EXHIBIT 4.4
FORM OF DEBENTURE
(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 hereinafter referred to and
is registered in the name of a Depositary or a nominee of a 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
Depository Trust Company, a New York corporation located at 55 Water Street, New
York, New York 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 Depository
Trust Company and any payment hereon is made to Cede & Co., or to such other
entity as is requested by an authorized representative of The Depository Trust
Company, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.]
No.________________ $______________
CUSIP No.__________
____% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE, SERIES A
DUE _______, 2026
NIPSCO Capital Markets, Inc, an Indiana corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ___________________________, or
registered assigns, the principal sum of ______________ Dollars on _________,
2026, and to pay interest on said principal sum from ___________, 1996, 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 (subject
to deferral as set forth herein) in arrears on March 31, June 30, September 30
and December 31 of each year commencing March 31, 1996, at the rate of _____%
per annum until the principal hereof 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 on any Interest Payment Date shall be computed on
the basis of a 360-day year of twelve 30-day months. In the event that any date
on which interest is payable on this Debenture is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date. The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to
the person in whose name this Debenture (or one or more Predecessor Securities,
as defined in said Indenture) is registered at the close of business on the
regular record date for such interest installment, which, subject to the
following sentence, shall be the close of business on the business day next
preceding such Interest Payment Date. If pursuant to Section 305 of the
Indenture this series of Debentures is no longer represented by a Global
Security, the Company may select a regular record date for such interest
installment which shall be any date at least one Business Day before an Interest
Payment Date. Interest payable on redemption or maturity shall be payable to
the person to whom the principal is paid. Any such interest installment not
punctually paid or duly provided for shall forthwith 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 for
the payment of such defaulted interest, notice whereof shall be given to the
registered Holder of this Debenture 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
premium, if any) and the 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, however, 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.
The indebtedness evidenced by this Debenture is, to the extent provided in the
Indenture, subordinate and junior in right of payment to the prior payment in
full of all Senior Indebtedness, as defined in the Indenture, and this Debenture
is issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Debenture, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his or her
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
The indebtedness evidenced by this Debenture is entitled to the benefits of a
Support Agreement, dated as of April 4, 1989, as amended as of May 15, 1989,
December 10, 1990, and February 14, 1991 (as such Agreement may be hereafter
amended, modified or supplemented from time to time in accordance with the terms
and conditions of the Indenture, the "Support Agreement") between the Company
and NIPSCO Industries, Inc. ("Industries"). The Support Agreement provides
that, during the term thereof, (i) Industries will own all of the voting stock
of the Company, (ii) Industries will cause the Company to have at all times a
positive net worth (net assets less intangible assets, if any), as determined in
accordance with generally accepted accounting principles, and (iii) if the
Company is unable to make timely payment of principal of or any premium or
interest on any Debt (as defined below) issued by the Company, Industries will,
at the request of the Company or any Lender (as defined below), provide funds to
the Company to make such payments. The Support Agreement also provides that any
Lender to the Company shall have the right to demand that the Company enforce
its rights against Industries under the Support Agreement as described in the
previous sentence, and in the event that the Company fails to require Industries
to perform
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such obligations or the Company defaults in the timely payment of principal of
or any premium or interest on any Debt owed to a Lender, such Lender may proceed
directly against Industries to enforce the Company's rights against Industries
under the Support Agreement or to obtain payment of such defaulted principal,
premium or interest owed to such Lender.
The Support Agreement provides that in no event may any Lender, on default of
the Company or Industries or upon failure by the Company or Industries to comply
with the Support Agreement, have recourse to or against the stock or assets of
Northern Indiana Public Service Company (``Northern Indiana'') or any interest
of the Company or Industries therein. Notwithstanding this limitation, the
Support Agreement provides that funds available to Industries to satisfy any
obligations under the Support Agreement will include cash dividends paid by
Northern Indiana to Industries.
The term "Debt" is defined in the Support Agreement as debt securities or other
obligations and includes the Debentures. The term "Lender"is defined in the
Support Agreement as any person, firm or corporation to which the Company is
indebted for money borrowed or to which the Company otherwise owes any Debt or
which is acting as trustee or authorized representative on behalf of such
person, firm or corporation. The Indenture provides that each Holder of a
Debenture, as well as the Trustee, shall be considered a "Lender" for purposes
of the Support Agreement and shall have all rights of a "Lender" set forth
therein.
The Support Agreement may be amended or terminated at any time by the agreement
of Industries and the Company, provided that (i) no amendment regarding the
terms described above may be made unless all Lenders consent in advance and in
writing to such amendment, (ii) no amendment regarding any other term of the
Support Agreement may be made in a manner that adversely affects the rights of
Lenders unless all affected Lenders consent in advance and in writing to such
amendment, and (iii) no termination shall be effective until such time as all
Debt (including the Debentures) shall have been paid in full.
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
Unless the Certificate of Authentication hereon has been executed by the Trustee
referred to on the reverse side hereof, 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 hereof and
such continued provisions shall for all purposes have the same effect as though
fully set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated:____________________
NIPSCO CAPITAL MARKETS, INC.
By:_________________________
Attest:
By:_______________________
(Assistant) Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This Debenture is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
CHEMICAL BANK,
as Trustee
By:_________________________________
Authorized Officer
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(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Securities of the Company
(herein sometimes referred to as the "Debentures"), specified in the Indenture,
all issued or to be issued in one or more series under and pursuant to an
Indenture dated as of January ___, 1996, duly executed and delivered between the
Company, Industries and Chemical Bank, as Trustee (the "Trustee"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the
Debentures. By the terms of the Indenture, the Debentures 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 Debentures is
limited in aggregate principal amount as specified in the Board Resolution
establishing such series of Debentures.
The Company shall have the right to redeem this Debenture at the option of the
Company, in whole or in part, at any time on or after ____________, 2006 (an
"Optional Redemption") at a redemption price (the "Optional Redemption Price")
equal to the percentage of the principal amount set forth below if redeemed
during the 12-month period beginning ______________ of the years indicated:
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
------- ------------ ------- ----------
2006 % 2011 %
2007 2012
2008 2013
2009 2014
2010 2015
and thereafter at 100% of the principal amount thereof, in each case together
with accrued and unpaid interest, if any, to the date of redemption. Any
redemption pursuant to this paragraph will be made upon not less than 30 nor
more than 60 days' notice at the Optional Redemption Price. If the Debentures
are only partially redeemed by the Company pursuant to an Optional Redemption,
the Debentures will be redeemed pro rata or by lot or by any other method
utilized by the Trustee; provided that if, at the time of redemption, the
Debentures are registered as a Global Security, the Depositary shall determine
by lot the principal amount of such Debentures held by each Debentureholder to
be redeemed.
In the event of redemption of this Debenture in part only, a new Debenture or
Debentures of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, 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.
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The Indenture contains provisions permitting the Company and the Trustee, with
the consent of the Holders of not less than a majority in aggregate principal
amount of the Debentures of each series 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, however, that
no such supplemental indenture shall (i) extend the fixed maturity of any
Debentures of any series, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof, without the consent of the Holder of each
Debenture so affected, or (ii) reduce the aforesaid percentage of Debentures,
the Holders of which are required to consent to any such supplemental indenture,
without the consent of the Holders of each Debenture then outstanding and
affected thereby. The Indenture also contains provisions permitting the Holders
of a majority in aggregate principal amount of the Debentures of any series at
the time outstanding affected thereby, on behalf of all of the Holders of the
Debentures of such series, 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 such series, and its consequences, except a default in
the payment of the principal of or premium, if any, or interest on any of the
Debentures of such series. Any such consent or waiver by the 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 herefor or in place
hereof (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 herein 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 herein prescribed.
The Company shall have the right at any time during the term of the Debentures
from time to time to extend the interest payment period of such Debentures to up
to 20 consecutive quarters (an "Extended Interest Payment Period"), at the end
of which period the Company shall pay all interest then accrued and unpaid
(together with interest thereon compounded quarterly at the rate specified for
the Debentures to the extent that payment of such interest is enforceable under
applicable law); provided that, during such Extended Interest Payment Period,
the Company shall not declare or pay any dividend on, or purchase, acquire or
make a liquidation payment with respect to, any of its capital stock, or make
any payment of interest, principal or premium, if any, on or repay, repurchase,
redeem or otherwise acquire or make any sinking fund payment for the purchase or
redemption of any debt securities issued by the Company that rank pari passu
with or junior to the Debentures, or make any guarantee payments with respect to
any of the foregoing. Before the termination of any such Extended Interest
Payment Period, the Company may further extend such Extended Interest Payment
Period, provided that such Extended Interest Payment Period, together with all
previous and further extensions thereof, shall not exceed 20 consecutive
quarters or extend beyond the maturity of the Debentures. At the termination of
any such Extended Interest Payment Period and upon the payment of all accrued
and unpaid interest and any additional amounts then due, the Company may
commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein set
forth, this Debenture is transferable by the registered Holder hereof on the
Security Register of the Company, upon
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surrender of this Debenture for registration of transfer at the office or agency
of the Company in the City and State of New York accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company or the
Trustee duly executed by the registered Holder hereof or his or her attorney
duly authorized in writing, and thereupon one or more new Debentures of
authorized denominations and for the same aggregate principal amount and series
will be issued to the designated transferee or transferees. No service charge
will be made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this Debenture, the
Company, the Trustee, any paying agent and any Security Registrar may deem and
treat the registered Holder hereof as the absolute owner hereof (whether or not
this Debenture shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for the purpose
of receiving payment of or on account of the principal hereof and premium, if
any, and interest due hereon and for all other purposes, and neither the Company
nor the Trustee nor any paying agent nor any Security Registrar shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the interest on
this Debenture, or for any claim based hereon, or otherwise in respect hereof,
or based on or in respect of the Indenture, against any officer or director,
past, present or future, as such, of the Company or of any predecessor or
successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issuance hereof, expressly waived and released.
The Debentures of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. [This
Global Security is exchangeable for Debentures in definitive form only under
certain limited circumstances set forth in the Indenture. Debentures of this
series so issued are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.] As provided in the
Indenture and subject to certain limitations herein and therein 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.
All terms used in this Debenture that are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
______________________________________________________________________________
(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE)
______________________________________________________________________________
______________________________________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
the within Debenture and all rights thereunder, hereby irrevocably constituting
and appointing such person attorney to transfer such Debenture on the books of
the Issuer, with full power of substitution in the premises.
Dated:_________________ ______________________________________
(Signature)
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Debenture in every particular, without
alteration or enlargement or any change whatever; Signature(s) must be
guaranteed by a financial institution that is a member of the Securities
Transfer Agents Medallion Program ("STAMP"), the Stock Exchange Medallion
Program ("SEMP") or the New York Stock Exchange, Inc. Medallion Signature
Program ("MSP").
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