EXHIBIT 4.4
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FIRST SUPPLEMENTAL INDENTURE
First Supplemental Indenture, dated as of __________ ___,
200_ (this "FIRST SUPPLEMENTAL INDENTURE"), between New NiSource Inc.,
an Indiana corporation (the "COMPANY"), and The Chase Manhattan Bank,
as trustee (the "TRUSTEE"), under the Indenture dated as of _______
__, 200_ between the Company and the Trustee (the "INDENTURE").
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the issuance from time to time of the
Company's unsecured debentures, notes or other evidences of
indebtedness (collectively the "SECURITIES," and individually, a
"SECURITY") to be issued in one or more series as might be determined
by the Company under the Indenture, in an unlimited aggregate
principal amount which may be authenticated and delivered as provided
in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of Securities
to be known as the Senior Debentures due 200_ (the "DEBENTURES"), the
form and substance of such Debentures and their terms, provisions and
conditions to be as set forth in the Indenture and this First
Supplemental Indenture;
WHEREAS, the Company has requested that the Trustee execute
and deliver this First Supplemental Indenture, all requirements
necessary to make this First Supplemental Indenture a valid instrument
in accordance with its terms (and to make the Debentures, when
executed by the Company and authenticated and delivered by the
Trustee, the valid obligations of the Company) have been performed,
and the execution and delivery of this First Supplemental Indenture
has been duly authorized in all respects;
NOW, THEREFORE, in consideration of the purchase and
acceptance of the Debentures by the Holders, and for the purpose of
setting forth, as provided in the Indenture, the form and substance of
the Debentures and their terms, provisions and conditions, the Company
covenants and agrees with the Trustee as follows:
ARTICLE II
DEFINITIONS
SECTION 1.1 DEFINITION OF TERMS. Unless the context
otherwise requires:
(a) a term not defined in this First Supplemental Indenture
that is defined in the Indenture has the same meaning when used in
this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or an Article is to a Section
or an Article of this First Supplemental Indenture unless another
document is expressly identified as part of the reference;
(e) headings are for convenience of reference only and do
not affect interpretation;
(f) the following terms have the meanings given to them in
the Purchase Contract Agreement: (i) Cash Settlement; (ii) Corporate
Units; (iii) Purchase Contract; (iv) Purchase Contract Settlement
Date; (v) Remarketing Agreement; and (vi) Remarketing Date; and
(g) the following terms have the meanings given to them in
this Section 1.1(g):
"BUSINESS DAY" means any day other than a Saturday or Sunday
or a day on which banking institutions in New York City are authorized
or required by law or executive order to remain closed or a day on
which the principal office of the Trustee is closed for business.
"APPLICABLE MARGIN" means the spread determined as set forth
below, based on the prevailing rating of the remarketed Debentures in
effect at the close of business on the Business Day immediately
preceding the date of a Failed Remarketing (as defined in Section
7.1(h)):
Prevailing Rating Spread
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AS/ "As" . . . . . . . . . . . . ___%
A/ "a" . . . . . . . . . . . . . ___%
BBB/ "Baa" . . . . . . . . . . . ___%
Below BBB/ "Baa" . . . . . . . . ___%
For purposes of this definition, the "prevailing rating" of the
remarketed Debentures shall be:
(i) AS/ "As" if the remarketed Debentures have a
credit rating of AS- or better by S&P and "Aa3" or
better by Moody's or the equivalent of such ratings by
such agencies or a substitute rating agency or
substitute rating agencies selected by the Remarketing
Agent;
(ii) if not under clause (i) above, then A/ "a" if
the remarketed Debentures have a credit rating of A- or
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better by S&P and "A3" or better by Moody's or the
equivalent of such ratings by such agencies or a
substitute rating agency or substitute rating agencies
selected by the Remarketing Agent;
(iii) if not under clauses (i) or (ii) above,
then BBB/ "Baa" if the remarketed Debentures have a
credit rating of BBB- or better by S&P and "Baa3" or
better by Moody's or the equivalent of such ratings by
such agencies or a substitute rating agency or
substitute rating agencies selected by the Remarketing
Agent; or
(iv) if not under clauses (i) - (iii) above, then
Below BBB/ "Baa."
Notwithstanding the foregoing, (A) if (i) the credit rating of the
remarketed Debentures by S&P shall be on the "Credit Watch" of S&P
with a designation of "negative implications" or "developing," or (ii)
the credit rating of the remarketed Debentures by Moody's shall be on
the "Corporate Credit Watch List" of Moody's with a designation of
"downgrade" or "uncertain," or, in each case, on any successor list of
S&P or Moody's with a comparable designation, the prevailing ratings
of the remarketed Debentures shall be deemed to be within a range one
full level lower in the above table than those actually assigned to
the Remarketed Debentures by Moody's and S&P and (B) if the remarketed
Debentures are rated by only one rating agency on or before the
Remarketing Date, the prevailing rating shall at all times be
determined without reference to the rating of any other rating agency;
PROVIDED, that if no such rating agency shall have in effect a rating
for the remarketed Debentures and the Remarketing Agent is unable to
identify a substitute rating agency or rating agencies, the prevailing
rating shall be Below BBB/ "baa."
"INTEREST RATE" has the meaning specified in Section 7.1(f),
7.1(g) or 7.1(h), as applicable.
"PURCHASE CONTRACT AGREEMENT" means the Purchase Contract
Agreement dated as of _________ __, 200_, between the Company and The
Chase Manhattan Bank, as Purchase Contract Agent.
"REMARKETING" means the operation of the procedures for
remarketing specified in Article VII.
"REMARKETING AGENT" shall mean Credit Suisse First Boston or
any successor Remarketing Agent engaged by the Company.
"REMARKETING DATE" means the third Business Day prior to the
Purchase Contract Settlement Date.
TWO-YEAR BENCHMARK TREASURY RATE" means the bid side rate
displayed at 10:00 a.m., New York City time, on the third business day
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preceding the Purchase Contract Settlement Date for direct obligations
of the United States (which may be obligations traded on a when-issued
basis only) having a maturity comparable to the remaining term to
maturity of the remarketed Debentures, as agreed upon by Company and
the Remarketing Agent. The rate for the Two-Year Benchmark Treasury
will be the bid side rate displayed at 10:00 A.M., New York City time,
on the third Business Day immediately preceding the Purchase Contract
Settlement Date in the Telerate system (or if the Telerate system is
(A) no longer available on the third Business Day immediately
preceding the Purchase Contract Settlement Date or (B) in the opinion
of the Remarketing Agent (after consultation with the Company) is no
longer an appropriate system from which to obtain such rate, such
other nationally recognized quotation system as, in the opinion of the
Remarketing Agent (after consultation with the Company) is
appropriate). If such rate is not so displayed, the rate for the Two-
Year Benchmark Treasury shall be, as calculated by the Remarketing
Agent, the yield to maturity for the Two-Year Benchmark Treasury,
expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis, and computed by
taking the arithmetic mean of the secondary market bid rates, as of
10:30 A.M., New York City time, on the third Business Day immediately
preceding the Purchase Contract Settlement Date of three leading
United States government securities dealers selected by the
Remarketing Agent (after consultation with Company) (which may include
the Remarketing Agent or one of its affiliates).
ARTICLE II
TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 DESIGNATION, DENOMINATION AND PRINCIPAL
AMOUNT. There is authorized a series of Securities designated as
"Senior Debentures due 200_,"<1> limited in aggregate principal
amount to $___________, in the denomination of $[2.60].
SECTION 2.2 MATURITY. The Stated Maturity is
___________ __, 200_.<2>
SECTION 2.3 GLOBAL DEBENTURES. The Debentures in
certificated form may be presented to the Trustee in exchange for a
Global Security in an aggregate principal amount equal to all
Outstanding Debentures (a "GLOBAL DEBENTURE"). The Depositary for the
Debentures will be The Depository Trust Company. The Global
Debentures will be registered in the name of the Depositary or its
nominee, Cede & Co., and delivered by the Trustee to the Depositary or
a custodian appointed by the Depositary for crediting to the accounts
of its participants pursuant to the instructions of the Trustee. The
___________________
<1> The sixth year after the Effective Time.
<2> A date that is six years after the Effective Time.
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Company upon any such presentation shall execute a Global Debenture in
such aggregate principal amount and deliver the same to the Trustee
for authentication and delivery in accordance with the Indenture and
this First Supplemental Indenture. Payments on the Debentures issued
as a Global Debenture will be made to the Depositary or its nominee.
SECTION 2.4 INTEREST.
(a) The Debentures shall not bear interest from the date
they are issued and delivered until the Purchase Contract Settlement
Date, and shall bear interest at the Interest Rate from that date
until principal is paid, payable quarterly in arrears on the Interest
Payment Dates, which shall be ___________, _____________, ___________
and _____________ of each year, commencing __________, 200_.<3>
(b) Interest not paid on the scheduled payment date shall
accumulate and compound quarterly at the Interest Rate from the
scheduled payment date until paid.
(c) The Regular Record Dates for the Debentures shall be
(i) as long as the Debentures are represented by a Global Debenture,
the Business Day preceding each Interest Payment Date or (ii) if the
Debentures are issued in certificated form, the 15th Business Day
prior to each Interest Payment Date.
(d) The Debentures outstanding will bear interest on and
after the Purchase Contract Settlement Date at the Interest Rate, to
be set on the third Business Day preceding the Purchase Contract
Settlement Date. The Interest Rate will be equal to the rate per
annum that results from the Remarketing pursuant to Article VII;
PROVIDED, that if a Failed Remarketing occurs, the Interest Rate will
be equal to (i) the Two-Year Benchmark Treasury Rate plus (ii) the
Applicable Margin.
(e) The amount of interest payable on the Debentures for
any period will be computed (i) for any full quarterly period on the
basis of a 360-day year of twelve 30-day months and (ii) for any
period shorter than a full quarterly period, on the basis of a 30-day
month and, for any period less than a month, on the basis of the
actual number of days elapsed per 30-day month. If any date on which
interest is payable on the Debentures is not a Business Day, then
payment of the interest payable on such date will be made on the next
day that is a Business Day (and without interest or other payment in
respect of any such delay), except that, if such Business Day is in
the next calendar year, then such payment will be made on the
preceding Business Day.
____________________
<3> The first such date occurring after the date that is four years
after the Effective Time.
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SECTION 2.5 REDEMPTION.
(a) The Debentures are not subject to redemption at the
option of the Company prior to their Stated Maturity.
(b) The Debentures are not subject to redemption prior to
their Stated Maturity through the operation of a sinking fund.
SECTION 2.6 [INTENTIONALLY OMITTED].
SECTION 2.7 PAYING AGENT; SECURITY REGISTRAR. If the
Debentures are issued in certificated form, the Paying Agent and the
Security Registrar for the Debentures shall be the Corporate Trust
Office of the Trustee.
ARTICLE III
FORM OF DEBENTURE
SECTION 3.1. FORM OF DEBENTURE. The Debentures and the
Trustee s Certificate of Authentication to be endorsed on them are to
be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT: This Debenture
is a Global Security within the meaning of the Indenture referred to
below and is registered in the name of The Depository Trust Company, a
New York corporation (the "DEPOSITARY"), or a nominee of the
Depositary. This Debenture is exchangeable for Debentures registered
in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and no
transfer of this Debenture (other than a transfer of this Debenture as
a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized representative of
the Depositary to the issuer or its agent for registration of
transfer, exchange or payment, and any Debenture issued is registered
in the name of Cede & Co. or such other name as requested by an
authorized representative of the Depositary, and any payment hereon is
made to Cede & Co., or to such other entity as is requested by an
authorized representative of the Depositary), and, except as otherwise
provided in the Indenture, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]
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No._______1________
$__________
CUSIP No. _________
SENIOR DEBENTURE DUE 200_<4>
New NiSource Inc., an Indiana corporation (the "COMPANY",
which term includes any successor corporation under the Indenture
referred to below), for value received, promises to pay to CEDE & CO.,
or registered assigns, the principal sum of $__________ Dollars on
____________, 200_<5> (the "STATED MATURITY"), and to pay interest
on said principal sum from _____________, 200_,<6> or from the most
recent interest payment date (each such date, an "INTEREST PAYMENT
DATE") to which interest has been paid or duly provided for, quarterly
in arrears on ________, __________, __________ and ____________ of
each year, commencing on __________, 200_,<7> at the Interest Rate,
until the principal of this Debenture shall have become due and
payable, and on any overdue principal and premium, if any, and
(without duplication and to the extent that payment of such interest
is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded quarterly. The amount
of interest payable for any period will be computed (1) for any full
quarterly period on the basis of a 360-day year of twelve 30-day
months and (2) for any period shorter than a full quarterly period, on
the basis of a 30-day month and, for any period less than a month, on
the basis of the actual number of days elapsed per 30-day month. If
any date on which interest is payable is not a Business Day, then
payment of the interest payable on such date will be made on the next
day that is a Business Day (and without any interest or other payment
in respect of such delay), except that, if such Business Day is in the
next calendar year, then such payment will be made on the preceding
Business Day. The interest installment so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture referred to on the reverse side of this
Debenture, be paid to the person in whose name this Debenture (or one
or more Predecessor Securities, as defined in the Indenture) is
registered at the close of business on the Regular Record Date for
such interest installment, which, if this Debenture is a Global
Security, shall be the close of business on the Business Day preceding
such Interest Payment Date or, if this Debenture is not a Global
____________________
<4> The sixth year after the Effective Time.
<5> The date that is six years after the Effective Time.
<6> The date that is four years after the Effective Time.
<7> The first such date occurring after the date that is four years
after the Effective Time.
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Security, shall be the close of business on the 15th Business Day
preceding such Interest Payment Date; PROVIDED, that interest paid at
maturity shall be paid to the Person to whom principal is paid. Any
such interest installment not punctually paid or duly provided for
shall cease to be payable to the registered Holder on such Regular
Record Date and may be paid to the Person in whose name this Debenture
(or one or more Predecessor Securities) is registered at the close of
business on a special record date to be fixed by the Trustee referred
to on the reverse side of this Debenture for the payment of such
defaulted interest, notice of which shall be given to the registered
Holders of the Debentures not less than 10 days prior to such special
record date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
the Debentures may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture. The
principal of and interest on this Debenture shall be payable at the
office or agency of the Trustee maintained for that purpose in any
coin or currency of the United States of America that at the time of
payment is legal tender for payment of public and private debts;
PROVIDED, that payment of interest may be made at the option of
Company by check mailed to the registered Holder at such address as
shall appear in the Security Register.
This Debenture is, to the extent provided in the Indenture,
senior and unsecured and will rank in right of payment on a parity
with all other senior unsecured obligations of Company.
Unless the Certificate of Authentication on this Debenture
has been executed by the Trustee, this Debenture shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any
purpose. The provisions of this Debenture are continued on the
reverse side, and such continued provisions shall for all purposes
have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, Company has caused this instrument to be
executed.
New NiSource Inc.
By: ____________________________________
Attest:
By: ________________________
Secretary
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Certificate of Authentication
This is one of the Securities of the series referred to in the
within-mentioned Indenture.
Dated: _____________________ The Chase Manhattan Bank, as Trustee
By: __________________________________
Authorized Officer
This Debenture is one of a duly authorized series of
Securities of Company (referred to as the "DEBENTURES"), all issued
under and pursuant to an Indenture dated as of ______, 200_, duly
executed and delivered between New NiSource Inc. ("COMPANY") and The
Chase Manhattan Bank, as Trustee (the "TRUSTEE"), as supplemented by
the First Supplemental Indenture to the Indenture dated as of _______
200_, between Company and the Trustee (such Indenture as so
supplemented, the "INDENTURE"), to which Indenture, and all indentures
supplemental to it, reference is made for a description of the rights,
limitations of rights, obligations, duties and immunities of the
Trustee, Company and the Holders of the Debentures. By the terms of
the Indenture, the Securities are issuable in series that may vary as
to amount, date of maturity, rate of interest and in other respects as
provided in the Indenture. This series of Securities is limited in
aggregate principal amount to $______________.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
This Debenture is not subject to redemption at the option of
the Company prior to its Stated Maturity.
This Debenture is not subject to redemption prior to its
Stated Maturity through the operation of a sinking fund.
If an Event of Default shall have occurred and be
continuing, the principal of all of the Debentures may be declared,
and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting Company and the
Trustee, without the consent of any Holder, to execute supplemental
indentures modifying certain provisions of the Indenture and, with the
consent of the Holders of not less than a majority in aggregate
principal amount of the Debentures and all other series of Securities
affected at the time Outstanding, as defined in the Indenture, to
execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
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provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debentures;
PROVIDED, that no such supplemental indenture may, without the consent
of the Holder of each outstanding Debenture, among other things, (i)
change the stated maturity of the principal of, or any installment of
interest on, any Debenture, (ii) reduce the principal amount of, or
the rate of interest on the Debentures, (iii) impair the right to
institute suit for the enforcement of any such payment on or after the
stated maturity of the Debentures or (iv) reduce the above-stated
percentage of principal amount of Debentures, the consent of the
Holders of which is required to modify or amend the Indenture, to
consent to any waiver under the Indenture, or to approve any
supplemental indenture. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of
the Debentures at the time Outstanding affected thereby, on behalf of
all of the Holders of the Debentures, to waive any past default in the
performance of any of the covenants contained in the Indenture, or
established pursuant to the Indenture with respect to the Debentures,
and its consequences, except a default in the payment of the principal
of or interest on any of the Debentures (unless cured as provided in
the Indenture) or in respect of a covenant or provision that cannot be
modified or amended without the consent of the Holders of each
Debenture then Outstanding. Any such consent or waiver by a
registered Holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon
all future Holders and owners of this Debenture and of any Debenture
issued in exchange for it or in place of it (whether by registration
of transfer or otherwise), irrespective of whether or not any notation
of such consent or waiver is made upon this Debenture.
No reference in this Debenture to the Indenture and no
provision of this Debenture or of the Indenture shall alter or impair
the obligation of Company, which is absolute and unconditional, to pay
the principal of and premium, if any, and interest on this Debenture
at the time and place and at the rate and in the money prescribed in
this Debenture.
As provided in, and subject to certain limitations set forth
in, the Indenture, this Debenture is transferable by the registered
Holder on the Security Register of Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the
Company in the City and State of New York accompanied by a written
instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered Holder or his
attorney duly authorized in writing, after which one or more new
Debentures of authorized denominations and for the same aggregate
principal amount will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but
the Company may require payment of a sum sufficient to cover any tax
or other governmental charge payable in relation to such transfer.
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Prior to due presentment for registration of transfer of
this Debenture, the Company, the Trustee, any paying agent and any
Security Registrar may deem and treat its registered holder as the
absolute owner of this Debenture (whether or not this Debenture shall
be overdue and notwithstanding any notice of ownership or writing on
this Debenture made by anyone other than the Security Registrar) for
the purpose of receiving payment of or on account of the principal of
and premium, if any, and interest due on this Debenture and for all
other purposes, and neither the Company nor the Trustee nor any paying
agent nor any Security Registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Debenture, or for any claim based on this
Debenture, or otherwise in respect of this Debenture, or based on or
in respect of the Indenture, against any incorporator, stockholder,
officer or director, past, present or future, as such, of the Company
or of any predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance of this Debenture and as part of the consideration for the
issuance of this Debenture, expressly waived and released.
The Indenture imposes certain limitations on the ability of
Company to, among other things, merge, consolidate or sell, assign,
transfer or lease all or substantially all of its properties or
assets. Such covenants and limitations are subject to a number of
important qualifications and exceptions. The Company must report
periodically to the Trustee on compliance with the covenants in the
Indenture.
The Debentures of this series are issuable only in
registered form without coupons in denominations of $[2.60] and any
integral multiple of such amount. As provided in the Indenture and
subject to certain limitations in this Debenture and in the Indenture
set forth, Debentures of this series so issued are exchangeable for a
like aggregate principal amount of Debentures of this series of a
different authorized denomination, as requested by the Holder
surrendering the same.
ARTICLE IV
EXPENSES
SECTION 4.1 PAYMENT OF EXPENSES. The Company will pay
for all costs and expenses relating to the offering, sale and issuance
of the Debentures, including compensation of the Trustee under the
Indenture in accordance with the provisions of Section 607 of the
Indenture.
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ARTICLE V
COVENANTS
SECTION 5.1 COVENANT TO LIST ON EXCHANGE. The Company
will use its best efforts to list the Debentures and Corporate Units
on the New York Stock Exchange.
ARTICLE VI
ORIGINAL ISSUE OF DEBENTURES
SECTION 6.1 ORIGINAL ISSUE OF DEBENTURES. Debentures in
an aggregate principal amount of up to $____________ may, upon
execution of this First Supplemental Indenture, be executed by the
Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said Debentures upon
receipt of a Company Order, without any further action by the Company.
ARTICLE VII
REMARKETING
SECTION 7.1 REMARKETING.
(a) The Company shall request, not later than 15 nor more
than 30 calendar days prior to the Remarketing Date, that the
Depositary notify the Holders of the Debentures and the holders of the
Corporate Units of the Remarketing and of the procedures that must be
followed if a holder of Corporate Units wishes to make a Cash
Settlement.
(b) [Not later than 5:00 p.m., New York City time, on the
seventh Business Day preceding the Purchase Contract Settlement Date,
each Holder of Debentures may elect to have the Debentures held by
such Holder remarketed in the Remarketing.] Under Section 5.4 of the
Purchase Contract Agreement, holders of Corporate Units that do not
give notice of their intention to make a Cash Settlement of the
Purchase Contract component of their Corporate Units prior to such
time in the manner specified in such Section, or that give such notice
but fail to deliver cash prior to 11:00 a.m., New York City time, on
or prior to the fifth Business Day preceding the Purchase Contract
Settlement Date, shall be deemed to have consented to the disposition
of the Debenture component of their Corporate Units in the
Remarketing. [Holders of Debentures that are not a component of
Corporate Units wishing to have their Debentures remarketed shall give
to the Purchase Contract Agent notice of their election prior to 11:00
a.m., New York City time, on such fifth Business Day. Any such notice
shall be irrevocable and may not be conditioned upon the level at
which the Interest Rate is established in the Remarketing.] Promptly
after 11:00 a.m., New York City time, on such fifth Business Day, the
Purchase Contract Agent, based on [the notices received by it prior to
such time (including] notices from the Purchase Contract Agent as to
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Purchase Contracts for which Cash Settlement has been elected and cash
received[)], shall notify the Company and the Remarketing Agent of the
amount of Debentures to be tendered for purchase in the Remarketing.
(c) If any Holder of Debentures does not give a notice of
its intention to make a Cash Settlement or gives such notice but fails
to deliver cash as described in the foregoing subsection (b), [or
gives a notice of election to have Debentures that are not a component
of Corporate Units remarketed,] then the Debentures of such Holder
shall be deemed tendered for purchase in the Remarketing,
notwithstanding any failure by such Holder to deliver or properly
deliver such Debentures to the Remarketing Agent for purchase.
(d) The right of each Holder to have Debentures tendered
for purchase will be limited to the extent that (i) the Remarketing
Agent conducts a remarketing pursuant to the terms of the Remarketing
Agreement, (ii) the Remarketing Agent is able to find a purchaser or
purchasers for the tendered Debentures, and (iii) such purchaser or
purchasers deliver the purchase price therefor to the Remarketing
Agent.
(e) On the Remarketing Date, the Remarketing Agent will use
commercially reasonable efforts to remarket, at a price equal to ___%
of their aggregate principal amount, the Debentures tendered or deemed
tendered for purchase.
(f) If, as a result of the efforts described in the
foregoing subsection (e), the Remarketing Agent determines that it
will be able to remarket all of the Debentures tendered or deemed
tendered for purchase at a price of [100.00]% of their aggregate
principal amount prior to 4:00 p.m., New York City time, on the
Remarketing Date, the Remarketing Agent shall determine the "INTEREST
RATE", which shall be (i) the rate per annum (rounded to the nearest
one-thousandth (0.001) of one percent per annum) that the Remarketing
Agent determines, in its sole judgment, to be the lowest rate per
annum that will enable it to remarket at that price all of the
Debentures tendered or deemed tendered for Remarketing, plus (ii) five
hundred one-thousandths of one percent.
(g) If none of the Holders of the [Debentures or the
holders of the] Corporate Units elects to have Debentures remarketed
in the Remarketing, the Interest Rate shall be the rate determined by
the Remarketing Agent, in its sole discretion, as the rate that would
have been established had a Remarketing been held on the Remarketing
Date.
(h) If, by 4:00 p.m., New York City time, on the
Remarketing Date, the Remarketing Agent is unable to remarket all of
the Debentures tendered or deemed tendered for purchase, a Failed
Remarketing shall be deemed to have occurred, and the Remarketing
Agent shall so advise by telephone the Depositary, the Trustee and the
Company. In the event of a Failed Remarketing, the Interest Rate
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shall equal (i) the Two-Year Benchmark Treasury Rate plus (ii) the
Applicable Margin.
(i) By approximately 4:30 p.m., New York City time, on the
Remarketing Date, provided that there has not been a Failed
Remarketing, the Remarketing Agent shall advise, by telephone (i) the
Depositary, the Trustee and the Company of the Interest Rate
determined in the Remarketing and the amount of Debentures sold in the
Remarketing, (ii) each purchaser (or the Depositary participant of a
purchaser) of the Interest Rate and the amount of Debentures such
purchaser is to purchase, and (iii) each purchaser to give
instructions to its Depositary participant to pay the purchase price
on the Purchase Contract Settlement Date in same day funds against
delivery of the Debentures purchased through the facilities of the
Depositary.
(j) In accordance with the Depositary's normal procedures,
on the Purchase Contract Settlement Date, the transactions described
above with respect to each Debenture [tendered or] deemed tendered for
purchase and sold in the Remarketing shall be executed through the
Depositary, and the accounts of the respective Depositary participants
shall be debited and credited and such Debentures delivered by
book-entry as necessary to effect purchases and sales of such
Debentures. The Depositary shall make payment in accordance with its
normal procedures.
[(k) If any Holder of Debentures selling Debentures in the
Remarketing fails to deliver such Debentures, the Depositary
participant of such selling holder and of any other Person that was to
have purchased Debentures in the Remarketing may deliver to any such
other Person an amount of Debentures that is less than the amount of
Debentures that otherwise was to be purchased by such Person. In such
event, the amount of Debentures to be so delivered shall be determined
by such Depositary participant, and delivery of such lesser amount of
Debentures shall constitute good delivery.]
(l) The Remarketing Agent is not obligated to purchase any
Debentures that otherwise would remain unsold in the Remarketing.
Neither the Company nor the Remarketing Agent shall be obligated in
any case to provide funds to make payment upon tender of the
Debentures for Remarketing.
(m) Under the Remarketing Agreement, the Company, in its
capacity as issuer of the Debentures, shall be liable for, and shall
pay, any and all costs and expenses incurred in connection with the
Remarketing.
(n) The tender and settlement procedures set in this
Section 7.1, including provisions for payment by purchasers of the
Debentures in the Remarketing, shall be subject to modification to the
extent required by the Depositary or if the book-entry system is no
longer available for the Debentures at the time of the Remarketing, to
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facilitate the tendering and remarketing of the Debentures in
certificated form. In addition, the Remarketing Agent may modify the
settlement procedures set forth in this Article in order to facilitate
the settlement process.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. RATIFICATION OF INDENTURE. The Indenture, as
supplemented by this First Supplemental Indenture, is in all respects
ratified and confirmed. This First Supplemental Indenture shall be
deemed part of the Indenture in the manner and to the extent provided
in this First Supplemental Indenture and the Indenture.
SECTION 8.2. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The
recitals contained in this First Supplemental Indenture are made by
the Company and not by the Trustee, and the Trustee assumes no
responsibility for the correctness of such recitals. The Trustee
makes no representation as to the validity or sufficiency of this
First Supplemental Indenture.
SECTION 8.3. GOVERNING LAW. This First Supplemental
Indenture and each Debenture shall be deemed to be a contract made
under the internal laws of the State of New York and for all purposes
shall be construed in accordance with the laws of that State.
SECTION 8.4. SEVERABILITY. In case any one or more of
the provisions contained in this First Supplemental Indenture or in
the Debentures shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this First
Supplemental Indenture or of the Debentures, but this First
Supplemental Indenture and the Debentures shall be construed as if
such invalid or illegal or unenforceable provision had never been
contained in this First Supplemental Indenture or the Debentures.
SECTION 8.5. Counterparts. This First Supplemental
Indenture may be executed in any number of counterparts each of which
shall be an original; but such counterparts shall together constitute
but one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this First
Supplemental Indenture to be duly executed, and their respective
corporate seals to be affixed and attested on this First Supplemental
Indenture, on the date or dates indicated in the acknowledgments and
as of the day and year first above written.
New NiSource Inc.
By: ___________________________________
Name:
Title:
Attest:
____________________________
Name:
Title:
The Chase Manhattan Bank, as Trustee
By: ___________________________________
Name:
Title:
Attest:
___________________________
Name:
Title:
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