INDIANA GAS COMPANY, INC.
$ 70,000,000
7.15% Senior Insured Quarterly Notes due December 15, 2015 (the "2015 Notes")
7.45% Senior Insured Quarterly Notes due December 16, 2030 (the "2030 Notes")
PURCHASE AGREEMENT
December 21, 2000
EDWARD D. JONES & CO., L.P.
12555 Manchester Road
St. Louis, Missouri 63131
Ladies and Gentlemen:
Indiana Gas Company, Inc., a corporation incorporated in Indiana and
Ohio (the "Company"), confirms its agreement with Edward D. Jones & Co., L.P.
(the "Underwriter"), with respect to the issue and sale by the Company and the
purchase by the Underwriter of $20,000,000 aggregate principal amount of the
2015 Notes and $50,000,000 aggregate principal amount of the 2030 Notes
(collectively, the "Securities"). The Securities are to be issued pursuant to an
indenture, dated as of February 1, 1991, between the Company and U.S. Bank Trust
National Association (formerly known as First Trust National Association, which
was formerly known as Bank of America Illinois, which was formerly known as
Continental Bank, National Association), as Trustee (the "Trustee"), as amended
by the second and the fifth supplemental indentures thereto (collectively, the
"Indenture").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-82111) for the
registration of the offer and sale of certain debt securities, including the
Securities, under the Securities Act of 1933, as amended (the "1933 Act"), from
time to time in accordance with Rule 415 of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"), and the Company has
filed such post-effective amendments thereto as may be required prior to the
date hereof. Such registration statement (as amended, if applicable) has been
declared effective by the Commission, and the Indenture has been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"). Promptly after
execution and delivery of this Agreement, the Company will prepare and file a
prospectus supplement reflecting the terms of the Securities, the terms of the
offering thereof and the other matters set forth therein, pursuant to Rule
424(b) under the 1933 Act Regulations. The final prospectus and the final
prospectus supplement relating to the Securities, in the forms first furnished
to the Underwriter by the Company for use in connection with the Securities, are
collectively referred to herein as the "Prospectus", and such registration
statement, in the form in which it became effective, is herein called the
"Registration Statement"; provided, however, that all references to the
"Registration Statement" and the "Prospectus" shall also be deemed to include
documents incorporated therein by reference pursuant to the Securities Exchange
Act of 1934, as amended (the "1934 Act"), prior to the date of this Agreement. A
"preliminary prospectus" shall be deemed to refer to any prospectus that omitted
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations and that was used
after such effectiveness and prior to the initial delivery of the Prospectus to
the Underwriter by the Company.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall include all such financial statements and schedules
and other information which is incorporated by reference in the Registration
Statement, Prospectus or preliminary prospectus, as the case may be, prior to
the date of this Agreement; and all references in this Agreement to amendments
or supplements to the Registration Statement, Prospectus or preliminary
prospectus shall include the filing of any document under the 1934 Act which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, after the date of this Agreement.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to the Underwriter as of the date hereof and as of the Closing Time
(as defined in Section 2(b)), and agrees with the Underwriter, as follows:
(i) Compliance with Registration Requirements. The requirements for
use of Form S-3 under the 1933 Act have been satisfied. The Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been initiated or threatened by
the Commission.
(ii) Registration Statement and Prospectus. At the respective times
the Registration Statement and any post-effective amendments thereto
(including the filing of the Company's most recent Annual Report on Form
10-K with the Commission) became effective, at the date hereof and at the
Closing Time, the Registration Statement and any amendments thereto
complied, comply and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act
and the rules and regulations of the Commission under the 1939 Act and did
not, do not and 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. At the date of the Prospectus
and at the Closing Time, neither the Prospectus nor any amendment or
supplement thereto included, includes or will include an untrue statement
of a material fact or omitted, omits or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Notwithstanding
the foregoing, the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
the Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the Underwriter expressly for use in
the Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriter for
use in connection with the offering of Securities will, at the time of such
delivery, be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
(iii) Incorporated Documents. The documents incorporated by reference
in the Registration Statement or the Prospectus, when they became effective
or were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the 1933 Act or the 1934 Act, as
applicable, and the rules and regulations of the Commission thereunder, and
none of such documents included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by
reference in the Registration Statement or the Prospectus or any further
amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the 1933 Act or the 1934 Act, as
applicable, and the rules and regulations of the Commission thereunder and
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(iv) Financial Statements. The financial statements included in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data and
the summary financial information included in the Prospectus present fairly
the information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the Registration
Statement.
(v) No Material Adverse Changes. Neither the Company nor any of its
subsidiaries has sustained since the date of the latest audited financial
statements included or incorporated by reference 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, otherwise than as
set forth or contemplated in the Prospectus; and, since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, there has not been any change in the capital stock or
long-term debt of the Company (other than any changes in long-term debt
resulting from the issuance of Securities pursuant to this Agreement) or
any of its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries considered as one
enterprise, otherwise than as set forth or contemplated in the Prospectus.
(vi) Due Incorporation and Good Standing. The Company has been duly
incorporated and is validly existing as a corporation under the laws of the
jurisdictions of its incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus and to enter into and consummate the transactions contemplated
under this Agreement and the Indenture.
(vii) Capitalization. The Company has an authorized capitalization as
set forth in the Prospectus. The shares of issued and outstanding capital
stock of the Company have been duly authorized and validly issued and are
fully paid and non-assessable. None of the outstanding shares of capital
stock of the Company were issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(viii) Authorization and Validity of Securities. The Securities have
been duly authorized, and, when issued and delivered pursuant to this
Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles and will be entitled to the benefits provided by
the Indenture. The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the 1939 Act and
constitutes a valid and legally binding agreement of the Company,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles. The Indenture and the Securities conform in all material
respects to the descriptions thereof contained in the Prospectus.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) Accuracy of Descriptions. The statements set forth in the
Prospectus under the captions "Description of the Debt Securities" and
"Description of the IQ Notes", insofar as they purport to constitute a
summary of the terms of the Securities, and under the captions "Plan of
Distribution" and "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate,
complete and fair.
(xi) Absence of Defaults. Neither the Company nor any of its
subsidiaries is in violation of its Articles of Incorporation, as amended,
or By-Laws or in default in the performance or observance of any material
obligation, covenant or condition contained in any indenture, mortgage,
deed of trust, loan or credit agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its property or
assets may be bound.
(xii) Non-Contravention. The issue and sale of the Securities by the
Company and the compliance by the Company with all of the provisions of the
Securities, the Indenture and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, nor will
such action result in any violation of the provisions of the Articles of
Incorporation, as amended, or By-Laws of the Company or any of its
subsidiaries or any of the provisions of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any of the property or assets of the Company or any of
its subsidiaries. No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by
the Company of the transactions contemplated by this Agreement or the
Indenture, except such as have been already obtained or as may be required
under the 1933 Act or the 1939 Act or state securities laws.
(xiii) Absence of Proceedings. Other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any of the
property or assets of the Company or any of its subsidiaries is subject,
which, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse effect on
the current or future consolidated financial position, shareholders' equity
or results of operations of the Company and its subsidiaries considered as
one enterprise, and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(xiv) Investment Company Act. The Company is not, and after giving
effect to the issue and sale of the Securities will not be, an "investment
company" or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended (the
"1940 Act").
(xv) Compliance with Registration Amount. The aggregate amount of
Securities issued and sold by the Company hereunder and any other debt
securities of the Company issued and sold pursuant to the Registration
Statement will not exceed the amount of debt securities registered under
the Registration Statement.
(xvi) Independent Accountants. Arthur Andersen LLP, who have certified
certain consolidated financial statements of the Company and its
subsidiaries, are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(xvii) Indiana Commission Order. The order of the Indiana Utility
Regulatory Commission (the "Indiana Commission"), dated December 29, 1998,
authorizing the Company, among other things, to issue up to $100,000,000 of
debt securities, including the Securities (the "Indiana Commission Order"),
is in full force and effect and is not the subject of any appeal or other
proceeding.
(xviii) Ohio Commission Order. The order of the Public Utilities
Commission of Ohio (the "Ohio Commission"), dated November 21, 2000,
authorizing the Company, among other things, to issue up to $70,000,000 of
debt securities, including the Securities (the "Ohio Commission Order"), is
in full force and effect and is not the subject of any appeal or other
proceeding.
(xix) Insurance Policy. The Company has duly authorized all necessary
action to be taken by it for the procurement of an irrevocable financial
guarantee insurance policy for the Securities (the "Insurance Policy")
issued by Ambac Assurance Corporation (the "Insurer"), insuring the payment
of principal of and interest on the Securities, when due, and mandatory
redemption payments for interests in the Securities at the option of
representatives of deceased owners thereof.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Underwriter or to counsel
for the Underwriter shall be deemed a representation and warranty by the Company
to the Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriter; Closing.
(a) Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to the Underwriter, and the Underwriter agrees to purchase from
the Company, $20,000,000 aggregate principal amount of the 2015 Notes at 97.60%
of the principal amount thereof and $50,000,000 aggregate principal amount of
the 2030 Notes at 96.85% of the principal amount thereof. Each series of
Securities will have the terms specified in Schedule A hereto.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of Brown & Wood
LLP, One World Trade Center, New York, New York, 10048-0557, or at such other
place as shall be agreed upon by the Underwriter and the Company, at 9:00 A.M.
(Eastern time) on December 28, 2000, or such other time not later than ten
business days after such date as shall be agreed upon by the Underwriter and the
Company (such time and date of payment and delivery being herein called the
"Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Underwriter for its account of global certificates for the Securities being
purchased by the Underwriter.
(c) Denominations; Registration. Global certificates for the Securities
shall be in such denominations ($1,000 or integral multiples thereof) and
registered in such names as the Underwriter may request in writing at least one
full business day before the Closing Time. The Securities will be made available
for examination and, if applicable, packaging by the Underwriter in The City of
New York not later than 10:00 A.M. (Eastern time) on the business day prior to
the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with the
Underwriter as follows:
(a) Filing and Delivery of Prospectus Supplement. Immediately following the
execution of this Agreement, the Company will prepare a prospectus supplement,
in form approved by the Underwriter, setting forth the principal amount of
Securities and their terms not otherwise specified in the base prospectus, the
Underwriter's name, the price at which the Securities are to be purchased by the
Underwriter from the Company, the initial public offering price, the selling
concession and reallowance, if any, and such other information as the
Underwriter and the Company deem appropriate in connection with the offering of
the Securities. The Company will promptly transmit copies of the prospectus
supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations and will furnish to the Underwriter as many copies of the Prospectus
as the Underwriter shall reasonably request.
(b) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(c), will notify the Underwriter immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any amendment or supplement to
the Prospectus shall have been filed, (ii) of the receipt of any comments from
the Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424(b) and will take such steps as it deems necessary to ascertain
promptly whether the Prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was not, it will
promptly file the Prospectus. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(c) Notice and Filing of Amendments. The Company will give the Underwriter
notice of its intention to file or prepare any amendment to the Registration
Statement or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Underwriter with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which the Underwriter or counsel for the Underwriter
shall object.
(d) Delivery of Registration Statements. The Company has furnished or will
deliver to the Underwriter and counsel for the Underwriter, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Underwriter, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) as the Underwriter may reasonably request. The copies
of the Registration Statement and each amendment thereto furnished to the
Underwriter will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) Delivery of Prospectuses. The Company will deliver to the Underwriter,
without charge, as many copies of each preliminary prospectus as the Underwriter
may reasonably request, and the Company hereby consents to the use of such
copies for purposes permitted by the 1933 Act. The Company will furnish to the
Underwriter, without charge, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented, if applicable) as the Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriter will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(f) Continued Compliance with Securities Laws. The Company will comply with
the 1933 Act and the 1934 Act and the rules and regulations of the Commission
thereunder so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriter or for the
Company, to amend the Registration Statement in order that the Registration
Statement 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 or amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(c), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company will
furnish to the Underwriter, without charge, such number of copies of such
amendment or supplement as the Underwriter may reasonably request.
(g) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriter, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
as the Underwriter may designate and to maintain such qualifications in effect
for as long as may be required for the distribution of the Securities; provided,
however, that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the Securities have
been so qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the effective date of the
Registration Statement. The Company will also supply the Underwriter with such
information as is necessary for the determination of the legality of the
Securities for investment under the laws of such jurisdictions as the
Underwriter may request.
(h) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(i) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds".
(j) Restriction on Sale of Securities. During a period of 15 days from the
date of the Prospectus, the Company will not, without the prior written consent
of the Underwriter, directly or indirectly, issue, sell, offer or contract to
sell, grant any option for the sale of, or otherwise transfer or dispose of, any
debt securities, or any securities convertible into or exchangeable or
exercisable for any debt securities, of the Company.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the rules and
regulations of the Commission thereunder.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriter of this Agreement, the
Indenture and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Securities to the
Underwriter, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(g) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriter in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the printing and
delivery to the Underwriter of copies of each preliminary prospectus and of the
Prospectus and any amendments or supplements thereto, (vii) the fees and
expenses payable to the Insurer in connection with the issuance of the Insurance
Policy, (viii) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Securities, and (ix) any fees payable in connection with the rating of the
Securities or the acceptance of the Securities for clearance and settlement
through the facilities of The Depository Trust Company.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriter in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriter for all of its out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriter.
SECTION 5. Conditions of Underwriter's Obligations. The obligations of the
Underwriter hereunder are subject to the accuracy of the representations and
warranties of the Company contained in Section 1 hereof or in certificates of
any officer of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement has
become effective under the 1933 Act and at Closing Time no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceedings therefor shall have been initiated or be pending or threatened by
the Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriter. The Prospectus containing the information relating
to the description of the Securities, including the specific method of
distribution and similar matters, shall have been filed with the Commission in
accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Underwriter shall
have received the favorable opinions, dated as of Closing Time, of (i) Barnes &
Thornburg, Indiana counsel for the Company, or such other counsel as is
satisfactory to counsel for the Underwriter, in form and substance satisfactory
to counsel for the Underwriter, to the effect set forth in Exhibit A hereto and
to such further effect as counsel to the Underwriter may reasonably request and
(ii) Kegler, Brown, Hill & Ritter and/or McNees, Wallace & Nurick, Ohio counsel
for the Company, in form and substance satisfactory to counsel for the
Underwriter, to the effect set forth in Exhibit B hereto and to such further
effect as counsel to the Underwriter may reasonably request. Any of such counsel
may also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public officials.
(c) Opinion of Counsel for Underwriter. At Closing Time, the Underwriter
shall have received the favorable opinion, dated as of Closing Time, of Brown &
Wood LLP, counsel for the Underwriter, with respect to the matters set forth in
the first clause of paragraph (i), and in paragraphs (iv), (v), (vi), (ix) and
(xiii), of Exhibit A hereto. In giving such opinion such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the law of the
State of New York and the federal law of the United States, upon the opinions of
counsel satisfactory to the Underwriter. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(d) Opinion of Counsel for Insurer. At Closing Time, the Underwriter shall
have received the favorable opinion, dated as of Closing Time, of Kevin Doyle,
General Counsel for the Insurer, to the effect set forth in Exhibit C hereto and
to such further effect as counsel to the Underwriter may reasonably request.
(e) Officers' Certificate. At Closing Time, neither the Company nor any of
its subsidiaries shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus any
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, otherwise than as set forth or
contemplated in the Prospectus, and there shall not have been, since the date
hereof or since the respective dates as of which information is given in the
Prospectus, any material change in the capital stock or long-term debt of the
Company (other than any changes in long-term debt resulting from the issuance of
Securities pursuant to this Agreement) or any of its subsidiaries, or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Underwriter shall have received a
certificate of officers of the Company, dated as of Closing Time, to the effect
that (i) there has been no such material adverse change or development, (ii) the
representations and warranties in Section 1(a) hereof are true and correct with
the same force and effect as though expressly made at and as of Closing Time,
(iii) the Company has performed or complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or are pending or threatened by the Commission.
(f) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Underwriter shall have received from Arthur Andersen LLP a letter
dated such date, in form and substance satisfactory to the Underwriter,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(g) Bring-down Comfort Letter. At Closing Time, the Underwriter shall have
received from Arthur Andersen LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (f) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to Closing Time.
(h) Maintenance of Rating. At Closing Time, the Securities shall be rated
at least Aaa by Moody's Investors Service Inc. and AAA by Standard & Poor's
Ratings Group, a division of McGraw-Hill, Inc., and the Company shall have
delivered to the Underwriter a letter dated the Closing Time, from each such
rating agency, or other evidence satisfactory to the Underwriter, confirming
that the Securities have such ratings; and since the date of this Agreement,
there shall not have occurred a downgrading in, or withdrawal of, the rating
assigned to the Securities or any of the Company's other securities by any
"nationally recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such
organization shall have publicly announced that it has under surveillance or
review its rating of the Securities or any of the Company's other securities.
(i) Evidence of Insurance Policy. At Closing Time, the Underwriter shall
have received evidence that the Insurance Policy has been issued by the Insurer
with terms theretofore agreed upon by the Company, the Insurer and the
Underwriter.
(j) Additional Documents. At Closing Time, counsel for the Underwriter
shall have been furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy 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 issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the Underwriter and counsel for
the Underwriter.
(k) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriter by notice to the Company at any
time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 4, 6, 7, 8 and 12 shall survive any such termination and
remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriter. The Company agrees to indemnify and
hold harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained 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 amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Underwriter),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, 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;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Company, Directors and Officers. The Underwriter
agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by the Underwriter expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Underwriter, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties 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. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriter on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriter on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriter on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriter, in each case as
set forth on the cover of the Prospectus, bear to the aggregate initial public
offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriter on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriter shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which the
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriter.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriter may terminate this Agreement, by
notice to the Company, at any time at or prior to Closing Time (i) if there has
been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the general affairs, management, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Underwriter, impracticable to market
the Securities or to enforce contracts for the sale of the Securities, or (iii)
if trading in any securities of the Company has been suspended or materially
limited by the Commission or a national securities exchange, or if trading
generally on the American Stock Exchange or the New York Stock Exchange or in
the Nasdaq National Market has been suspended or materially limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal or New York authorities, or (v) if the rating assigned by any
nationally recognized statistical rating organization to any securities
(including the Securities) of the Company as of the date of this Agreement has
been lowered or withdrawn since that date or if any such rating agency shall
have publicly announced since that date that it has under surveillance or review
its rating of the Securities or other securities of the Company.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 4,
6, 7, 8 and 12 shall survive such termination and remain in full force and
effect.
SECTION 10. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to Edward D. Jones & Co., L.P., 12555 Manchester
Road, St. Louis, Missouri 63131, Attention: T. William Hizar, Jr.; and notices
to the Company shall be directed to it at Indiana Gas Company, Inc., 20 N.W.
Fourth Street, Evansville, Indiana 47702-0209, Attention: Vice President and
Treasurer.
SECTION 11. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriter and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriter
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriter and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from the Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 13. Effect of Headings. The Section and paragraph headings herein
are for convenience only and shall not affect the construction hereof.
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriter and the Company in accordance with its terms.
Very truly yours,
INDIANA GAS COMPANY, INC.
By /s/
------------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
EDWARD D. JONES & CO., L.P.
By /s/
-------------------------------------
Authorized Signatory
<PAGE>
SCHEDULE A
INDIANA GAS COMPANY, INC.
7.15% Senior Insured Quarterly Notes due 2015
1. The initial public offering price of the 2015 Notes shall be 100% of the
principal amount thereof, plus accrued interest, if any, from December 28,
2000.
2. The interest rate on the 2015 Notes shall be 7.15% per annum, payable
quarterly on March 15, June 15, September 15 and December 15.
3. The stated maturity date of the 2015 Notes shall be December 15, 2015.
4. The 2015 Notes will be subject to redemption at the option of the Company
on or after December 15, 2004 and at the option of representatives of
deceased owners of beneficial interests in the 2015 Notes, in each case at
100% of the principal amount thereof plus any accrued interest.
INDIANA GAS COMPANY, INC.
7.45% Senior Insured Quarterly Notes due 2030
1. The initial public offering price of the 2030 Notes shall be 100% of the
principal amount thereof, plus accrued interest, if any, from December 28,
2000.
2. The interest rate on the 2030 Notes shall be 7.45% per annum, payable
quarterly on March 15, June 15, September 15 and December 15.
3. The stated maturity date of the 2030 Notes shall be December 16, 2030.
4. The 2030 Notes will be subject to redemption at the option of the Company
on or after December 15, 2005 and at the option of representatives of
deceased owners of beneficial interests in the 2030 Notes, in each case at
100% of the principal amount thereof plus any accrued interest.
<PAGE>
EXHIBIT A
FORM OF OPINION OF INDIANA COUNSEL TO COMPANY
The opinion of Indiana counsel to the Company pursuant to Section 5(b)(i)
of the Purchase Agreement shall be to the effect that:
(a) The Company has been duly incorporated and is validly existing as
a corporation under the laws of Indiana, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus;
(b) The Company has an authorized capitalization as set forth in the
Prospectus and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(c) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or to
which any property of the Company or any of its subsidiaries is subject
which, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse effect on
the current or future consolidated financial position, shareholders' equity
or results of operations of the Company and its subsidiaries; and to the
best of such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(d) The Purchase Agreement has been duly authorized, executed and
delivered by the Company;
(e) The Securities have been duly authorized and, when duly executed,
authenticated, issued and delivered by the Company, will constitute valid
and legally binding obligations of the Company entitled to the benefits
provided by the Indenture; and the Indenture and the Securities conform to
the descriptions thereof in the Prospectus;
(f) The Indenture, including the fifth supplemental indenture thereto,
has been duly authorized, executed and delivered by the parties thereto and
constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to (i) the United
States Bankruptcy Code, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws now or hereafter in effect relating to or
affecting creditors' rights or remedies generally and (ii) general
equitable principles (regardless of whether such enforcement is considered
in a proceeding at law or in equity) and to judicial discretion. The
Indenture has been duly qualified under the Trust Indenture Act. All taxes
and fees required to be paid with respect to the execution of the Indenture
and the issuance of the Securities have been paid;
(g) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture and the
Purchase Agreement and the consummation of the transactions therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement 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, nor will such action result in any violation of the
provisions of the Articles of Incorporation, as amended, of the Company or
the By-laws of the Company or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
(h) The Company, its sole shareholder Vectren Utility Holding Company
and its parent Vectren Corporation, are presently exempt from the
provisions of the Public Utility Holding Company Act of 1935, as amended
(except Section 9 thereof), which would otherwise require them to register
thereunder; and the Company's gas distribution activities are exempt from
or do not require compliance with the provisions of the Natural Gas Act;
(i) The statements set forth in the Prospectus under the captions
"Description of the Debt Securities" and "Description of the Notes",
insofar as they purport to constitute a summary of the terms of the
Securities, and under the two captions "Plan of Distribution", insofar as
they purport to describe the provisions of the laws and documents referred
to therein, are accurate and complete in all material respects;
(j) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act;
(k) The documents incorporated by reference in the Prospectus (other
than the financial statements and related schedules, financial data or
statistical information therein, as to which such counsel need express no
opinion), when they became effective or were filed with the Commission, as
the case may be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder; and although they are not
passing upon and do not assume any responsibility for the accuracy and
completeness of the statements contained in such documents, such counsel
advises the Underwriter that on the basis of the discussions and inquiries
concerning various legal and related subjects and reviews of and reports on
certain corporate records, documents and proceedings and conferences with
representatives of the Company at which certain portions of such documents
were discussed (relying as to certain facts relevant to a determination of
materiality upon the representations of the Company), no facts have come to
such counsel's attention which would lead them to believe that any of such
documents, when they became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became effective
under the Act, 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, and, in the case of other documents
which were filed under the Act or the Exchange Act with the Commission, an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so filed,
not misleading;
(l) The Indiana Commission Order is in full force and effect and is
sufficient to permit the Company to enter into and perform the transactions
contemplated by the Purchase Agreement; and no other consent, approval,
authorization, order, registration or qualification of any court or
governmental agency or body is required for solicitation of offers to
purchase Securities, the issue and sale of the Securities or the
consummation by the Company of the other transactions contemplated by the
Purchase Agreement or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the sale of the
Securities as contemplated by the Purchase Agreement; and
(m) The Registration Statement and the Prospectus (other than the
financial statements and related schedules, financial data or statistical
information therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the Act
and the Trust Indenture Act and the applicable rules and regulations
thereunder; further, although they are not passing upon and do not assume
any responsibility for the accuracy and completeness of the statements
contained in the Registration Statement and the Prospectus, such counsel
advises the Underwriter on the basis of the discussions and inquiries
concerning various legal and related subjects and reviews of and reports on
certain corporate records, documents and proceedings and conferences with
representatives of the Company at which certain portions of the
Registration Statement and the Prospectus were discussed (relying as to
certain facts relevant to a determination of materiality upon the
representations of the Company), no facts have come to such counsel's
attention which would lead them to believe that (A) as of the later of the
date of effectiveness of the Registration Statement or any amendment
thereto or the date of filing of an annual report of the Company on Form
10-K or any amendment thereto, the Registration Statement and any amendment
thereto (other than the financial statements and related schedules,
financial data or statistical information therein, as to which such counsel
need express no opinion) 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, (B) as of its
date, the Prospectus (other than the financial statements and related
schedules therein, financial data or statistical information, as to which
such counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances in which
they were made, not misleading or (C) as of the date hereof either the
Registration Statement or the Prospectus (other than the financial
statements and related schedules, financial data or statistical information
therein, as to which such counsel need express no opinion) contains an
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; and they do not know of any amendment to the Registration
Statement required to be filed or any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement
or required to be incorporated by reference into the Prospectus as amended
or supplemented or required to be described in the Registration Statement
or the Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required.
Terms capitalized but not otherwise defined herein shall have the meanings
assigned to them in the Purchase Agreement. In rendering such opinion, such
counsel may rely as to matters of fact, to the extent such counsel deems proper,
on certificates of responsible officers of the Company and certificates or other
written statements of public officials.
<PAGE>
EXHIBIT B
FORM OF OPINION OF OHIO COUNSEL TO COMPANY
The opinion of Ohio counsel to the Company pursuant to Section 5(b)(ii) of
the Purchase Agreement shall be to the effect that:
(a) The Company has been duly incorporated and is validly existing as
a corporation under the laws of Ohio, with power and authority (corporate
and other) to own its properties and conduct its business as described in
the Prospectus;
(b) The Purchase Agreement has been duly authorized, executed and
delivered by the Company;
(c) The Securities have been duly authorized by the Company;
(d) The Indenture, including the fifth supplemental indenture thereto,
has been duly authorized, executed and delivered by the parties thereto;
(e) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture and the
Purchase Agreement and the consummation of the transactions therein
contemplated will not result in any violation of the provisions of the
Articles of Incorporation, as amended, of the Company or the By-laws of the
Company or any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having jurisdiction
over the Company or any of its properties; and
(f) The Ohio Commission Order is in full force and effect and is
sufficient to permit the Company to enter into and perform the transactions
contemplated by the Purchase Agreement; and the period has expired during
which any proceeding to review, suspend, limit, modify, restrict or revoke
the Ohio Commission Order may be instituted as of right by any Person other
than the Ohio Commission; and no other consent, approval, authorization,
order, registration or qualification of any court or governmental agency or
body is required for solicitation of offers to purchase Securities, the
issue and sale of the Securities or the consummation by the Company of the
other transactions contemplated by the Purchase Agreement or the Indenture,
except such as have been obtained under the Act and the Trust Indenture Act
and such as may be required under the blue sky laws of any jurisdiction in
connection with the sale of the Securities as contemplated by the Purchase
Agreement.
Terms capitalized but not otherwise defined herein shall have the meanings
assigned to them in the Purchase Agreement. In rendering such opinion, such
counsel may rely as to matters of fact, to the extent such counsel deems proper,
on certificates of responsible officers of the Company and certificates or other
written statements of public officials.
<PAGE>
EXHIBIT C
FORM OF OPINION OF COUNSEL TO THE INSURER
The opinion of counsel for the insurer pursuant to Section 5(d) of the
Purchase Agreement shall be to the effect that:
(i) Ambac Assurance is a stock insurance company duly organized and validly
existing under the laws of the State of Wisconsin and duly qualified to
conduct an insurance business in the States of Indiana and Ohio.
(ii) Ambac Assurance has full corporate power and authority to execute and
deliver the Policy and the Policy has been duly authorized, executed and
delivered by Ambac Assurance and constitutes a legal, valid and binding
obligation of Ambac Assurance enforceable in accordance with its terms
except to the extent that the enforceability (but not the validity) of such
obligation may be limited by any applicable bankruptcy, insolvency,
liquidation, rehabilitation or other similar law or enactment now or
hereafter enacted affecting the enforcement of creditors' rights.
(iii)The execution and delivery by Ambac Assurance of the Policy will not, and
the consummation of the transactions contemplated thereby and the
satisfaction of the terms thereof will not, conflict with or result in a
breach of any of the terms, conditions or provisions of the Certificate of
Authority, Articles of Incorporation or By-Laws of Ambac Assurance, or any
restriction contained in any contract, agreement or instrument to which
Ambac Assurance is a party or by which it is bound or constitute a default
under any of the foregoing.
(iv) Proceedings legally required for the issuance of the Policy have been taken
by Ambac Assurance and licenses, orders, consents or other authorizations
or approvals of any governmental boards or bodies legally required for the
enforceability of the Policy have been obtained; any proceedings not taken
and any licenses, authorizations or approvals not obtained are not material
to the enforceability of the Policy.
(v) The statements contained in the Prospectus under the heading "The Policy
and the Insurer," insofar as such statements constitute summaries of the
matters referred to therein, accurately reflect and fairly present the
information purported to be shown and, insofar as such statements describe
Ambac Assurance, fairly and accurately describe Ambac Assurance.
(vi) The form of Policy set forth as Exhibit B to the Prospectus is a true and
complete copy of the form of Policy.
