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EXHIBIT 5.2
MICHIGAN CONSOLIDATED GAS COMPANY
(A MICHIGAN CORPORATION)
FIRST MORTGAGE BONDS
UNDERWRITING AGREEMENT
May 14, 1997
Edward D. Jones & Co., L.P.
12555 Manchester Road
St. Louis, Missouri 63131
Ladies and Gentlemen:
Michigan Consolidated Gas Company, a Michigan corporation (the "Company"),
confirms its agreement with Edward D. Jones & Co., L.P. (the "Underwriter")
with respect to the issue and sale by the Company and the purchase by the
Underwriter of the $15,000,000 aggregate principal amount of its First Mortgage
Bonds designated as 7.60% Secured Medium-Term Notes, Series C, due May 1, 2017
(the "Bonds"). The Bonds will be issued by the Company under its Indenture of
Mortgage and Deed of Trust (the "Original Indenture") dated as of March 1,
1944, under which Citibank, N.A. and Robert T. Kirchner are now the trustees
(the "Trustees"), as heretofore amended and supplemented by thirty-four
supplemental indentures, including the Twenty-ninth Supplemental Indenture
dated as of July 15, 1989 providing for the modification and restatement of the
Original Indenture which became effective on April 1, 1994 and the
Thirty-fourth Supplemental Indenture creating the series in which the Bonds are
to be issued. The term "Indenture", as hereinafter used, means such Original
Indenture, as so amended and supplemented. The Company proposes to sell to the
Underwriter Bonds in the aggregate principal amount and with the terms
specified in Schedule I hereto (the "Offered Bonds").
The Company understands that the Underwriter proposes to make a public
offering of the Offered Bonds as soon as it deems advisable after this
Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-16285) covering the
registration of the Bonds under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses, and
the offering thereof from time to time in accordance with Rule 415 of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") and the Company has filed such post-effective amendments thereto
as may be required prior to the
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execution of this Agreement. Such registration statement, as so amended, has
been declared effective by the Commission. Such registration statement, as so
amended, including the exhibits and schedules thereto, if any, and the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of
the 1933 Act Regulations (the "Rule 430A Information") or Rule 434(d) of the
1933 Act Regulations (the "Rule 434 Information"), is referred to herein as the
"Registration Statement"; and the term "Prospectus" shall mean the final
prospectus and the prospectus supplement relating to the offering of the
Offered Bonds, in the form first furnished to the Underwriter by the Company
for use in connection with the offering of the Offered Bonds and shall also
include the form of prospectus contained within the Canadian Prospectus
(defined below) used in connection with the offering of the Offered Bonds in
Canada; provided, however, that all references to the "Registration Statement"
and the "Prospectus" shall be deemed to include all documents incorporated
therein by reference pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), prior to the execution of this Agreement; provided,
further, that if the Company files a registration statement with the Commission
pursuant to Section 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then after such filing, all references to
"Registration Statement" shall be deemed to include the Rule 462(b)
Registration Statement; and provided, further, that if the Company elects to
rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall be deemed to include the final or preliminary prospectus and
the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as the
case may be, in the form first furnished to the Underwriter by the Company in
reliance upon Rule 434 of the 1933 Act Regulations, and all references in this
Agreement to the date of the Prospectus shall mean the date of the Term Sheet.
A "preliminary prospectus" shall be deemed to refer to any prospectus used
before the registration statement became effective and any prospectus that
omitted, as applicable, the Rule 430A Information, the Rule 434 Information or
other information to be included upon pricing in a form of prospectus filed
with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, that
was used after such effectiveness and prior to the execution and delivery of
this Agreement. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the electronically transmitted copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("EDGAR"). The term "Canadian Prospectus" as used in this Agreement shall mean
the Prospectus and any Canadian wrap-around used in connection with the
offering of the Offered Bonds in Canada.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary
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prospectus or the Prospectus (or other references of like import) shall be
deemed to mean and include all such financial statements and schedules and
other information which is incorporated by reference in the Registration
Statement, any preliminary prospectus or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement, any preliminary prospectus or the Prospectus shall be
deemed to mean and include the filing of any document under the 1934 Act which
is incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to the Underwriter that:
(i) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been initiated
or, to the knowledge of the Company, threatened by the Commission.
(ii) The Company meets the requirements for the use of Form S-3
under the 1933 Act. Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act. At the
respective times the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto (including the filing of
the Company's most recent Annual Report on Form 10-K with the Commission)
became effective and at the Closing Date, the Registration Statement, any Rule
462 Registration Statement and any amendments or supplements thereto complied
and will comply in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and the 1939 Act and the rules and regulations of
the Commission under the 1939 Act (the "1939 Act Regulations") and did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. Neither the Prospectus nor any amendments and
supplements thereto, at the time the Prospectus or any amendment or supplement
was issued and at the Closing Date (as defined below), included or will include
an untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. If the
Company elects to rely upon Rule 434 of the 1933 Act Regulations, the Company
will comply with the requirements of Rule 434. Notwithstanding the foregoing,
the representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by the
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Underwriter expressly for use in the Registration Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied as so filed in all
material respects with the 1933 Act Regulations and, if applicable, each
preliminary prospectus and the Prospectus delivered to the Underwriter for use
in connection with the offering of the Offered Bonds will, at the time of such
delivery, be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(iii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement or the Prospectus, at the time they
were or hereafter are filed or last amended, as the case may be, with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act, and the rules and regulations of Commission
thereunder (the "1934 Act Regulations"), and at the time of filing or as of the
time of any subsequent amendment, did 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, in the light of the circumstances
under which they were or are made, not misleading; and any additional documents
deemed to be incorporated by reference in the Registration Statement or the
Prospectus will, if and when such documents are filed with the Commission, or
when amended, as appropriate, comply in all material respects to the
requirements of the 1934 Act and the 1934 Act Regulations 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 the Underwriter
expressly for use in the Registration Statement or the Prospectus.
(iv) The accountants who certified the financial statements and supporting
schedules included or incorporated by reference in the Registration Statement
and the Prospectus are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(v) The financial statements of the Company included or incorporated by
reference in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries as at the dates indicated and the
results of their operations for the periods specified. Such financial
statements have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a
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consistent basis throughout the periods involved. The supporting schedules, if
any, included or incorporated by reference in the Registration Statement and
the Prospectus present fairly in accordance with GAAP the information required
to be stated therein. The ratio of earnings to fixed charges included in the
Prospectus has been calculated in compliance with Item 503(d) of Regulation S-K
of the Commission. The selected financial information and the summary
financial data included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement and the Prospectus.
(vi) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, and except as otherwise stated
therein, (A) there has been no material adverse change and no development which
could reasonably be expected to result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise (a "Material Adverse Effect"), whether or not arising in the
ordinary course of business, (B) there have been no transactions entered into
by the Company or any of its subsidiaries, other than those arising in the
ordinary course of business, which are material with respect to the Company and
its subsidiaries, considered as one enterprise, (C) except for regular
dividends on the Company's common stock in amounts per share that are
consistent with past practice or the applicable charter document or supplement
thereto, respectively, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(vii) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Michigan, with
corporate power and authority to own, lease and operate its properties and to
conduct its business as presently conducted and as described in the Prospectus
and to enter into and perform its obligations under, or as contemplated under,
this Agreement. The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not have a Material Adverse Effect.
(viii) Each subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own, lease and operate its properties and to conduct its business as presently
conducted and as described in the Prospectus, and is duly qualified as a
foreign corporation to transact business and is in good standing
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in each jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not have a
Material Adverse Effect. Except as otherwise stated in the Registration
Statement and the Prospectus, all of the issued and outstanding shares of
capital stock of each subsidiary of the Company have been duly authorized and
validly issued, is fully paid and non-assessable and all such shares are owned
by the Company, directly or through its subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity. None
of the outstanding shares of capital stock of the subsidiaries was issued in
violation of preemptive or other similar rights arising by operation of law,
under the charter or by-laws of any subsidiary or under any agreement to which
the Company or any subsidiary is a party, or otherwise.
(ix) The Company has an authorized capitalization as set forth in the
Prospectus; since the date indicated in the Prospectus there has been no change
in the consolidated capitalization of the Company and its subsidiaries; and all
of the issued and outstanding capital stock of the Company has been duly
authorized and validly issued, is fully paid and non-assessable. None of such
shares of capital stock were issued in violation of preemptive or other similar
rights arising by operation of law, under the charter or by-laws of the Company
or under any agreement to which the Company or any of its subsidiaries is a
party, or otherwise.
(x) The Company has good and marketable title to the properties
specifically described in and conveyed by the Indenture (except such property
as may have been disposed of or released from the lien thereof in accordance
with the terms thereof) subject only to the lien of the Indenture, to permitted
liens, as defined in the Indenture, as to property acquired by the Company
subsequent to the execution of the Original Indenture, to any liens existing
thereon or purchase money liens placed thereon at the time of such acquisition
as permitted by the Indenture, and to certain other reservations, rights of
grantors under revocable permits, easements, licenses, zoning laws and
ordinances and restrictions and minor defects or irregularities of title which
do not materially impair the use of the property affected thereby in the
operation of the business of the Company; the Company and its subsidiaries have
good and marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except the liens of the
Indenture and such liens, encumbrances and defects as do not materially affect
the value of such property and do not interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and
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do not interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries; the pipeline, distribution main
and underground gas storage easements enjoyed by the Company and its
subsidiaries are valid, subsisting and enforceable easements with such
exceptions as are not material and do not interfere with the conduct of the
business of the Company and its subsidiaries.
(xi) The Offered Bonds have been duly authorized by the Company for
issuance and sale pursuant to this Agreement and, at the Closing Date, will
have been duly executed by the Company and, when authenticated in the manner
provided for in the Indenture and delivered against payment of the
consideration therefor specified in this Agreement, will constitute legal,
valid and binding obligations of the Company, enforceable against the Company
in accordance with their terms except to the extent that enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by general
principles of equity (regardless of whether enforcement is considered in a
proceeding at law or in equity) (the "Bankruptcy Exceptions"). The Offered
Bonds will be in the form contemplated by, and entitled to the benefits of, the
Indenture and will conform in all material respects to the description thereof
contained in the Prospectus.
(xii) The Indenture has been duly authorized, executed and delivered by
the Company and qualified under the 1939 Act and constitutes a legal, valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms except to the extent that enforcement thereof may be limited by
the Bankruptcy Exceptions; the Indenture will conform in all material respects
to the description thereof contained in the Prospectus.
(xiii) The Indenture constitutes a legally valid and direct enforceable
first mortgage lien, except as the same may be limited by the laws of the State
of Michigan (where all of the property covered thereby is located) affecting
the remedies for the enforcement of the security provided for therein, which
laws do not make inadequate the remedies necessary for the realization of the
benefits of such security, or as the same may be limited by the Bankruptcy
Exceptions, upon substantially all of the Company's properties and franchises,
now owned or hereafter acquired, free from all prior liens, charges or
encumbrances, except as hereinbefore set forth in subparagraph (x) above, and,
in the case of property hereafter acquired, any thereof existing at the time of
acquisition.
(xiv) Neither the Company nor any of its subsidiaries is in violation of
its charter or by-laws or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture,
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mortgage, deed of trust, note, lease, loan or credit agreement or any other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which any of them may be bound, or to which any of the property or
assets of the Company or any of its subsidiaries is subject, or in violation of
any applicable law, rule or regulation or any judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any of their
respective properties or assets, which violation or default would, singly or in
the aggregate, have a Material Adverse Effect.
(xv) The issuance and sale of the Offered Bonds, the compliance by the
Company with all of the provisions of the Offered Bonds, the execution,
delivery and performance by the Company of this Agreement, the Indenture and
the Offered Bonds and any other agreement or instrument entered into or issued
or to be entered into or issued by the Company in connection with the
transactions contemplated hereby or thereby or in the Prospectus, and the
consummation of the transactions contemplated herein and therein and compliance
by the Company with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action and do not and will not conflict
with or result in a breach of any of the terms or provisions of, or constitute
a default under or require the consent of any party under, or result in the
creation or imposition of any lien on the properties or assets of the Company
or any of its subsidiaries pursuant to, any contract, indenture, mortgage, deed
of trust, note, lease, agreement or other instrument to which the Company or
any of its subsidiaries is a party or by which any of them may be bound, nor
will such action result in any violation of the provisions of the charter or
by-laws of the Company and its subsidiaries or any applicable law, rule or
regulation or any judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their respective properties or
assets.
(xvi) This Agreement has been duly authorized, executed and delivered by
the Company.
(xvii) There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending or to the knowledge of the Company threatened against or
affecting the Company or any of its subsidiaries which is required to be
disclosed in the Registration Statement and the Prospectus (other than as
stated therein), or which might reasonably be expected to result in a Material
Adverse Effect, or which might be reasonably expected to materially and
adversely affect the properties, assets or operations thereof or the
consummation of this Agreement, the Indenture or the transactions contemplated
herein or therein. The aggregate of all pending legal or governmental
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proceedings to which the Company or any of its subsidiaries is a party or of
which any of their respective properties, assets or operations is the subject
which are not described in the Registration Statement and the Prospectus,
including ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xviii) No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent; and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal suppliers, manufacturers,
customers or contractors which may be expected to result in a Material Adverse
Effect.
(xix) There are no contracts or documents which are required to be
described in the Registration Statement, the Prospectus or the documents
incorporated by reference therein, or to be filed as exhibits thereto which
have not been so described and/or filed as required.
(xx) No filing with, or authorization, approval, consent, license, order,
registration or qualification or decree of, any court or governmental authority
or agency is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale of the
Offered Bonds or the consummation of the transactions contemplated by this
Agreement or the Indenture, except such as have been already obtained or as may
be required under state or foreign securities or blue sky laws.
(xxi) The Company and its subsidiaries possess all licenses, franchises,
permits, certificates, authorizations, approvals, consents, orders and other
operating rights from the Federal Energy Regulatory Commission, the State of
Michigan and all governmental authorities or agencies necessary for the
ownership or lease of the material properties owned or leased by each of them
and for the operation of the business carried on by each of them, except where
the failure to so comply would not, singly or in the aggregate, result in a
Material Adverse Effect; all such licenses, franchises, permits, certificates,
authorizations, approvals, consents and orders are in full force and effect and
contain no unduly burdensome provisions that would interfere with the conduct
of the business of the Company and its subsidiaries, considered as one
enterprise and, except as otherwise set forth in the Registration Statement and
the Prospectus, there are no legal or governmental proceedings pending or
threatened that would result in a material modification, suspension or
revocation thereof.
(xxii) The Company is a "subsidiary company" of a "holding company" as
such terms are defined in the Public Utility Holding Company Act of 1935 (the
"1935 Act"), and such "holding
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company" and the Company are presently exempt from the provisions of the 1935
Act (except Section 9 thereof).
(xxiii) None of Company or any of its subsidiaries is an "investment
company" or under the "control" of an "investment company" as such terms are
defined under the Investment Company Act of 1940, as amended (the "1940 Act").
(xxiv) The Company has complied with, and is and will be in compliance
with, the provisions of that certain Florida act relating to disclosure of
doing business with Cuba, codified as Section 517.075 of the Florida statutes,
and the rules and regulations thereunder (collectively, the "Cuba Act") or is
exempt therefrom.
(xxv) Immediately after the sale of the Offered Bonds by the Company
hereunder, the aggregate amount of the Offered Bonds which shall have been
issued and sold by the Company hereunder and of any debt securities of the
Company (other than the Offered Bonds) 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.
(xxvi) None of the Company, its subsidiaries or any of their respective
directors, officers or controlling persons, has taken, directly or indirectly,
any action resulting in a violation of Regulation M under the 1934 Act, or
designed to cause or result in, or that has constituted or that reasonably
might be expected to constitute, the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the Offered
Bonds.
(xxvii) No "forward looking statement" (as defined in Rule 175 under the
1933 Act) contained in the Registration Statement, any preliminary prospectus
or the Prospectus was made or reaffirmed without a reasonable basis or was
disclosed other than in good faith.
(b) Any certificate signed by any officer of the Company and delivered
to the Underwriter or to counsel for the Underwriter in connection with the
offering of the Offered Bonds shall be deemed a representation and warranty by
the Company to the Underwriter as to the matters covered thereby.
SECTION Sale and Delivery to Underwriter; Closing.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
sell to the Underwriter, and the Underwriter agrees to purchase from the
Company, at the purchase price set forth in Schedule I hereto, the principal
amount of the Offered Bonds set forth opposite its name in Schedule II hereto.
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(b) Payment of the purchase price for, and delivery of certificates for,
the Offered Bonds shall be made at the office at the location specified in
Schedule I, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing
occurs after 4:30 P.M., Eastern time, on any given day) business day after the
date hereof, or such other time not later than ten business days after such
date as shall be agreed upon by the Underwriter and the Company (such time and
date of payment and delivery being herein called the "Closing Date").
Payment shall be made to the Company by certified or official bank
check or checks, or by wire transfer in the type of funds specified in
Schedule I, payable to the order of the Company, against delivery to the
Underwriter of certificates for the Offered Bonds to be purchased by it.
(c) Certificates for the Offered Bonds shall be in such denominations and
registered in such names as the Underwriter may request in writing at least one
full business day before the Closing Date. The certificates for the Offered
Bonds will be made available to the Underwriter for examination at the office
specified in Schedule I hereto not later than 10:00 a.m., Eastern time, on the
business day prior to the Closing Date.
SECTION 3. Covenants of the Company. The Company agrees with the
Underwriter as follows:
(a) Promptly following the execution of this Agreement, the Company will
cause the Prospectus, including as a part thereof a prospectus supplement
relating to the Offered Bonds to be filed with the Commission pursuant to Rule
424 of the 1933 Act Regulations and the Company will promptly advise the
Underwriter when such filing has been made. Prior to the filing, the Company
will cooperate with the Underwriter in the preparation of such prospectus
supplement to assure that the Underwriter has no reasonable objection to the
form or content thereof when filed or mailed.
(b) The Company, subject to Section 3(c), will comply with the
requirements of Rule 434 of the 1933 Act Regulations if and as applicable, and
will notify the Underwriter immediately, and confirm the notice in writing, (i)
of the effectiveness of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to the Prospectus, (ii)
the receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or suspending the use of any preliminary prospectus,
or the initiation of any proceedings for that purpose and (v) of the issuance
by any state securities commission or other regulatory authority of any order
suspending the qualification or the
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exemption from qualification of the Offered Bonds under state securities or
Blue Sky laws or the initiation or threatening of any proceeding for such
purpose. The Company will make every reasonable effort to prevent the issuance
of any stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(c) The Company will give the Underwriter notice of its intention to
file or prepare any amendment to the Registration Statement (including any
post-effective amendment and any filing under Rule 462(b) of the 1933 Act
Regulations), any Term Sheet or any amendment, supplement or revision to either
the prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise; will furnish the Underwriter with copies of any such Rule 462(b)
Registration Statement, Term Sheet, amendment, supplement or revision a
reasonable amount of time prior to such proposed filing or use, as the case may
be; and will not file any such Rule 462(b) Registration Statement, Term Sheet,
amendment, supplement or revision to which the Underwriter or counsel for the
Underwriter shall object.
(d) The Company will comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Offered Bonds as contemplated in this
Agreement and in the Registration Statement and the Prospectus. If at any time
when the Prospectus is required by the 1933 Act or the 1934 Act to be delivered
in connection with sales of the Offered Bonds, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriter or for the Company, to amend the Registration
Statement in order that the Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or to
amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light
of the circumstances existing at the time it is delivered to a purchaser, or if
it shall be necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement the Prospectus in order
to comply with the requirements of the 1933 Act or the 1933 Act Regulations,
the Company will promptly prepare and file with the Commission, subject to
Section 3(c), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the Prospectus
comply with such requirements, and the Company will furnish to the Underwriter,
without charge, such number of copies of such amendment or supplement as the
Underwriter may reasonably request.
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(e) The Company will make generally available to its security holders as
soon as practicable, but not later than 45 days (or 90 days, in the case of a
period that is also the Company's fiscal year) after the close of the period
covered thereby, an earnings statement of the Company and its subsidiaries (in
form complying with the provisions of Rule 158 of the 1933 Act Regulations)
covering a twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in
said Rule 158) of the Registration Statement.
(f) The Company will deliver to the Underwriter and counsel for the
Underwriter, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the Underwriter,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits). If applicable, the
copies of the Registration Statement and each amendment thereto furnished to
the Underwriter will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(g) The Company will deliver to the Underwriter, without charge, as many
copies of each preliminary prospectus as such Underwriter may reasonably
request, and the Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to the Underwriter,
without charge, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. If applicable, the Prospectus and any amendments or supplements
thereto furnished to the Underwriter will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(h) The Company will use its best efforts, in cooperation with the
Underwriter, to qualify the Offered Bonds for offering and sale under the
applicable securities laws of such states and other jurisdictions (domestic or
foreign) as the Underwriter may designate; provided, however, that the Company
shall not be obligated to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified or subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Offered Bonds have been so qualified, the
Company will file such statements, reports and other documents as may be
required by the laws of such jurisdiction to continue such qualification in
effect for so long as may be required in connection with
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distribution of the Offered Bonds, or as otherwise may be required by law.
(i) The Company will use the net proceeds received by it from the sale
of the Offered Bonds in the manner specified in the Prospectus under "Use of
Proceeds".
(j) If, at the time that the Registration Statement became (or in the
case of a post-effective amendment becomes) effective, any information shall
have been omitted therefrom in reliance upon Rule 434 of the 1933 Act
Regulations, then immediately following the execution of this Agreement, the
Company will prepare, and file or transmit for filing with the Commission in
accordance with such Rule 434 and Rule 424(b) of the 1933 Act Regulations,
copies of an amended Prospectus, or Term Sheet, containing all information so
omitted.
(k) 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) and pay the applicable fees in accordance with Rule 111 of the
1933 Act Regulations by the time confirmations are sent or given, as specified
by Rule 462(b)(2).
(l) The Company, during the period when the Prospectus is required to be
delivered under the 1933 Act, will file all documents required to be filed with
the Commission pursuant to the 1934 Act within the time periods required by the
1934 Act and the 1934 Act Regulations.
(m) During a period of fifteen days from the date of the Prospectus, the
Company will not, without the prior written consent of the Underwriter,
directly or indirectly, issue, sell, contract to sell, grant any option for the
sale of, or otherwise transfer or dispose of any debt securities of the Company
which mature more than one year after the Closing Date and which are
substantially similar to the Offered Bonds, except for the offer by the Company
of $40,000,000 aggregate principal amount of First Mortgage Bonds designated as
Secured Medium-Notes, Series B, due May 1, 2012 and $30,000,000 aggregate
principal amount of First Mortgage Bonds designated as Secured Medium-Term
Notes, Series C, due May 1, 2007.
(n) None of the Company, its subsidiaries or any of their respective
directors, officers or controlling persons, will take, directly or indirectly,
any action resulting in a violation of Regulation M under the 1934 Act, or
designed to cause or result in, or that reasonably might be expected to
constitute, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Offered Bonds.
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under
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this Agreement, including, without limitation, expenses related to the
following, if incurred: (i) the preparation, delivery, printing and filing of
the Registration Statement and Prospectus as originally filed (including
financial statements and exhibits) and of each amendment thereto; (ii) the
printing and delivery to the Underwriter of this Agreement, any Agreement among
Underwriters, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale and delivery of the Offered Bonds;
(iii) the preparation, issuance and delivery of the certificates for the
Offered Bonds to the Underwriter; (iv) all costs, taxes and expenses incident
to the issue and delivery of the Offered Bonds to the Underwriter; (v) the
fees, expenses and disbursements of the Company's counsel, accountants and
other advisors; (vi) the qualification of the Offered Bonds under securities
laws in accordance with the provisions of Section 3(h), including filing fees
and the fees, expenses and disbursements of counsel for the Underwriter in
connection therewith (other than the fees, expenses and disbursements of
Canadian counsel for the Underwriter in connection with the offering of the
Offered Bonds in Canada) and in connection with the preparation of the Blue Sky
Survey, any supplement thereto and any Legal Investment Survey; (vii) the
printing and delivery to the Underwriter of copies of the Registration
Statement as originally filed and of each amendment thereto, of each
preliminary prospectus, any Term Sheet and of the Prospectus and any amendments
or supplements thereto (including any wrap-around thereto prepared by the
Underwriter in connection with the offering of the Offered Bonds in Canada);
(viii) the printing and delivery to the Underwriter of copies of the Blue Sky
Survey, any supplement thereto and any Legal Investment Survey; (ix) the fees
and expenses of the Trustees, including the fees, expenses and disbursements of
counsel for the Trustees in connection with the Indenture and the Offered
Bonds; and (x) any fees payable in connection with the rating of the Offered
Bonds by nationally recognized statistical rating organizations.
If this Agreement is terminated by the Underwriter in accordance with the
provisions of Section 5 or Section 9(a)(i) hereof, the Company shall reimburse
the Underwriter for all of its out-of-pocket expenses, including the reasonable
fees, expenses and disbursements of LeBoeuf, Lamb, Greene & MacRae, L.L.P.,
counsel for the Underwriter, and Canadian counsel for the Underwriter.
SECTION 5. Conditions of Underwriter's Obligation. The obligation of the
Underwriter to purchase and pay for the Offered Bonds pursuant to this
Agreement are subject to the accuracy of the representations and warranties of
the Company herein contained or in certificates of any officer of the Company
or any subsidiary delivered pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
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(a) The Registration Statement, including any Rule 462(b) Registration
Statement, shall have become effective under the 1933 Act not later than 5:30
p.m., New York City time, on the date hereof, and on the date hereof and at the
Closing Date, no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with to the satisfaction of counsel to the Underwriter. A prospectus
containing information relating to the description of the Offered Bonds, the
specific method of distribution and similar matters shall have been filed with
the Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable, or, if the Company has elected to rely upon Rule 434 of the 1933
Act Regulations, a Term Sheet including the Rule 434 Information shall have
been filed with the Commission in accordance with Rule 424(b)(7).
(b) At the Closing Date, the Underwriter shall have received:
(1) The favorable opinion, dated as of the Closing Date, of Susan K.
McNish, Vice President, General Counsel and Secretary of the Company, in form
and substance satisfactory to counsel for the Underwriter, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Michigan, with corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and as
described in the Prospectus and to enter into and perform its obligations
under, or as contemplated under, this Agreement.
(ii) The Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not have a Material
Adverse Effect.
(iii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the shares of issued and outstanding
capital stock of the Company have been duly authorized and validly issued
and is fully paid and non-assessable. None of such shares of capital
stock were issued in violation of preemptive or other similar rights
arising by operation of law, under the charter or by-laws of the Company
or under any agreement to which the Company or any of its subsidiaries is
a party, or otherwise.
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(iv) Each subsidiary of the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own, lease and operate its properties and to conduct its
business as presently conducted and as described in the Prospectus, and
is duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or be in
good standing would not have a Material Adverse Effect. Except as
otherwise stated in the Registration Statement and the Prospectus, all of
the issued and outstanding shares of capital stock of each such
subsidiary of the Company has been duly authorized and validly issued, is
fully paid and non-assessable and all such shares are owned by the
Company, directly or through its subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(v) to the best of such counsel's knowledge, neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws and
no default by the Company or any subsidiary exists in the due performance
or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
note, lease, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which any of them may
be bound, or to which any of the properties or assets of the Company or
any of its subsidiaries is subject.
(vi) The Company meets the registrant requirements for use of Form
S-3 under the 1933 Act Regulations.
(vii) The issuance and sale of the Offered Bonds, the compliance
by the Company with all of the provisions of the Offered Bonds, the
execution, delivery and performance by the Company of this Agreement, the
Indenture and the Offered Bonds and any other agreement or instrument
entered into or issued or to be entered into or issued by the Company in
connection with the transactions contemplated hereby or thereby or in the
Prospectus, and the consummation of the transactions contemplated herein
and therein and compliance by the Company with its obligations hereunder
and thereunder have been duly authorized by all necessary corporate
action and do not and will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under or require
the consent of any party under, or result in the creation or imposition
of any lien on the properties or assets of the Company or any of
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its subsidiaries pursuant to, any contract, indenture, mortgage, deed of
trust, note, lease, agreement or other instrument to which the Company or
any of its subsidiaries is a party or by which any of them may be bound,
nor will such action result in any violation of the provisions of the
charter or by-laws of the Company and its subsidiaries or any applicable
law, rule or regulation or any judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its subsidiaries or any of
their respective properties or assets.
(viii) No filing with, or authorization, approval, consent,
license, order, registration or qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, in connection
with the offering, issuance or sale of the Offered Bonds or the
consummation of the transactions contemplated by this Agreement or the
Indenture, except such as have been already obtained or as may be
required under state or foreign securities or blue sky laws.
(ix) All descriptions in the Prospectus of contracts and other
documents to which the Company or its subsidiaries are a party are
accurate in all material respects; to the best of such counsel's
knowledge and information, there are no franchises, contracts,
indentures, mortgages, agreements, notes, leases or other instruments
required to be described or referred to or incorporated by reference in
the Registration Statement or to be filed as exhibits thereto other than
those described or referred to or incorporated by reference therein or
filed as exhibits thereto, and the descriptions thereof or references
thereto are correct in all material respects; and no default exists in
the due performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
agreement, note, lease or other instrument so described, referred to,
filed or incorporated by reference.
(x) The Company and its subsidiaries possess all licenses,
franchises, permits, certificates, authorizations, approvals, consents,
orders and other operating rights from the Federal Energy Regulatory
Commission, the State of Michigan and all governmental authorities or
agencies necessary for the ownership or lease of the material properties
owned or leased by each of them and for the operation of the business
carried on by each of them, except where the failure to so comply would
not, singly or in the aggregate, result in a Material Adverse Effect; all
such licenses, franchises, permits,
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certificates, authorizations, approvals, consents and orders are in full
force and effect and contain no unduly burdensome provisions that would
interfere with the conduct of the business of the Company and its
subsidiaries, considered as one enterprise and, except as otherwise set
forth in the Registration Statement or the Prospectus, there are no legal
or governmental proceedings pending or threatened that would result in a
material modification, suspension or revocation thereof.
(xi) To the best of such counsel's knowledge, there is no action,
suit, proceeding, inquiry or investigation before or brought by any court
or governmental agency or body, domestic or foreign, pending or
threatened against or affecting the Company or any of its subsidiaries
which is required to be disclosed in the Registration Statement and the
Prospectus (other than as stated therein), or which might reasonably be
expected to result in a Material Adverse Effect, or which might be
reasonably expected to materially and adversely affect the properties,
assets or operations thereof or the consummation of this Agreement, the
Indenture or the transactions contemplated herein or therein. The
aggregate of all pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which any of their
respective properties, assets or operations is the subject which are not
described in the Registration Statement and the Prospectus, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xii) The Company and its subsidiaries have good and marketable
title to all personal property owned by them, free and clear of all
liens, encumbrances and defects except the liens of the Indenture and
such liens, encumbrances and defects as do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries;
and any real property and buildings held under lease by the Company and
its subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere with
the use made and proposed to be made of such property and buildings by
the Company and its subsidiaries;
(xiii) The information in the Prospectus under the captions
"Summary," "The Company," "Capitalization at March 31, 1997," "Use of
Proceeds," "Description of the Offered Bonds" and "Description of the New
Bonds", to the extent that they involve matters of law, summaries of
legal matters, documents or proceedings, or legal conclusions, has been
reviewed by such counsel and is correct in all material respects.
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(xiv) The Offered Bonds and the Indenture conform in all material
respects to the descriptions thereof contained in the Prospectus.
(xv) The Registration Statement, including any Rule 462(b)
Registration Statement, is effective under the 1933 Act; any required
filing of the Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated, to the best
of such counsel's knowledge, or threatened by the Commission.
(xvi) The Registration Statement, including any Rule 462(b)
Registration Statement and the Prospectus, and each amendment or
supplement thereto (other than the financial statements and the notes
thereto, the financial schedules and any other financial data included or
incorporated by reference therein, or the exhibits to the Registration
Statement, including any Form T-1, as to which no opinion need be
rendered), as of their respective effective or issue dates, or when
amended, as appropriate, complied as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations.
(xvii) Each of the documents incorporated by reference in the
Registration Statement or the Prospectus at the time they were filed or
last amended (other than the financial statements and the notes thereto,
the financial schedules, and any other financial data included or
incorporated by reference therein, as to which such counsel need express
no belief), complied as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations, as applicable;
and such counsel has no reason to believe that any of such documents,
when such documents became effective or were so filed, as the case may
be, contained, in the case of a registration statement which became
effective under the 1933 Act, an untrue statement of a material fact, or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and, in the case
of other documents which were filed under the 1934 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 not
misleading.
(xviii) Except as to property acquired subsequent to the date of
execution of the Thirty-fourth Supplemental Indenture, the Company has
good and marketable title to the property specifically or generally
described in the Indenture (except such property as may have been
disposed of or released from the lien thereof in accordance with the
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terms thereof) subject only to the lien of the Indenture, to permitted
liens, as defined in the Indenture, as to property acquired by the
Company subsequent to the execution of the Original Indenture, to any
liens existing thereon or purchase money liens placed thereon at the time
of such acquisition as permitted by the Indenture, and to certain other
reservations, rights of grantors under revocable permits, easements,
licenses, zoning laws and ordinances and restrictions and minor defects
or irregularities of title which do not, in the opinion of such counsel,
materially impair the use of the property affected thereby in the
operation of the business of the Company; the pipeline, distribution main
and underground gas storage easements enjoyed by the Company and its
subsidiaries are valid, subsisting and enforceable easements with such
exceptions as are not material and do not interfere with the conduct of
the business of the Company and its subsidiaries.
(xix) The Indenture constitutes a legally valid and direct
enforceable first mortgage lien, except as the same may be limited by the
laws of the State of Michigan (where the property covered thereby is
located) affecting the remedies for the enforcement of the security
provided for therein, which laws do not, in the opinion of such counsel,
make inadequate the remedies necessary for the realization of the
benefits of such security, or as the same may be limited by the
Bankruptcy Exceptions, upon substantially all of the Company's properties
and franchises, now owned or hereafter acquired, free from all prior
liens, charges or encumbrances other than the lien of the Indenture,
permitted liens, as defined in the Indenture, as to property acquired by
the Company subsequent to the execution of the Original Indenture, any
liens existing thereof or purchase money liens placed thereon at the time
of such acquisition as permitted by the grantors under revocable permits,
easements, licenses, zoning laws and ordinances and restrictions and
minor defects or irregularities of title which do not, in the opinion of
such counsel, materially impair the use of the property affected thereby
in the operation of the business of the Company.
(xx) The Indenture has been duly authorized, executed and
delivered by the Company and assuming due authorization, execution and
delivery thereof by the Trustees, constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except to the extent that enforcement thereof may be
limited by the Bankruptcy Exceptions; the Indenture has been duly
qualified under the 1939 Act.
(xxi) All taxes and fees required to be paid by the laws of the
State of Michigan and jurisdictional
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subdivisions thereof with respect to the execution of the Indenture and
the issuance of the Offered Bonds have been paid.
(xxii) The Offered Bonds have been duly authorized by the Company
for issuance and sale pursuant to this Agreement and, when issued and
authenticated in the manner provided for in the Indenture and delivered
against payment of the consideration therefor specified in this
Agreement, will constitute legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions. The Offered Bonds are in the form contemplated
by, and entitled to the benefits of, the Indenture.
(xxiii) This Agreement has been duly authorized, executed and
delivered by the Company.
(xxiv) The Company is a "subsidiary company" of a "holding
company" as such terms are defined in the 1935 Act, and such "holding
company" and the Company are presently exempt from the provisions of the
1935 Act (except Section 9 thereof).
(xxv) None of the Company or any of its subsidiaries is an
"investment company" or under the "control" of an "investment company" as
such terms are defined in the 1940 Act.
(xxvi) The Company has complied with, and is and will be in
compliance with, the provisions of the Cuba Act or is exempt therefrom.
Moreover, such counsel shall confirm that nothing has come to such
counsel's attention that would lead such counsel to believe that the
Registration Statement, including any information provided pursuant to
Rule 434 (except for financial statements and the notes thereto, the
financial schedules and any other financial data included or incorporated
by reference therein, as to which counsel need express no opinion), at
the time it became effective or at the date of the Prospectus Supplement,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (except for
financial statements and the notes thereto, the financial schedules, and
any other financial data included or incorporated by reference therein,
as to which counsel need express no opinion), at the date of the
Prospectus Supplement (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriter by the Company for
use in connection with the offering of the
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Offered Bonds which differs from the Prospectus on file at the Commission
at the time the Registration Statement became effective, in which case at
the time it is first provided to the Underwriter for such use) or at the
Closing Date, included (or includes) an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(2) The favorable opinion, dated as of then Closing Time, of
LeBoeuf, Lamb, Greene & MacRae, L.L.P., counsel for the Underwriter, in form
and substance satisfactory to the Underwriter, with respect to the issuance and
sale of the Offered Bonds, the Indenture, the Registration Statement, the
Prospectus and other related matters as the Underwriter may reasonably require,
and the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters. In giving
its opinion, LeBoeuf, Lamb, Greene & MacRae, L.L.P. may rely as to certain
matters of Michigan law upon the opinion of Susan K. McNish, which shall be
delivered in accordance with Section 5(b)(1) hereof.
(c) Between the date of this Agreement and prior to the Closing Date, no
material adverse change shall have occurred in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise, whether or not in
the ordinary course of business.
(d) At the Closing Date, the Underwriter shall have received a
certificate of the President or a Vice-President of the Company and of the
Chief Financial Officer or Chief Accounting Officer of the Company and dated as
of the Closing Time, to the effect that (i) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not in the ordinary course of business, (ii) the
representations and warranties in Section 1 hereof are true and correct as
though expressly made at and as of the Closing Date, (iii) the Company has
complied with all agreements and satisfied all conditions on their part to be
performed or satisfied at or prior to the Closing Date, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or threatened by the
Commission.
(e) At the time of the execution of this Agreement, the Underwriter
shall have received from Deloitte & Touche LLP a letter dated such date in
form and substance satisfactory to the Underwriter, to the effect set forth
below and as to such other matters as the Underwriter may reasonably request,
that:
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(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the 1933 Act
and the 1933 Act Regulations;
(ii) In their opinion, the consolidated financial statements and any
financial statement schedules audited by them and included or
incorporated by reference in the Registration Statement and the
Prospectus as amended or supplemented comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations;
(iii) On the basis of limited procedures, not constituting an audit
in accordance with generally accepted auditing standards, including a
review in accordance with standards established by the American Institute
of Certified Public Accountants of the unaudited condensed consolidated
financial statements included in the Company's Quarterly Reports on Form
10-Q incorporated by reference in the Registration Statement and the
Prospectus as amended or supplemented for the periods specified in such
letter, a reading of the latest available unaudited interim consolidated
financial statements of the Company and its subsidiaries, a reading of
the minutes of the Company and its subsidiaries since the audited
consolidated financial statements set forth in the Company's Annual
Report on Form 10-K for the most recent year, inquiries of officials of
the Company 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) the unaudited condensed consolidated financial statements
set forth in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Registration Statement and the
Prospectus as amended or supplemented do not comply as to form in
all material respects with the applicable accounting requirements
of the 1934 Act and the 1934 Act Regulations as they apply to Form
10-Q or any material modifications should be made for them to be in
conformity with generally accepted accounting principles applied on
a basis substantially consistent with that of the audited
consolidated financial statements set forth in the Company's Annual
Report on Form 10-K for the most recent year ended incorporated by
reference in the Registration Statement and the Prospectus as
amended or supplemented;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus as amended or supplemented
do not agree with the
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corresponding items in the unaudited consolidated financial
statements from which such data and items were derived;
(C) any unaudited pro forma consolidated condensed financial
statements or any unaudited pro forma consolidating financial
statements included or incorporated by reference in the Prospectus
as amended or supplemented do not comply as to form in all material
respects with the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations or the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements;
(D) as of a specified date not more than five days prior to
the date of this Agreement, there has been any decrease or increase
in the capital stock or any increase or decrease in long-term debt
including capital lease obligations and current maturities (except
for sinking fund and installment requirements under their long-term
debt agreements and purchases in the open market in anticipation
thereof) or any increase in short-term debt, or any decrease in
consolidated common shareholders' equity of the Company and its
consolidated subsidiaries (other than periodic dividends declared
to shareholders), in each case as compared with the corresponding
amounts shown in the latest consolidated statement of financial
position of the Company and its subsidiaries incorporated by
reference in the Registration Statement and the Prospectus as
amended or supplemented, except in each case for increases or
decreases which the Prospectus as amended or supplemented,
including financial information incorporated by reference,
discloses have occurred or may occur or which are described in such
letter; and
(E) for the period from the date of the latest consolidated
financial statements included or incorporated by reference in the
Prospectus as amended or supplemented to the end of the latest
period for which unaudited condensed consolidated financial
statements or financial information are available, there were any
decreases in consolidated operating revenues, operating income, net
income or earnings available for Common Stock of the Company and
its consolidated subsidiaries, or any increases in any items
specified by the Underwriter, in each case as compared with the
corresponding period in the preceding year and with any other
period of corresponding length specified by the Underwriter, except
in each case for
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increases or decreases which the Prospectus as amended or
supplemented, including financial information incorporated by
reference, discloses have occurred or may occur or which are
described in such letter; and
(F) the unaudited consolidated financial statements referred
to in Clause (E) are not stated on a basis substantially consistent
with the audited consolidated financial statements incorporated by
reference in the Registration Statement and the Prospectus as
amended or supplemented.
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
as amended or supplemented and included or incorporated by reference in
the Company'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 such
five fiscal years which were included or incorporated by reference in the
Company's Annual Reports on Form 10-K for such fiscal years;
(v) In addition to the limited procedures, reading of minutes,
inquiries and other procedures referred to in clause (iii) and (iv)
above, they have carried out certain other specified procedures, not
constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information which are derived from the general accounting and financial
records of the Company and its subsidiaries, which appear in the
Prospectus as amended or supplemented and the Registration Statement, in
the Company's Annual Report on Form 10-K for the latest year ended and in
the Company's Quarterly Reports on Form 10-Q since the latest Annual
Report on Form 10-K and which are specified by the Underwriter, and have
compared certain of such amounts, percentages and financial information
with the accounting and financial records of the Company and its
subsidiaries and have found them to be in agreement; and
(vi) If applicable and agreed to by the parties, they have made a
review in accordance with standards established by the American Institute
of Certified Public Accountants of the selected financial data, pro forma
financial information, prospective financial statements, consolidating
financial statements and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have
been furnished to the Representatives.
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(f) At the Closing Date, the Underwriter shall have received from
Deloitte & Touche LLP a letter, dated as of the Closing Date, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (e) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to the Closing Date.
(g) At the Closing Date, the Offered Bonds shall be rated in one of the
four highest rating categories for long term debt securities ("Investment
Grade") by any nationally recognized statistical rating agency, and the Company
shall have delivered to the Underwriter a letter, dated the Closing Date, from
such nationally recognized statistical rating agency, or other evidence
satisfactory to the Underwriter, confirming that the Offered Bonds have
Investment Grade ratings; and there shall not have occurred any decrease in the
ratings of any of the securities of the Company or of the Offered Bonds by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the 1933 Act Regulations) and such organization
shall not have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the securities of the
Company or of the Offered Bonds.
(h) At the Closing Date, counsel for the Underwriter shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the Offered Bonds as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Offered Bonds as herein contemplated shall be
satisfactory in form and substance to the Underwriter and counsel for the
Underwriter.
(i) If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriter by notice to the Company at any time at or prior
to the Closing Date, and such termination shall be without liability of any
party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
SECTION 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of
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any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if
applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or
the Canadian Prospectus, or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided, that (subject to
Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, the fees, expenses and disbursements of counsel chosen by the
Underwriter), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) or the Canadian Prospectus; provided, further, that such
indemnity with respect to the preliminary prospectus shall not inure to the
benefit of the Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, liability, claim, damage or expense
purchased any of the Offered Bonds that are the subject thereof if such person
did not receive a copy of the Prospectus (or the Prospectus as amended or
supplemented) (in each case exclusive of the documents
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from which information is incorporated by reference) at or prior to the written
confirmation of the sale of such Offered Bonds to such person in any case where
the Company complied with its obligations under Sections 3(c) and 3(g) hereof
and any such untrue statement or omission or alleged untrue statement or
omission of a material fact contained in such preliminary prospectus (or any
amendment or supplement thereto) was corrected in the Prospectus (or the
Prospectus as amended or supplemented).
(b) The Underwriter agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a) of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) or the Canadian Prospectus
in reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or the Canadian Prospectus.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a) above, counsel to the indemnified parties
shall be selected by the Underwriter, and, in the case of parties indemnified
pursuant to Section 6(b) above, counsel to the indemnified parties shall be
selected by the Company. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any
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litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriter on the other hand from the offering of the Offered
Bonds pursuant to this Agreement or (ii) if the allocation provided by clause
(i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the Underwriter on the
other hand in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriter on the other hand in connection with the offering of the Offered
Bonds pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such Offered Bonds
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriter, in each case
as set forth on the cover of the Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet,
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bear to the aggregate initial public offering price of such Securities as set
forth on such cover.
The relative fault of the Company on the one hand and the Underwriter on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
the Company or by the Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriter shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Offered Bonds 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 any such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements
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contained in this Agreement, or contained in certificates of officers of the
Company submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or controlling person, or by or on behalf of the Company, and shall survive
delivery of and payment for the Offered Bonds to the Underwriter.
SECTION 9. Termination of Agreement.
(a) The Underwriter may terminate this Agreement, by notice to the
Company at any time at or prior to the Closing Date, if (i) there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
or any development which could reasonably be expected to result in a
prospective material adverse change, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or any outbreak of
hostilities or escalation of hostilities or other calamity or crisis, or any
change or development involving a prospective change in national or
international political, financial or economic conditions the effect of which
is such as to make it, in the judgment of the Underwriter, impracticable to
market the Offered Bonds or to enforce contracts for the sale of the Offered
Bonds, or (iii) if trading in any securities of the Company has been suspended
or limited by the Commission, NASD or the New York Stock Exchange, or if
trading generally on either the American Stock Exchange, the New York Stock
Exchange or in the over-the-counter market has been suspended or limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said exchanges or by
such system or by order of the Commission, NASD or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal,
New York or Michigan authorities.
(b) If this Agreement is terminated pursuant to this Section 9, such
termination shall be without liability of any party to any other party except
as provided in Section 4, and provided, further, that Sections 1, 6, 7 and 8
shall survive such termination and remain in full force and effect.
SECTION 10. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to it at the address specified in Schedule I
hereto, with a copy to LeBoeuf, Lamb, Greene & MacRae, L.L.P., 125 West 55th
Street, New York, New York 10019-5389, Attention: William S. Lamb, Esq.;
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notices to the Company shall be directed to it at Michigan Consolidated Gas
Company, 500 Griswold Street, Detroit, Michigan 48226, Attention of the
Secretary with a copy to the Treasurer.
SECTION 11. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Company and the Underwriter and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriter and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein or therein
contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors and legal representatives, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Offered Bonds from the Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME UNLESS OTHERWISE INDICATED.
SECTION 13. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, shall become a binding
agreement among the Company and the Underwriter in accordance with its terms.
Very truly yours,
MICHIGAN CONSOLIDATED GAS COMPANY
By: /s/ Stephen Ewing
------------------------------
Name: Stephen Ewing
Title: President and Chief
Executive Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
EDWARD D. JONES & CO., L.P.
By: /s/ Philip R. Schwab
-------------------------------
Name: Philip R. Schwab
Title: General Principal
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SCHEDULE I
UNDERWRITER: Edward D. Jones & Co., L.P.
PURCHASE PRICE AND DESCRIPTION OF OFFERED BONDS:
TITLE: First Mortgage Bonds Designated As 7.60% Secured
Medium-Term Notes, Series C, due May 1, 2017
PRINCIPAL AMOUNT: $15,000,000
PURCHASE PRICE: 96.875%
INTEREST RATE: 7.60%
INTEREST PAYMENT DATES: February 1 and August 1 beginning
on August 1, 1997
PRICE TO PUBLIC: Variable Price Reoffering
MATURITY: May 1, 2017
SINKING FUND PROVISIONS: None
REDEMPTION PROVISIONS: As set forth in the Prospectus
Supplement dated May 14, 1997.
OTHER PROVISIONS:
TIME AND DATE OF DELIVERY AND PAYMENT:
TIME: 9:00 A.M. (Eastern time)
DATE: May 20, 1997
PLACE OF DELIVERY AND PAYMENT:
DELIVERY - Edward D. Jones & Co., L.P.
c/o The Depository Trust Company
55 Water Street
New York, New York 10041
PAYMENT - Wire Transfer
FUNDS - Same day funds
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OFFICE FOR EXAMINATION OF OFFERED BONDS:
Edward D. Jones & Co., L.P.
12555 Manchester Road
St. Louis, Missouri 63131-3729
ADDRESS FOR NOTICES TO UNDERWRITER PURSUANT TO SECTION 11 OF UNDERWRITING
AGREEMENT:
Edward D. Jones & Co., L.P.
12555 Manchester Road
St. Louis, Missouri 63131-3729
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SCHEDULE II
Principal Amount
Name of Underwriter of Offered Bonds
------------------- ----------------
Edward D. Jones & Co., L.P. . . . . . . . . . . $15,000,000
Total . . . . . . . . . . . . . . . . . $15,000,000
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