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Exhibit 4.45
SECOND SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as
of November 1, 2000, among NISOURCE CAPITAL MARKETS, INC., an Indiana
corporation formerly named NIPSCO Capital Markets, Inc. (the "Company"),
NISOURCE INC., an Indiana corporation formerly named NIPSCO Industries, Inc.
("NiSource"), NEW NISOURCE INC., a Delaware corporation ("New NiSource"), and
THE CHASE MANHATTAN BANK, a New York corporation, as trustee under the Indenture
referred to below (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company, NiSource and the Trustee have heretofore executed
an Indenture, dated as of February 14, 1997, as supplemented by a First
Supplemental Indenture dated as of February 16, 1999 (the "Indenture"), to
provide for the issuance from time to time of the Company's unsecured
debentures, notes or other evidences of indebtedness (hereinafter collectively
called the "Securities"), the form and terms of which are to be established as
set forth in the Indenture; and
WHEREAS, NiSource has heretofore executed a Support Agreement, dated
April 4, 1989, as amended as of May 15, 1989, December 10, 1990 and February 14,
1991 (the "Support Agreement"), with the Company, pursuant to which NiSource has
agreed to ensure the timely payment of principal of and premium, if any, and
interest on Debt (as defined in the Support Agreement), subject to certain
limitations; and
WHEREAS, Section 801of the Indenture provides that NiSource shall not
merge into any other Corporation unless the Corporation into which it is merged
shall be a Corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia and shall
expressly assume the performance of every covenant of the Indenture on the part
of NiSource and all of the obligations under the Support Agreement to be
performed or observed; and
WHEREAS, the Trustee agrees that in accordance with Section 802 of the
Indenture, upon compliance with the conditions precedent in Section 801 of the
Indenture, New NiSource shall succeed to and be substituted for, and may
exercise every right and power of, NiSource under the Indenture with the same
effect as if New NiSource had been named as "Industries" in the Indenture; and
WHEREAS, Section 901 of the Indenture provides that the Company and
NiSource, when authorized by Board Resolutions, and the Trustee, at any time and
from time to time, may enter into indentures supplemental to the Indenture
without the consent of the Holders for, among other things, the purpose of
evidencing the succession of another Corporation to the Company or NiSource and
the assumption by such successor Corporation of all of the covenants of the
Company or NiSource, as the case may be, in the Indenture and the Securities;
and
WHEREAS, the execution and delivery of this Supplemental Indenture has
been duly
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authorized by the Board of Directors of the Company and the Board of Directors
of NiSource, and all things necessary to make this Supplemental Indenture a
valid, binding and legal instrument according to its terms have been done; and
WHEREAS, New NiSource, 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 New NiSource and the former
stockholders of NiSource and certain of the stockholders of Columbia will become
stockholders of New NiSource (the "Acquisition Merger"); and
WHEREAS, immediately following the Acquisition Merger, NiSource will
merge with and into New NiSource, with New NiSource being the surviving
corporation ("Subsequent Merger"); and
WHEREAS, in connection with the Acquisition Merger and the Subsequent
Merger, New NiSource will change its name to "NiSource Inc." and will assume all
of the obligations and liabilities of NiSource, including all obligations of
NiSource under the Indenture and the Support Agreement;
NOW, THEREFORE, for and in consideration of the premises, it is
mutually covenanted and agreed, as follows:
SECTION 1. Pursuant to Section 801 of the Indenture, New NiSource
hereby expressly assumes, as fully and effectually as if it had been an original
party to the Indenture, the performance of every covenant of the Indenture on
the part of NiSource and all the obligations under the Support Agreement to be
performed or observed.
SECTION 2. Pursuant to Section 802 of the Indenture, New NiSource
hereby succeeds to and is substituted for, and may exercise every right and
power of, NiSource under the Indenture with the same effect as if New NiSource
had been named as "Industries" in the Indenture.
SECTION 3. After the execution and delivery of this Supplemental
Indenture, any act or proceeding required by the Indenture to be done or
performed by any board or officer of NiSource may be done or performed with like
force and effect by the comparable board or officer of New NiSource.
SECTION 4. The Trustee shall not be responsible in any manner
whatsoever for or with respect to any of the recitals or statements contained
herein, all of which recitals or statements are made solely by NiSource and by
New NiSource, or for or with respect to the validity or sufficiency of this
Supplemental Indenture or any of the terms or provisions hereof.
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SECTION 5. The Indenture, supplemented as hereinabove set forth, is in
all respects ratified and confirmed, and the terms and conditions thereof,
supplemented as hereinabove set forth, shall be and remain in full force and
effect.
SECTION 6. This Supplemental Indenture shall become effective as of the
date first above written upon the execution and delivery hereof by each of the
parties hereto.
SECTION 7. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 8. This Supplemental Indenture may be executed in any number of
counterparts, and on separate counterparts, each of which shall be an original;
but such counterparts shall together constitute but one and the same instrument.
SECTION 9. All capitalized terms used in this Supplemental Indenture
which are defined in the Indenture shall have the meanings assigned to them
therein, except to the extent that such terms are defined herein or the context
otherwise requires.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
NISOURCE CAPITAL MARKETS, INC.
[Seal]
By: /s/ Xxxxxxx X. Adik
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Name: Xxxxxxx X. Adik
Title: President
Attest:
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Secretary
NISOURCE INC.
[Seal]
By: /s/ Xxxxxxx X. Adik
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Name: Xxxxxxx X. Adik
Title: Senior Executive Vice
President and
Chief Financial Officer
Attest:
By: /s/ Xxxx X. Xxxxxx
------------------
Name: Xxxx X. Xxxxxx
Title: Secretary
NEW NISOURCE INC.
[Seal]
By: /s/ Xxxxxxx X. Adik
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Name: Xxxxxxx X. Adik
Title: Vice President
Attest:
By: /s/ Xxxx X. Xxxxxx
------------------
Name: Xxxx X. Xxxxxx
Title: Secretary
THE CHASE MANHATTAN BANK, as Trustee
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[Seal]
By: /s/ Xxxxxxx Xxxxxxxx
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Name: X. Xxxxxxxx
Title: Assistant Voce President
Attest:
By: /s/ Xxxxx Xxxxxxxx
------------------
Name: Xxxxx Xxxxxxxx
Title: Trust Officer
