EXHIBIT 4.1
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FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of November 14, 2000
(this "First Supplemental Indenture"), among NiSource Finance Corp.,
an Indiana corporation ("NiSource Finance"), NiSource Inc., a Delaware
corporation (the "Parent"), and The Chase Manhattan Bank, as trustee
(the "Trustee"), under the Indenture dated as of November 14, 2000
among NiSource Finance, the Parent and the Trustee (the "Indenture").
WHEREAS, NiSource Finance and the Parent executed and
delivered the Indenture to the Trustee to provide for the issuance
from time to time of NiSource Finance's unsecured debentures, notes or
other evidences of indebtedness fully and unconditionally guaranteed
by the Parent to be issued in one or more series as might be
determined by NiSource Finance 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, NiSource
Finance and the Parent desire to provide for the establishment of
three new series of notes to be known as the 7-1/2% Notes due 2003,
the 7-5/8% Notes due 2005 and the 7-7/8% Notes due 2010 (collectively,
the "Initial Notes") and for the establishment of Exchange Notes (as
defined herein) or Private Exchange Notes (as defined herein) for
issue only in a Registered Exchange Offer (as defined herein) or
Private Exchange (as defined herein), respectively, pursuant to a
Registration Rights Agreement (as defined herein) for a like
principal amount of Initial Notes, the form and substance of such
Initial Notes and Exchange Notes or Private Exchange Notes and the
terms, provisions and conditions thereof to be as set forth in the
Indenture and this First Supplemental Indenture;
WHEREAS, NiSource Finance and the Parent have 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 Notes
(as defined herein), when executed by NiSource Finance and the Parent
and authenticated and delivered by the Trustee, the valid obligations
of NiSource Finance and the Parent) 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 Initial Notes and Exchange Notes or Private Exchange
Notes by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Initial Notes
and Exchange Notes or Private Exchange Notes and the terms, provisions
and conditions thereof, NiSource Finance and the Parent covenant and
agree with the Trustee as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITION OF TERMS.
Unless the context otherwise requires:
(a) a term not defined herein 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 Article is to a Section or
Article of this First Supplemental Indenture, unless otherwise noted;
(e) headings are for convenience of reference only and do
not affect interpretation;
(f) the following terms have the meanings given to them in
this Section 1.1(f) for purposes of this First Supplemental Indenture
only:
"Additional Notes" means 7-1/2% Notes due 2003, 7-5/8% Notes
due 2005, and 7-7/8% Notes due 2010 issued from time to time after the
Issue Date under the terms of this First Supplemental Indenture (other
than pursuant to Section 304, 305, 306 and 1107 of the Indenture and
other than Exchange Notes or Private Exchange Notes issued pursuant to
an exchange offer for other Notes outstanding under this First
Supplemental Indenture).
"Adjusted Treasury Rate" means, with respect to any
Redemption Date, (i) the yield, under the heading which represents the
average for the immediately preceding week, appearing in the most
recently published statistical release designed "H.15 (519)" or any
successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which establishes yields
on actively traded United States Treasury securities adjusted to
constant maturity under the caption "Treasury Constant Maturities,"
for the maturity corresponding to the Comparable Treasury Issue (if no
maturity is within three months before or after the remaining term of
the Notes, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue shall be determined and
the Adjusted Treasury Rate shall be interpolated or extrapolated from
such yields on a straight line basis, rounding to the nearest month)
or (ii) if such release (or any successor release) is not published
during the week preceding the calculation date or does not contain
such yields, the rate per year equal to the semi-annual equivalent
yield to maturity of the Comparable Treasury Issue (expressed as a
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percentage of its principal amount) equal to the Comparable Treasury
Price for such Redemption Date, in each case calculated on the third
Business Day preceding the Redemption Date, plus 0.15% for the Notes
due 2003 and 0.25% for the Notes due 2005 and 2010.
"Comparable Treasury Issue" means, with respect to any
Redemption Date, the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term
from the Redemption Date to the maturity date of the Notes that would
be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Notes.
"Comparable Treasury Price" means, with respect to any
Redemption Date, if clause (ii) of the definition of Adjusted Treasury
Rate is applicable, the average of three, or such lesser number as is
obtained by the Trustee, Reference Treasury Dealer Quotations for such
redemption date.
"Depository" means The Depository Trust Company, its
nominees and their respective successors.
"Exchange Notes" means the 7-1/2% Notes due 2003, 7-5/8%
Notes due 2005 and 7-7/8% Notes due 2010 issued pursuant to the First
Supplemental Indenture in connection with a Registered Exchange Offer
pursuant to the Registration Rights Agreement.
"Initial Notes" means up to $750,000,000 aggregate principal
amount of 7-1/2% Notes due 2003, $750,000,000 aggregate principal
amount of 7-5/8% Notes due 2005 and $1,000,000,000 aggregate principal
amount of 7-7/8% Notes due 2010 issued on the Issue Date.
"Initial Purchasers" means, with respect to the Initial
Notes issued on the Issue Date, the entities identified as Purchasers
in the Purchase Agreement.
"Issue Date" means November 14, 2000.
"Make-Whole Amount" means the sum, as determined by the
Quotation Agent, of the present values of the principal amount of the
Notes to be redeemed, together with scheduled payments of interest
(exclusive of interest to the Redemption Date) from the Redemption
Date to the maturity date of the Notes, in each case discounted to the
Redemption Date on a semi-annual basis, assuming a 360-day year
consisting of twelve 30-day months, at the Adjusted Treasury Rate,
plus accrued interest on the principal amount of the Notes being
redeemed to the Redemption Date.
"Notes" means the Initial Notes, the Exchange Notes and the
Private Exchange Notes.
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"Private Exchange" means the offer by NiSource Finance and
the Parent, pursuant to the Registration Rights Agreement, to the
Initial Purchasers to issue and deliver to each Initial Purchaser, in
exchange for the Initial Notes held by the Initial Purchaser as part
of its initial distribution, a like aggregate principal amount of
Private Exchange Notes.
"Private Exchange Notes" means the 7-1/2% Notes due 2003,
the 7-5/8% Notes due 2005 and the 7-7/8% Notes due 2010 issued in
connection with a Private Exchange pursuant to the Registration Rights
Agreement.
"Purchase Agreement" means, with respect to the Initial
Notes issued on the Issue Date, the Purchase Agreement dated November
9, 2000 among NiSource Finance, the Parent and the Initial Purchasers.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Quotation Agent" means the Reference Treasury Dealer
selected by the Trustee after consultation with NiSource Finance.
"Reference Treasury Dealer" means a primary U.S. Government
securities dealer selected by NiSource Finance.
"Reference Treasury Dealer Quotations" means, with respect
to each Reference Treasury Dealer and any Redemption Date, the
average, as determined by a Referenced Treasury Dealer, of the bid and
asked prices for the Comparable Treasury Issue, expressed in each case
as a percentage of its principal amount, quoted in writing to the
Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third Business Day preceding such Redemption Date.
"Registered Exchange Offer" means the offer by NiSource
Finance and the Parent, pursuant to the Registration Rights Agreement,
to certain Holders of Initial Notes, to issue and deliver to such
Holders, in exchange for the Initial Notes, a like aggregate principal
amount of Exchange Notes registered under the Securities Act.
"Registration Rights Agreement" means with respect to the
Initial Notes issued on the Issue Date, the Registration Rights
Agreement dated November 9, 2000, among NiSource Finance, the Parent
and the Initial Purchasers.
"Securities Act" means the Securities Act of 1933, as
amended.
"Securities Custodian" means the custodian with respect to a
Global Note (as appointed by the Depository), or any successor Person
thereto, and shall initially be the Trustee.
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"Shelf Registration Statement" means the registration
statement filed by NiSource Finance and the Parent in connection with
the offer and sale of Initial Notes or Private Exchange Notes pursuant
to the Registration Rights Agreement.
"Transfer Restricted Notes" means Notes that bear or are
required to bear the legend set forth in Section 2.6(b) hereof.
1.2 OTHER DEFINITIONS
TERM DEFINED IN SECTION
"Agent Members" . . . . . . . . . . . 2.4(b)
"Global Note" . . . . . . . . . . . . 2.4(a)
"Regulation S" . . . . . . . . . . . 2.4(a)
"Restricted Global Note" . . . . . . 2.4(a)
"Rule 144A" . . . . . . . . . . . . . 2.4(a)
ARTICLE II
TERMS AND CONDITIONS OF THE NOTES
2.1 DESIGNATION AND PRINCIPAL AMOUNT.
There is hereby authorized three series of Initial Notes
designated: (i) "7-1/2% Notes due 2003," limited in aggregate
principal amount on the Issue Date to $750,000,000; (ii) "7-5/8% Notes
due 2005," limited in aggregate principal amount on the Issue Date to
$750,000,000; and (iii) "7-7/8% Notes due 2010," limited in aggregate
principal amount on the Issue Date to $1,000,000,000; and Exchange
Notes or Private Exchange Notes of each series for issue only in a
Registered Exchange Offer or Private Exchange, respectively, pursuant
to the Registration Rights Agreement, for a like principal amount of
Initial Notes of the same series. The aggregate principal amount of
each series may be increased as provided in Section 2.3.
2.2 MATURITY.
The Stated Maturity for the Initial Notes will be as
follows:
Notes Maturity
7-1/2% Notes due 2003 November 15, 2003
7-5/8% Notes due 2005 November 15, 2005
7-7/8% Notes due 2010 November 15, 2010
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The Stated Maturity for the Exchange Notes or Private Exchange
Notes will be as follows:
Notes Maturity
7-1/2% Notes due 2003 November 15, 2003
7-5/8% Notes due 2005 November 15, 2005
7-7/8% Notes due 2010 November 15, 2010
2.3 ISSUANCE OF ADDITIONAL NOTES.
NiSource Finance shall be entitled to issue Additional Notes
under this First Supplemental Indenture which shall have identical
terms as the Initial Notes of the same series issued on the Issue
Date, other than with respect to the date of issuance and issue price.
The Initial Notes of any given series issued on the Issue Date and any
Additional Notes of the same series and all Exchange Notes or Private
Exchange Notes issued in exchange therefor shall be treated as a
single class for all purposes under the Indenture.
With respect to any Additional Notes, NiSource Finance shall
set forth in an Officers' Certificate, a copy of each of which shall
be delivered to the Trustee along with an Order of NiSource Finance
for authentication and delivery of such Additional Notes, the
following information:
(1) the aggregate principal amount of such Additional Notes
to be authenticated and delivered pursuant to this First
Supplemental Indenture;
(2) the issue price, the issue date and the CUSIP number,
ISIN number and Common Code number of such Additional Notes;
PROVIDED, however, that no Additional Notes may be issued at a
price that would cause such Additional Notes to have "original
issue discount" within the meaning of Section 1273 of the
Internal Revenue Code of 1986, as amended; and
(3) no Event of Default has occurred and is continuing with
respect to any series of Notes.
2.4 (a) FORM AND DATING.
Initial Notes offered and sold to a QIB in reliance on Rule
144A under the Securities Act ("Rule 144A") or in reliance on
Regulation S under the Securities Act ("Regulation S"), in each case
as provided in the Purchase Agreement, and Private Exchange Notes, as
provided in the Registration Rights Agreement, shall be issued
initially in the form of one or more permanent global Notes in
definitive, fully registered form without interest coupons with the
global securities legend and restricted securities legend set forth in
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Exhibit 1 hereto (each, a "Restricted Global Note"), which shall be
deposited on behalf of the purchasers of the Initial Notes represented
thereby with the Trustee, at its Corporate Trust Office, as Securities
Custodian (or with such other Securities Custodian as the Depository
may direct), and registered in the name of the Depository or a nominee
of the Depository, duly executed by NiSource Finance and the Parent
and authenticated by the Trustee as hereinafter provided. Initial
Notes offered and sold to an institutional "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act
shall receive physical delivery of certificated Notes. The aggregate
principal amount of the Global Notes may from time to time be
increased or decreased by adjustments made on the records of the
Trustee and the Depository or its nominee as hereinafter provided.
Exchange Notes shall be issued in global form (with the global
securities legend set forth in Exhibit 1 hereto). Exchange Notes
issued in global form and Restricted Global Notes are sometimes
referred to in this First Supplemental Indenture as "Global Notes."
The form of Exchange Notes and Private Exchange Notes shall be
substantially in the form as set forth in Exhibit 2 attached hereto.
(b) BOOK-ENTRY PROVISIONS. This Section 2.4(b) shall apply
only to a Global Note deposited with or on behalf of the Depository.
NiSource Finance and the Parent shall execute and the
Trustee shall, in accordance with this Section 2.4(b), authenticate
and deliver initially one or more Global Notes that (a) shall be
registered in the name of the Depository or the nominee of the
Depository and (b) shall be delivered by the Trustee to the Depository
or pursuant to the Depository's instructions or held by the Trustee as
Securities Custodian.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this First Supplemental Indenture
with respect to any Global Note held on their behalf by the Depository
or by the Trustee as the Securities Custodian or under such Global
Note, and NiSource Finance, the Parent, the Trustee and any agent of
NiSource Finance, the Parent or the Trustee shall be entitled to treat
the Depository as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent NiSource Finance, the Parent, the Trustee or any agent
of NiSource Finance, the Parent or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by
the Depository or impair, as between the Depository and its Agent
Members, the operation of customary practices of such Depository
governing the exercise of the rights of a holder of a beneficial
interest in any Global Note.
(c) CERTIFICATED NOTES. Except as provided in this Section
2.4, Section 2.6 or Section 2.7, owners of beneficial interests in
Restricted Global Notes shall not be entitled to receive physical
delivery of certificated Notes.
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2.5 AUTHENTICATION.
The Trustee shall authenticate and deliver: (1) on the Issue
Date, an aggregate principal amount of up to $750,000,000 of 7-1/2%
Notes due 2003; $750,000,000 of 7-5/8% Notes due 2005; and
$1,000,000,000 of 7-7/8% Notes due 2010 and (2) Exchange Notes or
Private Exchange Notes for issue only in a Registered Exchange Offer
or a Private Exchange, respectively, pursuant to the Registration
Rights Agreement, for a like principal amount of Initial Notes of the
same series in each case upon an Order of NiSource Finance as
provided in Section 303 of the Indenture.
2.6 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. (i) The
transfer and exchange of Global Notes or beneficial interests therein
shall be effected through the Depository, in accordance with this
First Supplemental Indenture (including applicable restrictions on
transfer set forth herein, if any) and the procedures of the
Depository therefor. A transferor of a beneficial interest in a
Global Note shall deliver to the Security Registrar a written order
given in accordance with the Depository's procedures containing
information regarding the participant account of the Depository to be
credited with a beneficial interest in the Global Note. The Security
Registrar shall, in accordance with such written order, instruct the
Depository to credit to the account of the Person specified in such
written order a beneficial interest in the Global Note and to debit
from the account of the Person making the transfer the beneficial
interest in the Global Note being transferred.
(ii) Notwithstanding any other provision of this First
Supplemental Indenture (other than the provisions set forth in Section
2.7), a Global Note may not be transferred as a whole except by the
Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository or
by the Depository or any such nominee to a successor Depository or a
nominee of such successor Depository.
(iii) In the event that a Restricted Global Note is
exchanged for Notes in certificated registered form pursuant to
Section 2.7 prior to the consummation of a Registered Exchange Offer
or the effectiveness of a Shelf Registration Statement with respect to
such Notes, such Restricted Global Note may be exchanged only in
accordance with such procedures as are substantially consistent with
the provisions of this Section 2.6 (including the certification
requirements set forth on the reverse of the Initial Notes intended to
ensure that such transfers comply with Rule 144A or Regulation S, as
the case may be) and such other procedures as may from time to time be
adopted by NiSource Finance.
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(b) LEGEND.
(i) Except as permitted by the following paragraphs (ii),
(iii) and (iv), each Note certificate evidencing a Transfer
Restricted Note shall bear a legend in substantially the
following form:
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES
ACT OF 1933 (THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE
SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES
ACT, (III) PURSUANT TO EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I)
THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE. IN CONNECTION WITH ANY TRANSFER,
THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT
SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted Note
(including any Transfer Restricted Note represented by a
Restricted Global Note) pursuant to Rule 144, the Security
Registrar shall permit the transferee thereof to exchange such
Transfer Restricted Note for a certificated Note that does not
bear the legend set forth above and rescind any restriction on
the transfer of such Transfer Restricted Note, if the transferor
thereof certifies in writing to the Security Registrar that such
sale or transfer was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the
Note).
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(iii) After a transfer of any Initial Notes or Private
Exchange Notes pursuant to and during the period of the
effectiveness of a Shelf Registration Statement with respect to
such Initial Notes or Private Exchange Notes, as the case may be,
all requirements pertaining to legends on such Initial Notes or
such Private Exchange Notes with respect to such Notes
transferred will cease to apply and Initial Notes or Private
Exchange Notes in global form, in each case without restrictive
transfer legends, will be available to the transferee of the
Holder of such Initial Notes or Private Exchange Notes upon
written directions to transfer such Holder's interest in the
Global Note.
(iv) Upon the consummation of a Registered Exchange Offer
with respect to the Initial Notes, Exchange Notes in global form
will be available to Holders that exchange such Initial Notes in
such Registered Exchange Offer.
(v) Upon the consummation of a Private Exchange with
respect to the Initial Notes, all requirements pertaining to such
Initial Notes that Initial Notes issued to certain Holders be
issued in global form will still apply with respect to Holders of
such Initial Notes that do not exchange their Initial Notes, and
Private Exchange Notes in global form with the global securities
legend and the Restricted Notes Legend set forth in Exhibit 1
hereto will be available to Holders that exchange such Initial
Notes in such Private Exchange.
(c) CANCELLATION OR ADJUSTMENT OF GLOBAL NOTE. At such
time as all beneficial interests in a Global Note have either been
exchanged for certificated Notes, redeemed, purchased or canceled,
such Global Note shall be returned to the Depository for cancellation
or retained and canceled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged
for certificated Notes, redeemed, purchased or canceled, the principal
amount of Notes represented by such Global Note shall be reduced and
an adjustment shall be made on the books and records of the Securities
Custodian with respect to such Global Note.
(d) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF
NOTES.
(i) To permit registrations of transfers and exchanges,
NiSource Finance and the Parent shall execute and the Trustee
shall authenticate certificated Notes and Global Notes at the
Security Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but NiSource Finance and the Parent may
require payment of a sum sufficient to cover any transfer tax,
assessments or similar governmental charge payable in connection
therewith (other than any such transfer taxes, assessments or
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similar governmental charge payable upon exchange or transfer
pursuant to Section 1107 of the Indenture).
(iii) The Security Registrar shall not be required to
register the transfer of or exchange of any Note during a period
of 15 Business Days immediately preceding the date notice is
given of redemption, all in accordance with Section 303 of the
Indenture.
(iv) Prior to the due presentation for registration of
transfer of any Note, NiSource Finance, the Parent, the Trustee,
the Paying Agent or the Security Registrar may deem and treat the
Person in whose name a Note is registered as the absolute owner
of such Note for the purpose of receiving payment of principal of
and interest on such Note and for all other purposes whatsoever,
whether or not such Note is overdue, and none of NiSource
Finance, the Parent, the Trustee, the Paying Agent or the
Security Registrar shall be affected by notice to the contrary.
(v) All Notes issued upon any transfer or exchange pursuant
to the terms of the Indenture shall evidence the same debt and
shall be entitled to the same benefits under the Indenture as the
Notes surrendered upon such transfer or exchange.
(e) NO OBLIGATION OF THE TRUSTEE.
(i) The Trustee shall have no responsibility or obligation
to any beneficial owner of a Global Note, Agent Member or other
Person with respect to the accuracy of the records of the
Depository or its nominee or of any Agent Member, with respect to
any ownership interest in the Notes or with respect to the
delivery to any Agent Member, beneficial owner or other Person
(other than the Depository) of any notice (including any notice
of redemption) or the payment of any amount, under or with
respect to such Notes. All notices and communications to be
given to the Holders and all payments to be made to Holders under
the Notes shall be given or made only to or upon the order of the
registered Holders (which shall be the Depository or its nominee
in the case of a Global Note). The rights of beneficial owners
in any Global Note shall be exercised only through the Depository
subject to the applicable rules and procedures of the Depository.
The Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Agent
Members and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this First Supplemental
Indenture or under applicable law with respect to any transfer of
any interest in any Note (including any transfers between or
among Agent Members or beneficial owners in any Global Note)
other than to require delivery of such certificates and other
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documentation or evidence as are expressly required by, and to do
so if and when expressly required by, the terms of the Indenture.
2.7 CERTIFICATED NOTES.
(a) A Restricted Global Note deposited with the Depository
or with the Trustee as Securities Custodian pursuant to Section 2.4
shall be transferred to the beneficial owners thereof in the form of
certificated Notes in an aggregate principal amount equal to the
principal amount of such Global Note, in exchange for such Global
Note, only if such transfer complies with Section 2.7 and the
conditions set forth in Section 305 of the Indenture.
(b) Any Restricted Global Note that is transferable to the
beneficial owners thereof pursuant to this Section shall be
surrendered by the Depository to the Trustee at its Corporate Trust
Office to be so transferred, in whole or from time to time in part,
without charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Restricted Global Note, an equal
aggregate principal amount of certificated Notes of authorized
denominations. Any portion of a Restricted Global Note transferred
pursuant to this Section shall be executed, authenticated and
delivered only in denominations of $1,000 principal amount and any
integral multiple thereof and registered in such names as the
Depository shall direct. Any certificated Initial Note or Private
Exchange Note delivered in exchange for an interest in the Restricted
Global Note shall, except as otherwise provided by Section 2.6(b),
bear the restricted securities legend set forth in Exhibit 1 hereto.
(c) Subject to the provisions of Section 2.7(b), the
registered Holder of a Global Note shall be entitled to grant proxies
and otherwise authorize any Person, including Agent Members and
Persons that may hold interests through Agent Members, to take any
action which a Holder is entitled to take under the Indenture or the
Notes.
(d) In the event of the occurrence the events specified in
Section 305 of the Indenture, NiSource Finance shall promptly make
available to the Trustee a reasonable supply of certificated Notes in
definitive, fully registered form without interest coupons.
2.8 OPTIONAL REDEMPTION
The Notes of any series are redeemable in whole or in part
at any time at the price set forth in the Notes and under the terms
and conditions set forth in the Notes and Article Eleven of the
Indenture.
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ARTICLE III
EXPENSES
3.1 PAYMENT OF EXPENSES.
In connection with the offering, sale and issuance of the
Notes, NiSource Finance will pay for all costs and expenses relating
to the offering, sale and issuance of the Notes, including
compensation to the Initial Purchasers payable pursuant to the
Purchase Agreement and compensation of the Trustee under the
Indenture.
ARTICLE IV
NOTE GUARANTEE
4.1 GUARANTEE
The obligations of NiSource Finance under the Notes issued
under this First Supplemental Indenture are hereby unconditionally
guaranteed by the Parent as provided under Article Fifteen of the
Indenture.
ARTICLE V
MISCELLANEOUS
5.1 RATIFICATION OF INDENTURE.
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the
manner and to the extent herein and therein provided.
5.2 TRUSTEE NOT RESPONSIBLE FOR RECITALS.
The recitals herein contained are made by NiSource Finance
and the Parent and not by the Trustee, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no
representation as to the validity or sufficiency of this First
Supplemental Indenture.
5.3 GOVERNING LAW.
This First Supplemental Indenture and each Note 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 said 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.
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5.4 SEVERABILITY.
In case any one or more of the provisions contained in this
First Supplemental Indenture or in the Notes 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 Notes, but
this First Supplemental Indenture and the Notes shall be construed as
if such invalid or illegal or unenforceable provision had never been
contained herein or therein.
5.5 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.
-14-
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, on the date or
dates indicated in the acknowledgments and as of the day and year
first above written.
NISOURCE FINANCE CORP.
By: /s/ Gary L. Neale
------------------------------
Name: Gary L. Neale
Title: President
Attest:
/s/ Gary W. Pottorff
------------------------------
Name: Gary W. Pottorff
Title: Secretary
NISOURCE INC.
By: /s/ Stephen P. Adik
------------------------------
Name: Stephen P. Adik
Title: Vice Chairman
Attest:
/s/ Gary W. Pottorff
------------------------------
Name: Gary W. Pottorff
Title: Secretary
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ R. Lorenzen
------------------------------
Name: R. Lorenzen
Title: Assistant Vice President
Attest:
/s/ Diane Darconte
------------------------------
Name: Diane Darconte
Title: Trust Officer
-15-
EXHIBIT 1
to
FIRST SUPPLEMENTAL INDENTURE
[FORM OF FACE OF INITIAL NOTE]
[Global Notes Legend]
UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW
YORK, NEW YORK, TO NISOURCE FINANCE CORP. AND NISOURCE INC. OR THEIR
AGENT OR AGENTS FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY GLOBAL NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF.
[Restricted Notes Legend]
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933
(THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY
NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR
(IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
1
ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED
TO IN (A) ABOVE. IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL
DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND
OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
No.:_______________________________ $__________________________
CUSIP No.:________________________
ISIN No.:_________________________
Common Code No.:__________________
________% Notes Due ______
NiSource Finance Corp., an Indiana corporation, promises to
pay to ____________________________________________, or registered
assigns, the principal sum of ________ Dollars on November 15, 20__.
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November1.
Additional provisions of this Note are set forth on the
other side of this Note.
Dated:
NISOURCE FINANCE CORP.
By:
____________________________
Name:
Title:
By:
____________________________
Name:
Title:
NISOURCE INC.
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
2
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes of the series
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By____________________________________
Authorized Officer
3
[FORM OF REVERSE SIDE OF INITIAL NOTE]
____% Notes Due ____
1. INTEREST
NiSource Finance Corp., an Indiana corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred
to, being herein called the "Company"), promises to pay interest on
the principal amount of this Note at the rate per annum shown above;
provided, however, that if a Registration Default (as defined in the
Registration Rights Agreement) occurs, additional interest will accrue
on this Note at a rate of 0.25% per annum (increasing by an additional
0.25% per annum after each consecutive 90-day period that occurs,
after the date on which such Registration Default occurs up to a
maximum additional interest rate of 1.00% per annum) from and
including the date on which any such Registration Default shall occur
to but excluding the date on which all Registration Defaults have been
cured. The Company will pay interest semiannually on May 15 and
November 15 of each year, commencing May 15, 2001. Interest on the
Notes will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from November 14, 2000.
Interest will be computed on the basis of a 360-day year of twelve
30-day months. The Company will pay interest on overdue principal and
premium at the above rate and will pay interest on overdue
installments of interest at such rate to the extent lawful.
2. METHOD OF PAYMENT
The Company will pay interest on the Notes (except defaulted
interest) to the Persons who are registered Holders of Notes at the
close of business on the May 1 or November 1 next preceding the
Interest Payment Date even if Notes are canceled after the Record Date
and on or before the Interest Payment Date. Holders must surrender
Notes to a Paying Agent to collect principal payments. The Company
will pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private
debts. Payments in respect of the Notes represented by a Global Note
(including principal, premium, if any, and interest) will be made by
wire transfer of immediately available funds to the accounts specified
by The Depository Trust Company. The Company will make all payments
in respect of a certificated Note (including principal, premium, if
any, and interest) by mailing a check to the registered address of
each Holder thereof; PROVIDED, however, that payments on a
certificated Note will be made by wire transfer to a Dollar account
maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to The
Chase Manhattan Bank, a New York corporation (the "Trustee") or the
Paying Agent to such effect designating such account no later than 30
days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
4
3. GUARANTEE
NiSource Inc., a Delaware corporation and parent of the
Company, will fully and unconditionally guarantee to each Holder of
the Notes and to the Trustee and its successors all the Obligations of
the Company under the Notes, including the due and punctual payment of
the principal of, premium, if any, and interest, if any, on the Notes
(the "Security Guarantee"). The Security Guarantee applies whether
the payment is due at Maturity, on an Interest Payment Date or as a
result of acceleration, redemption or otherwise. The Security
Guarantee includes payment of interest on the overdue principal of,
premium, if any, and interest, if any, on the Notes (if lawful) and
all other Obligations of the Company under the Indenture. The
Security Guarantee will remain valid even if the Indenture is found to
be invalid. NiSource Inc. is obligated under the Security Guarantee
to pay any guaranteed amount immediately after the Company's failure
to do so.
4. PAYING AGENT AND SECURITY REGISTRAR
Initially, the Trustee will act as Paying Agent and Security
Registrar. The Company may appoint and change any Paying Agent or
Security Registrar without notice. The Company may act as Paying
Agent or Security Registrar.
5. INDENTURE
The Company issued the Notes under an Indenture and a First
Supplemental Indenture, each dated as of November 14, 2000, and each
among the Company, NiSource Inc. and the Trustee (collectively, the
"Indenture"). The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. sections 77aaa-77bbbb) as in
effect on the date of the Indenture (the "Act"). Capitalized terms
used herein and defined in the Indenture but not defined herein have
the meanings ascribed thereto in the Indenture. The Notes are subject
to all such terms, and Holders of Notes are referred to the Indenture
and the Act for a statement of those terms.
The Notes are senior unsecured obligations of the Company.
The Initial Notes issued on the Issue Date and all Exchange Notes or
Private Exchange Notes issued in exchange therefor will be treated as
a single class for all purposes under the Indenture. The Indenture
contains covenants that limit the ability of the Company, NiSource
Inc. and their Subsidiaries (other than Utilities) to incur
additional indebtedness and create liens on assets unless the total
amount of all the secured debt would not exceed 10% of Consolidated
Net Tangible Assets. These covenants are subject to important
exceptions and qualifications.
5
6. OPTIONAL REDEMPTION
The Company may redeem all or part of the Notes at any time
at its option at a redemption price equal to the greater of (1) the
principal amount of the Notes being redeemed plus accrued interest to
the Redemption Date or (2) the Make-Whole Amount for the Notes of the
series being redeemed.
7. NOTICE OF REDEMPTION
If the Company is redeeming less than all the Notes at any
time, the Trustee will select Notes to be redeemed using a method it
considers fair and appropriate. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the Redemption Date
to each Holder of Notes to be redeemed in accordance with Section 106
of the Indenture. Notes in denominations larger than $1,000 principal
amount may be redeemed in part but only in integral multiples of
$1,000. The Company will not know the exact Redemption Price until
three Business Days before the Redemption Date. Therefore, the notice
of redemption will only describe how the Redemption Price will be
calculated. If money sufficient to pay the Redemption Price of and
accrued interest on all Notes (or portions thereof) to be redeemed on
the Redemption Date is deposited with the Paying Agent on or before
the Redemption Date and certain other conditions are satisfied, on and
after such Redemption Date interest will cease to accrue on such Notes
(or such portions thereof) called for redemption.
8. ADDITIONAL NOTES
The Company may, without the consent of the Holders of the
Notes, create and issue Additional Notes of any series ranking equally
with the Notes of that series in all respects, including having the
same CUSIP number, so that such Additional Notes shall be consolidated
and form a single series with the Notes of that series and shall have
the same terms as to status, redemption or otherwise as the Notes of
that series. No Additional Notes may be issued if an Event of Default
has occurred and is continuing with respect to the Notes.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The Notes are in registered form without coupons in
denominations of $1,000 principal amount and integral multiples of
$1,000. A Holder may transfer or exchange Notes in accordance with
the Indenture. The Security Registrar may require a Holder, among
other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes and fees required by law or permitted
by the Indenture. The Security Registrar need not register the
transfer or exchange of any Notes selected for redemption (except, in
the case of a Note to be redeemed in part, the portion of the Note not
to be redeemed) for a period of 15 days before a selection of Notes to
be redeemed.
6
10. PERSONS DEEMED OWNERS
The registered Holder of this Note may be treated as the
owner of it for all purposes.
11. UNCLAIMED MONEY
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the
money back to the Company at its request. After any such payment,
Holders entitled to the money must look only to the Company and not to
the Trustee, the Paying Agent or NiSource Inc., as guarantor, for
payment.
12. SATISFACTION AND DISCHARGE
Under the Indenture, the Company can terminate its
obligations with respect to the Notes not previously delivered to the
Trustee for cancellation when those Notes have become due and payable
or will become due and payable at their Stated Maturity within one
year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving notice of
redemption. The Company may terminate its obligations with respect to
the Notes by depositing with the Trustee, as trust funds in trust
dedicated solely for that purpose, an amount sufficient to pay and
discharge the entire indebtedness on the Notes. In that case, the
Indenture will cease to be of further effect and the Company's
obligations will be satisfied and discharged with respect to the Notes
(except as to the Company's obligations to pay all other amounts due
under the Indenture and to provide certain Officers' Certificates and
Opinions of Counsel to the Trustee). At the expense of the Company,
the Trustee will execute proper instruments acknowledging the
satisfaction and discharge.
13. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture,
(i) the Indenture and the Notes may be amended with the written
consent of the Holders of at least a majority in principal amount
outstanding of the Notes and (ii) any default or noncompliance with
any provision may be waived with the written consent of the Holders of
a majority in principal amount outstanding of the Notes. Subject to
certain exceptions set forth in the Indenture, without the consent of
any Holder, the Company and the Trustee shall be entitled to amend the
Indenture to cure any ambiguity, omission, defect or inconsistency, or
to evidence the succession of another Person as obligor under the
Indenture, or to add to the Company's or NiSource Inc.'s covenants or
to surrender any right or power conferred on the Company or NiSource
Inc. under the Indenture, or to add events of default, or to secure
the Notes, or to evidence or provide for the acceptance or appointment
by a successor Trustee or facilitate the administration of the trusts
under the Indenture by more than one trustee, or to effect assumption
7
by NiSource Inc. or one of its Subsidiaries of the Company's
obligations under the Indenture, or to conform the Indenture to any
amendment of the Trust Indenture Act.
14. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include: (i) default
by the Company in the payment of any interest upon any Note and the
continuance of such default for 60 days; (ii) default by the Company
in the payment of principal of or any premium on any Note when due at
Maturity, on redemption, by declaration or otherwise, and the
continuance of such default for three Business Days; (iii) default by
the Company or NiSource Inc. in the performance of or breach of any
covenant or warranty in the Indenture and continuance of such default
for 90 days after written notice to the Company or NiSource Inc. from
the Trustee or to the Company, NiSource Inc. and the Trustee from the
Holders of at least 33% in principal amount of the Outstanding Notes;
(iv) default by the Company or NiSource Capital Markets, Inc. under
any bond, debenture, note or other evidence of indebtedness for money
borrowed by the Company or NiSource Capital Markets, Inc., or the
Company or NiSource Capital Markets, Inc. defaults under any mortgage,
indenture or instrument under which there may be issued, secured or
evidenced indebtedness constituting a failure to pay in excess of
$50,000,000 of the principal or interest when due and payable, subject
to certain cure rights; (v) the guarantee by NiSource Inc. ceases to
be in full force and effect or is disaffirmed or denied (other than
according to its terms), or is found to be unenforceable or invalid;
or (vi) certain events of bankruptcy, insolvency or reorganization of
the Company, NiSource Capital Markets, Inc. or NiSource Inc. If an
Event of Default occurs and is continuing, the Trustee or the Holders
of at least 33% in principal amount of the Notes may declare all the
Notes to be due and payable immediately. Certain events of bankruptcy
or insolvency are Events of Default which will result in the Notes
being due and payable immediately upon the occurrence of such Events
of Default.
Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Notes unless it receives indemnity or security
satisfactory to it. Subject to certain limitations, Holders of a
majority in principal amount of the Notes may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing default (except a default in payment
of principal or interest) if it determines that withholding notice is
in the interest of the Holders.
15. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the Act, the
Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Notes and may otherwise deal with
and collect obligations owed to it by the Company or its Affiliates
8
and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of
the Company, NiSource Inc. or the Trustee shall not have any liability
for any obligations of the Company under the Notes or the Indenture,
or any obligations of NiSource Inc. under the Guarantee or the
Indenture, or for any claim based on, in respect of or by reason of
such obligations or their creation. By accepting a Note, each Holder
waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Notes and the
Guarantee.
17. AUTHENTICATION
This Note shall not be valid until an authorized signatory
of the Trustee (or an Authenticating Agent) manually signs the
certificate of authentication on the other side of this Note.
18. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder
or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian), and
U/G/M/A (=Uniform Gift to Minors Act).
19. CUSIP, ISIN AND COMMON CODE NUMBERS
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and has directed the Trustee
to use CUSIP numbers in notices of redemption as a convenience to
Holders. To the extent such numbers have been issued, the Company has
caused ISIN and Common Code numbers to be similarly printed on the
Notes and has similarly instructed the Trustee. No representation is
made as to the accuracy of such numbers either as printed on the Notes
or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
20. HOLDERS' COMPLIANCE WITH REGISTRATION RIGHTS AGREEMENT.
Each Holder of a Note, by acceptance hereof, acknowledges
and agrees to the provisions of the Registration Rights Agreement,
including the obligations of the Holders with respect to a
registration and the indemnification of the Company and NiSource Inc.
to the extent provided therein.
9
21. GOVERNING LAW.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT
TO CONTRARY CONFLICT OF LAWS OR CHOICE OF LAWS PROVISIONS OF THE STATE
OF NEW YORK OR ANY OTHER JURISDICTION.
The Company will furnish to any Holder upon written request
and without charge to the Holder a copy of the Indenture. Requests
may be made to:
NiSource Finance Corp.
801 East 86th Avenue
Merrillville, Indiana 46410
Attention: Secretary
10
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer
this Note on the books of the Company. The agent may substitute
another to act for him.
______________________________________________________________________
Date:____________ Your Signature: ____________________________________
______________________________________________________________________
Sign exactly as your name appears on the other side of this Note.
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the expiration of the period referred
to in Rule 144(k) under the Securities Act after the later of the date
of original issuance of such Notes and the last date, if any, on which
such Notes were owned by the Company or any Affiliate of the Company,
the undersigned confirms that such Notes are being transferred in
accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] pursuant to an effective registration statement
under the Securities Act of 1933; or
(3) [ ] inside the United States to a "qualified
institutional buyer" (as defined in Rule 144A
under the Securities Act of 1933) that purchases
for its own account or for the account of a
qualified institutional buyer to whom notice is
given that such transfer is being made in reliance
on Rule 144A, in each case pursuant to and in
compliance with Rule 144A under the Securities Act
of 1933; or
(4) [ ] outside the United States in an offshore
transaction within the meaning of Regulation S
11
under the Securities Act of 1933 in compliance
with Rule 904 under the Securities Act of 1933; or
(5) [ ] pursuant to the exemption from registration
provided by Rule 144 under the Securities Act of
1933.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the
name of any person other than the registered holder thereof;
provided, however, that if box (4) or (5) is checked, the Trustee
shall be entitled to require, prior to registering any such
transfer of the Notes, such legal opinions, certifications and
other information as the Company or NiSource Inc. has reasonably
requested to confirm that such transfer is being made pursuant to
an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, such as
the exemption provided by Rule 144 under such Act.
-----------------------------------
Signature
Signature Guarantee:
__________________________________ ______________________________
Signature must be guaranteed
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Security Registrar, which
requirements include membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Security Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
______________________________________________________________________
12
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account
is a "qualified institutional buyer" within the meaning of Rule 144A
under the Securities Act of 1933, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company and NiSource Inc. as
the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations
in order to claim the exemption from registration provided by Rule
144A.
Dated:________________________ _____________________________
NOTICE: To be executed by An
executive officer
13
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note
have been made:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Principal Signature of
Amount of Amount of amount of this authorized
decrease in increase Global Note officer of
principal in principal following such Trustee or
Date of amount of this amount of this decrease Securities
Exchange Global Note Global Note or increase Custodian
-------- ------------ -------------- ----------- ----------
</TABLE>
14
EXHIBIT 2
to
FIRST SUPPLEMENTAL INDENTURE
[FORM OF FACE OF EXCHANGE NOTE
OR PRIVATE EXCHANGE NOTE]
*/ **/
- --
_________________________
*/[If the Note is to be issued in global form add the Global Notes
Legend from Exhibit 1 to the First Supplemental Indenture and the
attachment from such Exhibit 1 captioned "[TO BE ATTACHED TO GLOBAL
NOTES] SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE".]
**/[If the Note is a Private Exchange Note issued in a Private
Exchange to an Initial Purchaser holding an unsold portion of its
initial allotment, add the Restricted Securities Legend from Exhibit 1
to the First Supplemental Indenture and replace the Assignment Form
included in this Exhibit A with the Assignment Form included in such
Exhibit 1.]
No.:_______________________________ $__________________________
CUSIP No.:________________________
ISIN No.:_________________________
Common Code No.:__________________
________% Notes Due ______
NiSource Finance Corp., an Indiana corporation, promises to
pay to ____________________, or registered assigns, the principal sum
of ____________________ Dollars on November 15, 20__.
Interest Payment Dates: May 15 and November 15.
15
Record Dates: May 1 and November 1.
Additional provisions of this Note are set forth on the
other side of this Note.
Dated:
NISOURCE FINANCE CORP.
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
NISOURCE INC.
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes of the series referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ___________________________________________
Authorized Officer
16
[FORM OF REVERSE SIDE OF [EXCHANGE NOTE OR PRIVATE
EXCHANGE] NOTE]
__________% Notes Due ______
1. INTEREST
NiSource Finance Corp., an Indiana corporation (such
corporation, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company"), promises
to pay interest on the principal amount of this Note at the rate per
annum shown above. The Company will pay interest semiannually on May
15 and November 15 of each year, commencing May 15, 2001. Interest on
the Notes will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from November 14, 2000.
Interest will be computed on the basis of a 360-day year of twelve
30-day months. The Company will pay interest on overdue principal and
premium at the above rate and will pay interest on overdue
installments of interest at such rate to the extent lawful.
2. METHOD OF PAYMENT
The Company will pay interest on the Notes (except defaulted
interest) to the Persons who are registered Holders of Notes at the
close of business on the May 1 or November 1 next preceding the
Interest Payment Date even if Notes are canceled after the Record Date
and on or before the Interest Payment Date. Holders must surrender
Notes to a Paying Agent to collect principal payments. The Company
will pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private
debts. Payments in respect of the Notes represented by a Global Note
(including principal, premium, if any, and interest) will be made by
wire transfer of immediately available funds to the accounts specified
by The Depository Trust Company. The Company will make all payments
in respect of a certificated Note (including principal, premium, if
any, and interest) by mailing a check to the registered address of
each Holder thereof; PROVIDED, however, that payments on a
certificated Note will be made by wire transfer to a Dollar account
maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to The
Chase Manhattan Bank, a New York corporation (the "Trustee") or the
Paying Agent to such effect designating such account no later than 30
days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
3. GUARANTEE
NiSource Inc., a Delaware corporation, and parent of the
Company, will fully and unconditionally guarantee to each Holder of
the Notes and to the Trustee and its successors all the Obligations of
17
the Company under the Notes, including the due and punctual payment of
the principal of, premium, if any, and interest, if any, on the Notes
(the "Security Guarantee"). The Security Guarantee applies whether
the payment is due at Maturity, on an Interest Payment Date or as a
result of acceleration, redemption or otherwise. The Security
Guarantee includes payment of interest on the overdue principal of,
premium, if any, and interest, if any, on the Notes (if lawful) and
all other Obligations of the Company under the Indenture. The
Security Guarantee will remain valid even if the Indenture is found to
be invalid. NiSource Inc. is obligated under the Security Guarantee
to pay any guaranteed amount immediately after the Company's failure
to do so.
4. PAYING AGENT AND SECURITY REGISTRAR
Initially, the Trustee will act as Paying Agent and Security
Registrar. The Company may appoint and change any Paying Agent or
Security Registrar without notice. The Company may act as Paying
Agent or Security Registrar.
5. INDENTURE
The Company issued the Notes under an Indenture and a First
Supplemental Indenture, each dated as of November 14, 2000, and each
among the Company, NiSource Inc. and the Trustee (collectively, the
"Indenture"). The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa- 77bbbb) as in
effect on the date of the Indenture (the "Act"). Capitalized terms
used herein and defined in the Indenture but not defined herein have
the meanings ascribed thereto in the Indenture. The Notes are subject
to all such terms, and Note holders are referred to the Indenture and
the Act for a statement of those terms.
The Notes are senior unsecured obligations of the Company.
The Initial Notes issued on the Issue Date and all Exchange Notes or
Private Exchange Notes issued in exchange therefor will be treated as
a single class for all purposes under the Indenture. The Indenture
contains covenants that limit the ability of the Company, NiSource
Inc. and their Subsidiaries (other than Utilities) to incur additional
indebtedness and create liens on assets unless the total amount of all
the secured debt would not exceed 10% of the Consolidated Net Tangible
Assets. These covenants are subject to important exceptions and
qualifications.
6. OPTIONAL REDEMPTION
The Company may redeem all or part of the Notes at any time
at its option at a redemption price equal to the greater of (1) the
principal amount of the Notes being redeemed plus accrued interest to
the Redemption Date or (2) the Make-Whole Amount for the Notes of the
series being redeemed.
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7. NOTICE OF REDEMPTION
If the Company is redeeming less than all the Notes at any
time, the Trustee will select Notes to be redeemed using a method it
considers fair and appropriate. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the Redemption Date
to each Holder of Notes to be redeemed in accordance with Section 106
of the Indenture. Notes in denominations larger than $1,000 principal
amount may be redeemed in part but only in integral multiples of
$1,000. The Company will not know the exact Redemption Price until
three Business Days before the Redemption Date. Therefore, the notice
of redemption will only describe how the Redemption Price will be
calculated. If money sufficient to pay the Redemption Price of and
accrued interest on all Notes (or portions thereof) to be redeemed on
the Redemption Date is deposited with the Paying Agent on or before
the Redemption Date and certain other conditions are satisfied, on and
after such Redemption Date interest will cease to accrue on such Notes
(or such portions thereof) called for redemption.
8. ADDITIONAL NOTES
The Company may, without the consent of the Holders of the
Notes, create and issue Additional Notes of any series ranking equally
with the Notes of that series in all respects, including having the
same CUSIP number, so that such Additional Notes shall be consolidated
and form a single series with the Notes of that series and shall have
the same terms as to status, redemption or otherwise as the Notes of
that series. No Additional Notes may be issued if an Event of Default
has occurred and is continuing with respect to the Notes.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The Notes are in registered form without coupons in
denominations of $1,000 principal amount and integral multiples of
$1,000. A Holder may transfer or exchange Notes in accordance with
the Indenture. The Security Registrar may require a Holder, among
other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes and fees required by law or permitted
by the Indenture. The Security Registrar need not register the
transfer or exchange of any Notes selected for redemption (except, in
the case of a Note to be redeemed in part, the portion of the Note not
to be redeemed) for a period of 15 days before a selection of Notes to
be redeemed.
10. PERSONS DEEMED OWNERS
The registered Holder of this Note may be treated as the
owner of it for all purposes.
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11. UNCLAIMED MONEY
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the
money back to the Company at its request. After any such payment,
Holders entitled to the money must look only to the Company and not to
the Trustee, the Paying Agent or NiSource Inc., as guarantor, for
payment.
12. SATISFACTION AND DISCHARGE
Under the Indenture, the Company can terminate its
obligations with respect to the Notes not previously delivered to the
Trustee for cancellation when those Notes have become due and payable
or will become due and payable at their Stated Maturity within one
year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving notice of
redemption. The Company may terminate its obligations with respect to
the Notes by depositing with the Trustee, as trust funds in trust
dedicated solely for that purpose, an amount sufficient to pay and
discharge the entire indebtedness on the Notes. In that case, the
Indenture will cease to be of further effect and the Company's
obligations will be satisfied and discharged with respect to the Notes
(except as to the Company's obligations to pay all other amounts due
under the Indenture and to provide certain Officers' Certificates and
Opinions of Counsel to the Trustee). At the expense of the Company,
the Trustee will execute proper instruments acknowledging the
satisfaction and discharge.
13. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture,
(i) the Indenture and the Notes may be amended with the written
consent of the Holders of at least a majority in principal amount
outstanding of the Notes and (ii) any default or noncompliance with
any provision may be waived with the written consent of the Holders of
a majority in principal amount outstanding of the Notes. Subject to
certain exceptions set forth in the Indenture, without the consent of
any Holder, the Company and the Trustee shall be entitled to amend the
Indenture or the Notes to cure any ambiguity, omission, defect or
inconsistency, or to evidence the succession of another Person as
obligor under the Indenture, or to add to the Company's or NiSource
Inc.'s covenants or to surrender any right or power conferred on the
Company or NiSource Inc. under the Indenture, or to add events of
default, or to secure the Notes, or to evidence or provide for the
acceptance or appointment by a successor Trustee or facilitate the
administration of the trusts under the Indenture by more than one
trustee, or to effect assumption by NiSource Inc. or one of its
Subsidiaries of the Company's obligations under the Indenture, or to
conform the Indenture to any amendment of the Trust Indenture Act.
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14. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include: (i) default
by the Company in the payment of any interest upon any Note and the
continuance of such default for 60 days; (ii) default by the Company
in the payment of principal of or any premium on any Note when due at
Maturity, on redemption, by declaration or otherwise, and the
continuance of such default for three Business Days; (iii) default by
the Company or NiSource Inc. in the performance of or breach of any
covenant or warranty in the Indenture and the continuace of such
defaiult for 90 days after written notice to the Company or NiSource
Inc. from the Trustee or to the Company, NiSource Inc. and the Trustee
from the Holders of at least 33% of the Outstanding Notes; (iv)
default by the Company or NiSource Capital Markets, Inc. under any
bond, debenture, note or other evidence of indebtedness for money
borrowed by the Company or NiSource Capital Markets, Inc., or the
Company or NiSource Capital Markets, Inc. defaults under any mortgage,
indenture or instrument under which there may be issued, secured or
evidenced indebtedness constituting a failure to pay in excess of
$50,000,000 of the principal or interest when due and payable, subject
to certain cure rights; (v) the guarantee by NiSource Inc. ceases to
be in full force and effect or is disaffirmed or denied (other than
according to its terms), or is found to be unenforceable or invalid;
(vi) or certain events of bankruptcy, insolvency or reorganization of
the Company, NiSource Capital Markets, Inc. or NiSource Inc. If an
Event of Default occurs and is continuing, the Trustee or the Holders
of at least 33% in principal amount of the Notes may declare all the
Notes to be due and payable immediately. Certain events of bankruptcy
or insolvency are Events of Default which will result in the Notes
being due and payable immediately upon the occurrence of such Events
of Default.
Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Notes unless it receives indemnity or security
satisfactory to it. Subject to certain limitations, Holders of a
majority in principal amount of the Notes may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing default (except a default in payment
of principal or interest) if it determines that withholding notice is
in the interest of the Holders.
15. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the Act, the
Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Notes and may otherwise deal with
and collect obligations owed to it by the Company or its Affiliates
and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not Trustee.
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16. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of
the Company, NiSource Inc. or the Trustee shall not have any liability
for any obligations of the Company under the Notes or the Indenture,or
any obligations of NiSource Inc. under the Guarantee or the Indenture,
or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note, each Holder
waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Notes and the
Guarantee.
17. AUTHENTICATION
This Note shall not be valid until an authorized signatory
of the Trustee (or an Authenticating Agent) manually signs the
certificate of authentication on the other side of this Note.
18. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder
or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian), and
U/G/M/A (=Uniform Gift to Minors Act).
19. CUSIP, ISIN AND COMMON CODE NUMBERS
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and has directed the Trustee
to use CUSIP numbers in notices of redemption as a convenience to
Holders. To the extent such numbers have been issued, the Company has
caused ISIN and Common Code numbers to be similarly printed on the
Notes and has similarly instructed the Trustee. No representation is
made as to the accuracy of such numbers either as printed on the Notes
or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
20. HOLDERS' COMPLIANCE WITH REGISTRATION RIGHTS AGREEMENT
Each Holder of a Note, by acceptance hereof, acknowledges
and agrees to the provisions of the Registration Rights Agreement,
including the obligations of the Holders with respect to a
registration and the indemnification of the Company and NiSource
Inc.to the extent provided therein.
21. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT
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TO CONTRARY CONFLICT OF LAWS OR CHOICE OF LAWS PROVISIONS OF THE STATE
OF NEW YORK OR ANY OTHER JURISDICTION.
The Company will furnish to any Holder upon written request
and without charge to the Holder a copy of the Indenture. Requests
may be made to:
NiSource Finance Corp.
801 East 86th Avenue
Merrillville, Indiana 46410
Attention: Secretary
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to
transfer this Note on the books of the Company. The agent may
substitute another to act for him.
______________________________________________________________________
Date:___________________ Your Signature: _____________________________
______________________________________________________________________
Sign exactly as your name appears on the other side of this Note.
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EXHIBIT 3
to
FIRST SUPPLEMENTAL INDENTURE
[FORM OF GUARANTEE]
NiSource Inc. irrevocably and unconditionally guarantees the
Obligations of NiSource Finance Corp., an Indiana corporation (the
"Company") under the ____% Notes due 20__ (the "Notes") of the
Company, including that (i) the principal of, premium, if any, and
interest on the Notes shall be promptly paid in full when due, whether
at Stated Maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of, premium, if any, and interest on
the Notes, if lawful, and all other Obligations of the Company to the
Holders or the Trustee shall be promptly paid in full or performed,
and (ii) in case of any extension of time of payment or renewal of any
Notes or any such other Obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at Stated Maturity, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed or
any performance so guaranteed, NiSource Inc. shall be obligated to pay
or perform the same immediately.
The obligations of NiSource Inc. to the Holders and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set
forth in Article Fifteen of the Indenture, and reference is hereby
made to such Indenture for the precise terms of this Guarantee.
No stockholder, employee, officer, director or incorporator,
as such, past, present or future, of NiSource Inc. shall have any
liability under this Guarantee by reason of his or its status as such
stockholder, employee, officer, director or incorporator.
This Guarantee and shall remain in full force and effect and
continue notwithstanding any petition filed by or against the Company
for liquidation or reorganization.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which
this Guarantee is noted shall have been executed by the Trustee under
the Indenture by the manual signature of one of its authorized
officers.
THE TERMS OF ARTICLE FIFTEEN OF THE INDENTURE ARE
INCORPORATED HEREIN BY REFERENCE.
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Capitalized terms used herein have the same meanings given
in the Indenture unless otherwise indicated.
NISOURCE INC.
By:_____________________________________
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