EXHIBIT 4.6
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NEW NISOURCE INC.
AND
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
AS COLLATERAL AGENT
AND
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
AS SECURITIES INTERMEDIARY
AND
THE CHASE MANHATTAN BANK,
AS PURCHASE CONTRACT AGENT
_________________________________
PLEDGE AGREEMENT
DATED AS OF NOVEMBER 1, 2000
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Re:
STOCK APPRECIATION INCOME LINKED SECURITIES{SM}
(SAILS{SM})
OF
NEW NISOURCE INC.
TABLE OF CONTENTS
R E C I T A L S . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I - DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
Section 1.1. Definitions . . . . . . . . . . . . . . . . . 2
ARTICLE II - PLEDGE
Section 2.1. Pledge . . . . . . . . . . . . . . . . . . . 5
Section 2.2. Control; Financing Statement . . . . . . . . 6
Section 2.3. Termination. . . . . . . . . . . . . . . . . 6
ARTICLE III - DISTRIBUTIONS ON PLEDGED COLLATERAL
Section 3.1. Income Distributions. . . . . . . . . . . . . 6
Section 3.2. Principal Payments Following Termination
Event. . . . . . . . . . . . . . . . . . . . 6
Section 3.3. Principal Payments Prior To or On Purchase
Contract Settlement Date. . . . . . . . . . . 6
Section 3.4. Payments to Purchase Contract Agent . . . . . 7
Section 3.5. Assets Not Properly Released. . . . . . . . . 7
ARTICLE IV - CONTROL
Section 4.1. Establishment of Collateral Account. . . . . 8
Section 4.2. Treatment as Financial Assets. . . . . . . . 8
Section 4.3. Sole Control by Collateral Agent. . . . . . . 8
Section 4.4. Securities Intermediary's Location. . . . . . 8
Section 4.5. No Other Claims. . . . . . . . . . . . . . . 9
Section 4.6. Investment and Release. . . . . . . . . . . . 9
Section 4.7. Statements and Confirmations. . . . . . . . . 9
Section 4.8. Tax Allocations. . . . . . . . . . . . . . . 9
Section 4.9. No Other Agreements. . . . . . . . . . . . . 9
Section 4.10. Powers Coupled With An Interest. . . . . . . 9
ARTICLE V - INITIAL DEPOSIT; ESTABLISHMENT OF TREASURY UNITS
AND REESTABLISHMENT OF CORPORATE UNITS
Section 5.1. Initial Deposit of Debentures . . . . . . . . 10
Section 5.2. Establishment of Treasury Units . . . . . . . 10
Section 5.3. Reestablishment of Corporate Units . . . . . 11
Section 5.4. Termination Event . . . . . . . . . . . . . . 12
Section 5.5. Cash Settlement . . . . . . . . . . . . . . . 13
Section 5.6. [Intentionally omitted] . . . . . . . . . . . 14
Section 5.7. Application of Proceeds of Settlement . . . . 14
ARTICLE VI - VOTING RIGHTS - PLEDGED DEBENTURES
ARTICLE VII - RIGHTS AND REMEDIES; DISTRIBUTION OF THE
DEBENTURES
Section 7.1. Rights and Remedies of the Collateral Agent . 16
Section 7.2. Substitutions . . . . . . . . . . . . . . . . 17
ARTICLE VIII - REPRESENTATIONS AND WARRANTIES; COVENANTS
Section 8.1. Representations and Warranties . . . . . . . 17
Section 8.2. Covenants . . . . . . . . . . . . . . . . . . 18
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ARTICLE IX - THE COLLATERAL AGENT AND THE SECURITIES
INTERMEDIARY
Section 9.1. Appointment, Powers and Immunities . . . . . 19
Section 9.2. Instructions of the Company . . . . . . . . . 20
Section 9.3. Reliance by Collateral Agent and Securities
Intermediary . . . . . . . . . . . . . . . . 20
Section 9.4. Rights in Other Capacities . . . . . . . . . 20
Section 9.5. Non-Reliance on Collateral Agent and
Securities Intermediary . . . . . . . . . . . 20
Section 9.6. Compensation and Indemnity . . . . . . . . . 21
Section 9.7. Failure to Act . . . . . . . . . . . . . . . 21
Section 9.8. Resignation of Collateral Agent and
Securities Intermediary . . . . . . . . . . . 22
Section 9.9. Right to Appoint Agent or Advisor . . . . . . 23
Section 9.10. Survival . . . . . . . . . . . . . . . . . . 24
Section 9.11. Exculpation . . . . . . . . . . . . . . . . . 24
ARTICLE X - AMENDMENT
Section 10.1. Amendment Without Consent of Holders . . . . 24
Section 10.2. Amendment with Consent of Holders . . . . . . 25
Section 10.3. Execution of Amendments . . . . . . . . . . . 25
Section 10.4. Effect of Amendments . . . . . . . . . . . . 26
Section 10.5. Reference to Amendments . . . . . . . . . . . 26
ARTICLE XI - MISCELLANEOUS
Section 11.1. No Waiver . . . . . . . . . . . . . . . . . . 26
Section 11.2. Governing Law . . . . . . . . . . . . . . . . 26
Section 11.3. Notices . . . . . . . . . . . . . . . . . . . 27
Section 11.4. Successors and Assigns . . . . . . . . . . . 27
Section 11.5. Counterparts . . . . . . . . . . . . . . . . 27
Section 11.6. Severability . . . . . . . . . . . . . . . . 27
Section 11.7. Expenses, etc. . . . . . . . . . . . . . . . 28
Section 11.8. Security Interest Absolute . . . . . . . . . 28
Section 11.9. Name of the Company . . . . . . . . . . . . . 28
EXHIBIT A Instruction from Purchase Contract Agent to Collateral
Agent (Establishment of Treasury Unit)
EXHIBIT B Instruction from Collateral Agent to Securities
Intermediary (Establishment of Treasury Unit)
EXHIBIT C Instruction from Purchase Contract Agent to Collateral
Agent (Reestablishment of Corporate Unit)
EXHIBIT D Instruction from Collateral Agent to Securities
Intermediary (Reestablishment of Corporate Unit)
EXHIBIT E Notice of Cash Settlement from the Securities Intermediary
to the Purchase Contract Agent - Corporate Units
EXHIBIT F Notice of Cash Settlement from the Securities Intermediary
to the Purchase Contract Agent - Treasury Units
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PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of November 1, 2000, among New
NiSource Inc., a Delaware corporation (the "Company"), Bank One Trust
Company, National Association, a national banking association, not
individually but solely as collateral agent (in such capacity,
together with its successors in such capacity, the "Collateral
Agent"), Bank One Trust Company, National Association, a national
banking association, not individually but solely in its capacity as a
securities intermediary with respect to the Collateral Account (in
such capacity, together with its successors in such capacity, the
"Securities Intermediary"), and The Chase Manhattan Bank, a New York
banking corporation, not individually but solely as purchase contract
agent and as attorney-in-fact of the Holders from time to time of the
Units (in such capacity, together with its successors in such
capacity, the "Purchase Contract Agent") under the Purchase Contract
Agreement.
R E C I T A L S
The Company and the Purchase Contract Agent are parties to
the Purchase Contract Agreement dated as of the date of this Agreement
(as modified and supplemented and in effect from time to time, the
"Purchase Contract Agreement"), pursuant to which there are being
issued up to 56,000,000 Stock Appreciation Income Linked
Securities{SM} (the "SAILS{SM}" or "Units").<1>
Each Corporate Unit, at issuance, consists of a unit
comprised of (a) one stock purchase contract (the "Purchase Contract")
under which the Holder will purchase from the Company on November 1,
2004, for an amount equal to $2.60 (the "Stated Amount"), a number
of shares of Common Stock equal to the Settlement Rate and (b)
beneficial ownership of a Debenture issued by the Company under the
Indenture, having an aggregate principal amount at maturity equal to
the Stated Amount and maturing on November 1, 2006.
Pursuant to the terms of the Purchase Contract Agreement and
the Purchase Contracts, the Holders of the 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 in this
Agreement of the Collateral Account to secure the Obligations.
<1> "Stock Appreciation Income Linked Securities{SM}" and "SAILS{SM}"
are service marks of Credit Suisse First Boston Corporation.
Accordingly, the Company, the Collateral Agent, the
Securities Intermediary and the Purchase Contract Agent, on its own
behalf and as attorney-in-fact of the Holders from time to time of the
Units, agree as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1. DEFINITIONS. For all purposes of this
Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in the recitals and in this Article
have the respective meanings assigned to them in the recitals and in
this Article and include the plural as well as the singular;
(b) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to
any particular Article, Section, Exhibit or other subdivision;
(c) the following terms which are defined in the Code shall
have the meanings set forth in the Code: "certificated security,"
"control," "financial asset," "entitlement order," "securities
account" and "security entitlement";
(d) the following terms have the meanings assigned to them
in the Purchase Contract Agreement: (1) Act, (2) Agent, (3) Board
Resolution, (4) Cash Settlement, (5) Certificate, (6) Common Stock,
(7) Corporate Trust Office, (8) Corporate Unit, (9) Debentures, (10)
Effective Time, (11) Holders, (12) Indenture, (13) Opinion of
Counsel, (14) Outstanding Units, (15) Purchase Contract, (16) Purchase
Contract Settlement Date, (17) Purchase Price, (18) Remarketing Agent,
(19) Remarketing Agreement, (20) Settlement Rate, (21) Termination
Event, (22) Treasury Security, (23) Treasury Unit, and (24) Unit; and
(e) the following terms have the meanings given to them in
this Section 1(e):
"Agreement" means this Pledge Agreement, as the same may be
amended, modified or supplemented from time to time.
"Bankruptcy Code" means Title 11 of the United States Code,
or any other law of the United States that from time to time provides
a uniform system of bankruptcy laws.
"Business Day" means any day other than a Saturday or Sunday
or a day on which banks and trust companies located in the
municipality in which the Corporate Trust Office is located are
authorized or required by law, regulation or executive order to remain
closed.
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"Cash" means any coin or currency of the United States as at
the time shall be legal tender for payment of public and private
debts.
"Code" means the Uniform Commercial Code as in effect in the
State of New York from time to time.
"Collateral Account" means the collective reference to (1)
Securities Account No. 205025-001 entitled "Bank One Trust Company,
National Association, as Collateral Agent, Securities Account
(NiSource Inc.)" maintained by the Securities Intermediary for the
Purchase Contract Agent on behalf of and as attorney-in-fact for the
Holders, (2) all investment property and other financial assets from
time to time credited to the Collateral Account, including, without
limitation, (A) the Debentures and security entitlements relating to
them which are a component of the Corporate Units from time to time,
(B) any Treasury Securities and security entitlements relating to them
delivered from time to time upon establishment of Treasury Units in
accordance with Section 5.2 of this Agreement and (C) payments made by
Holders pursuant to Section 5.5 of this Agreement (collectively, the
"Collateral"), (3) all Proceeds of any of the foregoing (whether such
Proceeds arise before or after the commencement of any proceeding
under any applicable bankruptcy, insolvency or other similar law, by
or against the pledgor or with respect to the pledgor), and (4) all
powers and rights now owned or subsequently acquired under or with
respect to the Collateral Account.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor shall have become
such, after which "Company" shall mean such successor.
"Indenture Trustee" means The Chase Manhattan Bank, as
trustee under the Indenture until a successor is appointed, after
which "Indenture Trustee" means such successor trustee.
"Obligations" means, with respect to each Holder, the
collective reference to all obligations and liabilities of such Holder
under such Holder's Purchase Contract and this Agreement or any other
document made, delivered or given in connection with such Purchase
Contract or this Agreement, in each case whether on account of
principal, interest (including, without limitation, interest accruing
before and after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding,
relating to such Holder, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), fees,
indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Company or
the Collateral Agent or the Securities Intermediary that are required
to be paid by the Holder pursuant to the terms of any of the foregoing
agreements).
3
"Permitted Investments" means any one of the following which
shall mature not later than the next succeeding Business Day: (i) any
evidence of indebtedness with an original maturity of 365 days or less
issued, or directly and fully guaranteed or insured, by the United
States of America or any of its agencies or instrumentalities (if the
full faith and credit of the United States of America is pledged in
support of the timely payment of such indebtedness or such
indebtedness constitutes a general obligation of it); (ii) deposits,
certificates of deposit or acceptances with an original maturity of
365 days or less of any institution which is a member of the Federal
Reserve System having combined capital and surplus and undivided
profits of not less than $200.0 million at the time of deposit; (iii)
investments with an original maturity of 365 days or less of any
Person that is fully and unconditionally guaranteed by a bank referred
to in clause (ii); (iv) repurchase agreements and reverse repurchase
agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the United States of America or issued
by any of its agencies and backed as to timely payment by the full
faith and credit of the United States of America; (v) investments in
commercial paper, other than commercial paper issued by the Company or
its affiliates, of any corporation incorporated under the laws of the
United States or any State, which commercial paper has a rating at the
time of purchase at least equal to "A-1" by Standard & Poor's Ratings
Services ("S&P") or at least equal to "P-1" by Moody's Investors
Service, Inc. ("Moody's"); and (vi) investments in money market funds
(including money market funds managed by the Collateral Agent or any
of its affiliates) registered under the Investment Company Act of
1940, as amended, rated in the highest applicable rating category by
S&P or Moody's.
"Person" means any legal person, including any individual,
corporation, estate, partnership, joint venture, association,
joint-stock company, limited liability company, trust, unincorporated
organization, government or any agency or political subdivision
thereof, or any other entity.
"Pledge" means the lien and security interest created by
this Agreement.
"Pledged Debentures" means the Debentures and security
entitlements with respect to them from time to time credited to the
Collateral Account and not then released from the Pledge.
"Pledged Treasury Securities" means Treasury Securities and
security entitlements with respect to them from time to time credited
to the Collateral Account and not then released from the Pledge.
"Proceeds" has the meaning ascribed to such term in the Code
and includes, without limitation, all interest, dividends, cash,
instruments, securities, financial assets (as defined in
Section 8-102(a)(9) of the Code) and other property received,
receivable or otherwise distributed upon the sale, exchange,
4
collection or disposition of any financial assets from time to time
held in the Collateral Account.
"Purchase Contract Agent" has the meaning specified in the
paragraph preceding the recitals of this Agreement.
"TRADES" means the Treasury/Reserve Automated Debt Entry
System maintained by the Federal Reserve Bank of New York pursuant to
the TRADES Regulations.
"TRADES Regulations" means the regulations of the United
States Department of the Treasury, published at 31 C.F.R. Part 357, as
amended from time to time. Unless otherwise defined in this
Agreement, all terms defined in the TRADES Regulations are used in
this Agreement as defined in the TRADES Regulations.
"Transfer" means:
(i) in the case of certificated securities in
registered form, delivery as provided in
Section 8-301(a) of the Code, indorsed to the
transferee or in blank by an effective
indorsement;
(ii) in the case of Treasury Securities, registration
of the transferee as the owner of such Treasury
Securities on TRADES; and
(iii) in the case of security entitlements, including,
without limitation, security entitlements with
respect to Treasury Securities, a securities
intermediary indicating by book entry that such
security entitlement has been credited to the
transferee's securities account.
"Value" with respect to any item of Collateral on any date
means, as to (i) Cash, its face amount, and (ii) Treasury Securities
or Debentures, their aggregate principal amount at maturity.
ARTICLE II
PLEDGE
SECTION 2.1. PLEDGE. Each Holder, acting through the
Purchase Contract Agent as such Holder's attorney-in-fact, pledges and
grants to the Collateral Agent, as agent of and for the benefit of the
Company, a continuing first priority security interest in and to, and
a lien upon and right of set off against, all of such Holder's right,
title and interest in and to the Collateral Account to secure the
prompt and complete payment and performance when due (whether at
stated maturity, by acceleration or otherwise) of the Obligations.
5
The Collateral Agent shall have all of the rights, remedies and
recourses with respect to the Collateral afforded a secured party by
the Code, in addition to, and not in limitation of, the other rights,
remedies and recourses afforded to the Collateral Agent by this
Agreement.
SECTION 2.2. CONTROL; FINANCING STATEMENT.
(a) The Collateral Agent shall have control of the
Collateral Account pursuant to the provisions of Article IV of this
Agreement.
(b) On the date of initial issuance of the Units, the
Purchase Contract Agent shall deliver to the Collateral Agent a
financing statement prepared by the Company for filing in the Office
of the Secretary of State of the State of New York, signed by the
Purchase Contract Agent, as attorney-in-fact for the Holders, as
Debtors, and describing the Collateral.
SECTION 2.3. TERMINATION. This Agreement and the Pledge
shall terminate upon the satisfaction of each Holder's Obligations.
Upon termination, the Securities Intermediary shall Transfer the
Collateral to the Purchase Contract Agent for distribution to the
Holders and the Company in accordance with their respective interests,
free and clear of any lien, pledge or security interest created by
this Agreement.
ARTICLE III
DISTRIBUTIONS ON PLEDGED COLLATERAL
SECTION 3.1. INCOME DISTRIBUTIONS. All income
distributions received by the Securities Intermediary on account of
Permitted Investments from time to time held in the Collateral Account
shall be distributed to the Purchase Contract Agent for the benefit of
the applicable Holders as provided in the Purchase Contracts.
SECTION 3.2. PRINCIPAL PAYMENTS FOLLOWING TERMINATION
EVENT. All payments received by the Securities Intermediary following
a Termination Event of (1) the principal amount of Pledged Debentures
or securities entitlements to them, or (2) the principal amount of
Pledged Treasury Securities or securities entitlements to them, shall
be distributed to the Purchase Contract Agent for the benefit of the
Holders for distribution to such Holders in accordance with their
respective interests.
SECTION 3.3. PRINCIPAL PAYMENTS PRIOR TO OR ON PURCHASE
CONTRACT SETTLEMENT DATE.
(a) Except as provided in Section 3.3(b), if no Termination
Event shall have occurred, all payments received by the Securities
Intermediary (if any) of (1) the principal amount with respect to the
6
Pledged Debentures or security entitlements to them or (2) the
principal amount of Pledged Treasury Securities or security
entitlements to them shall be held and invested in Permitted
Investments until the Purchase Contract Settlement Date and on the
Purchase Contract Settlement Date distributed to the Company as
provided in Section 5.7 of this Agreement. Any balance remaining in
the Collateral Account shall be distributed to the Purchase Contract
Agent for the benefit of the applicable Holders for distribution to
such Holders in accordance with their respective interests.
(b) All payments received by the Securities Intermediary of
(1) the principal amount of Debentures or security entitlements to
them or (2) the principal amount of Treasury Securities or security
entitlements to them that in each case have been released from the
Pledge shall be distributed to the Purchase Contract Agent for the
benefit of the Holders to be distributed to such Holders in accordance
with their respective interests.
SECTION 3.4. PAYMENTS TO PURCHASE CONTRACT AGENT.
Payments to the Purchase Contract Agent pursuant to this Agreement
shall be made to the account designated by the Purchase Contract Agent
for such purpose not later than 12:00 Noon, New York City time, on the
Business Day such payment is received by the Securities Intermediary;
PROVIDED, that if such payment is received by the Securities
Intermediary on a day that is not a Business Day or after 11:00 a.m.,
New York City time, on a Business Day, then such payment shall be made
promptly but no later than 10:30 a.m., New York City time, on the next
succeeding Business Day. Payments may be made by wire transfer in
immediately available funds to the account specified under the
signature of the Purchase Contract Agent on the signature page of this
Agreement.
SECTION 3.5. ASSETS NOT PROPERLY RELEASED. If the
Purchase Contract Agent or any Holder shall receive any principal
payments on account of financial assets credited to the Collateral
Account and not released from the Collateral Account in accordance
with this Agreement, the Purchase Contract Agent or such Holder shall
hold the same as trustee of an express trust for the benefit of the
Company and, upon receipt of an Officers' Certificate (as defined in
the Purchase Contract Agreement) of the Company so directing, shall
promptly deliver the same to the Securities Intermediary for credit to
the Collateral Account or to the Company for application to the
Obligations of the Holders under the related Purchase Contracts, and
the Purchase Contract Agent and Holders shall acquire no right, title
or interest in any such payments of principal so received. Neither
the Purchase Contract Agent nor any Holder receiving such payments of
principal shall have any duties under this Section until it shall have
been notified in writing that a principal payment was delivered
erroneously. Neither the Purchase Contract Agent nor any Holder
receiving such payments of principal shall be liable for any actions
with respect to such principal payment taken, suffered or omitted in
7
accordance with any other provisions of this Agreement prior to its
receipt of such notice.
ARTICLE IV
CONTROL
SECTION 4.1. ESTABLISHMENT OF COLLATERAL ACCOUNT. The
Securities Intermediary confirms that (a) the Securities Intermediary
has established the Collateral Account, (b) the Collateral Account is
a securities account, (c) subject to the terms of this Agreement, the
Securities Intermediary shall treat the Purchase Contract Agent as
entitled to exercise the rights that comprise any financial asset
credited to the Collateral Account, (d) all property delivered to the
Securities Intermediary pursuant to this Agreement or the Purchase
Contract Agreement or the Indenture will be credited promptly to the
Collateral Account, and (e) all securities or other property
underlying any financial assets credited to the Collateral Account
shall be registered in the name of the Securities Intermediary,
indorsed to the Securities Intermediary, or indorsed in blank or
credited to another securities account maintained in the name of the
Securities Intermediary, and in no case will any financial asset
credited to the Collateral Account be registered in the name of the
Purchase Contract Agent or any Holder, payable to the order of the
Purchase Contract Agent or any Holder or specially indorsed to the
Purchase Contract Agent or any Holder.
SECTION 4.2. TREATMENT AS FINANCIAL ASSETS. Each item of
property (whether investment property, financial asset, security,
instrument or cash) credited to the Collateral Account shall be
treated as a financial asset.
SECTION 4.3. SOLE CONTROL BY COLLATERAL AGENT. Except as
provided in Article VI of this Agreement, at all times prior to the
termination of the Pledge, the Collateral Agent shall have sole
control of the Collateral Account, and the Securities Intermediary
shall take instructions and directions with respect to the Collateral
Account solely from the Collateral Agent. If at any time the
Securities Intermediary shall receive an entitlement order issued by
the Collateral Agent and relating to the Collateral Account, the
Securities Intermediary shall comply with such entitlement order
without further consent by the Purchase Contract Agent, any Holder or
any other Person. Until termination of the Pledge, the Securities
Intermediary will not comply with any entitlement orders issued by the
Purchase Contract Agent or any Holder.
SECTION 4.4. SECURITIES INTERMEDIARY'S LOCATION. The
Collateral Account and the rights and obligations of the Securities
Intermediary, the Collateral Agent, the Purchase Contract Agent and
the Holders with respect to it shall be governed by the laws of the
State of New York. Regardless of any provision in any other
8
agreement, for purposes of the Code, New York shall be deemed to be
the Securities Intermediary's location, and the Collateral Account (as
well as the securities entitlements related to it) shall be governed
by the laws of the State of New York.
SECTION 4.5. NO OTHER CLAIMS. Except for the claims and
interest of the Collateral Agent and of the Purchase Contract Agent
and the Holders in the Collateral Account, the Securities Intermediary
does not know of any claim to, or interest in, the Collateral Account
or in any financial asset credited to it. If any person asserts any
lien, encumbrance or adverse claim (including any writ, garnishment,
judgment, warrant of attachment, execution or similar process) against
the Collateral Account or in any financial asset carried in it, the
Securities Intermediary will promptly notify the Collateral Agent and
the Purchase Contract Agent.
SECTION 4.6. INVESTMENT AND RELEASE. All proceeds of
financial assets from time to time deposited in the Collateral Account
shall be invested and reinvested as provided in this Agreement. At
all times prior to termination of the Pledge, no property shall be
released from the Collateral Account except in accordance with this
Agreement or upon written instructions of the Collateral Agent.
SECTION 4.7. STATEMENTS AND CONFIRMATIONS. The Securities
Intermediary will promptly send copies of all statements,
confirmations and other correspondence concerning the Collateral
Account and any financial assets credited to it simultaneously to the
Purchase Contract Agent and the Collateral Agent at their respective
addresses for notices under this Agreement.
SECTION 4.8. TAX ALLOCATIONS. All items of income, gain,
expense and loss recognized in the Collateral Account shall be
reported to the Internal Revenue Service and all state and local
taxing authorities under the names and taxpayer identification numbers
of the Holders which are the beneficial owners of the Collateral
Account. Neither the Collateral Agent nor the Securities Intermediary
shall have any responsibility with respect to such reporting. Except
as provided in Section 7.14 of the Purchase Contract Agreement, the
Purchase Contract Agent shall have no responsibility with respect to
such reporting.
SECTION 4.9. NO OTHER AGREEMENTS. The Securities
Intermediary has not entered into and prior to the termination of the
Pledge will not enter into any agreement with any other Person
relating to the Collateral Account or any financial assets credited to
it, including, without limitation, any agreement to comply with
entitlement orders of any Person other than the Collateral Agent.
SECTION 4.10. POWERS COUPLED WITH AN INTEREST. The rights
and powers granted in this Article IV to the Collateral Agent have
been granted in order to perfect its security interests in the
Collateral Account, are powers coupled with an interest and will be
affected neither by the bankruptcy of the Purchase Contract Agent or
any Holder nor by the lapse of time. The obligations of the
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Securities Intermediary under this Article IV shall continue in effect
until the termination of the Pledge.
ARTICLE V
INITIAL DEPOSIT; ESTABLISHMENT OF TREASURY UNITS
AND REESTABLISHMENT OF CORPORATE UNITS
SECTION 5.1. INITIAL DEPOSIT OF DEBENTURES. Prior to or
concurrently with the execution and delivery of this Agreement, the
Purchase Contract Agent, on behalf of the initial Holders of the
Corporate Units, shall Transfer to the Securities Intermediary, for
credit to the Collateral Account, the Debentures or security
entitlements relating to such Debentures, and the Securities
Intermediary shall indicate by book entry that a securities
entitlement to such Debentures has been credited to the Collateral
Account.
SECTION 5.2. ESTABLISHMENT OF TREASURY UNITS.
(a) At any time on or prior to the seventh Business Day
immediately preceding the Purchase Contract Settlement Date, a Holder
of Corporate Units shall have the right to establish or reestablish
Treasury Units by substitution of Treasury Securities or security
entitlements to them for the Debentures comprising a part of such
Holder's Corporate Units in integral multiples of 5,000 Corporate
Units by:
(1) Transferring to the Securities Intermediary for
credit to the Collateral Account Treasury Securities or security
entitlements to them having a Value equal to the aggregate principal
amount at maturity of the Debentures to be released, accompanied by a
notice to the Purchase Contract Agent, substantially in the form of
Exhibit C to the Purchase Contract Agreement, at which time the
Purchase Contract Agent shall deliver to the Collateral Agent a
notice, substantially in the form of EXHIBIT A to this Agreement,
(A) stating that such Holder has notified the Purchase Contract Agent
that such Holder has Transferred Treasury Securities or security
entitlements to them to the Securities Intermediary for credit to the
Collateral Account, (B) stating the Value of the Treasury Securities
or security entitlements to them Transferred by such Holder and
(C) instructing the Collateral Agent to release from the Pledge the
Pledged Debentures that are a component of such Corporate Units; and
(2) delivering the related Corporate Units to the
Purchase Contract Agent.
Upon receipt of such notice and confirmation that Treasury Securities
or security entitlements to them have been credited to the Collateral
Account as described in such notice, the Collateral Agent shall
instruct the Securities Intermediary by a notice, substantially in the
form of EXHIBIT B to this Agreement, to release such Pledged
10
Debentures from the Pledge by Transfer to the Purchase Contract Agent
for distribution to such Holder, free and clear of any lien, pledge or
security interest created by this Agreement.
(b) Upon credit to the Collateral Account of Treasury
Securities or security entitlements to them delivered by a Holder of
Corporate Units and receipt of the related instruction from the
Collateral Agent, the Securities Intermediary shall release the
Pledged Debentures and shall promptly Transfer the same to the
Purchase Contract Agent for distribution to such Holder, free and
clear of any lien, pledge or security interest created by this
Agreement.
SECTION 5.3. REESTABLISHMENT OF CORPORATE UNITS.
(a) At any time on or prior to the seventh Business Day
immediately preceding the Purchase Contract Settlement Date, a Holder
of Treasury Units shall have the right to reestablish Corporate Units
by substitution of Debentures or security entitlements to them for
Pledged Treasury Securities in integral multiples of 13 Treasury Units
by:
(1) Transferring to the Securities Intermediary for
credit to the Collateral Account Debentures or security entitlements
to them having a principal amount at maturity equal to the Value of
the Pledged Treasury Securities to be released, accompanied by a
notice to the Purchase Contract Agent, substantially in the form of
Exhibit C to the Purchase Contract Agreement, at which time the
Purchase Contract Agent shall deliver to the Collateral Agent a
notice, substantially in the form of EXHIBIT C to this Agreement,
stating that such Holder has Transferred Debentures or security
entitlements to them to the Securities Intermediary for credit to the
Collateral Account and instructing the Collateral Agent to release
from the Pledge the Pledged Treasury Securities related to such
Treasury Units; and
(2) delivering the related Treasury Units to the
Purchase Contract Agent.
Upon receipt of such notice and confirmation that Debentures or
security entitlements to them have been credited to the Collateral
Account as described in such notice, the Collateral Agent shall
instruct the Security Intermediary by a notice, in substantially the
form of EXHIBIT D to this Agreement, to release such Pledged Treasury
Securities from the Pledge by Transfer to the Purchase Contract Agent
for distribution to such Holder free and clear of any lien, pledge or
security interest created by this Agreement.
(b) Upon credit to the Collateral Account of Debentures or
security entitlements to them delivered by a Holder of Treasury Units
and receipt of the related instruction from the Collateral Agent, the
Securities Intermediary shall release the applicable Pledged Treasury
11
Securities and shall promptly Transfer the same to the Purchase
Contract Agent for distribution to such Holder, free and clear of any
lien, pledge or security interest created by this Agreement.
SECTION 5.4. TERMINATION EVENT.
(a) Upon receipt by the Collateral Agent of written notice
from the Company or the Purchase Contract Agent that a Termination
Event has occurred, the Collateral Agent shall release all Collateral
from the Pledge and shall promptly Transfer:
(1) any Pledged Debentures, and
(2) any Pledged Treasury Securities
to the Purchase Contract Agent for the benefit of the Holders, for
distribution to such Holders in accordance with their respective
interests, free and clear of any lien, pledge or security interest or
other interest created by this Agreement.
(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 Debentures and Pledged Treasury
Securities as provided by this Section 5.4, the Purchase Contract
Agent shall:
(1) use its best efforts to obtain an opinion of a
nationally recognized law firm reasonably acceptable to the
Collateral Agent to the effect that, as a result of the Company's
being the debtor in such a bankruptcy case, the Collateral Agent
will not be prohibited from releasing or Transferring the
Collateral as provided in this Section 5.4, and shall deliver
such opinion to the Collateral Agent within ten days after the
occurrence of such Termination Event, and if (A) the Purchase
Contract Agent shall be unable to obtain such opinion within ten
days after the occurrence of such Termination Event or (B) the
Collateral Agent shall continue, after delivery of such opinion,
to refuse to effectuate the release and Transfer of all the
Pledged Debentures, all the Pledged Treasury Securities or the
Proceeds of any of the foregoing, as the case may be, as provided
in this Section 5.4, then the Purchase Contract Agent shall
within fifteen days after the occurrence of such Termination
Event commence an action or proceeding in the court having
jurisdiction of the Company's case under the Bankruptcy Code
seeking an order requiring the Collateral Agent to effectuate the
release and transfer of all the Pledged Debentures, all the
Pledged Treasury Securities, and the Proceeds of any of the
foregoing, as the case may be, as provided by this Section 5.4;
or
12
(2) commence an action or proceeding like that
described in Section 5.4(b)(1)(B) within ten days after the
occurrence of such Termination Event.
SECTION 5.5. CASH SETTLEMENT.
(a) Upon receipt by the Collateral Agent of (1) a notice
from the Purchase Contract Agent promptly after the receipt by the
Purchase Contract Agent of a notice that a Holder of a Corporate Unit
or Treasury Unit has elected, in accordance with the procedures
specified in Section 5.4(a)(i) or (d)(i) of the Purchase Contract
Agreement, respectively, to settle its Purchase Contract with cash and
(2) payment by such Holder by deposit in the Collateral Account on or
prior to 11:00 a.m., New York City time, (A) on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date in the
case of a Corporate Unit or (B) on the Business Day immediately
preceding the Purchase Contract Settlement Date in the case of a
Treasury Unit, of the Purchase Price in lawful money of the United
States by certified or cashier's check or wire transfer of immediately
available funds payable to or upon the order of the Securities
Intermediary, then the Collateral Agent shall (i) instruct the
Securities Intermediary promptly to invest any such Cash in Permitted
Investments of the type described in clause (vi) of the definition
thereof unless it has received other instructions from the Company by
10:30 a.m., New York time, on such date and (ii) release from the
Pledge (1) Pledged Debentures in the case of a Holder of Corporate
Units or (2) Pledged Treasury Securities in the case of a Holder of
Treasury Units, in each case with a principal amount at maturity equal
to the product of (x) the Stated Amount times (y) the number of such
Purchase Contracts as to which such Holders have elected to effect a
Cash Settlement pursuant to this Section 5.5(a) and shall instruct the
Securities Intermediary to Transfer all such Pledged Debentures or
Pledged Treasury Securities, as the case may be, to the Purchase
Contract Agent for the benefit of such Holders, in each case free and
clear of the Pledge, for distribution to such Holders in accordance
with their respective interests. Upon receipt of the proceeds upon
the maturity of the Permitted Investments on the Purchase Contract
Settlement Date, the Collateral Agent shall (A) instruct the
Securities Intermediary to pay the portion of such proceeds and
deliver any certified or cashier's checks received, in an aggregate
amount equal to the Purchase Price, to the Company on the Purchase
Contract Settlement Date, and (B) instruct the Securities Intermediary
to release any amounts in respect of the interest earned from such
Permitted Investments to the Purchase Contract Agent for distribution
to the relevant Holders in accordance with their respective interests.
(b) If a Holder of a Corporate Unit notifies the Purchase
Contract Agent as provided in Section 5.4(a)(i) of the Purchase
Contract Agreement of its intention to pay the Purchase Price in cash,
but fails to make such payment as required by Section 5.4(a)(ii) of
the Purchase Contract Agreement, such Holder shall be deemed to have
consented to the disposition of the Pledged Debentures of such Holder
13
in accordance with Section 5.4(a)(iii) of the Purchase Contract
Agreement.
(c) If a Holder of a Treasury Unit notifies the Purchase
Contract Agent as provided in Section 5.4(d)(i) of the Purchase
Contract Agreement of its intention to pay the Purchase Price in cash,
but fails to make such payment as required by Section 5.4(d)(ii) of
the Purchase Contract Agreement, such Holder shall be deemed to have
elected to pay the Purchase Price in accordance with Section
5.4(d)(iii) of the Purchase Contract Agreement.
(d) Prior to 3:00 p.m., New York City time, on the fifth
Business Day immediately preceding the Purchase Contract Settlement
Date, the Securities Intermediary shall deliver to the Purchase
Contract Agent a notice, substantially in the form of EXHIBIT E to
this Agreement, stating the amount of cash that it has received with
respect to the Cash Settlement of Corporate Units.
(e) Prior to 3:00 p.m., New York City time, on the Business
Day immediately preceding the Purchase Contract Settlement Date, the
Securities Intermediary shall deliver to the Purchase Contract Agent a
notice, substantially in the form of EXHIBIT F to this Agreement,
stating the amount of cash that it has received with respect to the
Cash Settlement of Treasury Units.
SECTION 5.6. [INTENTIONALLY OMITTED].
SECTION 5.7. APPLICATION OF PROCEEDS OF SETTLEMENT.
(a) If a Holder of Corporate Units has not elected to make
an effective Cash Settlement by notifying the Purchase Contract Agent
in the manner provided for in Section 5.4(a)(i) in the Purchase
Contract Agreement, or has given such notice but failed to deliver the
required cash to the Securities Intermediary prior to 11:00 A.M., New
York City time, on the fifth Business Day immediately preceding the
Purchase Contract Settlement Date, such Holder shall be deemed to have
elected to pay for the shares of Common Stock to be issued under such
Purchase Contract(s) from the Proceeds of the related Pledged
Debentures. In such event, the Collateral Agent shall instruct the
Securities Intermediary to Transfer the related Pledged Debentures to
the Remarketing Agent for remarketing. Upon receiving such Pledged
Debentures, the Remarketing Agent, pursuant to the terms of the
Remarketing Agreement, will use commercially reasonable efforts to
remarket such Pledged Debentures on such date at a price of 100.50% of
the aggregate principal amount of such Pledged Debentures. From the
proceeds of the Remarketing, the Remarketing Agent will retain an
amount (not exceeding 0.50% of the aggregate principal amount of such
Pledged Debentures) equal to its remarketing fee and will deposit the
remaining amount of the Proceeds of such remarketing in the Collateral
Account. On the Purchase Contract Settlement Date, the Collateral
Agent shall instruct the Securities Intermediary to apply a portion of
the Proceeds from such remarketing equal to the aggregate principal
14
amount of such Pledged Debentures to satisfy in full the obligations
of such Holders of Corporate Units to pay the Purchase Price to
purchase the Common Stock under the related Purchase Contracts. The
balance of the Proceeds from such remarketing (if any) shall be
transferred to the Company. If the Remarketing Agent advises the
Collateral Agent in writing that there has been a Failed Remarketing,
the Collateral Agent, for the benefit of the Company shall, at the
written direction of the Company, dispose of the Pledged Debentures in
accordance with applicable law and satisfy in full, from such
disposition, such Holders' obligations to pay the Purchase Price for
the Common Stock.
(b) If a Holder of Treasury Units has not elected to make
an effective cash settlement by notifying the Purchase Contract Agent
in the manner provided for in Section 5.4(d)(i) of the Purchase
Contract Agreement, or has given such notice but failed to make such
payment in the manner required by Section 5.4(d)(ii) of the Purchase
Contract Agreement, such Holder shall be deemed to have elected to pay
for the shares of Common Stock to be issued under such Purchase
Contract(s) from the Proceeds of the related Pledged Treasury
Securities. Upon maturity of the Pledged Treasury Securities, the
Securities Intermediary, at the written direction of the Collateral
Agent, shall invest the Cash Proceeds of the maturing Pledged Treasury
Securities in Permitted Investments of the type described in clause
(vi) of the definition thereof unless it has received other
instructions from the Company by 10:30 a.m., New York time, on such
date. Without receiving any instruction from any such Holder of
Treasury Units, the Collateral Agent shall apply the Proceeds of the
related Pledged Treasury Securities to the settlement of such Purchase
Contracts on the Purchase Contract Settlement Date. If the sum of the
Proceeds from the related Pledged Treasury Securities and the
investment earnings from the investment in Permitted Investments is in
excess of the aggregate Purchase Price of the Purchase Contracts being
settled, the Collateral Agent shall instruct the Securities
Intermediary to distribute such excess, when received, to the Purchase
Contract Agent for the benefit of such Holders for distribution to
such Holders in accordance with their respective interests.
ARTICLE VI
VOTING RIGHTS - PLEDGED DEBENTURES
The Purchase Contract Agent may exercise, or refrain from
exercising, any and all voting and other consensual rights pertaining
to the Pledged Debentures or any part of them in accordance with the
terms of the Purchase Contract Agreement; PROVIDED, that the Purchase
Contract Agent shall not exercise or, as the case may be, shall not
refrain from exercising such right if, in the judgment of the Purchase
Contract Agent, such action or inaction would impair or otherwise have
a material and adverse effect on the value of all or any of the
Pledged Debentures; and PROVIDED FURTHER, that the Purchase Contract
15
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 Debentures, including notice of any meeting at
which holders of the Debentures are entitled to vote or solicitation
of consents, waivers or proxies of holders of the Debentures, 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 from the
Purchase Contract Agent, shall execute and deliver to the Purchase
Contract Agent such proxies and other instruments in respect of such
Pledged Debentures (in form and substance satisfactory to the
Collateral Agent) as are prepared by the Company and delivered to the
Purchase Contract Agent with respect to the Pledged Debentures.
ARTICLE VII
RIGHTS AND REMEDIES;
DISTRIBUTION OF THE DEBENTURES
SECTION 7.1. RIGHTS AND REMEDIES OF THE COLLATERAL AGENT.
(a) In addition to the rights and remedies specified in
Section 5.4 or otherwise available at law or in equity, after an event
of default (as specified in Section 7.1(b) below), the Collateral
Agent shall have all of the rights and remedies with respect to the
Collateral of a secured party under the Code (whether or not the Code
is in effect in the jurisdiction where the rights and remedies are
asserted) and the TRADES Regulations and such additional rights and
remedies to which a secured party is entitled under the laws in effect
in any jurisdiction where any rights and remedies under this Agreement
may be asserted. Without limiting the generality of the foregoing,
such remedies may include, to the extent permitted by applicable law,
(i) retention of the Pledged Debentures in full satisfaction of the
Holders' obligations under the Purchase Contracts or (ii) sale of the
Pledged Debentures in one or more public or private sales.
(b) Without limiting any rights or powers otherwise granted
by this Agreement to the Collateral Agent, if the Collateral Agent is
unable to make payments to the Company on account of principal
payments of any Pledged Treasury Securities as provided in Article
III, in satisfaction of the Obligations of the Holder of the Treasury
Units of which such Pledged Treasury Securities is a part under the
related Purchase Contracts, the inability to make such payments shall
constitute an event of default under this Agreement and the Collateral
Agent shall have and may exercise, with reference to such Pledged
Treasury Securities and such Obligations of such Holder, any and all
of the rights and remedies available to a secured party under the Code
and the TRADES Regulations after default by a debtor, and as otherwise
granted in this Agreement 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 is
irrevocably authorized to receive and collect all payments of (i) the
principal amount of the Pledged Treasury Securities and (ii) the
principal amount of the Pledged Debentures, subject, in each case, to
the provisions of Article III, and as otherwise granted in this
Agreement.
(d) The Purchase Contract Agent and each Holder of Units,
in the event such Holder becomes the Holder of a Treasury Unit, agrees
that, from time to time, upon the written request of the Collateral
Agent, the Purchase Contract Agent or such Holder shall execute and
deliver such further documents and do such other acts and things as
the Collateral Agent may reasonably request in order to maintain the
Pledge, and the perfection and priority of the Pledge, and to confirm
the rights of the Collateral Agent under this Agreement. The Purchase
Contract Agent shall have no liability to any Holder for executing any
documents or taking any such acts requested by the Collateral Agent
under this Agreement, except for liability for its own negligent acts,
its own negligent failure to act or its own willful misconduct.
SECTION 7.2. SUBSTITUTIONS. Whenever a Holder has the
right to substitute Treasury Securities, Debentures or security
entitlements to either of them, as the case may be, for financial
assets held in the Collateral Account, such substitution shall not
constitute a novation of the security interest created by this
Agreement.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES; COVENANTS
SECTION 8.1. REPRESENTATIONS AND WARRANTIES. Each Holder
from time to time, acting through the Purchase Contract Agent as
attorney-in-fact (it being understood that the Purchase Contract Agent
shall not be liable for any representation or warranty made by or on
behalf of a Holder), represents and warrants to the Collateral Agent
(with respect to his interest in the Collateral), which
representations and warranties shall be deemed repeated on each day a
Holder Transfers Collateral that:
(a) such Holder has the power to grant a security
interest in and lien on the Collateral;
(b) such Holder is the sole beneficial owner of the
Collateral and, in the case of Collateral
delivered in physical form, is the sole holder of
such Collateral and is the sole beneficial owner
of, or has the right to Transfer, the Collateral
it Transfers to the Securities Intermediary for
credit to the Collateral Account, free and clear
17
of any security interest, lien, encumbrance, call,
liability to pay money or other restriction other
than the security interest and lien granted under
Article II;
(c) upon the Transfer of the Collateral to the
Securities Intermediary for credit to the
Collateral Account, the Collateral Agent, for the
benefit of the Company, will have a valid and
perfected first priority security interest in the
Collateral (assuming that any central clearing
operation or any securities intermediary or other
entity not within the control of the Holder in-
volved in the Transfer of the Collateral,
including the Collateral Agent and the Securities
Intermediary, gives the notices and takes the
action required of it under this Agreement and
under applicable law for perfection of that
interest and assuming the establishment and
exercise of control pursuant to Article IV); 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 Article
II or violate any provision of any existing law or
regulation applicable to it or of any mortgage,
charge, pledge, indenture, contract or undertaking
to which it is a party or which is binding on it
or any of its assets.
SECTION 8.2. COVENANTS. The 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), covenant to
the Collateral Agent that for so long as the Collateral remains
subject to the Pledge:
(a) neither the Purchase Contract Agent nor such
Holders will create or purport to create or allow
to subsist any mortgage, charge, lien, pledge or
any other security interest 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 in the
Collateral, subject to the Pledge, transferred in
connection with the Transfer of the Units.
18
ARTICLE IX
THE COLLATERAL AGENT AND THE SECURITIES INTERMEDIARY
SECTION 9.1. APPOINTMENT, POWERS AND IMMUNITIES. The
Collateral Agent shall act as agent for the Company under this
Agreement with such powers as are specifically vested in the
Collateral Agent by the terms of this Agreement, together with such
other powers as are reasonably incidental to such express powers. The
Collateral Agent: (a) shall have no duties or responsibilities except
those expressly set forth in this Agreement and no implied covenants
or obligations shall be inferred from this Agreement against the
Collateral Agent, nor shall the Collateral Agent be bound by the
provisions of any agreement by any party beyond the specific terms of
this Agreement; (b) shall not be responsible for any recitals
contained in this Agreement, or in any certificate or other document
referred to or provided for in, or received by it under, this
Agreement, the 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 Units or the Purchase Contract Agreement or any other
document referred to or provided for in this Agreement or therein or
for any failure by the Company or any other Person (except the
Collateral Agent) to perform any of its obligations under this
Agreement or thereunder or for the perfection, priority or, except as
expressly required by this Agreement, maintenance of any security
interest created under this Agreement; (c) shall not be required to
initiate or conduct any litigation or collection proceedings under
this Agreement (except pursuant to directions furnished under Section
9.2, subject to Section 9.6); (d) shall not be responsible for any
action taken or omitted to be taken by it under this Agreement or
under any other document or instrument referred to or provided for in
this Agreement or in connection with this Agreement or therewith,
except for its own negligence or willful misconduct; and (e) shall not
be required to advise any party as to selling or retaining, or taking
or refraining from taking any action with respect to, any securities
or other property deposited under this Agreement. 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.
No provision of this Agreement shall require the Collateral
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties under this
Agreement. In no event shall the Collateral Agent be liable for any
amount in excess of the Value of the Collateral. Notwithstanding the
foregoing, each of the Collateral Agent and the Securities Inter-
mediary in its individual capacity waives any right of setoff, bankers
lien, liens or perfection rights as securities intermediary or any
counterclaim with respect to any of the Collateral.
19
SECTION 9.2. INSTRUCTIONS OF THE COMPANY. The Company
shall have the right, by one or more instruments in writing executed
and delivered to the Collateral Agent, to direct the time, method and
place of conducting any proceeding for the realization of any right or
remedy available to the Collateral Agent, or of exercising any power
conferred on the Collateral Agent, or to direct the taking or
refraining from taking of any action authorized by this Agreement;
PROVIDED, that (i) such direction shall not conflict with the
provisions of any law or of this Agreement and (ii) the Collateral
Agent shall be adequately indemnified as provided in this Agreement.
Nothing in this Section 9.2 shall impair the right of the Collateral
Agent in its discretion to take any action or omit to take any action
which it deems proper and which is not inconsistent with such
direction.
SECTION 9.3. RELIANCE BY COLLATERAL AGENT AND SECURITIES
INTERMEDIARY. Each of the Securities Intermediary and the Collateral
Agent shall be entitled to rely upon any certification, order,
judgment, opinion, notice or other communication (including, without
limitation, any of them made by telephone, telecopy, telex, facsimile,
or email or similar electronic means) 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, opinions and statements
of legal counsel and other experts selected by the Collateral Agent
and the Securities Intermediary. As to any matters not expressly
provided for by this Agreement, the Collateral Agent and the
Securities Intermediary shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement in
accordance with instructions given by the Company in accordance with
this Agreement.
SECTION 9.4. RIGHTS IN OTHER CAPACITIES. The Collateral
Agent and the Securities Intermediary and their affiliates may
(without having to account to the Company) accept deposits from, lend
money to, make their investments in and generally engage in any kind
of banking, trust or other business with the Purchase Contract Agent,
any other Person interested in this Agreement and any Holder of Units
(and any of their respective subsidiaries or affiliates) as if it were
not acting as the Collateral Agent, and the Collateral Agent, the
Securities Intermediary and their affiliates may accept fees and other
consideration from the Purchase Contract Agent and any Holder of Units
without having to account for the same to the Company; PROVIDED, that
each of the Securities Intermediary and the Collateral Agent covenants
and agrees with the Company that it shall not accept, receive or
permit there to be created in favor of itself and shall take no
affirmative action to permit there to be created in favor of any other
Person, any security interest, lien or other encumbrance of any kind
in or upon the Collateral other than the lien created by the Pledge.
SECTION 9.5. NON-RELIANCE ON COLLATERAL AGENT AND
SECURITIES INTERMEDIARY. Neither the Securities Intermediary nor the
20
Collateral Agent shall be required to keep itself informed as to the
performance or observance by the Purchase Contract Agent or any Holder
of Units of this Agreement, the Purchase Contract Agreement, the Units
or any other document referred to or provided for in this Agreement or
therein or to inspect the properties or books of the Purchase Contract
Agent or any Holder of Units. Neither the Collateral Agent nor the
Securities Intermediary shall have any duty or responsibility to pro-
vide the Company with any credit or other information concerning the
affairs, financial condition or business of the Purchase Contract
Agent or any Holder of Units (or any of their respective affiliates)
that may come into the possession of the Collateral Agent or the
Securities Intermediary or any of their respective affiliates.
SECTION 9.6. COMPENSATION AND INDEMNITY. The Company
agrees:
(1) to pay the Collateral Agent and the Securities
Intermediary from time to time such compensation as shall be agreed in
writing between the Company and the Collateral Agent or the Securities
Intermediary, as the case may be, for all services rendered by them
hereunder;
(2) indemnify and hold harmless the Collateral Agent, the
Securities Intermediary and each of their respective directors,
officers, agents and employees (collectively, the "Indemnitees"), from
and against any and all claims, liabilities, losses, damages, fines,
penalties and expenses (including reasonable fees and expenses of
counsel) (collectively, "Losses" and individually, a "Loss") that may
be imposed on, incurred by, or asserted against, the Indemnitees or
any of them for following any instructions or other directions upon
which either the Collateral Agent or the Securities Intermediary is
entitled to rely pursuant to the terms of this Agreement; and
(3) in addition to and not in limitation of paragraph (2)
immediately above, indemnify and hold the Indemnitees and each of them
harmless from and against any and all Losses that may be imposed on,
incurred by or asserted against, the Indemnitees or any of them in
connection with or arising out of the Collateral Agent's or the
Securities Intermediary's acceptance or performance of its powers and
duties under this Agreement, provided the Collateral Agent or the
Securities Intermediary has not acted with negligence or engaged in
willful misconduct or bad faith with respect to the specific Loss
against which indemnification is sought.
SECTION 9.7. FAILURE TO ACT. In the event of any
ambiguity in the provisions of this Agreement or any dispute between
or conflicting claims by or among the parties to this Agreement or any
other Person with respect to any funds or property deposited under
this Agreement, the Collateral Agent and the Securities Intermediary
shall be entitled, after prompt notice to the Company and the Purchase
Contract Agent, at its sole option, to refuse to comply with any and
all claims, demands or instructions with respect to such property or
21
funds so long as such dispute or conflict shall continue, and the
Collateral Agent and the Securities Intermediary shall not be or
become liable in any way to any of the parties for its failure or
refusal to comply with such conflicting claims, demands or
instructions. The Collateral Agent and the Securities Intermediary
shall be entitled to refuse to act until either (i) such conflicting
or adverse claims or demands shall have been finally determined by a
court of competent jurisdiction or settled by agreement between the
conflicting parties as evidenced in a writing satisfactory to the
Collateral Agent or the Securities Intermediary or (ii) the Collateral
Agent or the Securities Intermediary shall have received security or
an indemnity satisfactory to it sufficient to save it harmless from
and against any and all loss, liability or expense which it may incur
by reason of its acting. The Collateral Agent and the Securities
Intermediary may in addition elect to commence an interpleader action
or seek other judicial relief or orders as the Collateral Agent or the
Securities Intermediary may deem necessary. Notwithstanding anything
contained in this Agreement to the contrary, neither the Collateral
Agent nor the Securities Intermediary shall be required to take any
action that is in its opinion contrary to law or to the terms of this
Agreement, or which would in its opinion subject it or any of its
officers, employees or directors to liability.
SECTION 9.8. RESIGNATION OF COLLATERAL AGENT AND
SECURITIES INTERMEDIARY.
(a) Subject to the appointment and acceptance of a
successor Collateral Agent as provided below, (i) the Collateral Agent
may resign at any time by giving notice to the Company and the
Purchase Contract Agent as attorney-in-fact for the Holders of Units,
(ii) the Collateral Agent may be removed at any time by the Company,
and (iii) if the Collateral Agent fails to perform any of its material
obligations under this Agreement 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 Purchase Contract Agent may, but shall not be
obligated to, remove the Collateral Agent. The Purchase Contract
Agent shall promptly notify the Company of any removal of the
Collateral Agent pursuant to clause (iii) of the immediately preceding
sentence. Upon any such resignation or removal, the Company shall
have the right to appoint a successor Collateral Agent. If no
successor Collateral Agent shall have been so appointed and shall have
accepted such appointment within 30 days after the retiring Collateral
Agent's giving of notice of resignation or such removal, then the
retiring Collateral Agent may petition any court of competent
jurisdiction for the appointment of a successor Collateral Agent. The
Collateral Agent shall be a bank which has an office (or an agency
office) in New York, New York with a combined capital and surplus of
at least $50,000,000 and shall not be the Purchase Contract Agent or
any of its affiliates. Upon the acceptance of any appointment as
Collateral Agent by a successor Collateral Agent, such successor
Collateral Agent shall immediately succeed to and become vested with
22
all the rights, powers, privileges and duties of the retiring
Collateral Agent, and the retiring Collateral Agent shall take all
appropriate action to transfer any money and property held by it under
this Agreement (including the Collateral) to such successor Collateral
Agent. The retiring Collateral Agent shall, upon such succession, be
discharged from its duties and obligations as Collateral Agent. After
any retiring Collateral Agent's resignation as Collateral Agent, the
provisions of this Article IX shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it
was acting as the Collateral Agent.
(b) Subject to the appointment and acceptance of a
successor Securities Intermediary as provided below, (i) the
Securities Intermediary may resign at any time by giving notice to the
Company and the Purchase Contract Agent as attorney-in-fact for the
Holders of Units, (ii) the Securities Intermediary may be removed at
any time by the Company, and (iii) if the Securities Intermediary
fails to perform any of its material obligations under this Agreement
in any material respect for a period of not less than 20 days after
receiving written notice of such failure by the Purchase Contract
Agent and such failure shall be continuing, the Securities
Intermediary may be removed by the Purchase Contract Agent. The
Purchase Contract Agent shall promptly notify the Company of any
removal of the Securities Intermediary pursuant to clause (iii) of the
immediately preceding sentence. Upon any such resignation or removal,
the Company shall have the right to appoint a successor Securities
Intermediary. If no successor Securities Intermediary shall have been
so appointed and shall have accepted such appointment within 30 days
after the retiring Securities Intermediary's giving of notice of
resignation or such removal, then the retiring Securities Intermediary
may petition any court of competent jurisdiction for the appointment
of a successor Securities Intermediary. The Securities Intermediary
shall be a bank which has an office (or an agency office) in New York,
New York with a combined capital and surplus of at least $50,000,000
and shall not be the Purchase Contract Agent or any of its affiliates.
Upon the acceptance of any appointment as Securities Intermediary by a
successor Securities Intermediary, such successor Securities
Intermediary shall immediately succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Securities
Intermediary, and the retiring Securities Intermediary shall take all
appropriate action to transfer any money and property held by it under
this Agreement (including the Collateral) to such successor Securities
Intermediary. The retiring Securities Intermediary shall, upon such
succession, be discharged from its duties and obligations as
Securities Intermediary. After any retiring Securities Intermediary's
resignation as Securities Intermediary, the provisions of this
Article 9 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the
Securities Intermediary.
SECTION 9.9. RIGHT TO APPOINT AGENT OR ADVISOR. The
Collateral Agent shall have the right to appoint agents or advisors in
23
connection with any of its duties under this Agreement, 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 and advisors
pursuant to this Section 9.9 shall be subject to prior consent of the
Company, which consent shall not be unreasonably withheld.
SECTION 9.10. SURVIVAL. The provisions of this Article IX
shall survive termination of this Agreement and the resignation or
removal of the Collateral Agent or the Securities Intermediary.
SECTION 9.11. EXCULPATION. Anything in this Agreement to
the contrary notwithstanding, in no event shall the Collateral Agent
or the Securities Intermediary or their officers, directors, employees
or agents be liable under this Agreement to any third party for
indirect, special, punitive, or consequential loss or damage of any
kind, including lost profits, whether or not the likelihood of such
loss or damage was known to the Collateral Agent or the Securities
Intermediary, or any of them.
ARTICLE X
AMENDMENT
SECTION 10.1. AMENDMENT WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, the Collateral Agent,
the Securities Intermediary and the Purchase Contract Agent, at any
time and from time to time, may amend this Agreement, in form
satisfactory to the Company, the Collateral Agent, the Securities
Intermediary and the Purchase Contract Agent, for any one or more of
the following purposes only:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the
covenants and agreements of the Company;
(2) to add to the covenants of the Company for the benefit
of the Holders, or to surrender any right or power conferred upon
the Company in this Agreement, so long as such covenants or such
surrender does not adversely affect the validity, perfection or
priority of the Pledge;
(3) to evidence and provide for the acceptance of
appointment by a successor Collateral Agent, Securities
Intermediary or Purchase Contract Agent; or
(4) to cure any ambiguity (or formal defect), to correct or
supplement any provisions in this Agreement which may be incon-
sistent with any other such provisions in this Agreement, or to
make any other provisions with respect to such matters or
24
questions arising under this Agreement; PROVIDED, that such
action shall not adversely affect the interests of the Holders.
SECTION 10.2. AMENDMENT WITH CONSENT OF HOLDERS. With the
consent of the Holders of not less than a majority of the Purchase
Contracts at the time outstanding, by Act of said Holders delivered to
the Company, the Purchase Contract Agent, the Securities Intermediary
or the Collateral Agent, as the case may be, the Company, when duly
authorized, the Purchase Contract Agent, the Securities Intermediary
and the Collateral Agent may amend this Agreement for the purpose of
modifying in any manner the provisions of this Agreement or the rights
of the Holders in respect of the Units; PROVIDED, that no such
supplemental agreement shall, without the unanimous consent of the
Holders of each Outstanding Unit adversely affected by it,
(1) change the amount or type of Collateral underlying a
Unit (except for the rights of holders of Corporate Units to
substitute the Treasury Securities for the Pledged Debentures, or
the rights of Holders of Treasury Units to substitute Debentures
for the Pledged Treasury Securities), impair the right of the
Holder of any Unit to receive distributions on the underlying
Collateral or otherwise adversely affect the Holder's rights in
or to such Collateral;
(2) otherwise effect any action that would require the
consent of the Holder of each Outstanding Unit affected by such
action pursuant to the Purchase Contract Agreement if such action
were effected by an agreement supplemental to it; or
(3) reduce the percentage of Purchase Contracts the consent
of the Holders of which is required for any such amendment;
PROVIDED, that if any amendment or proposal referred to above would
adversely affect only the Corporate Units or only the Treasury Units,
then only the affected class of Holder as of the record date for the
Holders entitled to vote will be entitled to vote on such amendment or
proposal, and such amendment or proposal shall not be effective except
with the consent of Holders of not less than a majority of such class;
and PROVIDED FURTHER, that the unanimous consent of the Holders of
each outstanding Purchase Contract of such class affected thereby
shall be required to approve any amendment or proposal specified in
clauses (1) - (3) above.
It shall not be necessary for any Act of Holders under this
Article to approve the particular form of any proposed amendment, but
it shall be sufficient if such Act shall approve the substance of the
amendment.
SECTION 10.3. EXECUTION OF AMENDMENTS. In executing any
amendment permitted by this Article, the Collateral Agent, the
Securities Intermediary and the Purchase Contract Agent shall be
entitled to receive and (subject to Section 7.1 of the Purchase
25
Contract Agreement with respect to the Purchase Contract Agent) shall
be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by this
Agreement and that all conditions precedent, if any, to the execution
and delivery of such amendment have been satisfied.
SECTION 10.4. EFFECT OF AMENDMENTS. Upon the execution of
any amendment under this Article, this Agreement shall be modified in
accordance with the amendment, and such amendment shall form a part of
this Agreement for all purposes; and every Holder of Certificates
previously or subsequently authenticated, executed on behalf of the
Holders and delivered under the Purchase Contract Agreement shall be
bound by the amendment.
SECTION 10.5. REFERENCE TO AMENDMENTS. Certificates
authenticated, executed on behalf of the Holders and delivered after
the execution of any amendment pursuant to this Article 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 Unit 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 Unit
Certificates.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. NO WAIVER. No failure on the part of the
Collateral Agent or any of its agents to exercise, and no course of
dealing with respect to, and no delay in exercising, any right, power
or remedy under this Agreement shall operate as a waiver thereof; nor
shall any single or partial exercise by the Collateral Agent or any of
its agents of any right, power or remedy under this Agreement preclude
any other or further exercise thereof or the exercise of any other
right, power or remedy. The remedies in this Agreement are cumulative
and are not exclusive of any remedies provided by law.
SECTION 11.2. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAW OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONTRARY CONFLICT OF
LAWS OR CHOICE OF LAW PROVISIONS OF THE LAW OF THE STATE OF NEW YORK
OR ANY OTHER JURISDICTION. Without limiting the foregoing, the above
choice of law is expressly agreed to by the Company, the Securities
Intermediary, the Collateral Agent and the Holders from time to time
acting through the Purchase Contract Agent, as their attorney-in-fact,
in connection with the establishment and maintenance of the Collateral
26
Account. The Company, the Collateral Agent, the Securities
Intermediary and the Holders from time to time of the Units, acting
through the Purchase Contract Agent as their attorney-in-fact, submit
to the nonexclusive jurisdiction of the United States District Court
for the Southern District of New York and of any New York state court
sitting in New York City for the purposes of all legal proceedings
arising out of or relating to this Agreement or the transactions
contemplated by this Agreement. The Company, the Collateral Agent,
the Securities Intermediary and the Holders from time to time of the
Units, acting through the Purchase Contract Agent as their
attorney-in-fact, irrevocably waive, to the fullest extent permitted
by applicable law, any objection which they may now or subsequently
have to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court
has been brought in an inconvenient forum.
SECTION 11.3. NOTICES. All notices, requests, consents and
other communications provided for in this Agreement (including,
without limitation, any modifications of, or waivers or consents
under, this Agreement) shall be given or made in writing (including,
without limitation, by telecopy) delivered to the intended recipient
at the "Address for Notices" specified below its name on the signature
pages or, as to any party, at such other address as shall be
designated by such party in a notice to the other parties. Except as
otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when transmitted by telecopier or
personally delivered or, in the case of a mailed notice, upon receipt,
in each case given or addressed as aforesaid.
SECTION 11.4. SUCCESSORS AND ASSIGNS. This Agreement shall
be binding upon and inure to the benefit of the respective successors
and assigns of the Company, the Collateral Agent, the Securities
Intermediary and the Purchase Contract Agent, and the Holders from
time to time of the Units, by their acceptance of the same, shall be
deemed to have agreed to be bound by the provisions of this Agreement
and to have ratified the agreements of, and the grant of the Pledge
by, the Purchase Contract Agent.
SECTION 11.5. COUNTERPARTS. This Agreement may be executed
in any number of counterparts, all of which taken together shall
constitute one and the same instrument, and any of the parties may
execute this Agreement by signing any such counterpart.
SECTION 11.6. SEVERABILITY. If any provision of this
Agreement is invalid and unenforceable in any jurisdiction, then, to
the fullest extent permitted by law, (i) the other provisions of this
Agreement 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 as nearly as may be possible and (ii) the invalidity or
unenforceability of any provision of this Agreement in any
jurisdiction shall not affect the validity or enforceability of such
provision in any other jurisdiction.
27
SECTION 11.7. EXPENSES, ETC. The Company agrees to
reimburse the Collateral Agent and the Securities Intermediary for:
(a) all reasonable costs and expenses of the Collateral Agent and the
Securities Intermediary (including, without limitation, the reasonable
fees and expenses of counsel to the Collateral Agent and the
Securities Intermediary), in connection with (i) the negotiation,
preparation, execution and delivery or performance of this Agreement
and (ii) any modification, supplement or waiver of any of the terms of
this Agreement; (b) all reasonable costs and expenses of the
Collateral Agent and the Securities Intermediary (including, without
limitation, reasonable fees and expenses of counsel) in connection
with (i) any enforcement or proceedings resulting or incurred in
connection with causing any Holder of Units to satisfy its obligations
under the Purchase Contracts forming a part of the Units and (ii) the
enforcement of this Section 11.7; (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 in this Agreement and all costs, expenses,
taxes, assessments and other charges incurred in connection with any
filing, registration, recording or perfection of any security interest
contemplated by this Agreement; (d) all fees and expenses of any agent
or advisor appointed by the Collateral Agent or the Securities
Intermediary in connection with its duties under this Agreement; and
(e) any other out-of-pocket costs and expenses reasonably incurred by
the Collateral Agent and the Securities Intermediary in connection
with the performance of their duties hereunder.
SECTION 11.8. SECURITY INTEREST ABSOLUTE. All rights of
the Collateral Agent and security interests under this Agreement, and
all obligations of the Holders from time to time under this Agreement,
shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any provision
of the Purchase Contracts or the Units or any other agreement or
instrument relating to them;
(b) any change in the time, manner or place of payment of,
or any other term of, or any increase in the amount of, all or
any of the obligations of Holders of the 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 to them; or
(c) any other circumstance which might otherwise constitute
a defense available to, or discharge of, a borrower, a guarantor
or a pledgor.
SECTION 11.9. NAME OF THE COMPANY. The Company, NiSource
Inc., an Indiana corporation ("NiSource"), Columbia Energy Group, a
Delaware corporation ("Columbia"), Parent Acquisition Corp., an
Indiana corporation, Company Acquisition Corp., a Delaware
28
corporation, and NiSource Finance Corp., an Indiana corporation, have
entered into the Agreement and Plan of Merger dated as of February 27,
2000, as amended and restated as of March 31, 2000 (the "Merger
Agreement"), pursuant to which, among other things, NiSource and
Columbia will become wholly owned subsidiaries of the Company and the
former stockholders of NiSource and Columbia will become stockholders
of the Company (the "Merger"). The Merger will become effective
contemporaneously with the execution and delivery of this Agreement by
the Company. Immediately following the Merger, NiSource will merge
with and into the Company with the Company as the survivor, and the
Company will immediately thereafter change its name from New NiSource
Inc. to NiSource Inc. Accordingly, after the Company has so changed
its name, all references in this to the Company's former name shall
be deemed to refer to its new name, NiSource Inc.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
29
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed as of the day and year first above written.
NEW NISOURCE INC. THE CHASE MANHATTAN BANK, as
Purchase Contract Agent and as
attorney-in-fact of the Holders
from time to time of the Units
By: /s/ Stephen P. Adik By: /s/ R. Lorenzen
-------------------------- --------------------------------
Name: Stephen P. Adik Name: R. Lorenzen
Title: Vice President Title: Assistant Vice President
Address for Notices: Address for Notices:
New NiSource Inc. The Chase Manhattan Bank
801 East 86th Avenue 450 West 33rd Street
Merrillville, Indiana 46410 New York, New York 10001
Attention: Stephen P. Adik Attention: Capital Markets
Telecopy: (219) 647-6060 Fiduciary Services
Telecopy: 212-946-8159
Wire transfer instructions:
________________________________
BANK ONE TRUST COMPANY, BANK ONE TRUST COMPANY, NATIONAL
NATIONAL ASSOCIATION, as ASSOCIATION, as Securities
Collateral Agent Intermediary
By: /s/ Larry Kusch By: /s/ Larry Kusch
-------------------------- ---------------------------
Name: Larry Kusch Name: Larry Kusch
Title: Authorized Officer Title: Authorized Officer
Address for Notices: Address for Notices:
Bank One Trust Company, Bank One Trust Company,
National Association National Association
9th Floor, 9th Floor,
One North State Street One North State Street
Chicago, Illinois 60670-0126 Chicago, Illinois 60670-0126
Attention: Corporate Trust Attention: Corporate Trust
Administration Administration
Telecopy: 312-407-1708 Telecopy: 312-407-1708
30
EXHIBIT A
INSTRUCTION FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Establishment of Treasury Unit)
Bank One Trust Company, National Association,
as Collateral Agent
9th Floor
One North State Street
Chicago, Illinois 60670-0126
Attention: Corporate Trust Administration
Telecopy: 312-407-1708
Re: ________ Units of NiSource Inc. (the "Company")
Please refer to the Pledge Agreement, dated as of
November 1, 2000 (the "Pledge Agreement"), among the Company, you,
as Collateral Agent, Bank One Trust Company, National Association, as
Securities Intermediary, and the undersigned, as Purchase Contract
Agent and as attorney-in-fact for the holders of Units from time to
time. Capitalized terms used but not defined in this certificate
shall have the meaning set forth in the Pledge Agreement.
We notify you in accordance with Section 5.2 of the Pledge
Agreement that the holder of securities named below (the "Holder") has
elected to substitute $__________ Value of Treasury Securities or
security entitlements to them in exchange for an equal Value of
Pledged Debentures and has delivered to the undersigned a notice
stating that the Holder has Transferred such Treasury Securities or
security entitlements to them to the Securities Intermediary, for
credit to the Collateral Account.
We instruct you to release from the Pledge the Pledged
Debentures for which the Treasury Securities are being substituted and
request that you instruct the Securities Intermediary, upon confirma-
tion that such Treasury Securities or security entitlements to them
have been credited to the Collateral Account, to release to the
undersigned an equal Value of Pledged Debentures in accordance with
Section 5.2 of the Pledge Agreement.
THE CHASE MANHATTAN BANK,
as Purchase Contract Agent
Date: _______________ By: ________________________
Name:
Title:
A-1
Please print name and address of Holder electing to substitute
Treasury Securities or security entitlements to them for the Pledged
Debentures:
___________________________ ___________________________________
Name Social Security or other
Taxpayer Identification Number,
if any
___________________________
Address
___________________________
___________________________
A-2
EXHIBIT B
INSTRUCTION FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Establishment of Treasury Unit)
Bank One Trust Company, National Association,
as Securities Intermediary
9th Floor
One North State Street
Chicago, Illinois 60670-0126
Attention: Corporate Trust Administration
Telecopy: 312-407-1708
Re: ________ Units of NiSource Inc. (the "Company")
Securities Account No. 205025-001 entitled "Bank One
Trust Company, National Association, as Collateral
Agent, Securities Account (NiSource Inc.)" (the
"Collateral Account")
Please refer to the Pledge Agreement, dated as of November 1,
2000 (the "Pledge Agreement"), among the Company, you, as Securities
Intermediary, The Chase Manhattan Bank, as Purchase Contract Agent and
as attorney-in-fact for the holders of Units from time to time, and
the undersigned, as Collateral Agent. Capitalized terms used but not
defined in this certificate shall have the meanings set forth in the
Pledge Agreement.
When you have confirmed that $__________ Value of Treasury
Securities or security entitlements to them has been credited to the
Collateral Account by or for the benefit of _________, as holder of
Units (the "Holder"), you are instructed to release from the Pledge
the Pledged Debentures for which the Treasury Securities are being
substituted by releasing from the Collateral Account an equal Value of
Debentures or security entitlements to them relating to
______ Corporate Units of the Holder by Transfer to the Purchase
Contract Agent.
BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION,
as Collateral Agent
Dated: ____________________ By: __________________________
Name:
Title:
B-1
Please print name and address of Holder:
___________________________ ___________________________________
Name Social Security or other
Taxpayer Identification Number,
if any
___________________________
Address
___________________________
___________________________
B-2
EXHIBIT C
INSTRUCTION FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Reestablishment of Corporate Unit)
Bank One Trust Company, National Association,
as Collateral Agent
9th Floor
One North State Street
Chicago, Illinois 60670-0126
Attention: Corporate Trust Administration
Telecopy: 312-407-1708
Re: _______ Units of NiSource Inc. (the "Company")
Please refer to the Pledge Agreement, dated as of November 1,
2000 (the "Pledge Agreement"), among the Company, you, as Collateral
Agent, Bank One Trust Company, National Association, as Securities
Intermediary, and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of Units from time to time. Capi-
talized terms used but not defined in this certificate shall have the
meanings set forth in the Pledge Agreement.
We notify you in accordance with Section 5.3 of the Pledge
Agreement that the holder of securities listed below (the "Holder")
has elected to substitute Debentures or security entitlements to them
in exchange for $__________ Value of Pledged Treasury Securities and
has delivered to the undersigned a notice stating that the Holder has
Transferred such Debentures or security entitlements to them to the
Securities Intermediary, for credit to the Collateral Account.
We instruct you to release from the Pledge the Pledged
Treasury Securities for which the Debentures are being substituted and
request that you instruct the Securities Intermediary, upon
confirmation that such Debentures or security entitlements to them
have been credited to the Collateral Account, to release to the
undersigned $__________ Value of Treasury Securities or security
entitlements to them related to _____ Treasury Units of such Holder in
accordance with Section 5.3 of the Pledge Agreement.
THE CHASE MANHATTAN BANK,
as Purchase Contract Agent
Date: _____________________ By: __________________________
Name:
Title:
C-1
Please print name and address of Holder electing to substitute Pledged
Debentures or security entitlements to them for Pledged Treasury
Securities:
___________________________ ___________________________________
Name Social Security or other
Taxpayer Identification Number,
if any
___________________________
Address
___________________________
___________________________
C-2
EXHIBIT D
INSTRUCTION FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Reestablishment of Corporate Unit)
Bank One Trust Company, National Association,
as Securities Intermediary
9th Floor
One North State Street
Chicago, Illinois 60670-0126
Attention: Corporate Trust Administration
Telecopy: 312-407-1708
Re: ________ Units of NiSource Inc. (the "Company")
Securities Account No. 205025-001 entitled "Bank One
Trust Company, National Association, as Collateral
Agent, Securities Account (NiSource Inc.)" (the
"Collateral Account")
Please refer to the Pledge Agreement dated as of November 1,
2000 (the "Pledge Agreement"), among the Company, you, as Securities
Intermediary, The Chase Manhattan Bank, as Purchase Contract Agent and
as attorney-in-fact for the holders of Units from time to time, and
the undersigned, as Collateral Agent. Capitalized terms used but not
defined in this certificate shall have the meanings set forth in the
Pledge Agreement.
When you have confirmed that $_________ Value of Debentures
or security entitlements to them has been credited to the Collateral
Account by or for the benefit of _________, as holder of Units (the
"Holder"), you are instructed to release from the Collateral Account
$__________ Value of Treasury Securities or security entitlements to
them by Transfer to the Purchase Contract Agent.
BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION,
as Collateral Agent
Dated: ____________________ By:___________________________
Name:
Title:
D-1
Please print name and address of Holder:
___________________________ ___________________________________
Name Social Security or other
Taxpayer Identification Number,
if any
___________________________
Address
___________________________
___________________________
D-2
EXHIBIT E
NOTICE OF CASH SETTLEMENT FROM SECURITIES INTERMEDIARY
TO PURCHASE CONTRACT AGENT
(Cash Settlement Amounts)
The Chase Manhattan Bank,
as Purchase Contract Agent
450 West 33rd Street
New York, New York 10001
Attention: Capital Markets Fiduciary Services
Telecopy: 212-946-8159
Re: Corporate Units of NiSource Inc. (the "Company")
Please refer to the Pledge Agreement, dated as of November 1,
2000 (the "Pledge Agreement"), by and among you, the Company, Bank One
Trust Company, National Association, as Collateral Agent and the
undersigned, as Securities Intermediary. Unless otherwise defined in
this certificate, terms defined in the Pledge Agreement are used in
this Certificate as defined therein.
In accordance with Section 5.5(d) of the Pledge Agreement,
we notify you that as of 11:00 a.m., on [THE FIFTH BUSINESS DAY
IMMEDIATELY PRECEDING THE PURCHASE CONTRACT SETTLEMENT DATE], we have
received $_____ in immediately available funds paid in an aggregate
amount equal to the Purchase Price to the Company on the Purchase
Contract Settlement Date with respect to __________ Corporate Units.
BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION,
as Securities Intermediary
Dated: ____________________ By:___________________________
Name:
Title:
E-1
EXHIBIT F
NOTICE OF CASH SETTLEMENT FROM SECURITIES INTERMEDIARY
TO PURCHASE CONTRACT AGENT
(Cash Settlement Amounts)
The Chase Manhattan Bank,
as Purchase Contract Agent
450 West 33rd Street
New York, New York 10001
Attention: Capital Markets Fiduciary Services
Telecopy: 212-946-8159
Re: Treasury Units of NiSource Inc. (the "Company")
Please refer to the Pledge Agreement, dated as of November 1,
2000 (the "Pledge Agreement"), by and among you, the Company, Bank One
Trust Company, National Association, as Collateral Agent and the
undersigned, as Securities Intermediary. Unless otherwise defined in
this certificate, terms defined in the Pledge Agreement are used in
this Certificate as defined therein.
In accordance with Section 5.5(e) of the Pledge Agreement,
we notify you that as of 11:00 a.m., on [THE BUSINESS DAY IMMEDIATELY
PRECEDING THE PURCHASE CONTRACT SETTLEMENT DATE], we have received
$_____ in immediately available funds paid in an aggregate amount
equal to the Purchase Price to the Company on the Purchase Contract
Settlement Date with respect to __________ Treasury Units.
BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION,
as Securities Intermediary
Dated: ____________________ By:___________________________
Name:
Title:
F-1