THIS
AMENDMENT NO. 1 TO NOTE PURCHASE AGREEMENT (the
“Amendment”) is made as of November 10, 2008, by
and among NISOURCE FINANCE CORP. (“NFC”), NISOURCE INC.
(the “Company”) and the purchasers whose names appear
on the signature pages hereto (collectively, the
“Purchasers”) under that certain Note Purchase
Agreement dated as of August 23, 2005, by and among NFC, the
Company and the other parties thereto (as further amended,
supplemented or otherwise modified from time to time, the
“Note Purchase Agreement”). Defined terms used herein
and not otherwise defined herein shall have the meaning given to
them in the Note Purchase Agreement.
WHEREAS,
NFC and the Company have requested that the Purchasers amend the
Note Purchase Agreement on the terms and conditions set forth
herein;
WHEREAS,
NFC, the Company and the requisite number of Purchasers under
Section 17.1(a) of the Note Purchase Agreement have
agreed to amend the Note Purchase Agreement on the terms and
conditions set forth herein;
NOW,
THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto have agreed to the
following:
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1.
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Amendments to the Note Purchase
Agreement .
Effective as of November 10, 2008 and subject to the
satisfaction of the condition precedent set forth in
Section 2 below, the Note Purchase Agreement is hereby
amended as follows:
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1.1.
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Schedule B
of the Note Purchase
Agreement is amended to insert alphabetically therein the following
defined term:
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“
Principal Bank Facility ” means (i) the Amended
and Restated Revolving Credit Agreement among NiSource Finance
Corp., as Borrower, NiSource Inc., as Guarantor, the lender parties
thereto as Lenders, Credit Suisse as Syndication Agent, JPMorgan
Chase Bank, N.A., The Bank Of Tokyo-Mitsubishi UFJ, Ltd., Chicago
Branch and Citicorp USA, Inc., as Co-Documentation Agents and
Barclays Bank PLC, as Administrative Agent and LC Bank dated
July 7, 2006, as amended as of September 19, 2008, or
(ii) any other bank credit facility of either of the Obligors
in a principal amount of $500,000,000 or more; in each case,
as
such
agreement may be further amended, modified, supplemented, extended
or renewed from time to time.
“
Tawney Litigation ” means Estate of Garrison G.
Tawney, et al. v. Columbia Natural Resources, LLC, et al., Civil
Action No. 03-C-10E (Circuit Court of Roane County, West
Virginia), petition for writ of certiorari, NiSource Inc., et al.
v. Estate of Tawney, et al., U.S. Supreme Court No. 08-219 and
No. 08-228.
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1.2.
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Section 10.4(i)
of the Note Purchase
Agreement is amended and restated in its entirety as
follows:
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Any Lien,
other than a Lien described in any of the foregoing clauses
(a) through (h), inclusive, to the extent that it secures Debt
for Borrowed Money, or guaranties thereof, the outstanding
principal balance of which at the time of creation of such Lien,
when added to the aggregate principal balance of all Debt for
Borrowed Money secured by Liens incurred under this clause
(i) then outstanding, does not exceed 10% of Consolidated Net
Tangible Assets; provided, however, that the Obligors will not
permit the obligations of the Obligors under any Principal Bank
Facility to be secured by a Lien of the type described in this
Section 10.4(i) unless the Notes shall be substantially
concurrently secured equally and ratably with the obligations under
such Principal Bank Facility secured by such Lien pursuant to
documentation in the form and substance reasonably satisfactory to
the Required Holders, which security shall be automatically
released upon the release of the Lien securing each secured
Principal Bank Facility.
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1.3.
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Section 11(i)
of the Note Purchase
Agreement is amended and restated in its entirety as
follows:
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a final
judgment or judgments for the payment of money aggregating in
excess of $75,000,000 are rendered against one or more of an
Obligor or its Subsidiaries and either (i) such judgments are
not, within 60 days after entry thereof, bonded, discharged or
stayed pending appeal, or are not discharged within 60 days
after the expiration of such stay or subject to an insured claim by
such Obligor or Subsidiary, except that, with respect to the Tawney
Litigation, neither (x) expiration or any other failure of a stay
to be in place prior to July 1, 2009 nor (y) entry of a
judgment by the Roane County Circuit Court of West Virginia
approving or implementing the terms of a settlement agreement among
the parties to the Tawney Litigation so long as a settlement
agreement is in place and the terms of such settlement agreement
are being complied with by the Company, shall have any effect under
this Section 11(i) , either as a Default or an Event of
Default or (ii) enforcement proceedings shall have been
commenced by any creditor upon such judgments; or
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2.
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Condition of
Effectiveness . The effectiveness of this
Amendment is subject to the condition precedent that the Company
shall have received duly executed originals of this Amendment from
each of NFC, the Company and the requisite number of Purchasers
under Section 17.1(a) of the Note Purchase
Agreement.
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3.
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Representations and Warranties of
NFC and the Company . Each of NFC and the Company
hereby represents and warrants as follows:
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(a)
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Each of NFC and the Company hereby
represents and warrants that this Amendment and the Note Purchase
Agreement as previously executed and as modified hereby constitute
legal, valid and binding obligations of NFC and the Company and are
enforceable against NFC and the Company in accordance with their
terms (except as enforceability may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of
creditors’ rights generally).
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(b)
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Upon the effectiveness of this
Amendment and after giving effect hereto, each of NFC and the
Company hereby (i) reaffirms all covenants, representations
and warranties made in the Note Purchase Agreement as modified
hereby, and agrees that all such covenants, representations and
warranties shall be deemed to have been remade as of the date of
this Amendment except that any such covenant, representation, or
warranty that was made as of a specific date shall be considered
reaffirmed only as of such date and (ii) certifies to the
Purchasers that no Default has occurred and is
continuing.
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4.
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Reference to the Effect on the Note
Purchase Agreement .
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4.1.
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Upon the effectiveness of this
Amendment, on and after the date hereof, each reference in the Note
Purchase Agreement (including any reference therein to “this
Note Purchase Agreement,” “hereunder,”
“hereof,” “herein” or words of like import
referring thereto) or in any other Credit Document shall mean and
be a reference to the Note Purchase Agreement as modified
hereby.
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4.2.
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Except as specifically modified
above, the Note Purchase Agreement and all other documents,
instruments and agreements executed and/or delivered in connection
therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
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4.3.
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The
execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of any Purchaser,
nor constitute a waiver of any provision of the Note Purchase
Agreement
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