SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 28, 1999
NiSource Inc.
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(Exact name of registrant as specified in its charter)
Indiana
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(State or other jurisdiction of incorporation)
1-9779 35-1719974
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(Commission File Number) (IRS Employer Identification No.)
801 East 86th Avenue Merrillville, Indiana 46410-6271
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (219) 853-5200
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Item 7. Financial Statements and Exhibits
The following exhibits are filed herewith:
1.1 Underwriting Agreement, dated September 23, 1999 among
NiSource Inc., NiSource Capital Markets, Inc. and
Goldman, Sachs & Co. and Barclays Capital Inc., as
Underwriters
2
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 hereunto duly authorized.
NiSource Inc.
Registrant
Dated: September 28, 1999 By: /s/ Nina M. Rausch
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Nina M. Rausch
Secretary
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EXHIBIT INDEX
Exhibit Number Description
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1.1 Underwriting Agreement, dated September 23,
1999 among NiSource Inc., NiSource Capital
Markets, Inc. and Goldman, Sachs & Co. and
Barclays Capital Inc., as Underwriters
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EXHIBIT 1.1
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NISOURCE CAPITAL MARKETS, INC.
PUTTABLE
RESET SECURITIES
PURS SERVICEMARK DUE 2010
UNDERWRITING AGREEMENT
September 23, 1999
Goldman, Sachs & Co.,
Barclays Capital Inc.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
NiSource Capital Markets, Inc., an Indiana corporation (the
"Company") and a wholly-owned subsidiary of NiSource Inc., an Indiana
corporation ("NiSource"), proposes to enter into a Pricing Agreement
(the "Pricing Agreement") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, to
issue and sell to the firms named in Schedule I to the Pricing
Agreement (such firms constituting the "Underwriters") the debt
securities specified in Schedule II to the Pricing Agreement (the
"Securities").
The terms and rights of the Securities shall be as specified in
the Pricing Agreement and in or pursuant to the indenture (the
"Indenture") identified in the Pricing Agreement.
1. Sales of Securities may be made from time to time to the
Underwriters for whom the firms designated as representatives of the
Underwriters will act as representatives (the "Representatives"). The
term "Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. This Underwriting Agreement shall not be construed
as an obligation of NiSource and the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase
the Securities. The obligation of NiSource and the Company to issue
and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by
the Pricing Agreement. The Pricing Agreement shall specify the
aggregate principal amount of the Securities, the initial public
offering price of the Securities, the purchase price to the
Underwriters of the Securities, the names of the Underwriters of the
Securities, the names of the Representatives of such Underwriters and
the principal amount of the Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery
of the Securities and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the Indenture and the
registration statement and prospectus with respect thereto) the terms
of the Securities. The Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced
by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under
this Agreement and the Pricing Agreement shall be several and not
joint.
2. The Company and NiSource jointly and severally represent and
warrant to, and agree with, each of the Underwriters that:
(a) A registration statement on Form S-3 (Reg. No. 333-
69279) in respect of the Securities has been filed with the
Securities and Exchange Commission (the "Commission"); such
registration statement, as amended by post-effective amendment
No. 1 thereto (as amended, the "Initial Registration Statement"),
and any post-effective amendment thereto, excluding exhibits
thereto, but including all documents incorporated by reference in
the prospectus included therein, has been declared effective by
the Commission in the form heretofore delivered to the
Representatives for each of the other Underwriters, have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the
offering (a "Rule 462(b) Registration Statement"), filed pursuant
to Rule 462(b) under the Securities Act of 1933, as amended (the
"Act"), which became or will become effective upon filing, no
other document with respect to the Initial Registration Statement
or document incorporated by reference therein has heretofore been
filed or transmitted for filing with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act, each in the form
heretofore delivered to the Representatives); and no stop order
suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule
462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by
the Commission. Any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations under the
Act is hereinafter called a "Preliminary Prospectus"; the various
parts of the Initial Registration Statement, any post effective
amendment thereto and the Rule 462(b) Registration Statement, if
any, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the
Initial Registration Statement at the time such part of the
Initial Registration Statement became effective but excluding any
Form T-1, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the
"Registration Statement"; the prospectus (including, if
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applicable, any prospectus supplement) relating to the
Securities, in the form in which it has most recently been filed,
or transmitted for filing, with the Commission on or prior to the
date of this Agreement, is hereinafter called the "Prospectus";
any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form
under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Initial Registration Statement
shall be deemed to refer to and include any annual report of the
Company filed pursuant to Sections 13(a) or 15(d) of the Exchange
Act after the effective date of the Initial Registration
Statement that is incorporated by reference in the Initial
Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to and include
the Prospectus as amended or supplemented in the form in which it
is filed with the Commission pursuant to Rule 424(b) under the
Act and in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of the date of
such filing).
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed by NiSource
or Bay State Gas Company with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents
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; and any further
documents so filed and incorporated by reference in 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 Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder 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; PROVIDED, HOWEVER,
that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter of Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented.
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(c) Giving effect to the interpretations of the
requirements of the Act reflected in the Company's letter
requesting "no-action" submitted to the staff of the Commission
(the "Staff"), dated April 27, 1992, as supplemented by letters
dated July 9, 1992 and September 21, 1992 (the "No-Action
Request") and the Staff's response thereto dated September 25,
1992 (the "Staff Response"), the Registration Statement and the
Prospectus conform, and any further amendments or supplements to
the Registration Statement or the Prospectus will conform, in all
material respects to the requirements 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 and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, 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; PROVIDED, HOWEVER, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Securities through
the Representatives expressly for use in the Prospectus as
amended or supplemented relating to such Securities.
(d) Neither NiSource nor any of its subsidiaries has
sustained since the date of the latest audited consolidated
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, which could, individually or in the
aggregate, reasonably be expected to have a material adverse
effect on the general affairs, management, financial position,
shareholders' equity or results of operations of NiSource and its
subsidiaries taken as a whole or upon the ability of NiSource or
the Company to perform their respective obligations under this
Agreement (a "Material Adverse Effect"), otherwise than as set
forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the
Prospectus, there has not been any material change in the
consolidated share capital or long-term debt of NiSource and its
subsidiaries or the consolidated share capital or long-term debt
of the Company or any Significant Subsidiary (as defined in
Section 14 hereof), 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 NiSource and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus.
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(e) Arthur Andersen LLP, who has certified the financial
statements of NiSource, whose report appears in the Prospectus or
is incorporated by reference therein and who have delivered the
letters referred to in Section 7(d) hereof, are independent
public accountants as required by the Act, and KPMG LLP, who has
certified the financial statements of Bay State Gas Company,
whose report appears in the Prospectus or is incorporated by
reference therein and who have delivered the letters referred to
in Section 7(d) hereof, are independent accountants as required
by the Act.
(f) The financial statements included or incorporated by
reference in the Prospectus present fairly the financial position
of NiSource and Bay State Gas Company, as the case may be, and
their respective subsidiaries as at the dates indicated and the
results of their operations for the periods specified; except as
may otherwise be stated in the Prospectus or in the reports of
independent public accountants accompanying said financial
statements, said financial statements have been prepared in
conformity with generally accepted accounting principles applied
on a consistent basis and, with respect to financial statements
included in periodic reports filed by NiSource pursuant to
Sections 13 or 15(d) of the Exchange Act with the Commission on
and after September 25, 1992, contain the information requested
by the Staff in the Staff Response to be so included; and the
supporting schedules included or incorporated by reference in the
Prospectus present fairly the information required to be stated
therein. The pro forma information included or incorporated by
reference in the Prospectus as amended or supplemented presents
fairly the information shown therein, has been prepared in
accordance with generally accepted accounting principles and the
Commission's rules and guidelines with respect to pro forma
information, has been properly compiled on the pro forma basis
described therein, and, in the opinion of the Company, the
assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate under the
circumstances.
(g) Each of NiSource and each Significant Subsidiary has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any
such jurisdiction; and each other subsidiary of NiSource has been
duly incorporated and is validly existing as a corporation in
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good standing under the laws of its jurisdiction of
incorporation.
(h) NiSource has an authorized capitalization as set forth
in the Prospectus; all of the issued capital shares of NiSource
and each wholly-owned subsidiary of NiSource have been duly and
validly authorized and issued and are fully paid and
non-assessable; and except as the Company shall have otherwise
advised the Representatives in writing prior to the date of the
amendment or supplement to the Prospectus (including the Pricing
Supplement) relating to any particular sale of Securities, all of
the issued common shares of Northern Indiana Public Service
Company and Indianapolis Water Company and all the issued capital
shares of each other subsidiary of NiSource (except for
directors' qualifying shares and as set forth or incorporated by
reference in the Registration Statement) are owned directly or
indirectly by NiSource, free and clear of all liens,
encumbrances, equities or claims.
(i) The Securities have been duly authorized, and when the
Securities are issued and delivered pursuant to this Agreement
and the Pricing Agreement, such Securities will have been duly
executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company entitled to
the benefits provided by (i) the Indenture, which will be
substantially in the form filed as an exhibit to the Registration
Statement, and (ii) the Support Agreement, dated April 4, 1989,
as amended as of May 15, 1989, December 10, 1990 and February 14,
1991 between NiSource and the Company (the "Support Agreement"),
in the form filed as an exhibit to the Registration Statement;
the Indenture has been duly qualified under the Trust Indenture
Act; each of the Support Agreement and the Indenture has been
duly authorized, executed and delivered and at the Time of
Delivery for such Securities (as defined in Section 4 hereof)
will constitute valid and legally binding instruments,
enforceable against NiSource and the Company, as the case may be,
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 the Support Agreement and the
Indenture conform, and the Securities will conform, to the
descriptions thereof in the Prospectus.
(j) NiSource's obligations under the Support Agreement will
rank prior to the equity securities of NiSource and equal with
all other unsecured and unsubordinated indebtedness of NiSource,
whether now or hereafter outstanding.
(k) Each of this Agreement and the Pricing Agreement has
been duly authorized and, when executed and delivered by the
parties hereto, will be the valid and legally binding obligation
of the Company and NiSource enforceable against each of them in
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accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other laws relating to or
affecting enforcement of creditors' rights or by general equity
principles.
(l) Neither NiSource nor any Significant Subsidiary is in
violation of its Articles of Incorporation or By-Laws or 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 any other
instrument to which it is a party or by which it may be bound
where such defaults, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect. The
issue and sale of the Securities, the compliance by NiSource and
the Company with all of the provisions of the Securities, the
Indenture, the Support Agreement, this Agreement and the Pricing
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 indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which
NiSource or any of its subsidiaries is a party or by which
NiSource or any of its subsidiaries is bound or to which any of
the property or assets of NiSource or any of its subsidiaries is
subject, nor will any such action result in any violation of the
provisions of the Articles of Incorporation or By-laws of
NiSource or any of its subsidiaries, or any statute, rule or
regulation, or any order of any court or governmental agency or
body having jurisdiction over NiSource or any of its subsidiaries
or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by NiSource
and the Company of the transactions contemplated by this
Agreement, the Pricing Agreement or the Indenture, except such as
have been, or will have been prior to the Time of Delivery,
obtained under the Act and the Trust Indenture Act and 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
Securities by the Underwriters.
(m) Neither NiSource nor any Significant Subsidiary has any
material contingent liability which is not disclosed in the
Prospectus.
(n) Each of NiSource and each Significant Subsidiary has
statutory authority, franchises and consents free from burdensome
restrictions and adequate for the conduct of the business in
which it is engaged.
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(o) Except for NiSource's ownership of the voting
securities of Northern Indiana Public Service Company and Bay
State Gas Company, as and to the extent described in the
Prospectus, no person or corporation which is a "holding company"
or a "subsidiary of a holding company" within the meaning of such
terms as defined in the Public Utility Holding Company Act of
1935, as amended (the "1935 Act"), directly or indirectly owns,
controls or holds with power to vote 10% or more of the
outstanding voting securities of NiSource or any Significant
Subsidiary; NiSource is exempt from all provisions of the 1935
Act except Section 9(a)(2) thereof; none of the Company, Northern
Indiana Public Service Company or IWC Resources Corporation is a
"holding company" as so defined; and Bay State Gas Company is a
"holding company" as so defined but is exempt from all provisions
of the 1935 Act pursuant to Section 3(a)(2) thereof except
Section 9(a)(2) thereof.
(p) Each of NiSource and each Significant Subsidiary has
good and marketable title in fee simple to such of its fixed
assets as are real property and good and marketable title to its
other assets reflected in the most recent consolidated balance
sheet incorporated by reference in the Prospectus, except
properties and assets sold or otherwise disposed of after the
date of said balance sheet, subject to no mortgages, liens,
charges or encumbrances of any kind whatsoever ("Liens") other
than Liens permitted under the Indenture.
(q) The Company will apply the proceeds of the sale of the
Securities in the manner described in the Prospectus and in
accordance with the provisions of Rule 3a-5 under the Investment
Company Act of 1940, as amended (the "1940 Act").
(r) Neither NiSource nor any subsidiary of NiSource is an
"investment company" within the meaning of such term under the
1940 Act; the Commission has issued an order (the "Order")
exempting the Company from all of the provisions of the 1940 Act;
the Order is in full force and effect; and the Company will
continue to comply with the terms and conditions of the Order, or
otherwise remain exempt from all of the provisions of the 1940
Act, so long as any Securities are outstanding.
(s) The Prospectus accurately describes the most
restrictive of the existing limitations on the payment of
dividends by Northern Indiana Public Service Company on its
common shares held by NiSource.
(t) Neither NiSource nor any of its subsidiaries does
business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section 517.075,
Florida Statutes.
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(u) Other than as included in the Prospectus, there are no
legal or governmental proceedings pending to which NiSource or
any of its subsidiaries is a party or to which any property of
NiSource or any of its subsidiaries is subject which could
reasonably be expected, individually or in the aggregate, to have
a material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of NiSource and its
subsidiaries; and, to the best of each of NiSource's and the
Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(v) Immediately after the sale of Securities by the Company
hereunder the aggregate amount of Securities which shall have
been issued and sold by the Company hereunder and of any debt
securities of the Company (other than such Securities) that shall
have been issued and sold pursuant to the Registration Statement
will not exceed the amount of debt securities registered under
the Registration Statement.
(w) NiSource has reviewed its operations and that of its
subsidiaries and any third parties with which NiSource or any of
its subsidiaries has a material relationship to evaluate the
extent to which the business or operations of NiSource or any of
its subsidiaries will be affected by the Year 2000 Problem. As a
result of such review, NiSource does not believe that the Year
2000 Problem will have a Material Adverse Effect or result in any
material loss or interference with NiSource's business or
operations. The "Year 2000 Problem" as used herein means any
significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage,
retrieval, retransmission or other utilization of data or in the
operation of mechanical or electrical systems of any kind will
not, in the case of dates or time periods occurring after
December 31, 1999, function at least as effectively as in the
case of dates or time periods occurring prior to January 1, 2000.
(x) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits
to the Registration Statement by the Act which have not been
described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated by reference therein.
(y) There are no significant business combinations or
dispositions of a significant portion of a business within the
meaning of Rule 11-01 of Regulation S-X which have occurred or
are probable to occur which are required to be described in the
Prospectus and there are no agreements with respect thereto which
have not been described in the Prospectus or filed as exhibits to
the Registration Statement or incorporated by reference therein.
3. Upon the execution of the Pricing Agreement and
authorization by the Representatives of the release of such
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Securities, the several Underwriters propose to offer such Securities
for sale upon the terms and conditions set forth in the Prospectus as
amended or supplemented.
4. Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement in the form specified in the Pricing Agreement,
and in such authorized denominations 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 account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase
price therefor by wire transfer of Federal (same day) funds to the
account specified by the Company to the Representatives at least forty
eight hours in advance 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" for such
Securities.
5. The Company and NiSource jointly and severally agree with
each of the Underwriters of the Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of
business on the second business day following the execution and
delivery of the Pricing Agreement relating to the Securities or,
if applicable, such earlier time as may be required by Rule
424(b); to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented
after the date of the Pricing Agreement and prior to the Time of
Delivery for the Securities which shall be disapproved by the
Representatives promptly after reasonable notice thereof; to
advise the Representatives promptly of any such amendment or
supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to be
filed by NiSource with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the
offering or sale of the Securities, and during such same period
to advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement
to the Prospectus or any amended Prospectus has been filed with
the Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or
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Prospectus or for additional information; and, in the event of
the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to
the Securities or suspending any such qualification, to promptly
use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities
for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply
with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities,
provided that in connection therewith neither NiSource nor the
Company shall be required to qualify as a foreign corporation or
to file a general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New
York business day (as defined in Section 14) next succeeding the
date of this Agreement and from time to time, to furnish the
Underwriters in New York City with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives
may reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of
the Securities and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act
or the Trust Indenture Act, to notify the Representatives and
upon their request to file such document and to prepare and
furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement
to the Prospectus which will correct such statement or omission
or effect such compliance;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of
NiSource and its subsidiaries and of the Company (which need not
be audited) complying with Section 11(a) of the Act and the rules
and regulations of the Commission thereunder (including, at the
option of NiSource, Rule 158);
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(e) During the period beginning from the date of the
Pricing Agreement and continuing to and including the later of
(i) the termination of trading restrictions for the Securities,
as notified to the Company by the Representatives and (ii) the
Time of Delivery for the Securities, not to offer, sell, contract
to sell or otherwise dispose of any debt securities of the
Company which mature more than one year after such Time of
Delivery and which are substantially similar to the Securities,
without the prior written consent of the Representatives; and
(f) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement, and the
Company shall at the time of filing either pay to the Commission
the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to
Rule 111(b) under the Act.
6. NiSource and the Company jointly and severally covenant and
agree with the several Underwriters that the Company will pay or cause
to be paid the following: (i) the fees, disbursements and expenses of
NiSource's and the Company's counsel and accountants in connection
with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the
cost of printing or producing any Agreement among Underwriters, this
Agreement, any Pricing Agreement, any Indenture, any Blue Sky and
Legal Investment Memoranda, closing documents (including any
compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iii) all
expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section
5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection
with the Blue Sky and Legal Investment Memoranda; (iv) any fees
charged by securities rating services for rating the Securities; (v)
any filing fees incident to, and the fees and disbursements of counsel
for the Underwriters in connection with, any required review by the
National Association of Securities Dealers, Inc. of the terms of the
sale of the Securities; (vi) the cost of preparing the Securities;
(vii) the fees and expenses of any Trustee and any agent of any
Trustee and the fees and disbursements of counsel for any Trustee in
connection with any Indenture and the Securities; and (viii) all other
costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this
Section, and Sections 8 and 11 hereof, the Underwriters will pay all
other costs and expenses, including the fees of their counsel,
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transfer taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of the Securities under
the Pricing Agreement shall be subject, in the discretion of the
Representatives, to the condition that all representations and
warranties and other statements of NiSource and the Company in or
incorporated by reference in the Pricing Agreement are, at and as of
the Time of Delivery for the Securities, true and correct, the
condition that NiSource and the Company shall have performed all of
its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation
to the Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the
Act and in accordance with Section 5(a) hereof; if the Company
has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop
order suspending the effectiveness of the Registration Statement
or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Sonnenschein Nath & Rosenthal, counsel for the
Underwriters shall, have furnished to the Representatives such
written opinion or opinions dated the Time of Delivery for the
Securities, with respect to the incorporation of the Company, the
validity of the Support Agreement, the Indenture, the Securities,
the Registration Statement, the Prospectus as amended or
supplemented as well as such other related matters as the
Representatives may reasonably request, and such counsel shall
have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Schiff Hardin & Waite, counsel for the Company or other
counsel satisfactory to the Representatives, shall have furnished
to the Representatives their written opinion or opinions, dated
the Time of Delivery for the Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) Each of NiSource and each of its Significant
Subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the
laws of the state of its incorporation, with power and
authority (corporate and other) to own its properties
and conduct its business as described in the
Prospectus.
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(ii) NiSource has an authorized capitalization as set forth
in the Prospectus; all of the issued capital shares of
NiSource and each wholly-owned subsidiary of NiSource
have been duly and validly authorized and issued and
are fully paid and non-assessable; and all of the
issued common shares of Northern Indiana Public Service
Company and Indianapolis Water Company and all the
issued capital shares of the Company and each other
Significant Subsidiary of NiSource (except for
directors' qualifying shares and as set forth or
incorporated by reference in the Registration
Statement) are owned directly or indirectly by
NiSource, free and clear of all liens, encumbrances,
equities or claims.
(iii) NiSource and each Significant Subsidiary has been duly
qualified as a foreign corporation for the transaction
of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require
such qualification, or is subject to no material
liability or disability by reason of the failure to be
so qualified in any such jurisdiction.
(iv) 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 NiSource or
any of its subsidiaries is a party or to which any
property of NiSource or any of its subsidiaries is
subject which could reasonably be expected,
individually or in the aggregate, to have a material
adverse effect on the consolidated financial position,
shareholders' equity or results of operations of
NiSource 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.
(v) The Registration Statement was declared effective under
the Act, and the Indenture was qualified under the
Trust Indenture Act, as of the date and time specified
in such opinion; the Prospectus was filed with the
Commission pursuant to Rule 424(b) of the Act as of the
date and time specified in such opinion; and, to the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceeding for that purpose is pending or
threatened by the Commission.
(vi) Each of the Support Agreement and the Indenture has
been duly authorized, executed and delivered by the
Company and NiSource and each constitutes a valid and
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legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other laws of general
applicability relating to or affecting creditors'
rights and to general equity principles.
(vii) The Securities have been duly and validly authorized by
all necessary corporate action; the Securities, when
duly executed, authenticated, issued and delivered
pursuant to the terms of the Indenture, this Agreement
and the Pricing Agreement against payment of the agreed
consideration therefor, will be valid and legally
binding obligations of the Company entitled to the
benefits provided by the Support Agreement and the
Indenture and will be enforceable obligations of the
Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws relating to or affecting
enforcement of creditors' rights or by general equity
principles; the Securities, the Support Agreement and
the Indenture conform as to legal matters with the
statements concerning them made in the Prospectus, and
such statements accurately set forth the matters
respecting the Securities, the Support Agreement and
the Indenture required to be set forth in the
Prospectus.
(viii) The execution and delivery of this Agreement, the
Pricing Agreement and the Indenture, the compliance by
each of the Company and NiSource with all of the
provisions of the Securities, the Indenture, the
Support Agreement, this Agreement and the Pricing
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
indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to
which NiSource or any of its Significant Subsidiaries
is a party or by which NiSource or any of its
Significant Subsidiaries is bound or to which any of
the property or assets of NiSource or any of its
Significant Subsidiaries is subject, nor will such
actions result in any violation of the provisions of
the Articles of Incorporation or the By-Laws of
NiSource or any of its Significant Subsidiaries, or any
statute, rule or regulation, or any order known to such
counsel of any court or governmental agency or body
having jurisdiction over NiSource or any of its
Significant Subsidiaries or any of their properties.
-15-
(ix) No consent, approval, authorization, order,
registration or qualification of or with any such court
or governmental agency or body is required for the
issue and sale of the Securities or the consummation by
NiSource or the Company of the transactions
contemplated by this Agreement, the Pricing Agreement,
the Support Agreement or the Indenture, except such as
have been obtained under the Act and the Trust
Indenture Act and such consents, approvals,
authorizations, orders, registrations or qualifications
as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution
of the Securities by the Underwriters.
(x) The documents incorporated by reference in the
Prospectus or any further amendment or supplement
thereto made by NiSource or the Company prior to the
Time of Delivery (other than the financial statements
and related schedules 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.
(xi) Giving effect to the interpretations of the
requirements of the Act reflected in the No-Action
Request and the Staff Response, the Registration
Statement (excluding any Form T-1) and the Prospectus
and any further amendments and supplements thereto made
by NiSource or the Company prior to the Time of
Delivery (other than the financial statements and
related schedules 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 rules and regulations
thereunder.
(xii) This Agreement and the Pricing Agreement have been
duly authorized, executed and delivered by the
Company.
(xiii) The statements made in the Prospectus as amended
or supplemented under the captions "Book-Entry
Issuance," "Description of PURS" and "Certain
United States Federal Income Tax Consequences" and
any other statements which are stated therein to
have been made on the basis of the opinion of said
counsel have been reviewed by said counsel and, as
to matters of law and legal conclusions, are
correct in all material respects.
-16-
Such counsel shall also advise the Representatives that although
such counsel is not passing upon and assumes no responsibility or
liability for the accuracy, completeness or fairness of the statements
contained in the documents incorporated by reference in the Prospectus
or any further amendment or supplement thereto made by NiSource or the
Company prior to the Time of Delivery, they have no reason to believe
that any of such documents (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when such documents became effective or were filed with the
Commission, 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, or, 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 light of the
circumstances under which they were made when such documents were so
filed, not misleading.
Such counsel shall also advise the Representatives that although
such counsel is not passing upon and assumes no responsibility or
liability for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus and any
further amendments and supplements thereto made by NiSource or the
Company prior to the Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion), they have no reason to believe that, as of
its effective date, the Registration Statement or any further
amendment thereto made by NiSource or the Company prior to the Time of
Delivery (other than the financial statements and related schedules
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 or that, as of its date, the Prospectus or any
further amendment or supplement thereto made by NiSource or the
Company prior to the Time of Delivery (other than the financial
statements and related schedules 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 necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading or that, as of the Time of Delivery either
the Registration Statement or the Prospectus or any further amendment
or supplement thereto made by NiSource or the Company prior to the
Time of Delivery (other than the financial statements and related
schedules 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 necessary to make the statements therein, in 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 of any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
-17-
required to be incorporated by reference into the Prospectus or
required to be described in the Registration Statement or the
Prospectus which are not filed or incorporated by reference or
described as required.
(d) On the date of the Pricing Agreement for the Securities
at a time prior to the execution of the Pricing Agreement and at
the Time of Delivery for the Securities, each of (i) Arthur
Andersen LLP who has certified the financial statements of the
Company and its subsidiaries included or incorporated by
reference in the Registration Statement and (ii) KPMG LLP who has
certified the financial statements of Bay State Gas Company shall
have furnished to the Representatives a letter, dated the
effective date of the Registration Statement or the date of the
most recent report filed with the Commission containing financial
statements and incorporated by reference in the Registration
Statement, if the date of such report is later than such
effective date, and in the case of Arthur Andersen LLP, a letter
dated such Time of Delivery, respectively, to the effect set
forth in Annex II hereto, and with respect to such letter dated
such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives (the executed copy of the
letter delivered prior to the execution of this Agreement is
attached as Annex II(a) hereto and a draft of the form of letter
to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of
Delivery is attached as Annex II(b) hereto);
(e) (i) Neither NiSource 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 as amended prior to the date of the Pricing Agreement
relating to the Securities 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 as amended prior to the
date of the Pricing Agreement, and (ii) since the respective
dates as of which information is given in the Prospectus as
amended prior to the date of the Pricing Agreement relating to
the Securities there shall not have been any change in the
consolidated share capital or long-term debt of NiSource or any
of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results
of operations of NiSource and its subsidiaries, otherwise than as
set forth or contemplated in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Securities, the
effect of which, in any such case described in clause (i) or
(ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed
-18-
with the public offering or the delivery of the Securities on the
terms and in the manner contemplated in the Prospectus as first
amended or supplemented relating to the Securities;
(f) On or after the date of the Pricing Agreement (i) no
downgrading shall have occurred in the rating accorded any of
NiSource's, the Company or any other Significant Subsidiary's
debt securities or preferred stock by any "nationally recognized
statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii)
no such organization shall have publicly announced that it has
under surveillance or review, with possible negative
implications, its rating of any of NiSource, the Company or any
other significant subsidiary's debt securities or preferred
stock;
(g) On or after the date of the Pricing Agreement relating
to the Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in NiSource's or in
the Company's securities on any securities exchange; (iii) a
general moratorium on commercial banking activities declared by
either Federal or New York or Illinois State authorities; or (iv)
the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in
this clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering
or the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented
relating to the Securities;
(h) NiSource and the Company shall have complied with the
provisions of Section 5(c) hereof with respect to the furnishing
of prospectuses on the New York business day (as defined in
Section 14) next succeeding the date of this Agreement; and
(i) NiSource and the Company shall have furnished or caused
to be furnished to the Representatives at the Time of Delivery
for the Securities a certificate or certificates of officers of
NiSource and the Company satisfactory to the Representatives as
to the accuracy of the representations and warranties of the
Company herein at and as of such Time of Delivery, as to the
performance by NiSource and the Company of all of their
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (e)
of this Section and as to such other matters as the
Representatives may reasonably request.
8. (a) NiSource and the Company, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses,
-19-
claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses
are incurred; PROVIDED, HOWEVER, that neither NiSource nor the Company
shall be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or
any such amendment or supplement, in reliance upon and in conformity
with written information furnished to NiSource or the Company by any
Underwriter of Securities through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such
Securities.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless NiSource and the Company against any
losses, claims, damages or liabilities to which NiSource or the
Company may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus
as amended or supplemented and any other prospectus relating to
the Securities, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus
as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to
NiSource or the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse
NiSource and the Company for any legal or other expenses
reasonably incurred by NiSource or the Company, as the case may
-20-
be, in connection with investigating or defending any such action
or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise
or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action
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) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by NiSource
and the Company on the one hand and the Underwriters of the
Securities on the other from the offering of the Securities to
which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the
-21-
immediately preceding sentence is not permitted by applicable law
or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of NiSource
and the Company on the one hand and the Underwriters of the
Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits
received by NiSource and the Company on the one hand and such
Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before
deducting expenses) received by NiSource and the Company bear to
the total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by NiSource or the Company on the one hand or such Underwriters
on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such
statement or omission. NiSource, the Company and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by
PRO RATA allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall 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 such Underwriter has otherwise been required to pay
by reason of 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
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligations
of the Underwriters of Securities in this subsection (d) to
contribute are several in proportion to their respective
underwriting obligations with respect to the Securities and not
joint.
-22-
(e) The obligations of NiSource and the Company under this
Section 8 shall be in addition to any liability which NiSource or
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; 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 NiSource and the Company and to each
person, if any, who controls NiSource or the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Securities which it has agreed to purchase under the
Pricing Agreement relating to the Securities, the Representatives may
in their discretion arrange for themselves or another party or other
parties to purchase the Securities on the terms contained herein. If
within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of the Securities,
then NiSource and the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase the Securities
on such terms. In the event that, within the respective prescribed
period, the Representatives notify NiSource or the Company that they
have so arranged for the purchase of the Securities, or NiSource and
the Company notifies the Representatives that they have so arranged
for the purchase of the Securities, the Representatives or NiSource
and the Company shall have the right to postpone the Time of Delivery
for the Securities for a period of not more than seven days, in order
to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented,
or in any other documents or arrangements, and NiSource and the
Company agree to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter"
as used in this Agreement shall include any person substituted under
this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to the Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or
Underwriters by the Representatives and NiSource and the Company
as provided in subsection (a) above, the aggregate principal
amount of the Securities which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of the
Securities, then NiSource and the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal
amount of Securities which such Underwriter agreed to purchase
under the Pricing Agreement relating to the Securities and, in
addition, to require each non-defaulting Underwriter to purchase
its pro rata share (based on the principal amount of Securities
which such Underwriter agreed to purchase under such Pricing
-23-
Agreement) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or
Underwriters by the Representatives and NiSource and the Company
as provided in subsection (a) above, the aggregate principal
amount of Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of the Securities,
as referred to in subsection (b) above, or if NiSource and the
Company shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase
Securities of a defaulting Underwriter or NiSource and
Underwriters, then the Pricing Agreement relating to the
Securities shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter, NiSource or the Company,
except for the expenses to be borne by NiSource and the Company
and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of NiSource and the Company and the
several Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any
Underwriter or any controlling person of any Underwriter, or NiSource
and the Company, or any officer or director or controlling person of
NiSource or the Company, and shall survive delivery of and payment for
the Securities.
11. If the Pricing Agreement shall be terminated pursuant to
Section 9 hereof, NiSource and the Company shall not then be under any
liability to any Underwriter with respect to the Securities covered by
such Pricing Agreement except as provided in Sections 6 and 8 hereof;
but, if for any other reason Securities are not delivered by or on
behalf of the Company as provided herein, NiSource and the Company,
jointly and severally, will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by
the Representatives, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Securities, but neither NiSource
nor the Company shall then be under further liability to any
Underwriter with respect to the Securities except as provided in
Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of the Securities shall act on behalf of each of such
-24-
Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such
of the Representatives, if any, as may be designated for such purpose
in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent
by mail, telex or facsimile transmission to the address of the
Representatives as set forth in the Pricing Agreement; and if to
NiSource and the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; PROVIDED, HOWEVER, that
any notice to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to Goldman,
Sachs & Company at 85 Broad Street, New York, New York 10004,
Attention: Registration Department, facsimile no. (212) 902-3000 and
Barclays Capital Inc. at 222 Broadway, New York, New York 10038,
Attention: Swap Operations. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, NiSource,
the Company and, to the extent provided in Sections 8 and 10 hereof,
the officers and directors of NiSource and the Company and each person
who controls NiSource and the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns,
and no other person shall acquire or have any right under or by virtue
of this Agreement or any such Pricing Agreement. No purchaser of any
of the Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
14. Time shall be of the essence of the Pricing Agreement. As
used herein, "business day" shall mean any day when the Commission's
office in Washington, D.C. is open for business. As used herein,
"Significant Subsidiaries" shall mean (a) the Company and (b) Northern
Indiana Public Service Company, Bay State Gas Company, IWC Resources
Corporation and any other direct or indirect subsidiary of NiSource
which would constitute a "significant subsidiary" as defined in Rule
1-02 of Regulation S-X (or any successor thereto).
15. This Agreement and the Pricing Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
16. This Agreement and the Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the
same instrument.
-25-
If the foregoing is in accordance with your understanding, please
sign and return to us one for the Company and for each of the
Representatives plus one for each counsel counterparts hereof.
Very truly yours,
NISOURCE CAPITAL MARKETS, INC.
By: /s/ Stephen P. Adik
-----------------------
Name: Stephen P. Adik
Title: President
NISOURCE INC.
By: /s/ Stephen P. Adik
----------------------
Name: Stephen P. Adik
Title: Senior Executive Vice
President, Chief Financial
Officer and Treasurer
Goldman Sachs & co.
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
BARCLAYS CAPITAL INC.
By: /s/ Goldman, Sachs & Co.
----------------------------
(GOLDMAN, SACHS & CO.)
-26-
ANNEX I
PRICING AGREEMENT
Goldman, Sachs & Co.,
Barclays Capital Inc.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
, 1999
Ladies and Gentlemen:
NiSource Capital Markets, Inc., an Indiana corporation (the
"Company") and wholly-owned subsidiary of NiSource Inc., an Indiana
corporation ("NiSource"), proposes, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated . .
. . . . . . . ., 1999. (the "Underwriting Agreement"), between
NiSource and the Company on the one hand and Goldman, Sachs & Co. and
Barclays Capital Inc. on the other hand, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Securities"). Each
of the provisions of the Underwriting Agreement is incorporated herein
by reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth
in full herein; and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date
of this Pricing Agreement, except that each representation and
warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation to
the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the
Prospectus as amended or supplemented relating to the Securities which
are the subject of this Pricing Agreement. Each reference to the
Representatives herein and in the provisions of the Underwriting
Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and
on behalf of each of the Underwriters of the Securities pursuant to
Section 12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at the
end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
- 1 -
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the
Company, at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the principal amount of
Securities set forth opposite the name of such Underwriter in Schedule
I hereto.
If the foregoing is in accordance with your understanding, please
sign and return to us one for the Company and each of the
Representatives plus one for each counsel counterparts hereof, and
upon acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof, including the provisions of
the Underwriting Agreement incorporated herein by reference, shall
constitute a binding agreement between each of the Underwriters and
the Company. It is understood that your acceptance of this letter on
behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the
form of which shall be submitted to the Company for examination upon
request, but without warranty on the part of the Representatives as to
the authority of the signers thereof.
Very truly yours,
NISOURCE CAPITAL MARKETS, INC.
By: ________________________
Name:
Title:
NISOURCE INC.
By: _________________________
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Barclays Capital Inc.
By: _________________________
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
- 2 -
SCHEDULE I
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
Goldman, Sachs & Co. $
Barclays Capital Inc.
$
- 3 -
SCHEDULE II
TITLE OF SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ,
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount of the Securities, plus accrued
interest[, if any,] from to [and
accrued amortization[, if any,] from to
]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Securities, plus accrued
interest from
to [and accrued amortization[, if any,] from
to ]
FORM OF SECURITIES:
[Definitive form to be made available for checking and packaging
at least twenty-four hours prior to the Time of Delivery at the
office of [The Depository Trust Company or its designated
custodian] [the Representatives]]
[Book-entry only form represented by one or more global
securities deposited with The Depository Trust Company ("DTC") or
its designated custodian, to be made available for checking by
the Representatives at least twenty-four hours prior to the Time
of Delivery at the office of DTC.]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds(15)
TIME OF DELIVERY:
a.m. (New York City time), , 19
INDENTURE:
Indenture dated , 19 , between the
Company and , as Trustee
MATURITY:
INTEREST RATE:
- 4 -
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates, commencing ....................., 19..]
Redemption Provisions:
[No provisions for redemption]
[The Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company,
in the amount of [$ ] or an integral multiple thereof,
[on or after , at the following redemption prices
(expressed in percentages of principal amount). If [redeemed on
or before , %, and if] redeemed during the 12-month
period beginning ,
REDEMPTION
YEAR PRICE
and thereafter at 100% of their principal amount, together in
each case with accrued interest to the redemption date.]
[on any interest payment date falling on or after ,
, at the election of the Company, at a redemption price equal
to the principal amount thereof, plus accrued interest to the
date of redemption.]]
[Other possible redemption provisions, such as mandatory
redemption upon occurrence of certain events or redemption for
changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Securities are entitled to the benefit of a sinking fund to
retire [$ ] principal amount of Securities on in
each of the years through at 100% of their
principal amount plus accrued interest[, together with
[cumulative] [noncumulative] redemptions at the option of the
Company to retire an additional [$ ] principal amount of
Securities in the years through at 100% of
their principal amount plus accrued interest.]
[IF SECURITIES ARE EXTENDABLE DEBT SECURITIES, INSERT--
EXTENDABLE PROVISIONS:
- 5 -
Securities are repayable on , [insert date
and years], at the option of the holder, at their principal
amount with accrued interest. The initial annual interest rate
will be %, and thereafter the annual interest rate will be
adjusted on , and to a rate not
less than % of the effective annual interest rate on U.S.
Treasury obligations with -year maturities as of the
[insert date 15 days prior to maturity date] prior to such
[insert maturity date].]
[IF SECURITIES ARE FLOATING RATE DEBT SECURITIES, INSERT--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through
[and thereafter will be adjusted [monthly] [on each ,
, and ] [to an annual rate of % above
the average rate for -year
[month][securities][certificates of deposit] issued by
and [insert names of banks].] [and the annual interest
rate [thereafter] [from through ] will be the
interest yield equivalent of the weekly average per annum market
discount rate for -month Treasury bills plus
% of Interest Differential (the excess, if any, of (i) the then
current weekly average per annum secondary market yield for
-month certificates of deposit over (ii) the then current
interest yield equivalent of the weekly average per annum market
discount rate for -month Treasury bills); [from and
thereafter the rate will be the then current interest yield
equivalent plus % of Interest Differential].]
DEFEASANCE PROVISIONS:
Closing location for delivery of Securities:
ADDITIONAL CLOSING CONDITIONS:
PARAGRAPH 7(G) OF THE UNDERWRITING AGREEMENT SHOULD BE MODIFIED
IN THE EVENT THAT THE SECURITIES ARE DENOMINATED IN, INDEXED TO,
OR PRINCIPAL OR INTEREST ARE PAID IN, A CURRENCY OTHER THAN THE
U.S. DOLLAR, MORE THAN ONE CURRENCY OR IN A COMPOSITE CURRENCY.
THE COUNTRY OR COUNTRIES ISSUING SUCH CURRENCY SHOULD BE ADDED TO
THE BANKING MORATORIUM AND HOSTILITIES CLAUSES AND THE FOLLOWING
ADDITIONAL CLAUSE SHOULD BE ADDED TO THE PARAGRAPH (THE ENTIRE
PARAGRAPH SHOULD BE RESTATED, AS AMENDED):
"; ( ) the imposition of the proposal of exchange controls
by any governmental authority in [NSERT THE COUNTRY OR COUNTRIES
ISSUING SUCH CURRENCY, CURRENCIES OR COMPOSITE CURRENCY]".
NAMES AND ADDRESSES OF REPRESENTATIVES:`
- 6 -
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]:
- 7 -
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the
accountants of NiSource and its subsidiaries and Bay State Gas Company
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to NiSource and its subsidiaries within the meaning of
the Act and the applicable rules and regulations adopted by the
Commission;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and,
if applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply
as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as
applicable, and the related rules and regulations; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived
from audited financial statements of the entity for the periods
specified in such letter, as indicated in their reports thereon,
copies of which have been separately furnished to the
representative or representatives of the Underwriters (the
"Representatives") such term to include an Underwriter or
Underwriters who act without any firm being designated as its or
their representatives and are attached to such letters;
(iii) They have made a review in accordance with
standards established by the American Institute of Certified
Public Accountants of the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus
and/or included in NiSource's quarterly report on Form 10-Q
incorporated by reference into the Prospectus as indicated in
their reports thereon copies of which have been separately
furnished to the Representatives; and on the basis of specified
procedures including inquiries of officials of NiSource who have
responsibility for financial and accounting matters regarding
whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in
all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related rules and
regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the
- 1 -
Exchange Act and the related rules and regulations adopted by the
Commission;
(iv) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of NiSource for the five most recent fiscal years
included in the Prospectus and included or incorporated by
reference in Item 6 of NiSource's Annual Report on Form 10-K for
the most recent fiscal year agrees with the corresponding amounts
(after restatement where applicable) in the audited consolidated
financial statements for five such fiscal years included or
incorporated by reference in NiSource's Annual Reports on Form
10-K for such fiscal years;
(v) They have compared the information in the Prospectus
under selected captions with the disclosure requirements of
Regulation S-K and on the basis of limited procedures specified
in such letter nothing came to their attention as a result of the
foregoing procedures that caused them to believe that this
information does not conform in all material respects with the
disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of
the latest available interim financial statements of NiSource and
its subsidiaries, inspection of the minute books of NiSource and
its subsidiaries since the date of the latest audited financial
statements included or incorporated by reference in the
Prospectus, inquiries of officials of NiSource and its
subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to
believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or
included or incorporated by reference in NiSource's
Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act and the published rules and regulations adopted
by the Commission, or (ii) any material modifications should
be made to the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus or
included in NiSource's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus for them to be
in conformity with generally accepted accounting principles;
- 2 -
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and
any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial
statements included or incorporated by reference in
NiSource's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in
clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred
to in clause (B) were not determined on a basis
substantially consistent with the basis for the audited
financial statements included or incorporated by reference
in NiSource's Annual Report on Form 10-K for the most recent
fiscal year;
(D) any unaudited pro forma consolidated condensed
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 and the rules and regulations adopted by the Commission
thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which
were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or
any increase in the consolidated long-term debt of NiSource
and its subsidiaries, or any decreases in consolidated net
current assets or stockholders' equity or other items
specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
- 3 -
Prospectus to the specified date referred to in clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(i) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraphs (iii) and (vi) above,
they have carried out certain specified procedures, not
constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representatives which
are derived from the general accounting records of NiSource and
its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statement specified
by the Representatives or in documents incorporated by reference
in the Prospectus specified by the Representatives, and have
compared certain of such amounts, percentages and financial
information with the accounting records of NiSource and its
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by
reference therein) as defined in the Underwriting Agreement as of the
date of the letter delivered on the date of the Pricing Agreement for
purposes of such letter and to the Prospectus as amended or
supplemented (including the documents incorporated by reference
therein) in relation to the applicable Securities for purposes of the
letter delivered at the Time of Delivery for such Securities.
- 4 -
