UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[ X ] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended June 30, 1998
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from to
Commission file number 1-7296
NORTHERN ILLINOIS GAS COMPANY
(Doing business as Nicor Gas Company)
(Exact name of registrant as specified in its charter)
Illinois 36-2863847
(State of incorporation) (I.R.S. Employer
Identification No.)
1844 Ferry Road
Naperville, Illinois 60563-9600
(Address of principal (Zip Code)
executive offices)
(630) 983-8888
(Registrant's telephone number)
The registrant meets the conditions set forth in General Instruction H(1)(a)
and (b) of Form 10-Q and is therefore filing this Form with a reduced
disclosure format.
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Shares of common stock, par value $5, outstanding at July 31, 1998, were
15,232,414, all of which are owned by Nicor Inc.
Nicor Gas Company Page i
Table of Contents
Page
Part I. Financial Information
Item 1. Financial Statements (Unaudited) 1
Consolidated Statement of Income -
Three, Six and Twelve Months Ended
June 30, 1998 and 1997 2
Consolidated Statement of Cash Flows -
Six and Twelve Months Ended
June 30, 1998 and 1997 3
Consolidated Balance Sheet -
June 30, 1998 and 1997, and
December 31, 1997 4
Notes to the Consolidated Financial Statements 5
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of
Operations 7
Part II. Other Information
Item 1. Legal Proceedings 10
Item 6. Exhibits and Reports on Form 8-K 10
Signature 11
Exhibit Index 12
Selected Terms:
Ill.C.C. - Illinois Commerce Commission.
Mcf, Bcf - Thousand cubic feet, billion cubic feet.
Degree days - The extent to which the daily average
temperature falls below 65 degrees
Fahrenheit.
Nicor Gas Company Page 1
PART I - Financial Information
Item 1. Financial Statements
The following condensed unaudited financial statements of Nicor Gas
have been prepared by the company pursuant to the rules and
regulations of the Securities and Exchange Commission (SEC).
Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted pursuant to
SEC rules and regulations. The condensed financial statements
should be read in conjunction with the financial statements and the
notes thereto included in the company's latest Annual Report on
Form 10-K.
The information furnished reflects, in the opinion of the company,
all adjustments (consisting only of normal recurring adjustments)
necessary for a fair statement of the results for the interim
periods presented. Because of seasonal and other factors, the
results for the interim periods presented are not necessarily
indicative of the results to be expected for the full fiscal year.
<TABLE>
Nicor Gas Company Page 2
Consolidated Statement of Income (Unaudited)
(Millions)
<CAPTION>
Three months ended Six months ended Twelve months ended
June 30 June 30 June 30
1998 1997 1998 1997 1998 1997
<S> <C> <C> <C> <C> <C> <C>
Operating revenues $ 214.8 $ 244.0 $ 719.1 $1,063.9 $1,385.7 $1,736.9
Operating expenses
Cost of gas 96.1 116.8 414.3 722.3 821.0 1,134.8
Operating and maintenance 35.3 37.1 69.4 74.5 145.7 153.9
Depreciation 19.8 19.4 69.4 68.1 117.9 115.5
Taxes, other than income taxes 19.9 22.7 62.8 82.6 104.1 124.3
Income taxes 12.5 14.3 30.0 35.2 56.3 60.4
183.6 210.3 645.9 982.7 1,245.0 1,588.9
Operating income 31.2 33.7 73.2 81.2 140.7 148.0
Other income (expense)
Interest income .2 .8 .2 .8 .8 .8
Other, net 3.4 .2 5.1 .3 11.9 1.7
Income taxes on other income (1.4) (.3) (2.0) (.4) (4.8) (.6)
2.2 .7 3.3 .7 7.9 1.9
Interest expense
Interest on debt, net of amounts
capitalized 9.6 9.9 21.9 22.4 45.4 46.7
Other .3 .3 .6 .6 1.2 .8
9.9 10.2 22.5 23.0 46.6 47.5
Net income 23.5 24.2 54.0 58.9 102.0 102.4
Dividends on preferred stock .2 .1 .3 .2 .5 .5
Earnings applicable to common stock $ 23.3 $ 24.1 $ 53.7 $ 58.7 $ 101.5 $ 101.9
<F1>
Nicor Gas is a wholly owned subsidiary of Nicor Inc. Earnings and dividends per share information is therefore
omitted.
<F2>
The accompanying notes are an integral part of this statement.
</TABLE>
<TABLE>
Nicor Gas Company Page 3
Consolidated Statement of Cash Flows (Unaudited)
(Millions)
<CAPTION>
Six months ended Twelve months ended
June 30 June 30
1998 1997 1998 1997
Operating activities
<S> <C> <C> <C> <C>
Net income $ 54.0 $ 58.9 $ 102.0 $ 102.4
Adjustments to reconcile net income to net cash flow
provided from operating activities:
Depreciation 69.4 68.1 117.9 115.5
Deferred income tax expense (benefit) 3.9 4.8 7.3 5.3
Change in working capital items and other:
Accounts receivable, less allowances 182.2 149.3 15.1 (6.7)
Gas in storage 111.6 104.0 11.4 6.0
Deferred/accrued gas costs (8.1) 83.4 (15.3) 65.5
Accounts payable (7.1) (70.1) (14.5) 5.0
Temporary LIFO liquidation 24.2 56.6 (32.4) 44.6
Other (39.5) 3.5 (55.1) (11.6)
Net cash flow provided from operating activities 390.6 458.5 136.4 326.0
Investing activities
Capital expenditures (47.6) (42.3) (107.1) (107.5)
Other 6.5 1.5 15.8 3.4
Net cash flow used for investing activities (41.1) (40.8) (91.3) (104.1)
Financing activities
Net proceeds from issuing long-term debt 99.1 49.7 148.5 124.0
Disbursements to retire long-term debt (104.5) (25.0) (157.1) (25.0)
Short-term borrowings (repayments), net (254.6) (284.2) - (109.3)
Dividends paid (59.0) (58.3) (109.8) (107.4)
Other (.5) (.5) (.5) (.4)
Net cash flow used for financing activities (319.5) (318.3) (118.9) (118.1)
Net increase (decrease) in cash and cash equivalents 30.0 99.4 (73.8) 103.8
Cash and cash equivalents, beginning of period - 4.4 103.8 -
Cash and cash equivalents, end of period $ 30.0 $ 103.8 $ 30.0 $ 103.8
Supplemental information
Income taxes paid, net of refunds $ 26.6 $ 17.5 $ 65.2 $ 51.5
Interest paid, net of amounts capitalized 40.1 22.6 64.8 55.1
<F1>
The accompanying notes are an integral part of this statement.
</TABLE>
<TABLE>
Nicor Gas Company Page 4
Consolidated Balance Sheet (Unaudited)
(Millions)
<CAPTION>
June 30 December 31 June 30
Assets 1998 1997 1997
<S> <C> <C> <C>
Gas distribution plant, at cost $ 3,052.4 $ 3,012.3 $ 2,979.1
Less accumulated depreciation 1,446.3 1,382.3 1,344.4
1,606.1 1,630.0 1,634.7
Other property and investments, net of accumulated
depletion of $14.5 2.6 4.3 7.1
Current assets
Cash and cash equivalents 30.0 - 103.8
Accounts receivable, less allowances of $7.3,
$7.6 and $9.4, respectively 139.2 321.4 154.3
Gas in storage, at last-in, first-out (LIFO) cost 16.2 127.8 14.2
Other 24.0 22.0 24.0
209.4 471.2 296.3
Other assets 98.9 83.7 72.9
$ 1,917.0 $ 2,189.2 $ 2,011.0
Capitalization and Liabilities
Capitalization
Long-term debt $ 521.0 $ 520.9 $ 520.8
Preferred stock
Redeemable 7.6 8.1 8.1
Nonredeemable 1.4 1.4 1.4
Common equity
Common stock 76.2 76.1 76.2
Paid-in capital 107.9 107.9 107.9
Retained earnings 496.7 497.4 506.4
1,210.8 1,211.8 1,220.8
Current liabilities
Long-term obligations due within one year 25.5 25.5 25.5
Short-term borrowings - 254.6 -
Accounts payable 206.9 214.0 221.4
Temporary LIFO liquidation 24.2 - 56.6
Accrued gas costs 17.0 25.1 32.3
Dividends payable 27.3 31.7 25.4
Accrued interest 13.0 30.9 31.9
Other 11.1 18.9 21.0
325.0 600.7 414.1
Deferred credits and other liabilities
Deferred income taxes 191.5 184.6 182.9
Regulatory income tax liability 80.1 81.7 82.6
Unamortized investment tax credits 45.2 46.2 47.3
Other 64.4 64.2 63.3
381.2 376.7 376.1
$ 1,917.0 $ 2,189.2 $ 2,011.0
<F1>
The accompanying notes are an integral part of this statement.
</TABLE>
Nicor Gas Company Page 5
Notes to the Consolidated Financial Statements (Unaudited)
ACCOUNTING POLICIES
Depreciation. Depreciation is calculated using a straight-line method for
the calendar year. For interim periods, depreciation is allocated based on
gas deliveries.
Gas in Storage. Gas in storage injections and withdrawals are valued using
the last-in, first-out (LIFO) method on a calendar-year basis. For interim
periods, the difference between current replacement cost and the LIFO cost
for quantities of gas temporarily withdrawn from storage is recorded in cost
of gas as a temporary LIFO liquidation.
NEW ACCOUNTING PRONOUNCEMENTS
In June 1998, the Financial Accounting Standards Board issued Statement
No. 133, Accounting for Derivative Instruments and Hedging Activities. This
statement requires that an entity recognize all derivatives as either assets
or liabilities in the statement of financial position and measure those
instruments at fair value. Gains or losses resulting from changes in the
values of those derivatives are to be accounted for depending on the use of
the derivative and whether it qualifies for hedge accounting. This
statement requires adoption no later than the first quarter of the company's
2000 fiscal year and must be adopted as a cumulative effect of a change in
accounting principle. Implementation of this statement is not expected to
have a material impact on the company's financial condition or results of
operations.
In March 1998, the American Institute of Certified Public Accountants issued
Statement of Position 98-1, Accounting for the Costs of Computer Software
Developed or Obtained for Internal Use. This statement provides guidance on
accounting for the costs of computer software developed or obtained for
internal use and is required to be adopted no later than the company's 1999
fiscal year. The company plans to modify its method of capitalization of
such costs by adopting this statement prospectively on January 1, 1999. The
company is currently evaluating this statement but does not expect it to
have a material impact on its financial condition or results of operations.
LONG-TERM DEBT
In June 1998, Nicor Gas issued $50 million of 5-3/4% First Mortgage Bonds
due in 2003. The net proceeds from the sale, together with the proceeds
from the February 1998 sale of $50 million of 6.58% First Mortgage Bonds due
in 2028 and other corporate funds, replenished funds used for the March 1998
redemption of $75 million of 8-1/4% First Mortgage Bonds due in 2022 and the
February 1998 maturity of $25 million of 5-7/8% First Mortgage Bonds.
<PAGE>
Nicor Gas Company Page 6
Notes to the Consolidated Financial Statements (Unaudited)
(Concluded)
CONTINGENCIES
The company is involved in legal or administrative proceedings before
various courts and agencies with respect to rates, taxes and other matters.
Current environmental laws may require cleanup of certain former
manufactured gas plant sites. To date, Nicor Gas has identified about 40
properties for which it may, in part, be responsible. The majority of these
properties are not presently owned by the company. Information regarding
preliminary site reviews has been presented to the Illinois Environmental
Protection Agency. More detailed investigations and remedial activities are
either in progress or planned at many of these sites. The results of
continued testing and analysis should determine to what extent additional
remediation is necessary and may provide a basis for estimating any
additional future costs which, based on industry experience, could be
significant. In accordance with Ill.C.C. authorization, the company has
been recovering these costs from its customers.
On December 20, 1995, Nicor Gas filed suit in the Circuit Court of Cook
County against certain insurance carriers seeking recovery of environmental
cleanup costs of certain former manufactured gas plant sites. Presently,
management cannot predict the outcome of this lawsuit. Any recoveries from
such litigation or other sources will be flowed back to the company's
customers.
Although unable to determine the outcome of these contingencies, management
believes that appropriate accruals have been recorded. Final disposition of
these matters is not expected to have a material impact on the company's
financial condition or results of operations.
Nicor Gas Company Page 7
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
The following discussion should be read in conjunction with the Management's
Discussion and Analysis section of the Nicor Gas 1997 Annual Report on Form
10-K.
RESULTS OF OPERATIONS
Net income for the three-, six- and twelve-month periods ended June 30,
1998, decreased $.7 million to $23.5 million, $4.9 million to $54 million
and $.4 million to $102 million, respectively, from the corresponding 1997
periods due to the negative impact of significantly warmer weather.
Positive factors included a reduction in operating and maintenance expenses,
additional gains on real estate sales and a significant increase in
deliveries of natural gas for electric power generation.
Operating revenues decreased $29.2 million, $344.8 million and $351.2
million for the three-, six- and twelve-month periods, respectively. For
the three-month period, the decrease was attributable to lower deliveries of
natural gas due to the impact of significantly warmer weather. For the six-
and twelve-month periods, the decrease was due to lower natural gas supply
costs, which are passed through to customers, and lower deliveries of
natural gas due to the impact of significantly warmer weather.
Margin, defined as operating revenues less cost of gas and revenue taxes,
which are both passed directly through to customers, is shown in the
following table for the periods ended June 30. Margin decreased in all
periods due to the impact of warmer weather. The increase in margin per Mcf
delivered was due, in part, to the impact of a reduction in lower-margin
deliveries due to warmer weather.
Three months Six months Twelve months
1998 1997 1998 1997 1998 1997
Margin (Millions) $103.4 $109.1 $251.7 $268.7 $479.0 $495.5
Margin per Mcf
delivered 1.17 1.12 .91 .86 .94 .91
Operating and maintenance expenses decreased 5 percent to $35.3 million,
7 percent to $69.4 million and 5 percent to $145.7 million for the three-,
six- and twelve-month periods, respectively, due primarily to lower
retirement benefits costs, resulting principally from favorable pension fund
investment returns, and a reduction in the provision for uncollectible
accounts related to lower operating revenues.
Other income increased $1.5 million, $2.6 million and $6 million for the
three-, six- and twelve-month periods, respectively, due to additional gains
on real estate sales.
Nicor Gas Company Page 8
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations (Continued)
FINANCIAL CONDITION
Net cash flow from operating activities decreased $67.9 million and
$189.6 million for the six- and twelve-month periods, respectively, due
primarily to changes in working capital items. The working capital
component of net cash flow from operating activities can swing sharply due
primarily to certain factors including weather, the timing of collections
from customers and gas purchasing practices. The company generally relies
on short-term financing to meet temporary increases in working capital
needs.
The company maintains short-term credit agreements with major domestic and
foreign banks. At June 30, 1998, these agreements, which serve as backup
for the issuance of commercial paper, totaled $250 million. The company had
no outstanding commercial paper at June 30, 1998.
In June 1998, Nicor Gas issued $50 million of 5-3/4% First Mortgage Bonds
due in 2003. The net proceeds from the sale, together with the proceeds
from the February 1998 sale of $50 million of 6.58% First Mortgage Bonds due
in 2028 and other corporate funds, replenished funds used for the March 1998
redemption of $75 million of 8-1/4% First Mortgage Bonds due in 2022 and the
February 1998 maturity of $25 million of 5-7/8% First Mortgage Bonds.
NEW ACCOUNTING PRONOUNCEMENTS
In June 1998, the Financial Accounting Standards Board issued Statement
No. 133, Accounting for Derivative Instruments and Hedging Activities. In
March 1998, the American Institute of Certified Public Accountants issued
Statement of Position 98-1, Accounting for the Costs of Computer Software
Developed or Obtained for Internal Use. These statements are not expected
to have a material impact on the company's financial condition or results of
operations. For further information, see New Accounting Pronouncements on
page 5.
<TABLE>
Nicor Gas Company Page 9
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations (Concluded)
OPERATING STATISTICS
Changes in weather can materially affect operating results. Operating revenues, deliveries, weather statistics
and other data are presented below.
<CAPTION>
Three months ended Six months ended Twelve months ended
June 30 June 30 June 30
1998 1997 1998 1997 1998 1997
Operating revenues (Millions):
Sales
<S> <C> <C> <C> <C> <C> <C>
Residential $ 136.5 $ 148.4 $ 466.2 $ 683.0 $ 909.1 $1,123.9
Commercial 31.3 39.8 120.9 198.7 237.0 317.3
Industrial 5.0 11.2 18.6 39.6 35.8 63.6
172.8 199.4 605.7 921.3 1,181.9 1,504.8
Transportation
Commercial 11.5 11.0 28.3 29.2 54.5 54.0
Industrial 8.5 10.3 19.0 24.1 43.3 48.4
20.0 21.3 47.3 53.3 97.8 102.4
Revenue taxes and other 22.0 23.3 66.1 89.3 106.0 129.7
$ 214.8 $ 244.0 $ 719.1 $1,063.9 $1,385.7 $1,736.9
Deliveries (Bcf):
Sales
Residential 25.8 35.0 113.7 141.7 205.2 238.0
Commercial 6.2 10.1 29.0 41.2 53.0 67.1
Industrial 1.2 4.1 4.9 9.1 8.7 15.7
33.2 49.2 147.6 192.0 266.9 320.8
Transportation
Commercial 10.0 10.1 36.1 38.4 63.7 66.7
Industrial 44.9 37.9 93.1 81.7 179.4 157.0
54.9 48.0 129.2 120.1 243.1 223.7
88.1 97.2 276.8 312.1 510.0 544.5
Average gas cost per Mcf sold $ 2.90 $ 2.30 $ 2.80 $ 3.69 $ 3.03 $ 3.46
Weather statistics:
Degree days 532 893 3,105 3,995 5,364 6,420
Percent colder (warmer) than normal (22.7) 29.8 (19.3) 3.8 (12.3) 5.0
Customers at end of period (Thousands):
Sales
Residential 1,718.6 1,690.9
Commercial 125.2 141.0
Industrial 9.0 11.4
1,852.8 1,843.3
Transportation
Commercial 36.9 18.6
Industrial 5.0 2.8
41.9 21.4
1,894.7 1,864.7
</TABLE>
Nicor Gas Company Page 10
PART II - Other Information
Item 1. Legal Proceedings
For information concerning legal proceedings, see Contingencies in
Notes to the Consolidated Financial Statements on page 6, which is
incorporated herein by reference.
Item 6. Exhibits and Reports on Form 8-K
(a) See Exhibit Index on page 12 filed herewith.
(b) The company did not file a report on Form 8-K during the second
quarter of 1998.
Nicor Gas Company Page 11
Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Nicor Gas Company
Date August 12, 1998 By DAVID L. CYRANOSKI
David L. Cyranoski
Senior Vice President,
Secretary and Controller
Nicor Gas Company Page 12
Exhibit Index
Exhibit
Number Description of Document
1.01 Underwriting agreement, dated June 2, 1998, between Nicor Gas
Company and ABN AMRO Incorporated.
4.01 Supplemental Indenture, dated June 1, 1998, of Nicor Gas Company
to Harris Trust and Savings Bank, Trustee, under Indenture dated
as of January 1, 1954.
12.01 Computation of Consolidated Ratio of Earnings to Fixed Charges.
27.01 Financial Data Schedule.
NORTHERN ILLINOIS GAS COMPANY
$50,000,000
FIRST MORTGAGE BONDS
5 3/4% SERIES DUE JUNE 1, 2003
UNDERWRITING AGREEMENT
June 2, 1998
ABN AMRO Incorporated
1325 Avenue of the Americas
New York, New York 10019
Dear Sirs:
Northern Illinois Gas Company, doing business as Nicor Gas Company (the
"Company") proposes, subject to the terms and conditions stated herein and in
the General Terms and Conditions of Underwriting Agreement in the form of Annex
A hereto, a copy of which you have previously received, to issue and sell to the
Underwriter named above (the "Underwriter"), $50,000,000 aggregate principal
amount of the Company's First Mortgage Bonds (the "Bonds"). All of the
provisions of such General Terms and Conditions of Underwriting Agreement are
incorporated herein by reference in their entirety, and shall be deemed to be a
part of this Underwriting Agreement to the same extent as if such provisions had
been set forth in full herein. Unless otherwise defined herein, terms defined in
the General Terms and Conditions of Underwriting Agreement are used herein as
therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Bonds in the form heretofore
delivered to you is now proposed to be filed or mailed for filing with the
Commission. Such amendment or supplement sets forth the terms of the Bonds.
Subject to the terms and conditions set forth herein, the Company agrees to
issue and sell to the Underwriter, and the Underwriter agrees to purchase from
the Company, all of the Bonds on the following terms and conditions:
<TABLE>
<S> <C>
Aggregate principal amount of Bonds to be
purchased:................................. $50,000,000
Rate of interest per annum to be borne by the
Bonds (payable semiannually):.............. 5 3/4% (such rate to be a multiple of .001%)
Maturity date of the Bonds:.................. June 1, 2003
Price to be paid to the Company for the
Bonds:..................................... 99.32% of the principal amount of the Bonds (not
less than 99%) plus accrued interest from date
of Supplemental Indenture to the date of
delivery of the Bonds.
Initial public offering price of the
Bonds:..................................... 99.533% of the principal amount of the Bonds
plus accrued interest from date of Supplemental
Indenture to the date of delivery of the Bonds.
(If other, give details.)
Place for delivery of Bonds:................. The Depository Trust Company
55 Water Street
New York, New York 10004
Date and time of Time of Delivery:........... June 9, 1998 at 9:00 a.m. Chicago time
Place for checking Bonds on the business day
prior to Time of Delivery:................. The Depository Trust Company
55 Water Street
New York, New York 10004
Redemption and Sinking Fund:................. The Bonds may not be called for redemption by
the Company. No sinking fund will be provided.
</TABLE>
1
<TABLE>
<S> <C>
Address for notices per Section 12 of the
General Terms and Conditions of
Underwriting Agreement:.................... Attn: Legal Department
ABN AMRO Incorporated
1325 Avenue of the Americas
New York, New York 10019
</TABLE>
If the foregoing is in accordance with your understanding, please sign and
return to us the enclosed counterparts hereof, whereupon it will become a
binding agreement between the Underwriter and the Company in accordance with its
terms.
Very truly yours,
NORTHERN ILLINOIS GAS COMPANY
BY
----------------------------------
TITLE:Senior Vice President,
Secretary and Controller
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of the
date first above written.
ABN AMRO INCORPORATED
BY
----------------------------------
TITLE: Managing Director
2
ANNEX A
NORTHERN ILLINOIS GAS COMPANY
$50,000,000
FIRST MORTGAGE BONDS
GENERAL TERMS AND CONDITIONS OF UNDERWRITING AGREEMENT
Northern Illinois Gas Company, an Illinois corporation (the "Company"),
proposes to enter into an Underwriting Agreement into which these General Terms
and Conditions are incorporated by reference (the "Underwriting Agreement") and,
subject to the terms and conditions stated therein, to issue and sell to the
underwriter or underwriters named in Schedule I to the Underwriting Agreement up
to $50,000,000 aggregate principal amount of its First Mortgage Bonds
(hereinafter called the "Bonds") under the registration statement referred to in
Section 2(a) hereof. Such Bonds will be issued under the Company's Indenture
dated as of January 1, 1954, to Continental Bank, National Association, Trustee
(the "Trustee"), as supplemented by supplemental indentures dated February 9,
1954, April 1, 1956, June 1, 1959, July 1, 1960, June 1, 1963, July 1, 1963,
August 1, 1964, August 1, 1965, May 1, 1966, August 1, 1966, July 1, 1967, June
1, 1968, December 1, 1969, August 1, 1970, June 1, 1971, July 1, 1972, July 1,
1973, April 1, 1975, April 30, 1976, April 30, 1976, July 1, 1976, August 1,
1976, December 1, 1977, January 15, 1979, December 1, 1981, March 1, 1983,
October 1, 1984, December 1, 1986, March 15, 1988, July 1, 1988, July 1, 1989,
July 15, 1990, August 15, 1991, July 15, 1992, February 1, 1993, March 15, 1993,
May 1, 1993, July 1, 1993, August 15, 1994, October 15, 1995, May 10, 1996,
August 1, 1996, June 1, 1997 and October 15, 1997 respectively, and as to be
further supplemented by a Supplemental Indenture (the "Supplemental Indenture")
which will be dated the first or fifteenth day of the calendar month in which
the "Time of Delivery" (as hereinafter defined) falls, creating the series in
which the Bonds are to be issued. Said Indenture as so supplemented is
hereinafter called the "Indenture." The term "Underwriters" herein shall refer
to the several persons, firms and corporations named in Schedule I to the
Underwriting Agreement and the term "Representatives" herein shall refer to the
Underwriters identified as the Representatives who are acting on behalf of the
Underwriters (including themselves) in the Underwriting Agreement. All
obligations of the Underwriters under the Underwriting Agreement are several and
not joint. The terms "Underwriters", "Representatives", "persons", "firms" and
"corporations" shall include the singular as well as the plural.
The terms of the issuance of the Bonds shall be as specified in the
Underwriting Agreement. The Underwriting Agreement shall constitute an agreement
by the Company and the Underwriters to be bound by all of the provisions of
these General Terms and Conditions of Underwriting Agreement, as follows:
SECTION 1. Sale of Bonds. Sales of the Bonds will be made to the
Underwriters, for whom the Representatives will act as such. The obligation of
the Company to issue and sell any of the Bonds and the obligation of any of the
Underwriters to purchase any of the Bonds shall be evidenced by the Underwriting
Agreement. The Underwriting Agreement shall specify the aggregate principal
amount of Bonds to be purchased, the rate and time of payment of interest to be
borne by the Bonds, the maturity date of the Bonds, the price to be paid to the
Company for the Bonds, the initial public offering price or other offering terms
of such Bonds and the redemption prices and other special terms, if any,
relating to the Bonds, the names of the Underwriters of such Bonds, the names of
the Representatives of such Underwriters and the amount of Bonds to be purchased
by each Underwriter, and, subject to the provisions of Section 3 hereof, shall
set forth the date, time and manner of the delivery of such Bonds. The terms of
the Bonds will be set forth in the Prospectus Supplement (as hereinafter
defined). The Underwriting Agreement shall be in the form of an executed writing
(which may be in counterparts) and may be evidenced by an exchange of telecopied
communications or any other rapid transmission device to produce a written
record of communications transmitted.
SECTION 2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-3 with respect to the Bonds,
including a related preliminary prospectus, has been prepared by the
Company in conformity with the requirements of the Securities Act of 1993,
as amended (the "Act"), and the rules and regulations of the Securities and
Exchange Commission (the "Commission") under the Act (the "Regulations"),
and has been filed with the Commission on December 18, 1997 and, if one or
more amendments to such registration statement, which may include an
amended preliminary prospectus, have been filed with the Commission, such
amendments have been similarly prepared; and such registration statement
has become effective. Such registration statement, as amended to the date
of the Underwriting Agreement, together with the prospectus supplement
referred to below is hereinafter referred to as the "Registration
Statement". Such prospectus as supplemented specifically relating to the
Bonds and filed with the Commission under Rule 424(b) of the Act is
hereinafter referred to as the "Prospectus". The Prospectus has been
prepared by the Company in conformity with the requirements of the Act and
the Regulations. Copies of the Registration Statement and any related
prospectus have been delivered to the Representatives. As used herein,
Registration Statement, Prospectus and preliminary prospectus shall
include, in each case, the material incorporated therein pursuant to Item
12 of Form S-3 filed under the Securities Exchange Act of 1934 (the "1934
Act") on or prior to the date of the Underwriting Agreement, and "amended",
"amendment" or "supplement" with respect to the Registration Statement or
the Prospectus shall be deemed to include the filing by the Company of any
document pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act
after the date of the Underwriting Agreement.
(b) The registration statement at the time it became effective, and
the related prospectus and any amendments and supplements thereto filed
prior to the date of the Underwriting Agreement, conformed in all material
respects to the provisions of the Act and the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act") and the rules and regulations of the
Commission thereunder, on the date of the Underwriting Agreement and at the
Time of Delivery (referred to in Section 3) the Registration Statement, the
Prospectus, and any amendments and supplements thereto, and the Indenture,
will conform in all material respects to the Act, the Trust Indenture Act
and the respective rules and regulations of the Commission thereunder; and
at the time the registration statement became effective, the registration
statement and related prospectus did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and at
the date of this Underwriting Agreement and at the Time of Delivery, the
Registration Statement and the Prospectus and any amendments and
supplements thereto do not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein not misleading; provided, however, that none of the
representations and warranties in this subsection shall apply to statements
in or omissions from the Registration Statement or Prospectus or any
amendment or supplement thereto made in reliance upon and in conformity
with information respecting the Underwriters furnished to the Company in
writing by or on behalf of any Underwriter through the Representatives
expressly for use in the Registration Statement or Prospectus.
(c) The documents incorporated by reference into the Prospectus, at
the time they were filed with the Commission, complied in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder (the "1934 Regulations"), and, at
the date of this Underwriting Agreement and at the Time of Delivery, when
read together with the Prospectus and any supplement thereto will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and any documents filed after the date of the
Underwriting Agreement and so incorporated by reference in the Prospectus
will, when they are filed with the Commission, comply in all material
respects with the requirements of the 1934 Act and the 1934 Regulations,
and when read together with the Prospectus and any supplement thereto will
not contain an untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
2
(d) Arthur Andersen LLP are independent public accountants with
respect to the Company and its subsidiaries as required by the Act and the
Regulations.
(e) The financial statements included in the Registration Statement
present fairly the financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their operations
for the periods specified, and said financial statements have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis during the periods involved.
(f) The Company is a corporation in good standing, duly organized and
validly existing under the laws of Illinois, and has due corporate
authority to carry on the business in which it is engaged and to own and
operate the properties used by it in such business as described in the
Prospectus. The Company's subsidiary constitutes less than 5% of its
consolidated assets and during the year ended December 31, 1997 contributed
less than 5% of its consolidated annual operating revenues and net income,
and the Company does not consider its subsidiary to be material.
(g) The execution and delivery of the Underwriting Agreement have been
duly authorized by the Company and the Underwriting Agreement constitutes a
valid and legally binding obligation of the Company; the Bonds have been
duly authorized, and when issued and delivered pursuant to the Underwriting
Agreement and the Indenture, will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding
obligations of the Company in accordance with their respective terms,
entitled to the benefits provided by the Indenture; the Supplemental
Indenture has been duly authorized in substantially the form filed as an
exhibit to the Registration Statement and, when executed and delivered by
the Company and the Trustee, will constitute a valid and legally binding
instrument enforceable in accordance with its terms, except to the extent
the enforceability of the Bonds and the Indenture may be limited by
bankruptcy, insolvency, reorganization or other laws of general application
relating to or affecting the enforcement of creditors' rights or general
equity principles; and the Indenture and the Bonds as executed and
delivered will conform in all material respects to the descriptions thereof
in the Prospectus.
(h) The issue and sale of the Bonds and the compliance by the Company
with all of the provisions of the Bonds, the Indenture, and the
Underwriting Agreement and the transactions contemplated thereby will not
conflict with or result in any breach or violation of any of the provisions
of, or constitute (disregarding any grace or notice period) a default
under, or result in the imposition of any lien, charge or encumbrance upon
any property or assets of the Company pursuant to the terms of, any other
indenture, or any mortgage, loan agreement, contract, note, lease or other
agreement or instrument to which the Company is a party or by which the
Company may be bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any statute or any
order, rule or regulation applicable to the Company of any court or any
federal, state or other regulatory authority or other governmental body
having jurisdiction over the Company or any of its properties.
(i) Since the respective dates as of which information is given in the
Registration Statement and Prospectus and except as may otherwise be stated
or contemplated therein; (i) there has not been any material adverse change
in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in the earnings, affairs,
business prospects or properties of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business or arising from any court or governmental action, order or
decree, and (ii) there has been no transaction entered into by the Company
or any subsidiary which is material to the Company and its subsidiaries
considered as one enterprise, other than transactions in the ordinary
course of business.
(j) Except as set forth in the Prospectus, the Company, with minor
exceptions, and subject to noncompliance with certain procedural and other
requirements in the procurement and granting of gas franchises in a number
of smaller municipalities formerly served by Mid-Illinois Gas Company, has
statutory authority, franchises, licenses, rights-of-way, easements and
consents, free from unduly burdensome restrictions and adequate for the
conduct of the business in which it is engaged.
3
(k) The Illinois Commerce Commission has entered an order authorizing
the issue and sale of the Bonds by the Company upon terms consistent with
the Underwriting Agreement, and no other consent, approval, authorization
or other order or filing with any regulatory or governmental body is
required for the issuance and sale of the Bonds and consummation of the
transactions contemplated hereby, except such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Bonds by the Underwriters.
(l) The Company is not in violation of its charter or, except as
disclosed in the Prospectus, in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it or its property is bound or affected
which is material to the Company and its subsidiary considered as one
enterprise.
(m) Except as set forth in the Registration Statement and Prospectus,
there are no legal or governmental proceedings pending to which the Company
or its subsidiary is a party or of which any property of the Company or its
subsidiary is the subject, and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities
or threatened by others, other than proceedings which, if determined
adversely to the Company and its subsidiary, would not individually or in
the aggregate have a material adverse effect on the business, properties,
financial position, net worth or results of operations of the Company and
its subsidiary considered as a whole.
(n) the Company has good and sufficient title to all property
described or referred to in the Indenture and purported to be conveyed
thereby (except property released from the lien of the Indenture in
connection with the sale or other disposition thereof), subject only to the
lien of the Indenture and to permitted liens as defined therein; the
Indenture has been duly filed for recordation in such manner and in such
places as is required by law in order to give constructive notice of,
establish, preserve and protect the lien of the Indenture; the Indenture
constitutes a valid, direct first mortgage lien, subject only to permitted
liens, on substantially all property of the Company, except property
expressly excepted by the terms of the Indenture; the Indenture will, when
recorded or registered by the Company in accordance with its covenants
under the Indenture, constitute a valid, direct first mortgage lien on all
property of the character of that now subject to the lien of the Indenture
hereafter acquired by the Company, subject only to permitted liens and to
liens, if any, existing or placed on such after-acquired property at the
time of the acquisition thereof;
Any certificate signed by any officer of the Company and delivered to you
or to Underwriters' counsel shall be deemed a representation and warranty by the
Company to each Underwriter as to the statements made therein.
SECTION 3. Purchase, Sale and Delivery of Bonds. Following the execution of
the Underwriting Agreement, the several Underwriters propose to make a public
offering of their respective portions of the Bonds as soon as in the
Representatives' judgment it is advisable upon the terms and conditions set
forth in the Prospectus Supplement.
The Bonds to be purchased by each Underwriter pursuant to the Underwriting
Agreement, in definitive form and registered in such names as the
Representatives may request upon at least forty-eight hours' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the respective accounts of the several Underwriters, against
payment therefor as specified in the Underwriting Agreement in immediately
available funds, at the office of Mayer, Brown & Platt, 190 South LaSalle
Street, Chicago, Illinois 60603 (except as hereinafter provided with respect to
delivery of such Bonds), at the time and date specified in the Underwriting
Agreement or at such other place and time and date as the Representatives and
the Company may agree upon in writing, such time and date being herein called
the "Time of Delivery". If specified by the Representatives in the Underwriting
Agreement, delivery of the Bonds will be made at the Time of Delivery at such
place in New York, New York as shall have been so specified against payment
therefor in Chicago as aforesaid.
4
SECTION 4. Covenants of the Company. The Company covenants with each
Underwriter that:
(a) The Company will notify the Representatives immediately and
confirm the notice in writing (i) of the receipt of any request by the
Commission for any amendment or supplement to the Registration Statement or
the Prospectus or any amendment or supplement thereto or for additional
information, and (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the
initiation or threatened initiation of any proceedings for that purpose or
of the suspension or threatened suspension of the qualification of the
Bonds for offering or sale in any jurisdiction. The Company will make every
reasonable effort to prevent the issuance by the Commission of any stop
order and, if any such stop order shall at any time be issued, to obtain
the lifting thereof at the earliest moment.
(b) The Company will not file any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (including a
prospectus filed pursuant to Rule 424 and including documents deemed to be
incorporated by reference into the Prospectus) without first having
furnished the Representatives with a copy of the proposed form thereof and
given the Representatives a reasonable opportunity to review and comment
respecting the same and having given reasonable consideration to any
comments or objections made by the Representatives.
(c) The Company will deliver to each of the Representatives, as soon
as available, one signed copy of the Registration Statement as originally
filed and of each amendment thereto, including, in each case, documents
incorporated by reference into the Registration Statement and one set of
exhibits thereto (other than exhibits incorporated by reference which will
be furnished upon specific request), and will also deliver to the
Representatives a reasonable number of conformed copies of the Registration
Statement as originally filed and of each amendment and post-effective
amendment thereto including such incorporated documents (without exhibits)
for each of the Underwriters.
(d) The Company will deliver to each Underwriter from time to time
during the period when a prospectus is required to be delivered under the
Act such number of copies of the Prospectus (as amended or supplemented and
including incorporated documents) as the Representatives may reasonably
request for the purposes contemplated by the Act or the Regulations;
provided, however, that the delivery of copies of the Prospectus (as
amended or supplemented and including incorporated documents) more than
nine months after the date of the Underwriting Agreement shall be at the
expense of the Underwriter requesting such delivery.
(e) During the period when a prospectus is required to be delivered
under the Act, the Company will comply so far as it is able, and at its own
expense (for a period not to exceed nine months), with all requirements
imposed upon it by the Act, and by Sections 13 and 14 of the 1934 Act, as
now or hereafter amended, and by the Regulations, as from time to time in
force, so far as necessary to permit the continuance of sales of or dealing
in the Bonds during such period in accordance with the provisions hereof
and of the Prospectus.
(f) If any event shall occur as a result of which it is necessary, in
the opinion of counsel for the Company and of Underwriters' counsel, to
amend or supplement the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it is necessary to amend or supplement the
Prospectus to comply with law, the Company will forthwith prepare and
furnish to the Underwriters, without expense to them except as otherwise
provided in subsection (d) of this Section 4, a reasonable number of copies
of an amendment or amendments or a supplement or supplements to the
Prospectus (in the form referred to in subsection (b) of this Section 4)
which will amend or supplement the Prospectus so that as amended or
supplemented it will not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein not misleading, or so that the Prospectus will comply with law. For
the purposes of this subsection, the Company will furnish such information
as the Representatives may from time to time reasonably request.
5
(g) The Company will endeavor in good faith, in cooperation with the
Underwriters, to qualify the Bonds for offering and sale under the
applicable securities laws of such jurisdictions as the Representatives may
designate; provided, however, that the Company shall not be obligated to
file any general consent to service or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so
qualified. In each jurisdiction where any of the Bonds shall be qualified
as above provided, the Company will make and file such statements and
reports in each year as are or may be reasonably required by the laws
thereof.
(h) The Company will make generally available to its security holders
as soon as practicable, but not later than 75 days after the close of the
period covered thereby, an earnings statement (in form complying with the
provisions of Section 11(a) of the Act and the Regulations thereunder
(including, at the option of the Company, Rule 158), which need not be
certified by independent public accountants unless required by the Act or
the Regulations), covering a twelve-month period beginning on the first day
of the calendar quarter following the Time of Delivery.
(i) The Company agrees that it will not publicly offer or sell any
intermediate or long-term debt between the date of the Underwriting
Agreement and Time of Delivery without the prior written consent of the
Representatives.
SECTION 5. Payment of Expenses. The Company will pay all expenses incident
to the performance of its obligations under the Underwriting Agreement,
including (i) the printing and filing by the Company of the registration
statement and the printing of the Underwriting Agreement, any Agreement Among
Underwriters, any Selling Agreement, the Supplemental Indenture and the
Underwriters' Questionnaire, (ii) the authorization, issuance and delivery of
the Bonds to the Underwriters, including the printing and engraving of the
Bonds, and all taxes, if any, upon the issuance and sale of the Bonds to the
Underwriters, (iii) the qualification of the Bonds under the securities laws of
the various jurisdictions in accordance with the provisions of subsection (g) of
Section 4, including filing fees and fees and disbursements of Underwriters'
counsel in connection with such qualification and in connection with the
preparation of the Blue Sky Survey (such fees of Underwriters' counsel not to
exceed $5,000 in the aggregate), (iv) any fees charged by securities rating
services for rating the Bonds, (v) the fees and expenses of the Trustee and its
counsel in connection with the Bonds and the Supplemental Indenture, (vi) the
printing and delivery to the Underwriters and dealers in quantities as
hereinbefore stated of copies of the registration statement and all amendments
thereto, of any preliminary prospectuses and amended preliminary prospectuses,
of the Registration Statement and any amendments thereto, and of the Prospectus
and any amendments or supplements thereto, and (vii) the cost of printing and
delivery to the Underwriters of copies of the Blue Sky Survey.
If this Agreement is terminated by the Representatives in accordance with
the provisions of Section 6 or Section 10(b), or is prevented by the Company
from becoming effective in accordance with the provisions of Section 10(a), the
Company shall reimburse the Underwriters severally for their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters incurred in connection with the offering.
SECTION 6. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters hereunder are subject to the accuracy of and compliance with
the representations and warranties of the Company herein contained, to the
performance by the Company of its obligations hereunder and to the following
further conditions:
(a) At the Time of Delivery no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the Act or
proceedings therefor initiated or threatened by the Commission.
6
(b) At the Time of Delivery the Representatives shall have received:
(1) The favorable opinion, dated as of the Time of Delivery, of
Mayer, Brown & Platt, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) the Company is a corporation in good standing, duly
organized and validly existing under the laws of the State of
Illinois and has due corporate authority to carry on the business in
which it is engaged and to own and operate the properties used by it
in such business;
(ii) the Indenture is in due and proper form, has been duly and
validly authorized by the necessary corporate action and by orders
duly entered by the Illinois Commerce Commission; no authorization,
approval, consent, certificate or order of any other state commission
or regulatory authority or of any federal commission or regulatory
authority not already obtained is required in respect of the
execution and delivery of the Indenture; and the Indenture has been
duly and validly executed and delivered and is a valid and
enforceable instrument in accordance with its terms, except as
enforcement of provisions of the Indenture may be limited by
bankruptcy or other laws of general application affecting the
enforcement of creditors' rights and by general equity principles;
(iii) the Bonds are in due and proper form; the issue and sale
of the Bonds by the Company in accordance with the terms of the
Underwriting Agreement have been duly and validly authorized by the
necessary corporate action and by order duly entered by the Illinois
Commerce Commission; no authorization, approval, consent, certificate
or order of any other state commission or regulatory authority or of
any federal commission or regulatory authority not already obtained
is required in respect of such issue and sale (except such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Bonds by the Underwriters); the
Bonds have been duly executed and delivered to the Underwriters
against payment of the agreed consideration therefor and, assuming
due authentication thereof by the Trustee, constitute valid and
enforceable obligations of the Company in accordance with their
terms, secured by the lien of and, with like exception as noted in
the foregoing subdivision (ii), entitled to the benefits provided by
the Indenture, and the registered owners of the Bonds will be
entitled to the payment of principal and interest, and premium in
case of redemption, as therein provided; the Bonds and the Indenture
conform as to legal matters in all material respects with the
statements concerning them made in the Prospectus, and such
statements accurately set forth the matters respecting the Bonds and
the Indenture required to be set forth in the Prospectus;
(iv) The Registration Statement is effective under the Act and
the Indenture has been duly qualified under the Trust Indenture Act,
and to the best of the knowledge of said counsel no proceedings for a
stop order are pending or threatened under Section 8(d) of the Act;
(v) the execution and delivery of the Underwriting Agreement by
the Company has been duly authorized by the necessary corporate
action, and the Underwriting Agreement has been duly executed and
delivered by the Company;
(vi) the Company has good and sufficient title to all property
described or referred to in the Indenture and purported to be
conveyed thereby (except property released from the lien of the
Indenture in connection with the sale or other disposition thereof),
subject only to the lien of the Indenture and to permitted liens as
defined therein; the Indenture has been duly filed for recordation in
such manner and in such places as is required by law in order to give
constructive notice of, establish, preserve and protect the lien of
the Indenture; the Indenture constitutes a valid, direct first
mortgage lien, subject only to permitted liens, on substantially all
property of the Company, except property expressly excepted by the
terms of the Indenture; the Indenture will, when recorded or
registered by the Company in accordance with its covenants under the
7
Indenture, constitute a valid, direct first mortgage lien on all
property of the character of that now subject to the lien of the
Indenture hereafter acquired by the Company, subject only to
permitted liens and to liens, if any, existing or placed on such
after-acquired property at the time of the acquisition thereof;
(vii) the issue and sale of the Bonds and the compliance by the
Company with all of the provisions of the Bonds, the Indenture and
the Underwriting Agreement will not conflict with or result in a
breach or violation of any of the provisions of, or constitute
(disregarding any grace or notice period) a default under, any
indenture, mortgage, loan agreement, contract, note, lease or other
agreement or instrument, known to such counsel, to which the Company
is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject (with such exceptions as
are in the aggregate not material to the business or financial
condition of the Company or the validity of the Bonds), nor will such
action result in any violation of the provisions of the Charter or
By-Laws of the Company, or, to the best of their knowledge, any
statute or any order, rule or regulation applicable to the Company of
any court or governmental agency or body having jurisdiction over the
Company or any of its properties (except such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Bonds by the Underwriters);
(viii) at the time the registration statement became effective,
the registration statement and the related prospectus (other than the
financial statements and notices thereto and supporting schedules and
other financial information included therein, as to which no opinion
need be rendered) complied as to form in all material respects with
the requirements of the Act and the Trust Indenture Act and the
Regulations;
(ix) with minor exceptions, and subject to noncompliance with
certain procedural and other requirements in the procurement and
granting of gas franchises in a number of smaller municipalities
formerly served by Mid-Illinois Gas Company, the Company holds
franchises from all of the incorporated cities and villages included
in the communities in which the Company renders gas service; all of
the franchises so held by the Company are valid and subsisting and
authorize it to engage in the business conducted by it in the
respective municipalities granting such franchises; the Company also
holds certificates of public convenience and necessity issued by the
Illinois Commerce Commission, which are valid and subsisting and
constitute due authorization by such commission for the conduct by
the Company of its operations in all areas served;
(x) to the best of their knowledge and information, there are no
contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to
the Registration Statement other than those described therein or
filed or incorporated by reference as exhibits thereto and the
descriptions thereof or reference thereto are correct; and
(xi) except as disclosed in the Prospectus, there are no
material pending or threatened legal proceedings, considering the
Company and the subsidiaries as a single enterprise, known to said
counsel, to which the Company or any subsidiary is a party or of
which property of the Company or any subsidiary is the subject, and
to the best of the knowledge of said counsel there are no such
proceedings contemplated by governmental authorities.
Such counsel shall further state that, based upon their participation in
the preparation of the Registration Statement and the Prospectus, and
any amendment or supplement thereto, and upon their review and
discussions of the contents thereof, but without independent check or
verification except as specified, nothing has come to their attention
that has caused them to believe that the Registration Statement, at the
time it became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus, and any amendment or supplement
8
thereto, at the date the Registration Statement became effective, the
date of this Agreement or at the Time of Delivery, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(2) The favorable opinion of Wildman, Harrold, Allen & Dixon,
counsel for the Underwriters, with respect to the incorporation of the
Company, the validity of the Bonds and the Indenture, the Registration
Statement, the Prospectus and other related matters as the
Representatives may reasonably request; provided that any opinion
requested with respect to the jurisdiction of regulatory authorities
(other than the Illinois Commerce Commission, the Securities and
Exchange Commission and state securities or Blue Sky authorities) and
the matters in subdivisions (vi) and (ix) above will rely upon the
opinion of Mayer, Brown & Platt.
(c) At the effective date of the Registration Statement and at the
Time of Delivery the Representatives shall have received a letter from
Arthur Andersen LLP, dated the effective date or Time of Delivery,
respectively, in form and substance satisfactory to the Representatives,
advising that (i) they are independent public accountants with respect to
the Company and its subsidiaries as required by the Act and the 1934 Act
and the applicable Regulations, (ii) in their opinion, the audited
consolidated financial statements and any supplemental financial
information and schedules of the Company examined by them and incorporated
by reference in the Registration Statement and Prospectus comply as to form
in all material respects with the applicable accounting requirements of the
Act, the 1934 Act and the applicable Regulations, (iii) on the basis of a
reading of the latest available unaudited interim consolidated financial
statements prepared by the Company, a reading of the minutes of meetings of
the shareholder and the board of directors and executive committee of the
Company and its subsidiaries, consultation with officers of the Company
responsible for financial and accounting matters and other specified
procedures, nothing has come to their attention which caused them to
believe that (A) the unaudited interim condensed consolidated financial
statements included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Act, the 1934 Act and the applicable Regulations or are
not in conformity with generally accepted accounting principles applied on
a basis substantially consistent with that of the audited financial
statements incorporated as aforesaid, (B) the unaudited income statement
data and balance sheet data (other than such data for the periods referred
to in (A) above) included or incorporated by reference in the Prospectus do
not agree with the corresponding items in the audited or unaudited, as the
case may be, financial statements from which such data were derived or were
not determined on a basis substantially consistent with that of the
corresponding amounts included in the audited consolidated financial
statements of the Company incorporated in the Registration Statement and
Prospectus, or (C) at a specified date within five business days of the
date of such letter with respect to (1) below, and during the period from
the date of the latest audited consolidated financial statements or
unaudited interim condensed consolidated financial statements, as the case
may be, incorporated in the Prospectus to the date of the latest available
unaudited interim consolidated financial statements (if any) prepared by
the Company with respect to (2) below, except in all instances as set forth
in or contemplated by the Prospectus or as set forth in such letter: (1)
there was any increase in the consolidated long-term debt of the Company
and its subsidiaries, as compared with the amounts set forth in the latest
balance sheet included or incorporated by reference in the Prospectus, or
(2) there were any decreases in consolidated operating income or net income
as compared with the corresponding period in the preceding year; and (iv)
they have carried out specified procedures performed for the purpose of
comparing certain financial information and percentages (which is limited
to financial information derived from general accounting records of the
Company) specified by the Representatives and appearing in the Registration
Statement or in schedules or exhibits to the Registration Statement or in
the Prospectus or in documents incorporated by reference in the Prospectus
with indicated amounts in the financial statements or accounting records of
the Company and (excluding any questions of legal interpretation and, in
the case of the letter delivered at the Time of Delivery, any exceptions
disclosed in the letter delivered at the Effective Date) have found such
information and percentages to be in agreement with the relevant accounting
and financial information of the Company referred to in such
9
letter in the description of the procedures performed by them. If such
letter discloses any material adverse decreases or increases, as the case
may be, in the items specified in item (iii) (C) above which are not set
forth in or contemplated by the Prospectus which, in the judgment of the
Representatives, makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Bonds on the terms and in the manner
contemplated by the Prospectus, this Agreement and all obligations of the
Underwriters hereunder may be cancelled by the Representatives by notifying
the Company in the manner and with the effect provided below in the last
sentence of this Section 6.
(d) At the Time of Delivery the Representatives shall have received a
certificate of the Chairman, President, Vice President and principal
financial officer, Vice President and principal accounting officer or
Treasurer of the Company, dated as of the Time of Delivery, to the effect
that the signer of such certificate has carefully examined the Registration
Statement, the Prospectus and any amendment or supplement thereto and the
Underwriting Agreement and that, in his opinion, at the time the
Registration Statement became effective, the Registration Statement did not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, and at the date of the Underwriting
Agreement the Prospectus did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, and since
the date of the Underwriting Agreement, no event has occurred which should
have been set forth in an amendment of or supplement to the Prospectus
which has not been so set forth; and no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings therefor have been instituted or threatened by the Commission;
and to the further effect that all the representations and warranties
contained in Section 2 hereof are true and correct, with the same force and
effect as though expressly made at the Time of Delivery.
(e) At the Time of Delivery counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the sale of the Bonds
as herein contemplated and related proceedings, or in order to evidence the
accuracy or completeness of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the sale of the Bonds
as herein contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters
If any of the conditions specified in this Section shall not have been
fulfilled when and as required by this Agreement to be fulfilled, this Agreement
and all obligations of the Underwriters hereunder may be cancelled by the
Representatives by notifying the Company of such cancellation in writing or by
telecopy at any time at or prior to the Time of Delivery and any such
cancellation shall be without liability of any party to any other party except
as otherwise provided in this Agreement.
SECTION 7. Condition of Company's Obligations. The obligations of the
Company to sell and deliver the Bonds are subject to the following conditions:
that at the Time of Delivery no stop order suspending the effectiveness of the
Registration Statement shall have been issued or proceedings therefor initiated
or threatened; that the order of the Illinois Commerce Commission, referred to
in Section 2(k), shall be in full force and effect substantially in the form in
which such order shall originally have been entered; and that the Indenture
shall be qualified under the Trust Indenture Act.
SECTION 8. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Act or the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense,
whatsoever, arising out of any untrue statement or alleged untrue statement
of a material fact contained in the registration statement as it became
effective, or in any amendment thereto, or in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, or arising out of any untrue statement
or alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any
10
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, unless such untrue statement or omission or such alleged untrue
statement or omission was made in reliance upon and in conformity with
written information respecting the Underwriters furnished to the Company by
or on behalf of any Underwriter through the Representatives expressly for
use in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission or any such alleged untrue statement
or omission, if such settlement is effected with the written consent of the
Company; and
(iii) against any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under (i) or (ii) above, and, in the case
of (i) above, unless such untrue statement or omission or such alleged
untrue statement or omission was made in reliance upon and in conformity
with written information respecting the Underwriters furnished to the
Company by or on behalf of any Underwriter through the Representatives
expressly for use in the Registration Statement (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto), or, in the case
of (ii) above, provided such settlement is effected with the written
consent of the Company.
This indemnity agreement is subject to the condition that, insofar as it
relates to any untrue statement, alleged untrue statement, omission or alleged
omission made in a preliminary prospectus or preliminary prospectus supplement,
but eliminated or remedied in the Prospectus, such indemnity agreement shall not
inure to the benefit of any Underwriter from whom the person asserting any loss,
liability, claim or damage purchases the Bonds which are the subject thereof (or
to the benefit of any person who controls such Underwriter) if such Underwriter
fails to send or give a copy of the Prospectus (excluding documents incorporated
by reference) to such person prior to or together with written confirmation of
the sale of such Bonds to such person and the delivery thereof would have
constituted a defense to the claim by such person.
In no case shall the Company be liable under this indemnity agreement with
respect to any claim made against any Underwriter or any such controlling person
unless the Company shall be notified in writing of the nature of the claim
within a reasonable time after the assertion thereof, but failure to so notify
the Company shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. The Company shall be entitled to
participate at its own expense in the defense, or, if it so elects, within a
reasonable time after receipt of such notice, to assume the defense of any suit
brought to enforce any such claim, but if it so elects to assume the defense,
such defense shall be conducted by counsel chosen by it and approved by the
Underwriter or Underwriters or controlling person or persons, defendant or
defendants in any suit so brought, which approval shall not be unreasonably
withheld. In the event that the Company elects to assume the defense of any such
suit and retains such counsel, the Underwriter or Underwriters or controlling
person or persons, defendant or defendants in the suit shall thereafter bear the
fees and expenses of any additional counsel retained by them. In the event that
the parties to any such action (including impleaded parties) include both the
Company and one or more Underwriters and any such Underwriter shall have been
advised by counsel chosen by it and satisfactory to the Company that there may
be one or more legal defenses available to it which are different from or
additional to those available to the Company, the Company shall not have the
right to assume the defense of such action on behalf of such Underwriter and
will reimburse such Underwriter and any person controlling such Underwriter as
aforesaid for the reasonable fees and expenses of any counsel retained by them,
it being understood that the Company shall not, in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expense of more than one separate firm of attorneys for all
such Underwriters and controlling persons, which firm shall be designated in
writing by the Representatives. The Company agrees to notify the Representatives
within a reasonable time of the assertion
11
of any claim against it, any of its officers or directors or any person who
controls the Company within the meaning of the Act or the 1934 Act, in
connection with the sale of the Bonds.
(b) Each Underwriter severally agrees that it will indemnify and hold
harmless the Company, its directors, and each of its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of the Act or the 1934 Act, to the same extent as the indemnity
contained in subsection (a) of this Section, but only with respect to statements
or omissions made in the registration statement as it became effective, or in
any amendment thereto, or in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information respecting the Underwriters
furnished to the Company by or on behalf of such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto).
In case any action shall be brought against the Company or any person so
indemnified based on the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto) and in respect of which
indemnity may be sought against any Underwriter, such Underwriter shall have the
rights and duties given to the Company, and the Company and each person so
indemnified shall have the rights and duties given to the Underwriters, by the
provisions of subsection (a) of this Section.
(c) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act or the 1934 Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company and to
each person, if any, who controls the Company within the meaning of the Act or
the 1934 Act.
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in the
Underwriting Agreement and/or contained in certificates of officers of the
Company submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or any controlling person of any Underwriter, or by or on behalf of the Company,
and shall survive payment for and delivery of the Bonds.
SECTION 10. Effective Date of the Underwriting Agreement and Termination
Thereof. (a) The Underwriting Agreement shall become effective at the time of
the initial public offering by the Underwriters of any of the Bonds. The time of
the initial public offering shall mean 12:00 noon, New York City time, on the
first full business day after the Underwriting Agreement is executed or at such
time as the Representatives may authorize the sale of the Bonds to the public by
the Underwriters or other securities dealers, whichever shall first occur. The
Representatives or the Company may prevent the Underwriting Agreement from
becoming effective without liability of any party to any other party, except as
otherwise provided in the Underwriting Agreement, by giving the notice indicated
below in this Section prior to the time the Underwriting Agreement would
otherwise become effective as herein provided.
(b) The Representatives shall have the right to terminate the Underwriting
Agreement by giving the notice indicated below in this Section at any time at or
prior to the Time of Delivery if (i) the Company shall have sustained since the
respective dates as of which information is given in the Prospectus any material
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree; or (ii) since the respective
dates as of which information is given in the Prospectus there shall have been
any material increase in the long-term debt, or any material adverse change, or
any development involving a prospective material adverse change, in or affecting
the general business affairs, management, financial position, results of
operations, or business prospects of the Company and its subsidiaries considered
as one enterprise, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause (i) or
(ii), in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Bonds on
the terms and in the manner contemplated in the Prospectus; or (iii) there shall
have occurred the outbreak or escalation of hostilities involving in a
significant way the armed
12
forces of the United States, or the declaration by the United States, on or
after the date of the Underwriting Agreement, of a national emergency or war, or
there shall have occurred a general suspension or limitation of trading in
securities on the New York or American Stock Exchanges, or the establishment of
minimum prices on either such Exchange, or a general moratorium on commercial
banking activities in New York is declared by either federal or New York state
authorities, the effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Bonds on the terms and in the manner contemplated in the Prospectus. If
the Representatives shall so terminate the Underwriting Agreement, such
termination shall be without liability of any party to any other party except as
otherwise provided in the Underwriting Agreement.
(c) If the Representatives elect to prevent the Underwriting Agreement from
becoming effective or to terminate the Underwriting Agreement as provided in
this Section, the Company and each other Underwriter shall be notified promptly
by the Representatives, by telephone or telegram, confirmed by letter. If the
Company elects to prevent the Underwriting Agreement from becoming effective as
provided in this Section, the Representatives shall be notified promptly by the
Company by telephone or telegram, confirmed by letter.
SECTION 11. Default of Underwriters. If any one or more of the Underwriters
shall fail at the Time of Delivery to purchase the amount of Bonds which it or
they are obligated to purchase hereunder (the "Defaulted Bonds"), then the
Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted Bonds in
such amounts as may be agreed upon and upon the terms herein set forth. If,
however, during such 24 hours the Representatives shall not have completed such
arrangements for the purchase of all of the Defaulted Bonds, then the Company
shall be entitled to a further period of 24 hours within which to procure
another party of parties satisfactory to the Representatives to purchase all of
such Defaulted Bonds on such terms. If, after giving effect to any arrangements
for the purchase of Defaulted Bonds by the Representatives and the Company as
provided above, then:
(a) if the amount of Defaulted Bonds does not exceed 10% of the
aggregate principal amount of the Bonds being sold hereunder, the
non-defaulting Underwriters shall be obligated to purchase severally the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the amount of Defaulted Bonds exceeds 10% of the aggregate
principal amount of the Bonds being sold hereunder, the Underwriting
Agreement shall terminate without any liability on the part of the Company
or any non-defaulting Underwriter.
The termination of the Underwriting Agreement pursuant to this Section
shall be without liability on the part of the Company or any of said
non-defaulting Underwriters, except for the respective obligations of the
Company and the Underwriters pursuant to Section 8 and except that the Company
shall be obligated to reimburse the Underwriters for their out-of-pocket
expenses (including reasonable fees and disbursements of counsel for the
Underwriters) incurred in connection with the offering if the Underwriting
Agreement could have been terminated by the Representatives pursuant to Section
6 or 10(b).
Nothing herein shall relieve any Underwriter so defaulting from liability,
if any, for such default.
In the event of a default by any one or more Underwriters as set forth in
this Section, either the Representatives or the Company shall have the right to
postpone the Time of Delivery for an additional period not exceeding 7 days in
order that any required changes in the Registration Statement and Prospectus or
in any other documents or arrangements may be effected.
SECTION 12. Notices. Except as otherwise provided in the Underwriting
Agreement, all communications under the Underwriting Agreement shall be in
writing, and, if sent to the Underwriters, shall be mailed, delivered or
telecopied and confirmed to the address of the Representatives, as set forth in
the Underwriting Agreement (except that any notice to an Underwriter pursuant to
Section 8 hereof shall be sent to it at its address set forth in the copies of
the Underwriters' Questionnaires furnished to the Company), or, if sent to the
Company shall be mailed or telecopied and confirmed to it at P.O. Box 190,
Aurora, Illinois 60507-0190,
13
or delivered to it at 1844 Ferry Road, Naperville, Illinois, for the attention
of Donald W. Lohrentz, Vice President.
SECTION 13. Parties. The Underwriting Agreement shall inure to the benefit
of and be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in the Underwriting Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and the directors and officers referred to in Section 8, any legal or
equitable right, remedy or claim under or in respect of the Underwriting
Agreement or any provision herein contained; the Underwriting Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of the parties hereto and their respective successors and said
controlling persons, directors and officers and for the benefit of no other
person, firm or corporation. No purchaser of any Bonds from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. Choice of Law. The Underwriting Agreement shall be construed in
accordance with, and governed by, the laws of the State of Illinois.
14
SUPPLEMENTAL INDENTURE
------------------------
DATED JUNE 1, 1998
------------------------
NORTHERN ILLINOIS GAS COMPANY
TO
HARRIS TRUST AND SAVINGS BANK
TRUSTEE UNDER INDENTURE DATED AS OF
JANUARY 1, 1954 AND SUPPLEMENTAL
INDENTURES THERETO
------------------------
FIRST MORTGAGE BONDS
5 3/4% SERIES DUE JUNE 1, 2003
This instrument was prepared by David L. Cyranoski, 1844 Ferry Road, Naperville,
Illinois 60563-9600.
Return to: Nicor Gas Company
Attn: Joe Johnson
P.O. Box 190, Aurora, IL 60507-0190
THIS SUPPLEMENTAL INDENTURE, dated the first day of June, 1998, between NORTHERN
ILLINOIS GAS COMPANY, a corporation organized and existing under the laws
of the State of Illinois (hereinafter called the "Company"), and HARRIS
TRUST AND SAVINGS BANK, an Illinois banking corporation, (hereinafter
called the "Trustee"), as Trustee under an Indenture dated as of January 1,
1954, as supplemented by Supplemental Indentures dated, respectively,
February 9, 1954, April 1, 1956, June 1, 1959, July 1, 1960, June 1, 1963,
July 1, 1963, August 1, 1964, August 1, 1965, May 1, 1966, August 1, 1966,
July 1, 1967, June 1, 1968, December 1, 1969, August 1, 1970, June 1, 1971,
July 1, 1972, July 1, 1973, April 1, 1975, April 30, 1976, April 30, 1976,
July 1, 1976, August 1, 1976, December 1, 1977, January 15, 1979, December
1, 1981, March 1, 1983, October 1, 1984, December 1, 1986, March 15, 1988,
July 1, 1988, July 1, 1989, July 15, 1990, August 15, 1991, July 15, 1992,
February 1, 1993, March 15, 1993, May 1, 1993, July 1, 1993, August 15,
1994, October 15, 1995, May 10, 1996, August 1, 1996, June 1, 1997, October
15, 1997 and February 15, 1998, such Indenture dated as of January 1, 1954,
as so supplemented, being hereinafter called the "Indenture."
WITNESSETH:
WHEREAS, the Indenture provides for the issuance from time to time
thereunder, in series, of bonds of the Company for the purposes and subject to
the limitations therein specified; and
WHEREAS, the Company desires, by this Supplemental Indenture, to create an
additional series of bonds to be issuable under the Indenture, such bonds to be
designated "First Mortgage Bonds, 5 3/4% Series due June 1, 2003" (hereinafter
called the "bonds of this Series"), and the terms and provisions to be contained
in the bonds of this Series or to be otherwise applicable thereto to be as set
forth in this Supplemental Indenture; and
WHEREAS, the forms, respectively, of the bonds of this Series, and
Trustee's certificate to be endorsed on all bonds of this Series, are to be
substantially as follows:
(FORM OF FACE OF BOND)
NO. RU _____ $________
NORTHERN ILLINOIS GAS COMPANY
FIRST MORTGAGE BOND, 5 3/4% SERIES DUE JUNE 1, 2003
NORTHERN ILLINOIS GAS COMPANY, an Illinois corporation (hereinafter called
the "Company"), for value received, hereby promises to pay to
or registered assigns, the sum of
Dollars, on the first day of June, 2003, and to pay to the
registered owner hereof interest on said sum from the date hereof until said sum
shall be paid, at the rate of five and three quarters per centum (5 3/4%) per
annum, payable semiannually on the first
2
day of June and the first day of December in each year. Both the principal of
and the interest on this bond shall be payable at the office or agency of the
Company in the City of Chicago, State of Illinois, or, at the option of the
registered owner, at the office or agency of the Company in the Borough of
Manhattan, The City and State of New York, in any coin or currency of the United
States of America which at the time of payment is legal tender for the payment
of public and private debts. Any installment of interest on the bonds may, at
the Company's option, be paid by mailing checks for such interest payable to or
upon the written order of the person entitled thereto to the address of such
person as it appears on the registration books.
So long as there is no existing default in the payment of interest on this
bond, the interest so payable on any interest payment date will be paid to the
person in whose name this bond is registered on the May 15 or the November 15
(whether or not a business day), as the case may be, next preceding such
interest payment date. If and to the extent that the Company shall default in
the payment of interest due on such interest payment date, such defaulted
interest shall be paid to the person in whose name this bond is registered on
the record date fixed, in advance, by the Company for the payment of such
defaulted interest.
Additional provisions of this bond are set forth on the reverse hereof.
This bond shall not be entitled to any security or benefit under the
Indenture or be valid or become obligatory for any purpose unless and until it
shall have been authenticated by the execution by the Trustee, or its successor
in trust under the Indenture, of the certificate endorsed hereon.
IN WITNESS WHEREOF, Northern Illinois Gas Company has caused this bond to
be executed in its name by its Chairman, President, or a Vice President,
manually or by facsimile signature, and has caused its corporate seal to be
impressed hereon or a facsimile thereof to be imprinted hereon and to be
attested by its Secretary or its Assistant Secretary, manually or by facsimile
signature.
Dated
- ---------------
NORTHERN ILLINOIS GAS COMPANY
By
-------------------------------------
President
ATTEST:
- -------------------------------------
Secretary
3
(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
This bond is one of the bonds of the series designated therein, referred to
and described in the within-mentioned Supplemental Indenture dated June 1, 1998.
HARRIS TRUST AND SAVINGS,
TRUSTEE
By
---------------------------------
Authorized Officer
(FORM OF REVERSE SIDE OF BOND)
This bond is one, of the series hereinafter specified, of the bonds issued
and to be issued in series from time to time under and in accordance with and
secured by an Indenture dated as of January 1, 1954, to Harris Trust and Savings
Bank, as Trustee, as supplemented by certain indentures supplemental thereto,
executed and delivered to the Trustee; and this bond is one of a series of such
bonds, designated "Northern Illinois Gas Company First Mortgage Bonds, 5 3/4%
Series due June 1, 2003" (herein called "bonds of this Series"), the issuance of
which is provided for by a Supplemental Indenture dated June 1, 1998
(hereinafter called the "Supplemental Indenture"), executed and delivered by the
Company to the Trustee. The term "Indenture", as hereinafter used, means said
Indenture dated as of January 1, 1954, and all indentures supplemental thereto
from time to time in effect. Reference is made to the Indenture for a
description of the property mortgaged and pledged, the nature and extent of the
security, the rights of the holders and registered owners of said bonds, of the
Company and of the Trustee in respect of the security, and the terms and
conditions governing the issuance and security of said bonds.
With the consent of the Company and to the extent permitted by and as
provided in the Indenture, modifications or alterations of the Indenture or of
any supplemental indenture and of the rights and obligations of the Company and
of the holders and registered owners of the bonds may be made, and compliance
with any provision of the Indenture or of any supplemental indenture may be
waived, by the affirmative vote of the holders and registered owners of not less
than sixty-six and two-thirds per centum (66 2/3%) in principal amount of the
bonds then outstanding under the Indenture, and by the affirmative vote of the
holders and registered owners of not less than sixty-six and two-thirds per
centum (66 2/3%) in principal amount of the bonds of any series then outstanding
under the Indenture and affected by such modification or alteration, in case one
or more but less than all of the series of bonds then outstanding under the
Indenture are so affected, but in any case excluding bonds disqualified from
voting by reason of the Company's interest therein as provided in the Indenture;
subject, however, to the condition, among other conditions stated in the
Indenture, that no such modification or alteration shall be made which, among
other things, will permit the
4
extension of the time or times of payment of the principal of or the interest on
this bond, or the reduction in the principal amount hereof or in the rate of
interest hereon, or any other modification in the terms of payment of such
principal or interest, which terms of payment are unconditional, or, otherwise
than as permitted by the Indenture, the creation of any lien ranking prior to or
on a parity with the lien of the Indenture with respect to any of the mortgaged
property, all as more fully provided in the Indenture.
The bonds of this Series may not be called for redemption by the Company.
In case of certain completed defaults specified in the Indenture, the
principal of this bond may be declared or may become due and payable in the
manner and with the effect provided in the Indenture.
No recourse shall be had for the payment of the principal of or the
interest on this bond, or for any claim based hereon, or otherwise in respect
hereof or of the Indenture, to or against any incorporator, stockholder, officer
or director, past, present or future, of the Company or of any predecessor or
successor corporation, either directly or through the Company or such
predecessor or successor corporation, under any constitution or statute or rule
of law, or by the enforcement of any assessment or penalty, or otherwise, all
such liability of incorporators, stockholders, directors and officers being
waived and released by the registered owner hereof by the acceptance of this
bond and being likewise waived and released by the terms of the Indenture, all
as more fully provided therein.
This bond is transferable by the registered owner hereof, in person or by
duly authorized attorney, at the office or agency of the Company in the City of
Chicago, State of Illinois, or, at the option of the registered owner, at the
office or agency of the Company in the Borough of Manhattan, The City and State
of New York, upon surrender and cancellation of this bond; and thereupon a new
registered bond or bonds without coupons of the same aggregate principal amount
and series will, upon the payment of any transfer tax or taxes payable, be
issued to the transferee in exchange herefor. The Company shall not be required
to exchange or transfer this bond if this bond or a portion hereof has been
selected for redemption.
(END OF BOND FORM)
and
WHEREAS, all acts and things necessary to make this Supplemental Indenture,
when duly executed and delivered, a valid, binding and legal instrument in
accordance with its terms and for the purposes herein expressed, have been done
and performed, and the execution and delivery of this Supplemental Indenture
have in all respects been duly authorized;
NOW, THEREFORE, in consideration of the premises and of the sum of one
dollar paid by the Trustee to the Company, and for other good and valuable
considerations, the receipt of which is hereby acknowledged, for the purpose of
securing the due and punctual payment of the principal of and the interest and
premium, if any, on all bonds
5
which shall be issued under the Indenture, and for the purpose of securing the
faithful performance and observance of all the covenants and conditions set
forth in the Indenture and in all indentures supplemental thereto, the Company
by these presents does grant, bargain, sell, transfer, assign, pledge, mortgage,
warrant and convey unto Harris Trust and Savings Bank, as Trustee, and its
successor or successors in the trust hereby created, all property, real and
personal (other than property expressly excepted from the lien and operation of
the Indenture), which, at the actual date of execution and delivery of this
Supplemental Indenture, is solely used or held for use in the operation by the
Company of its gas utility system and in the conduct of its gas utility business
and all property, real and personal, used or useful in the gas utility business
(other than property expressly excepted from the lien and operation of the
Indenture) acquired by the Company after the actual date of execution and
delivery of this Supplemental Indenture or (subject to the provisions of Section
16.03 of the Indenture) by any successor corporation after such execution and
delivery, and it is further agreed by and between the Company and the Trustee as
follows:
ARTICLE I
BONDS OF THIS SERIES
SECTION 1. The bonds of this Series shall, as hereinbefore recited, be
designated as the Company's "First Mortgage Bonds, 5 3/4% Series due June 1,
2003." The bonds of this Series which may be issued and outstanding shall not
exceed $50,000,000 in aggregate principal amount, exclusive of bonds of such
series authenticated and delivered pursuant to the provisions of Section 4.12 of
the Indenture.
SECTION 2. The bonds of this Series shall be registered bonds without
coupons, and the form of such bonds, and of the Trustee's certificate of
authentication to be endorsed on all bonds of this Series, shall be
substantially as hereinbefore recited, respectively.
SECTION 3. The bonds of this Series shall be issued in the denomination of
$1,000 each and in such multiple or multiples thereof as shall be determined and
authorized by the Board of Directors of the Company or by any officer or
officers of the Company authorized by the Board of Directors to make such
determination, the authorization of the denomination of any bond to be
conclusively evidenced by the execution thereof on behalf of the Company. The
bonds of this Series shall be numbered, RU-1 and consecutively upwards, or in
such other appropriate manner as shall be determined and authorized by the Board
of Directors of the Company.
All bonds of this Series shall be dated June 1, 1998, except that each bond
issued on or after the first payment of interest thereon shall be dated as of
the date of the interest payment date thereof to which interest shall have been
paid on the bonds of such series next preceding the date of issue, unless issued
on an interest payment date to which interest shall have been so paid, in which
event such bonds shall be dated as of the date of issue; provided, however, that
bonds issued on or after May 15 and before the next succeeding June 1 or on or
after November 15 and before the next succeeding
6
December 1 shall be dated the next succeeding interest payment date if interest
shall have been paid to such date. All bonds of this Series shall mature June 1,
2003, and shall bear interest at the rate of 5 3/4% per annum until the
principal thereof shall be paid. Such interest shall be calculated on the basis
of a 360-day year consisting of twelve 30-day months and shall be payable
semiannually on the first day of June and the first day of December in each
year. So long as there is no existing default in the payment of interest on the
bonds of this Series, such interest shall be payable to the person in whose name
each such bond is registered on the May 15 or the November 15 (whether or not a
business day), as the case may be, next preceding the respective interest
payment dates; provided, however, if and to the extent that the Company shall
default in the payment of interest due on such interest payment date, such
defaulted interest shall be paid to the person in whose name each such bond is
registered on the record date fixed, in advance, by the Company for the payment
of such defaulted interest.
The principal of and interest on the bonds of this Series shall be payable
in any coin or currency of the United States of America which at the time of
payment is legal tender for the payment of public and private debts, and shall
be payable at the office or agency of the Company in the City of Chicago, State
of Illinois, or, at the option of the registered owner, at the office or agency
of the Company in the Borough of Manhattan, The City and State of New York. Any
installment of interest on the bonds may, at the Company's option, be paid by
mailing checks for such interest payable to or upon the written order of the
person entitled thereto to the address of such person as it appears on the
registration books. The bonds of this Series shall be registrable, transferable
and exchangeable in the manner provided in Sections 4.08 and 4.09 of the
Indenture, at either of such offices or agencies.
SECTION 4. The bonds of this Series may not be called for redemption by the
Company.
SECTION 5. No sinking fund is to be provided for the bonds of this Series.
7
ARTICLE II
MISCELLANEOUS PROVISIONS
SECTION 1. This Supplemental Indenture is executed by the Company and the
Trustee pursuant to provisions of Section 4.02 of the Indenture and the terms
and conditions hereof shall be deemed to be a part of the terms and conditions
of the Indenture for any and all purposes. The Indenture, as heretofore
supplemented and as supplemented by this Supplemental Indenture, is in all
respects ratified and confirmed.
SECTION 2. This Supplemental Indenture shall bind and, subject to the
provisions of Article XVI of the Indenture, inure to the benefit of the
respective successors and assigns of the parties hereto.
SECTION 3. Although this Supplemental Indenture is dated June 1, 1998, it
shall be effective only from and after the actual time of its execution and
delivery by the Company and the Trustee on the date indicated by their
respective acknowledgments hereto annexed.
SECTION 4. This Supplemental Indenture may be simultaneously executed in
any number of counterparts, and all such counterparts executed and delivered,
each as an original, shall constitute but one and the same instrument.
IN WITNESS WHEREOF, Northern Illinois Gas Company has caused this
Supplemental Indenture to be executed in its name by its President, a Vice
President, or Treasurer, and its corporate seal to be hereunto affixed and
attested by its Secretary or its Assistant Secretary, and Harris Trust and
Savings Bank, as Trustee under the Indenture, has caused this Supplemental
Indenture to be executed in its name by one of its Vice Presidents, and its seal
to be hereunto affixed and attested by one of its Assistant Secretaries, all as
of the day and year first above written.
NORTHERN ILLINOIS GAS COMPANY
BY
- -------------------------------------
Senior Vice President,
Secretary and Controller
ATTEST:
-------------------------------------------------------------------------------
Assistant Secretary
HARRIS TRUST AND SAVINGS BANK,
as Trustee
BY
- -------------------------------------
Vice President
ATTEST:
-------------------------------------------------------------------------------
Assistant Secretary
8
STATE OF ILLINOIS SS:
COUNTY OF DUPAGE
I, Catherine A. Gengler, a Notary Public in the State aforesaid, DO HEREBY
CERTIFY that David L. Cyranoski, Senior Vice President, Secretary and Controller
of Northern Illinois Gas Company, an Illinois corporation, one of the parties
described in and which executed the foregoing instrument, and Alexander C.
Allison, Assistant Secretary of said corporation, who are both personally known
to me to be the same persons whose names are subscribed to the foregoing
instrument as such Senior Vice President, Secretary and Controller and Assistant
Secretary, respectively, and who are both personally known to me to be the
Senior Vice President, Secretary and Controller and the Assistant Secretary,
respectively, of said corporation, appeared before me this day in person and
severally acknowledged that they signed, sealed, executed and delivered said
instrument as their free and voluntary act as such Senior Vice President,
Secretary and Controller and Assistant Secretary, respectively, of said
corporation, and as the free and voluntary act of said corporation, for the uses
and purposes therein set forth.
GIVEN under my hand and notarial seal this 3rd day of June A.D. 1998.
Notary Public
My Commission expires August 4, 2001
9
STATE OF ILLINOIS SS:
COUNTY OF COOK
I, Marianne Tinerella, a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that J. Bartolini, Vice President of Harris Trust
and Savings Bank, an Illinois banking corporation, one of the parties described
in and which executed the foregoing instrument, and D. G. Donovan, an Assistant
Secretary of said banking association, who are both personally known to me to be
the same persons whose names are subscribed to the foregoing instrument as such
Vice President and Assistant Secretary, respectively, and who are both
personally known to me to be a Vice President and an Assistant Secretary,
respectively, of said banking association, appeared before me this day in person
and severally acknowledged that they signed, sealed, executed and delivered said
instrument as their free and voluntary act as such Vice President and Assistant
Secretary, respectively, of said banking association, and as the free and
voluntary act of said banking association, for the uses and purposes therein set
forth.
GIVEN under my hand and notarial seal this 3rd day of June A.D. 1998.
Notary Public
My Commission expires May 21, 2001
10
RECORDING DATA
This Supplemental Indenture was recorded on June 4 and 5, 1998, in the
office of the Recorder of Deeds in certain counties in the State of Illinois, as
follows:
COUNTY BOOK PAGE DOCUMENT NO.
- ------ ---- ---- ------------
Adams
Boone
Bureau
Carroll
Champaign
Cook
DeKalb
DeWitt
DuPage
Ford
Grundy
Hancock
Henderson
Henry
Iroquois
Jo Daviess
Kane
Kankakee
Kendall
Lake
La Salle
Lee
Livingston
McHenry
McLean
Mercer
Ogle
Platt
Pike
Rock Island
Stephenson
Tazewell
Vermillon
Whiteside
Will
Winnebago
Woodford
<TABLE>
Nicor Gas Company
Form 10-Q
Exhibit 12.01
NICOR GAS COMPANY
COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
(Thousands)
<CAPTION>
Twelve
Months Ended
June 30 Year Ended December 31
1998 1997 1996 1995 1994 1993
Earnings available to cover fixed charges:
<S> <C> <C> <C> <C> <C> <C>
Net income $ 101,985 $ 106,922 $ 107,106 $ 85,448 $ 93,078 $ 94,935
Add: Income taxes 61,168 64,714 63,579 49,881 50,958 52,890
Fixed charges 46,363 46,886 46,747 39,400 37,729 40,960
Allowance for funds used
during construction (54) (11) (5) (911) (151) (64)
Total $ 209,462 $ 218,511 $ 217,427 $ 173,818 $ 181,614 $ 188,721
Fixed charges:
Interest on debt $ 44,694 $ 45,246 $ 43,762 $ 38,129 $ 36,726 $ 38,949
Other interest charges and
amortization of debt discount,
premium and expense, net 1,669 1,640 2,985 1,271 1,003 2,011
Total $ 46,363 $ 46,886 $ 46,747 $ 39,400 $ 37,729 $ 40,960
Ratio of earnings to fixed charges 4.52 4.66 4.65 4.41 4.81 4.61
</TABLE>
<TABLE> <S> <C>
<ARTICLE> UT
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED STATEMENT OF INCOME, THE CONSOLIDATED BALANCE SHEET AND THE
CONSOLIDATED STATEMENT OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> JUN-30-1998
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,606
<OTHER-PROPERTY-AND-INVEST> 3
<TOTAL-CURRENT-ASSETS> 209
<TOTAL-DEFERRED-CHARGES> 0
<OTHER-ASSETS> 99
<TOTAL-ASSETS> 1,917
<COMMON> 76
<CAPITAL-SURPLUS-PAID-IN> 108
<RETAINED-EARNINGS> 497
<TOTAL-COMMON-STOCKHOLDERS-EQ> 681
8
1
<LONG-TERM-DEBT-NET> 521
<SHORT-TERM-NOTES> 0
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 25
1
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 680
<TOT-CAPITALIZATION-AND-LIAB> 1,917
<GROSS-OPERATING-REVENUE> 719
<INCOME-TAX-EXPENSE> 30
<OTHER-OPERATING-EXPENSES> 616
<TOTAL-OPERATING-EXPENSES> 646
<OPERATING-INCOME-LOSS> 73
<OTHER-INCOME-NET> 3
<INCOME-BEFORE-INTEREST-EXPEN> 76
<TOTAL-INTEREST-EXPENSE> 22
<NET-INCOME> 54
0
<EARNINGS-AVAILABLE-FOR-COMM> 54
<COMMON-STOCK-DIVIDENDS> 54
<TOTAL-INTEREST-ON-BONDS> 19
<CASH-FLOW-OPERATIONS> 391
<EPS-PRIMARY> 0<F1>
<EPS-DILUTED> 0<F1>
<FN>
<F1>NICOR GAS IS A WHOLLY OWNED SUBSIDIARY OF NICOR INC. EARNINGS PER SHARE
INFORMATION IS THEREFORE OMITTED.
</FN>
</TABLE>
