as Collateral Agent, Custodial Agent or Securities Intermediary, the provisions of this Section 8.8, and Section 8.6 hereof, shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Collateral Agent, Custodial Agent or Securities Intermediary. Any resignation or removal of the Collateral Agent hereunder shall be deemed for all purposes of this Agreement as the simultaneous resignation or removal of the Custodial Agent and the Securities Intermediary hereunder. Any corporation into which the Collateral Agent, the Custodial Agent or the Securities Intermediary, in its individual capacity, may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Collateral Agent in its individual capacity shall be a party, or any corporation to which substantially all of the corporate trust business of the Collateral Agent in its individual capacity may be transferred, shall be the Collateral Agent, the Custodial Agent, the Securities Intermediary, as the case may be respectively, under this Agreement without further act. SECTION 8.9 Right to Appoint Agent or Advisor. The Collateral Agent shall have the right to appoint or consult with agents or advisors in connection with any of its duties hereunder, and the Collateral Agent shall not be liable for any action taken or omitted by, or in reliance upon the advice of, such agents or advisors selected in good faith. The appointment of agents (other than legal counsel) pursuant to this Section 8.9 shall be subject to prior consent of the Company, which consent shall not be unreasonably withheld. SECTION 8.10 Survival. The provisions of this Article VIII shall survive termination of this Agreement and the resignation or removal of the Collateral Agent, the Custodial Agent or the Securities Intermediary. 25 SECTION 8.11 Exculpation. Anything contained in this Agreement to the contrary notwithstanding, in no event shall any of the Collateral Agent, the Custodial Agent or the Securities Intermediary or their officers, employees or agents be liable under this Agreement to any third party for indirect, special, punitive or consequential loss or damage of any kind whatsoever, including lost profits, whether or not the likelihood of such loss or damage was known to the Collateral Agent, the Custodial Agent or the Securities Intermediary, or any of them, and regardless of the form of action. ARTICLE IX AMENDMENT SECTION 9.1 Amendment Without Consent of Holders. Without the consent of any Holders or the holders of any Separate Notes, the Company (when authorized by a Board Resolution), the Collateral Agent, the Custodial Agent, the Securities Intermediary and the Purchase Contract Agent, at any time and from time to time, may amend this Agreement, in form satisfactory to the Company, the Collateral Agent, the Custodial Agent, the Securities Intermediary and the Purchase Contract Agent to: (i) evidence the succession of another Person to the Company, and the assumption by any such successor of the covenants of the Company; (ii) add to the covenants of the Company for the benefit of the Holders, or surrender any right or power herein conferred upon the Company so long as such covenants or such surrender does not adversely affect the validity, perfection or priority of the security interests granted or created hereunder; (iii) evidence and provide for the acceptance of appointment hereunder by a successor Collateral Agent, Custodial Agent, Securities Intermediary or Purchase Contract Agent; or (iv) cure any ambiguity, correct or supplement any provisions herein which may be inconsistent with any other provisions herein, or make any other provisions with respect to such matters or questions arising under this Agreement, provided such action shall not adversely affect the interests of the Holders. SECTION 9.2 Amendment with Consent of Holders. With the consent of the Holders of not less than a majority of the Outstanding Units (with the Equity Security Units and Stripped Units voting together as one class), by Act of such Holders delivered to the Company, the Purchase Contract Agent or the Collateral Agent, as the case may be, the Company (when duly authorized by a Board Resolution), the Purchase Contract Agent, the Collateral Agent, the Custodial Agent and the Securities Intermediary may amend this Agreement for the purpose of modifying in 26 any manner the provisions of this Agreement or the rights of the Holders in respect of the Equity Security Units or Stripped Units; provided, however, that no amendment shall, without the consent of the Holder of each Equity Security Unit and Stripped Unit affected thereby (in addition to the consent of the holders of at least a majority of the Outstanding Units, with the Equity Security Units and Stripped Units voting together as one class), (i) change the amount or type of Collateral underlying an Equity Security Unit or a Stripped Unit, impair the right of the Holder of any Equity Security Units or Stripped Units to receive distributions on the underlying Collateral, or otherwise adversely affect the Holder's rights in or to such Collateral; (ii) otherwise effect any action that would require the consent of the Holder of each Equity Security Unit and Stripped Unit affected thereby pursuant to the Purchase Contract Agreement if such action were effected by an amendment thereto; or (iii) reduce the percentage of Equity Security Units and Stripped Units the consent of whose Holders is required for any such amendment. It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such Act shall approve the substance thereof. SECTION 9.3 Execution of Amendments. In executing any amendment permitted by this Section, the Collateral Agent, the Custodial Agent, the Securities Intermediary and the Purchase Contract Agent shall receive and (subject to Section 8.1 hereof, with respect to the Collateral Agent, and Section 7.1 of the Purchase Contract Agreement, with respect to the Purchase Contract Agent) shall be fully protected in relying upon, an Officer's Certificate and an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and that all conditions precedent, if any, to the execution and delivery of such amendment have been satisfied and, in the case of an amendment pursuant to Section 9.1, that such amendment does not adversely affect the validity, perfection or priority of the security interests granted or created hereunder. SECTION 9.4 Effect of Amendments. Upon the execution of any amendment under this Article IX, this Agreement shall be modified in accordance therewith, and such amendment shall form a part of this Agreement for all purposes; and every Holder of Certificates theretofore or thereafter authenticated, executed on behalf of the Holders and delivered under the Purchase Contract Agreement shall be bound thereby. 27 SECTION 9.5 Reference to Amendments. Certificates authenticated, executed on behalf of the Holders and delivered after the execution of any amendment pursuant to this Section may, and shall if required by the Collateral Agent or the Purchase Contract Agent, bear a notation in form approved by the Purchase Contract Agent and the Collateral Agent as to any matter provided for in such amendment. If the Company shall so determine, new Certificates so modified as to conform, in the opinion of the Collateral Agent, the Purchase Contract Agent and the Company, to any such amendment may be prepared and executed by the Company and authenticated, executed on behalf of the Holders and delivered by the Purchase Contract Agent in accordance with the Purchase Contract Agreement in exchange for outstanding Certificates. ARTICLE X MISCELLANEOUS SECTION 10.1 No Waiver. No failure on the part of any party hereto or any of its agents to exercise, and no course of dealing with respect to, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by any party hereto or any of its agents of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies herein are cumulative and are not exclusive of any remedies provided by law. SECTION 10.2 Governing Law; Submission to Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. Without limiting the foregoing, the above choice of law is expressly agreed to by the Securities Intermediary, the Collateral Agent, the Custodial Agent and the Holders from time to time acting through the Purchase Contract Agent, as their attorney-in-fact, in connection with the establishment and maintenance of the Collateral Account, which law, for purposes of the Code, shall be deemed to be the law governing all Security Entitlements related thereto. In addition, such parties agree that, for purposes of the Code, New York shall be the Securities Intermediary's jurisdiction. The Company, the Collateral Agent, and the Holders from time to time of Equity Security Units and Stripped Units, acting through the Purchase Contract Agent as their attorney-in-fact, each submit to the jurisdiction of the courts of the State of New York and the courts of the United States of America, in each case located in the Borough of Manhattan, City of New York and State of New York over any suit, action or proceeding with respect to this Agreement or the transactions contemplated hereby. The Company, the Collateral Agent, and the Holders from time to time of Equity Security Units and Stripped Units, acting through the Purchase Contract Agent as their attorney-in-fact, each waive any objection that any of them may have to the venue of any suit, action or proceeding with respect to this Agreement or the transactions contemplated hereby in the courts of the 28 State of New York or the courts of the United States of America, in each case located in the Borough of Manhattan, City of New York and State of New York, or that such suit, action or proceeding brought in the courts of the State of New York or the courts of the United States of America, in each case located in the Borough of Manhattan, City of New York and State of New York, was brought in an inconvenient court and agrees not to plead or claim the same. SECTION 10.3 Notices. Unless otherwise stated herein, all notices, requests, consents and other communications provided for herein (including, without limitation, any modifications of, or waivers or consents under, this Agreement) shall be given or made in writing (including, without limitation, by facsimile) delivered to the intended recipient at the "Address for Notices" specified below its name on the signature pages hereof or, as to any party, at such other address as shall be designated by such party in a notice to the other parties. Except as otherwise provided in this Agreement, all such communications shall be deemed to have been duly given when personally delivered or, in the case of a mailed notice or notice transmitted by facsimile, upon receipt, in each case given or addressed as aforesaid. SECTION 10.4 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Company, the Collateral Agent, the Custodial Agent, the Securities Intermediary and the Purchase Contract Agent and their respective successors and assigns, and the Holders from time to time of the Equity Security Units and Stripped Units, by their acceptance of the same, shall be deemed to have agreed to be bound by the provisions hereof and to have ratified the agreements of, and the grant of the Pledge hereunder by, the Purchase Contract Agent. SECTION 10.5 Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart. SECTION 10.6 Severability. If any provision hereof is invalid and unenforceable in any jurisdiction, then, to the fullest extent permitted by law, (i) the other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the parties hereto as nearly as may be possible and (ii) the invalidity or unenforceability of any provision hereof in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction. 29 SECTION 10.7 Expenses, Etc. The Company agrees to reimburse the Collateral Agent, the Securities Intermediary and the Custodial Agent for: (a) all reasonable out-of-pocket costs and all reasonable expenses of the Collateral Agent, the Custodial Agent and the Securities Intermediary (including, without limitation, the reasonable fees and expenses of counsel to the Collateral Agent, the Custodial Agent and the Securities Intermediary), in connection with (i) the negotiation, preparation, execution and delivery or performance of this Agreement and (ii) any modification, supplement or waiver of any of the terms of this Agreement; (b) all reasonable costs and expenses of the Collateral Agent (including, without limitation, reasonable fees and expenses of counsel) in connection with (i) any enforcement or proceedings resulting or incurred in connection with causing any Holder of Equity Security Units or Stripped Units to satisfy its obligations under the Purchase Contracts forming a part of the Equity Security Units and Stripped Units and (ii) the enforcement of this Section 10.7; and (c) all transfer, stamp, documentary or other similar taxes, assessments or charges levied by any governmental or revenue authority in respect of this Agreement or any other document referred to herein and all costs, expenses, taxes, assessments and other charges incurred in connection with any filing, registration, recording or perfection of any security interest contemplated hereby. SECTION 10.8 Security Interest Absolute. All rights of the Company and security interests hereunder, and all obligations of the Holders from time to time hereunder, shall be absolute and unconditional irrespective of: (a) any lack of validity or enforceability of any provision of the Purchase Contracts or the Equity Security Units or Stripped Units or any other agreement or instrument relating thereto; (b) any change in the time, manner or place of payment of, or any other term of, or any increase in the amount of, all or any of the obligations of Holders of Equity Security Units or Stripped Units under the related Purchase Contracts, or any other amendment or waiver of any term of, or any consent to any departure from any requirement of, the Purchase Contract Agreement or any Purchase Contract or any other agreement or instrument relating thereto; or (c) any other circumstance which might otherwise constitute a defense available to, or discharge of, a borrower, a guarantor or a pledgor. 30 SECTION 10.9 Waiver of Jury Trial. Each party acknowledges and agrees that any controversy which may arise under this Agreement is likely to involve complicated and difficult issues, and therefore it hereby irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any litigation directly or indirectly arising out of or relating to this Agreement or the transactions contemplated hereby. 31 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written. EL PASO CORPORATION By: /s/ John J. Hopper ------------------------------------- Name: John J. Hopper Title: Vice President and Treasurer Address for Notices: El Paso Corporation 1001 Louisiana Street Houston, Texas 77002 Attention: Legal Department Facsimile: (713) 420-4099 JPMORGAN CHASE BANK, as Purchase Contract Agent and as attorney-in-fact of the Holders from time to time of the Equity Security Units and Stripped Units By: /s/ R. Lorenzen ------------------------------------- Name: R. Lorenzen Title: Assistant Vice President Address for Notices: 450 West 33rd Street New York, New York 10001 Attention: Institutional Trust Services Facsimile: (212) 946-8159 32 THE BANK OF NEW YORK, as Collateral Agent, Custodial Agent and Securities Intermediary By: /s/ Remo J. Reale ------------------------------------- Name: Remo J. Reale Title: Vice President Address for Notices: 101 Barclay Street New York, New York 10286 Attention: Corporate Trust Department Facsimile: (212) 328-8243 33 EXHIBIT A INSTRUCTION FROM PURCHASE CONTRACT AGENT TO COLLATERAL AGENT REGARDING CREATION OF STRIPPED UNITS OR RECREATION OF EQUITY SECURITY UNITS The Bank of New York, as Collateral Agent 101 Barclay Street New York, New York 10286 Attention: Corporate Trust Department Facsimile: (212) 328-8243 Re: Equity Security Units of El Paso Corporation (the "Company") We hereby notify you in accordance with Section [4.1] [4.2] of the Pledge Agreement, dated as of June 26, 2002 (the "Pledge Agreement"), among you, as Collateral Agent, Custodial Agent and Securities Intermediary, the Company and us, as Purchase Contract Agent and as attorney-in-fact for the Holders from time to time of the Equity Security Units and Stripped Units, that the holder of Equity Security Units or Stripped Units listed below (the "Holder") has elected to substitute [$_____ aggregate principal amount of Treasury Securities (CUSIP No. 912803 AG 8)] [$_____ aggregate principal amount of Notes] in exchange for the related [Pledged Notes] [Pledged Treasury Securities] held by you in accordance with the Pledge Agreement and has delivered to us a notice stating that the Holder has Transferred [Treasury Securities] [Notes] to you, as Collateral Agent. We hereby instruct you, upon receipt of such [Pledged Treasury Securities] [Pledged Notes], and upon the payment by such Holder of any applicable fees, to release the [Notes] [Treasury Securities] related to such [Equity Security Units] [Stripped Units] to us in accordance with the Holder's instructions. Capitalized terms used herein but not defined shall have the meaning set forth in the Pledge Agreement. Date: ------------------------------- JPMORGAN CHASE BANK, as Purchase Contract Agent By: ------------------------------------- Name: Title: A-1 Please print name, Social Security or other Taxpayer Identification Number, if any, and address of registered Holder electing to substitute [Treasury Securities] [Notes] for the [Pledged Notes] [Pledged Treasury Securities]: Name: Social Security or other Taxpayer Identification Number, if any: Address: A-2 EXHIBIT B INSTRUCTION FROM HOLDER TO PURCHASE CONTRACT AGENT REGARDING CREATION OF STRIPPED UNITS OR RECREATION OF EQUITY SECURITY UNITS JPMorgan Chase Bank, as Purchase Contract Agent 450 West 33rd Street New York, New York 10001 Attention: Institutional Trust Services Facsimile: (212) 946-8159 Re: Equity Security Units and Stripped Units of El Paso Corporation (the "Company") The undersigned Holder hereby [instructs you, in your capacity as custodian for the Depositary, to decrease the number of [Equity Security Units evidenced by the Global Equity Security Units Certificate(s)][Stripped Units evidenced by the Global Stripped Units Certificate(s)] and] notifies you that it has delivered to The Bank of New York, as Collateral Agent, Custodial Agent and Securities Intermediary [$_______ aggregate principal amount of Treasury Securities (CUSIP No. 912803 AG 8)] [$_______ aggregate principal amount of Notes] in exchange for the related [Pledged Notes] [Pledged Treasury Securities] held by the Collateral Agent, in accordance with Section [4.1] [4.2] of the Pledge Agreement, dated June 26, 2002 (the "Pledge Agreement"), among you, as Purchase Contract Agent and as attorney-in-fact of the Holders from time to time of the Equity Security Units and Stripped Units, the Company and the Collateral Agent, the Custodial Agent and the Securities Intermediary. The undersigned Holder has paid the Collateral Agent all applicable fees relating to such exchange. The undersigned Holder hereby instructs you to instruct the Collateral Agent to release to you on behalf of the undersigned Holder the [Pledged Notes] [Pledged Treasury Securities] related to such [Equity Security Units] [Stripped Units]. Capitalized terms used herein but not defined shall have the meaning set forth in the Pledge Agreement. Date: Signature: --------------------- ----------------------------- Signature Guarantee: ------------------- Please print name and address of Registered Holder: Name: Social Security or other Taxpayer Identification Number, if any: Address: B-1 EXHIBIT C INSTRUCTION FROM HOLDER OF SEPARATE NOTES TO CUSTODIAL AGENT REGARDING REMARKETING The Bank of New York, as Custodial Agent 101 Barclay Street New York, New York 10286 Attention: Corporate Trust Department Facsimile: (212) 328-8243 Re: Notes of El Paso Corporation (the "Company") The undersigned hereby notifies you in accordance with Section 4.5(d) of the Pledge Agreement, dated as of June 26, 2002 (the "Pledge Agreement"), among you, as Collateral Agent, Securities Intermediary and Custodial Agent, the Company and JPMorgan Chase Bank, as Purchase Contract Agent and as attorney-in-fact of the Holders from time to time of the Equity Security Units and Stripped Units, that the undersigned elects to deliver $________ aggregate principal amount of Notes for delivery to the Remarketing Agent prior to 11:00 a.m., New York City time, on the fourth Business Day immediately preceding [the Initial Remarketing Date] [the first day of any subsequent Remarketing Period] for remarketing pursuant to Section 4.5(d) of the Pledge Agreement. The undersigned will, upon request of the Remarketing Agent, execute and deliver any additional documents deemed by the Remarketing Agent or by the Company to be necessary or desirable to complete the sale, assignment and transfer of the Notes tendered hereby. The undersigned hereby instructs you, upon receipt of the proceeds of such remarketing, if successful, from the Remarketing Agent, net of amounts payable to the Remarketing Agent in accordance with the Pledge Agreement, to deliver such proceeds to the undersigned in accordance with the instructions indicated herein under "A. Payment Instructions." The undersigned hereby instructs you, in the event of a Failed Remarketing, upon receipt of the Notes tendered herewith from the Remarketing Agent, to deliver the Notes in accordance with the instructions indicated herein under "B. Delivery Instructions." With this notice, the undersigned hereby (i) represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer the Notes tendered hereby and that the undersigned is the record owner of any Notes tendered herewith in physical form or a participant in The Depository Trust Company ("DTC") and the beneficial owner of any Notes tendered herewith by book-entry transfer to your account at DTC and (ii) agrees to be bound by the terms and conditions of Section 4.5(d) of the Pledge Agreement. Capitalized terms used herein but not defined shall have the meaning set forth in the Pledge Agreement. C-1 Date: Signature: -------------------------- ------------------------------ Signature Guarantee: -------------------- Name: Social Security or other Taxpayer Identification Number, if any: Address: A. PAYMENT INSTRUCTIONS Proceeds of the remarketing should be paid by check in the name of the person(s) set forth below and mailed to the address set forth below. Name(s): -------------------------------------- (Please Print) Address: -------------------------------------- (Zip Code) (Please Print) (Taxpayer Identification or Social Security Number): B. DELIVERY INSTRUCTIONS In the event of a Failed Remarketing, Notes which are in physical form should be mailed to the person(s) set forth below at the address set forth below. Name(s): -------------------------------------- (Please Print) Address: -------------------------------------- (Zip Code) (Please Print) (Taxpayer Identification or Social Security Number): C-2 In the event of a Failed Remarketing, Notes which are in book-entry form should be credited to the account at The Depository Trust Company set forth below. Name of Account Party: DTC Account Number: C-3 EXHIBIT D INSTRUCTION FROM HOLDER OF SEPARATE NOTES TO CUSTODIAL AGENT REGARDING WITHDRAWAL FROM REMARKETING The Bank of New York, as Collateral Agent 101 Barclay Street New York, New York 10286 Attention: Corporate Trust Department Facsimile: (212) 328-8243 Re: Notes of El Paso Corporation (the "Company") The undersigned hereby notifies you in accordance with Section 4.5(d) of the Pledge Agreement, dated as of June 26, 2002 (the "Pledge Agreement"), among you, as Collateral Agent, Securities Intermediary and Custodial Agent, the Company and JPMorgan Chase Bank, as Purchase Contract Agent and as attorney-in-fact of the Holders from time to time of the Equity Security Units and Stripped Units, that the undersigned elects to withdraw the $_____ aggregate principal amount of Notes delivered to the Custodial Agent on ___________, ____ for remarketing pursuant to Section 4.5(d) of the Pledge Agreement. The undersigned hereby instructs you to return such Notes in accordance with the instructions indicated herein under "Delivery Instructions." With this notice, the undersigned hereby agrees to be bound by the terms and conditions of Section 4.5(d) of the Pledge Agreement. Capitalized terms used herein but not defined shall have the meaning set forth in the Pledge Agreement. Name(s): -------------------------------------- (Please Print) Address: -------------------------------------- (Zip Code) (Please Print) (Taxpayer Identification or Social Security Number): D-1 DELIVERY INSTRUCTIONS Notes which are in physical form should be mailed to the person(s) set forth below at the address set forth below. Name(s): -------------------------------------- (Please Print) Address: -------------------------------------- (Zip Code) (Please Print) (Taxpayer Identification or Social Security Number): Notes which are in book-entry form should be credited to the account at The Depository Trust Company set forth below. Name of Account Party: DTC Account Number: D-2
