EXHIBIT 4.4
-----------
======================================================================
NEW NISOURCE INC.
to
THE CHASE MANHATTAN BANK,
as Trustee
______________________________
FIRST SUPPLEMENTAL INDENTURE
______________________________
DATED AS OF NOVEMBER 1, 2000
TO THE
INDENTURE, DATED AS OF NOVEMBER 1, 2000,
BETWEEN THE COMPANY AND THE TRUSTEE,
PROVIDING FOR ISSUANCE OF DEBT SECURITIES
======================================================================
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS
Section 1.1 Definition of Terms . . . . . . . . . . . . . 1
ARTICLE II - TERMS AND CONDITIONS OF THE DEBENTURES
Section 2.1 Designation, Denomination and Principal
Amount . . . . . . . . . . . . . . . . . . . 5
Section 2.2 Maturity . . . . . . . . . . . . . . . . . . 5
Section 2.3 Global Debentures . . . . . . . . . . . . . . 5
Section 2.4 Interest . . . . . . . . . . . . . . . . . . 6
SECTION 2.5 Redemption . . . . . . . . . . . . . . . . . 7
Section 2.6 [Intentionally Omitted] . . . . . . . . . . . 7
Section 2.7 Paying Agent; Security Registrar . . . . . . 7
Section 2.8 United States Aliens . . . . . . . . . . . . 7
ARTICLE III - FORM OF DEBENTURE
Section 3.1. Form of Debenture . . . . . . . . . . . . . . 7
Section 3.2. Bearer Securities . . . . . . . . . . . . . . 12
ARTICLE IV - EXPENSES
Section 4.1 Payment of Expenses . . . . . . . . . . . . . 13
ARTICLE V - COVENANTS
Section 5.1 Covenant to List on Exchange . . . . . . . . 13
ARTICLE VI - ORIGINAL ISSUE OF DEBENTURES
Section 6.1 Original Issue of Debentures . . . . . . . . 13
ARTICLE VII - REMARKETING
Section 7.1 Remarketing . . . . . . . . . . . . . . . . . 13
ARTICLE VIII - MISCELLANEOUS
Section 8.1. Ratification of Indenture . . . . . . . . . . 16
Section 8.2. Trustee Not Responsible for Recitals . . . . 16
Section 8.3. Governing Law . . . . . . . . . . . . . . . . 16
Section 8.4. Severability . . . . . . . . . . . . . . . . 16
Section 8.5. Counterparts . . . . . . . . . . . . . . . . 16
Section 8.6. Name of the Company . . . . . . . . . . . . . 16
i
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of November 1,
2000 (this "First Supplemental Indenture"), between New NiSource Inc.,
a Delaware corporation (the "Company"), and The Chase Manhattan Bank,
as trustee (the "Trustee"), under the Indenture dated as of November 1,
2000, 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 2006 (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 I
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) Change in
Control; (iii) Corporate Units; (iv) Purchase Contract; (v) Purchase
Contract Settlement Date; and (vi) Remarketing Agreement; and
(g) the following terms have the meanings given to them in
this Section 1.1(g):
"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
----------------- ------
AA/ "Aa" . . . . . . . . . . . . 1.70%
A/ "A" . . . . . . . . . . . . . 1.95%
BBB/ "Baa" . . . . . . . . . . . 2.25%
Below BBB/ "Baa" . . . . . . . . 4.00%
For purposes of this definition, the "prevailing rating" of the
remarketed Debentures shall be:
(i) AA/ "Aa" if the remarketed Debentures have a
credit rating of AA- 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
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
3
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."
"Failed Remarketing" has the meaning specified in Section
7.1(h).
"Interest Rate" has the meaning specified in Section 7.1(f),
7.1(g) or 7.1(h), as applicable.
"Moody's" means Xxxxx'x Investors Service, Inc., or any
successor to it by merger, conversion, consolidation or otherwise.
"Purchase Contract Agreement" means the Purchase Contract
Agreement dated as of November 1, 2000, 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
Corporation or any successor Remarketing Agent engaged by the Company.
"Remarketing Date" means the third Business Day prior to the
Purchase Contract Settlement Date.
"S&P" means Standard & Poor's Ratings Group, a division of
The McGraw Hill Companies, or any successor to it by merger,
conversion, consolidation or otherwise.
4
"Two-Year Benchmark Treasury Rate" means the bid side rate
displayed at 10:00 a.m., New York City time, on the Remarketing 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 the Company and the Remarketing Agent (the "Two Year Benchmark
Treasury"). The Two-Year Benchmark Treasury Rate will be the bid side
rate displayed at 10:00 A.M., New York City time, on the Remarketing
Date in the Telerate system (or if the Telerate system is (A) no
longer available on the Remarketing 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 Two-Year Benchmark
Treasury Rate 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 Remarketing Date of three leading United
States government securities dealers selected by the Remarketing Agent
(after consultation with the 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 hereby authorized a series of Securities designated
as "Senior Debentures due 2006," limited in aggregate principal amount
to $145,600,000, in the denomination of $2.60.
SECTION 2.2 MATURITY. The Stated Maturity is
November 1, 2006.
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 Company. The
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
5
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 and including
the Purchase Contract Settlement Date until principal is paid, payable
quarterly in arrears on the Interest Payment Dates, which shall be
February 1, May 1, August 1 and November 1 of each year, commencing
February 1, 2005.
(b) Interest not paid on the scheduled Interest Payment
Date shall accumulate and compound quarterly at the Interest Rate from
the scheduled Interest 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 Interest
Payment Date 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.
6
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.
SECTION 2.8 UNITED STATES ALIENS. As provided in Section
301(16) of the Indenture, the Company shall not pay additional amounts
in respect of taxes or similar charges withheld or deducted to Holders
of the Debentures who are United States Aliens.
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.]
7
No.
$145,600,000
CUSIP No. 65473P AA 3
SENIOR DEBENTURE DUE 2006
New NiSource Inc., a Delaware corporation (the "Company",
which term includes any successor under the Indenture referred to
below), for value received, promises to pay to CEDE & CO., or
registered assigns, the principal sum of One Hundred Forty-Five
Million Six Hundred Thousand Dollars on November 1, 2006 (the
"Stated Maturity"), and to pay interest on said principal sum from
November 1, 2004, 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 February 1,
May 1, August 1 and November 1 of each year, commencing on February 1,
2005, 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
8
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 (a "Special Record Date"), 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 the 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 the 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, the Company has caused this instrument
to be executed.
NEW NISOURCE INC.
By:_____________________________________
[Title]
Attest:
By:_______________________________
_______ Secretary
9
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
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of
Securities of the Company (referred to as the "Debentures"), all
issued under and pursuant to an Indenture dated as of November 1, 2000,
duly executed and delivered between New NiSource Inc. (the "Company") and
The Chase Manhattan Bank, as trustee (the "Trustee"), as supplemented
by the First Supplemental Indenture to the Indenture dated as of
November 1, 2000, between the 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, the 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 $145,600,000.
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 the 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
10
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 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 not less than 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, premium, if any, or interest on any
of the Debentures or in respect of a covenant or provision of the
Indenture 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 the 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 hereof on the Security Register of the Company, upon surrender
of this Debenture for registration of transfer at the office or agency
maintained by the Company in a Place of Payment accompanied by a
written instrument or instruments of transfer in form satisfactory to
the Company and the Security Registrar duly executed by such
registered Holder or his attorney duly authorized in writing, after
which one or more new Debentures of the same series, Stated Maturity
and original issue date of authorized denominations and of like tenor
and aggregate principal amount will be issued to the designated
transferee or transferees. No service charge will be made for any such
11
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.
Prior to due presentment for registration of transfer of
this Debenture, the Company, the Trustee, any Paying Agent and any
Security Registrar (and any agent thereof) may deem and treat its
registered Holder as the absolute owner of this Debenture (whether or
not this Debenture shall be overdue) for the purpose of receiving
payment of or on account of the principal of, 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 (or any agent thereof) shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal
of, premium, if any, or 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, director or employee, past, present or future,
as such, of the Company or of any predecessor or successor, 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
the 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.
SECTION 3.2. BEARER SECURITIES. The Debentures shall not
be issued as Bearer Securities.
12
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.
ARTICLE V
COVENANTS
SECTION 5.1 COVENANT TO LIST ON EXCHANGE. The Company
will use its best efforts to list the Corporate Units on the New York
Stock Exchange and to maintain such listing.
ARTICLE VI
ORIGINAL ISSUE OF DEBENTURES
SECTION 6.1 ORIGINAL ISSUE OF DEBENTURES. Debentures in
an aggregate principal amount of up to $145,600,000 may, upon
execution of this First Supplemental Indenture, be executed by the
Company and delivered to the Trustee for authentication, and (subject
to receipt by the Trustee of the documents specified in Section 303 of
the Indenture) the Trustee shall thereupon authenticate and deliver
said Debentures upon receipt of an Order of the Company, 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; PROVIDED, that in the case of a Remarketing following a
Change in Control, the Company shall make such request eight Business
Days prior to the Remarketing Date.
(b) 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
13
have consented to the disposition of the Debenture component of their
Corporate Units in the Remarketing. Promptly after 11:00 a.m., New
York City time, on such fifth Business Day, the Purchase Contract
Agent, based on notices from the Purchase Contract Agent as to
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), 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
100.50% 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 100.50% 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 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.
(g) If none of 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
14
Company. In the event of a Failed Remarketing, the Interest Rate
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 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) 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.
(l) As provided in Section 4 of the Remarketing Agreement,
the Company, in its capacity as issuer of the Debentures, shall be
liable for, and shall pay, any and all fees, costs and expenses
incurred in connection with the Remarketing.
(m) 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
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.
15
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 law of the State of New York and for all purposes
shall be construed in accordance with the internal law of that State,
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.
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.
SECTION 8.6. 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
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 First
Supplemental Indenture by the Company. Immediately following the
16
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 First
Supplemental Indenture and in any Debentures issued under this First
Supplemental Indenture to the Company's former name shall be deemed
to refer to its new name, NiSource Inc.
IN WITNESS WHEREOF, the parties have caused this First
Supplemental Indenture to be duly executed 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: /s/ Xxxxxxx X. Adik
------------------------------
Name: Xxxxxxx X. Adik
Title: Vice President
Attest:
/s/ Xxxx X. Xxxxxx
-----------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary
THE CHASE MANHATTAN BANK,
AS Trustee
By: /s/ X. Xxxxxxxx
-------------------------------
Name: X. Xxxxxxxx
Title: Assistant Vice President
Attest:
/s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Trust Officer
17
