EXHIBIT 1.01
UNDERWRITING AGREEMENT
For the Purchase of
$25,000,000 Aggregate Principal Amount of
First Mortgage Bonds, 7% Series due June 1, 2029
of Laclede Gas Company
Laclede Gas Company
c/o Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004-1490
Section 1. Purchase and Sale. On the basis of the representations
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and warranties, and subject to the terms and conditions set forth in this
agreement ("Underwriting Agreement"), each of the Underwriters (as defined in
Section 2 hereof) shall purchase from Laclede Gas Company ("Company"), severally
and not jointly, and the Company shall sell to each of the Underwriters, the
principal amount of the Company's First Mortgage Bonds ("Bonds") set forth
opposite the name of such Underwriter in Schedule I hereto at the price (stated
as a percentage of the principal amount of the Bonds) and interest rate per
annum as specified in Schedule II hereto, plus accrued interest, if any, from
the first day of the month in which such Bonds are issued to the Closing Date
(as defined in Section 6(a) hereof).
Section 2. Underwriters and Representative. The term "Underwriters,"
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as used herein, shall be deemed to mean the several persons, firms or
corporations named in Schedule I hereto, and the term "Representative," as used
herein, shall be deemed to mean the representative or representatives of such
Underwriters by whom or on whose behalf this Underwriting Agreement is signed.
If there shall be only one person, firm or corporation named in such Schedule I,
the term "Underwriters" and the term "Representative," as used herein, shall
mean that person, firm or corporation. All obligations of the Underwriters are
several and not joint.
Section 3. Description of Bonds. The Company proposes to issue and
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sell the Bonds under its Mortgage and Deed of Trust, dated as of February 1,
1945, as supplemented and as it will be further supplemented by a supplemental
indenture ("Supplemental Indenture") relating to the Bonds to be dated as of the
first day of the calendar month in which the Bonds are issued. Such Mortgage
and Deed of Trust as supplemented and to be supplemented by the Supplemental
Indenture is hereinafter referred to as the "Mortgage." The Bonds are more
fully described in the Basic Prospectus hereinafter referred to and in the
Company's letter, dated May 20, 1999, to prospective underwriters of the Bonds.
Section 4. Representations and Warranties of the Company. The
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Company represents and warrants that:
(a) It has filed with the Securities and Exchange Commission
("Commission") a registration statement (No. 33-60996) for the registration
of the Bonds under the Securities Act of 1933, as amended ("Securities
Act"), and the registration statement has become effective. The prospectus
forming a part of such registration statement, as it heretofore initially
became effective, including all documents incorporated therein by reference
at that time pursuant to Item 12 of Form S-3 under the Securities Act, is
hereinafter referred to as the "Basic Prospectus." In the event that the
Basic Prospectus shall have been amended, revised or supplemented (but
excluding any supplement to the Basic Prospectus relating solely to First
Mortgage Bonds that are not included in the Bonds) prior to the date of
this Underwriting Agreement, or if the Company files any documents pursuant
to Section 13 or 14 of the Securities Exchange Act of 1934, as amended
("Exchange Act"), after the time the registration statement initially
became effective and up to the date of this Underwriting Agreement (but
excluding documents incorporated therein by reference relating solely to
First Mortgage Bonds that are not included in the Bonds), which documents
are deemed to be incorporated by reference in the Basic Prospectus, the
term "Basic Prospectus" as used herein shall also mean such prospectus as
so amended, revised or supplemented. Such registration statement, as it
initially became effective and as it may have been amended by any amendment
thereto (including for these purposes an amendment to any document
incorporated by reference in the Basic Prospectus), and the Basic
Prospectus, as it shall be supplemented to reflect the terms of offering
and sale of the Bonds by a prospectus supplement ("Prospectus Supplement")
to be filed with the Commission pursuant to Rule 424 under the Securities
Act ("Rule 424"), are hereinafter referred to as the "Registration
Statement" and the "Prospectus," respectively. After the date of this
Underwriting Agreement, the Company will not file (i) without prior notice
to the Representative and to Winthrop, Stimson, Putnam & Roberts ("Counsel
for the Underwriters"), (A) any amendment to the Registration Statement
(excluding any amendment relating solely to First Mortgage Bonds that are
not included in the Bonds) or supplement to the Prospectus or (B) prior to
the time the Prospectus is filed with the Commission pursuant to Rule 424,
any document that is to be incorporated by reference in, or any supplement
(including the Prospectus Supplement) to, the Basic Prospectus or (ii) any
such amendment, supplement or document to which the Representative or such
counsel shall reasonably object in writing. For purposes of this
Underwriting Agreement, any document that is filed with the Commission
after the date of this Underwriting Agreement and is incorporated by
reference in the Prospectus (except documents incorporated by reference
relating solely to First Mortgage Bonds that are not included in the Bonds)
pursuant to Item 12 of Form S-3 under the Securities Act shall be deemed a
supplement to the Prospectus.
(b) When the Prospectus is filed with the Commission pursuant to Rule
424 and at the Closing Date, the Registration Statement and the Prospectus,
as they may then be amended or supplemented, and the Mortgage will fully
comply in all material respects
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with the applicable provisions of the Securities Act and the Trust
Indenture Act of 1939, as amended ("Trust Indenture Act"), and the rules
and regulations of the Commission under such Acts, or pursuant to such
rules and regulations will be deemed to comply therewith; on the date it
became effective the Registration Statement did not, and, on the date that
any post-effective amendment to the Registration Statement became or
becomes effective (including the filing with the Commission under the
Exchange Act of the Annual Report on Form 10-K of the Company for any
fiscal year ending after the Registration Statement initially became
effective, but excluding any post-effective amendment relating solely to
First Mortgage Bonds that are not included in the Bonds), the Registration
Statement, as amended by such post-effective amendment, did not or will
not, as the case may be, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; at the time the Prospectus is
filed with the Commission pursuant to Rule 424 and on the Closing Date, the
Prospectus, as it may then be amended or supplemented, will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading, and at such time
and on such dates the documents then incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3 under the Securities Act will
fully comply in all material respects with the applicable provisions of the
Exchange Act and the rules and regulations of the Commission thereunder,
and, when read together with the Prospectus, or the Prospectus as it may
then be amended or supplemented, 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, in the light of the
circumstances under which they are made, not misleading; provided, however,
that the foregoing representations and warranties in this Section 4(b)
shall not apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company by or through
the Representative on behalf of any Underwriter for use in connection with
the preparation of the Registration Statement or the Prospectus, as they
may be amended or supplemented, or to any statements in or omissions from
the Statement of Eligibility on Form T-1 under the Trust Indenture Act of
the trustee under the Mortgage.
(c) The consummation by the Company of the transactions herein
contemplated and the fulfillment of the terms hereof will not result in a
breach of any of the terms or provisions of, or constitute a default under,
the Company's Articles of Incorporation, as amended, or its By-Laws, as
currently in effect, or any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company is now a party by succession
or otherwise, or any order, rule or regulation applicable to the Company of
any court or of any federal or state regulatory board or body or
administrative agency having jurisdiction over the Company or its property.
(d) Since the most recent date as of which information is given in the
Prospectus, there has not been any change in the business, properties or
condition (financial or otherwise) of the Company except changes arising
from transactions in the ordinary course of business, none of which alone
or in the aggregate has had a material adverse
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effect on the business, properties or condition (financial or otherwise) of
the Company, in each case other than as referred to in, or contemplated by,
the Prospectus.
Section 5. Offering. Forthwith upon the execution of this
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Underwriting Agreement, the Representative, acting on behalf of the
Underwriters, shall advise the Company whether or not a public offering of the
Bonds is to be made, and, if so, shall furnish to the Company (which information
shall be confirmed in writing as soon as practicable thereafter) (a) the
information with respect to any proposed reoffering of the Bonds and related
matters that are required to complete the Prospectus Supplement or any post-
effective amendment to the Registration Statement that may be required and a
copy of any "agreement among underwriters," and (b) if a post-effective
amendment to the Registration Statement is required, a consent, if necessary, to
the filing of the post-effective amendment and an acceptable power-of-attorney,
if necessary, authorizing an available individual to sign the consent on its
behalf. Such information, consent and power-of-attorney may be provided by
telex or facsimile transmission (in the case of such consent or power-of-
attorney, followed promptly by an executed copy). Nothing in this Underwriting
Agreement shall be construed to require that the Underwriters make any such
public offering on a "fixed price" basis; and the Representative agrees to
notify the Company in writing of any change in the plan of distribution of the
Bonds that would require a supplement to the Prospectus or an amendment to the
Registration Statement.
Section 6. Time and Place of Closing.
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(a) Upon delivery of the Bonds to or for the account of the
Representative for the accounts of the respective Underwriters (against
receipt therefor signed by the Representative, acting on behalf of the
Underwriters), payment for the Bonds shall be made to the Company or its
order by wire transfer of immediately available funds to an account
designated in writing by the Company. Such delivery and payment shall be
made through the facilities of The Depository Trust Company, New York, New
York ("DTC") at 10:00 A.M., New York time, on a date that is three Business
Days (as defined below) after the date of this Underwriting Agreement, or
in such other manner or at such other time and/or date as the
Representative and the Company may agree upon in writing, unless postponed
in accordance with the provisions of Section 6(b) hereof. Delivery of the
documents required by Section 8 hereof shall be made at such time and date
at the offices of Winthrop, Stimson, Putnam & Roberts, One Battery Park
Plaza, New York, New York, or at such other location as the Representative
and the Company may agree upon in writing. The time and date of such
delivery and payment are herein called the "Closing Date." The Bonds shall
be registered in the name of "Cede & Co.," as nominee of DTC, and delivered
to DTC or its custodian not later than 3:00 P.M., New York time, on the
last Business Day preceding the Closing Date. The Company agrees to make
the Bonds available to the Representative for checking not later than 2:30
P.M., New York time, at the offices of Winthrop, Stimson, Putnam & Roberts
referred to above, or at such other place, time and/or date as may be
agreed upon between the Company and the Representative. "Business Day"
shall mean any day on which the Commission and banks in The City of New
York are open.
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(b) If any Underwriter shall fail or refuse (whether for some reason
sufficient to justify its termination of its obligations to purchase or
otherwise) to purchase the Bonds that it had agreed to purchase, the
Company shall immediately notify the Representative, and the Representative
may, within 24 hours of receipt of such notice, procure some other
responsible party or parties satisfactory to the Company, to purchase or
agree to purchase such Bonds on the terms herein set forth; and, if the
Representative shall fail to procure a satisfactory party or parties to
purchase or agree to purchase such Bonds on such terms within such period
after the receipt of such notice, then the Company shall be entitled to an
additional period of 24 hours within which to procure another party or
parties to purchase or agree to purchase such Bonds on the terms set forth
in this Underwriting Agreement. In any such case, either the
Representative or the Company shall have the right to postpone the Closing
Date for a period not to exceed three full Business Days from the date
determined as provided in this Section 6(b), in order that the necessary
changes in the Registration Statement and the Prospectus and any other
documents and arrangements may be effected. If the Representative and the
Company shall fail to procure a satisfactory party or parties, as above
provided, to purchase or agree to purchase such Bonds, then this
Underwriting Agreement shall terminate. In the event of any such
termination, the Company shall not be under any liability to any
Underwriter (except to the extent, if any, provided in Section 7(h)
hereof), nor shall any Underwriter (other than an Underwriter who shall
have failed or refused to purchase Bonds without some reason sufficient to
justify, in accordance with the terms of this Underwriting Agreement, its
termination of its obligations under this Underwriting Agreement) be under
any liability to the Company. Nothing contained in this Section 6(b) shall
release any defaulting Underwriter from its liability to the Company for
damages occasioned by its default under this Underwriting Agreement.
Section 7. Covenants of the Company. The Company agrees:
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(a) To deliver to the Representative a signed copy of the registration
statement relating to the Bonds as originally filed and of all amendments
thereto or a conformed copy thereof certified by an officer of the Company
to be in the form filed.
(b) To deliver to the Underwriters, through the Representative, as
many copies of the Prospectus, and any amendments or supplements thereto,
as the Representative may reasonably request.
(c) To cause the Prospectus, and any amendments or supplements
thereto, to be filed with the Commission pursuant to Rule 424 as soon as
practicable and advise the Representative promptly of the issuance of any
stop order under the Securities Act with respect to the Registration
Statement or the institution of any proceedings therefor of which the
Company shall have received notice. The Company will use its best efforts
to prevent the issuance of any such stop order and to secure the prompt
removal thereof if issued.
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(d) During such period of time (not exceeding nine months) after the
Prospectus has been filed with the Commission pursuant to Rule 424 as the
Underwriters are required by law to deliver a prospectus relating to the
Bonds, if (i) any event relating to or affecting the Company or of which
the Company shall be advised in writing by the Representative shall occur
as a result of which in the Company's opinion the Prospectus, as then
amended or supplemented, would include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or (ii) it shall be necessary to amend or supplement the
Registration Statement or the Prospectus to comply with the Securities Act
or the Exchange Act or in each case the rules and regulations of the
Commission thereunder, to amend or supplement the Prospectus or the
Registration Statement, as the case may be, by either (A) preparing and
filing with the Commission and furnishing to the Representative at the
Company's expense a reasonable number of copies of a supplement or
supplements or an amendment or amendments to the Prospectus or the
Registration Statement, as the case may be, or (B) making an appropriate
filing pursuant to Section 13 or 14 of the Exchange Act that will correct
such statement or omission or effect such compliance; provided, however,
that should such event relate solely to the activities of any of the
Underwriters, then the Underwriters shall assume the expense of preparing
any such amendment or supplement. In case any Underwriter is required to
deliver a prospectus relating to the Bonds after the expiration of nine
months from the date the Prospectus is filed with the Commission pursuant
to Rule 424, the Company, upon the request of the Representative, will
furnish to the Representative, at the expense of such Underwriter, a
reasonable quantity of a supplemented or amended Prospectus or supplements
or amendments to the Prospectus complying with Section 10(a) of the
Securities Act.
(e) During such period of time after the date the Prospectus is filed
with the Commission pursuant to Rule 424 as a prospectus relating to the
Bonds is required to be delivered under the Securities Act, to file
promptly all documents required to be filed with the Commission pursuant to
Section 13 or 14 of the Exchange Act.
(f) To make generally available to its security holders, as soon as
practicable, an earning statement (which need not be audited) in reasonable
detail covering a period of at least twelve months beginning after the
"effective date of the registration statement" within the meaning of Rule
158 under the Securities Act, which earning statement shall be in such
form, and be made generally available to security holders in such a manner,
so as to comply with the requirements of Section 11(a) of the Securities
Act and Rule 158 promulgated under the Securities Act.
(g) At any time within six months after the date of this Underwriting
Agreement, to execute such documents, furnish such proper information as
may be lawfully required and otherwise cooperate in qualifying the Bonds
for offer and sale under the blue-sky laws of such jurisdictions as the
Representative may reasonably designate; provided, however, that the
Company shall not be required to qualify as a foreign corporation or dealer
in securities, to file any consents to service of process under the laws of
any
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jurisdiction, or to meet any other requirements deemed by the Company
to be unduly burdensome.
(h) Except as herein otherwise provided, to pay all expenses and taxes
(except transfer taxes) in connection with (i) the preparation and filing
by it of the Registration Statement and all other documents prepared in
order to carry out the transactions contemplated thereby, (ii) the issuance
and delivery of the Bonds, (iii) the preparation, execution, filing and
recording of the Supplemental Indenture, (iv) the qualification of the
Bonds under the blue-sky laws of various jurisdictions up to a maximum
qualification cost to it of $3,500, (v) the fees and disbursements of
Counsel for the Underwriters in connection with the preparation of a blue-
sky survey in connection with the Bonds and (vi) the printing and delivery
to the Underwriters, through the Representative, of reasonable quantities
of copies of the Registration Statement and the Prospectus, and any
amendment or supplement thereto, except as otherwise provided in Section
7(d) hereof. The Company shall not, however, be required to pay any amount
for any expenses of the Representative or any of the Underwriters, except
that, if this Underwriting Agreement shall be terminated in accordance with
the provisions of Section 8, 9 or 11 hereof, or if this Underwriting
Agreement is terminated pursuant to Section 6(b) hereof and could have been
terminated in accordance with the provisions of Section 8, 9 or 11 hereof,
the Company will reimburse the Representative for (A) the fee and
disbursements of Counsel for the Underwriters, whose fee and disbursements
the Underwriters agree to pay in any other event except to the extent set
forth in clauses (iv) and (v) of the preceding sentence, and (B) their
reasonable out-of-pocket expenses, in an amount not exceeding $10,000
incurred in contemplation of the performance of this Underwriting
Agreement. The Company shall not in any event be liable to any of the
Underwriters for damages on account of loss of anticipated profits.
(i) Not to sell any additional First Mortgage Bonds (other than First
Mortgage Bonds of one or more other series and having a maturity or
maturities different from the date of maturity of the Bonds and with
respect to which the Company shall have entered into a contract for sale on
the same day as the date of this Underwriting Agreement) without the
consent of the Representative until the earlier to occur of (i) the Closing
Date and (ii) in the case of an initial reoffering at a fixed price by the
Underwriters, the date of the termination of the fixed price offering
restrictions applicable to the Underwriters. The Representative agrees to
notify the Company of such termination if it occurs prior to the Closing
Date.
Section 8. Conditions of Underwriters' Obligations. The obligations
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of the Underwriters to purchase and pay for the Bonds shall be subject to the
accuracy of the representations and warranties made herein on the part of the
Company and to the following conditions:
(a) The Prospectus, and any amendments or supplements thereto, shall
have been filed with the Commission pursuant to Rule 424 prior to 5:30
P.M., New York time, on
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the first Business Day after the date of this Underwriting Agreement or at
such later time and date as may be approved by the Representative.
(b) No stop order suspending the effectiveness of the Registration
Statement shall be in effect at or prior to the Closing Date, and at the
Closing Date the Representative shall have received a certificate, dated
the Closing Date and signed by an officer of the Company, to the effect
that no such stop order has been or is in effect and that no proceedings
for such purpose are pending before, or to the knowledge of the Company
threatened by, the Commission.
(c) Prior to 5:00 P.M., New York time, on the first Business Day after
the date of this Underwriting Agreement, or such later time and date as may
be approved in writing from time to time by the Representative, there shall
have been issued, and on the Closing Date there shall be in full force and
effect, an appropriate order or orders of the Missouri Public Service
Commission authorizing the issuance and sale of the Bonds on the terms
herein set forth or contemplated.
(d) At the Closing Date, the Representative shall have received from
Mary C. Kullman, Esq., Secretary and Associate Counsel of the Company, and
from Winthrop, Stimson, Putnam & Roberts, Counsel for the Underwriters,
opinions (with a conformed copy of each for each of the Underwriters) in
substantially the form and substance set forth in Exhibits A and B hereto,
respectively, (i) with such changes therein as may be agreed upon by the
Company and the Representative, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus shall be supplemented after the
Prospectus shall have been filed with the Commission pursuant to Rule 424,
with changes therein to reflect such supplementation.
(e) At or prior to the Closing Date, the Representative shall have
received from Deloitte & Touche LLP a letter (with a conformed copy for
each of the Underwriters) to the effect that: (i) they are independent
certified public accountants with respect to the Company within the meaning
of the Securities Act and the applicable rules and regulations of the
Commission thereunder; (ii) in their opinion, the consolidated financial
statements audited by them and included or incorporated by reference in the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the Exchange Act and in
each case the rules and regulations of the Commission thereunder; (iii) on
the basis of a reading of the latest available unaudited amounts of utility
operating income and net income included or incorporated by reference in
the Registration Statement and the related unaudited consolidated financial
statements from which these amounts were derived, the latest available
unaudited consolidated financial statements of the Company and its
subsidiaries, the minutes of the meetings of the Board of Directors and the
stockholders of the Company since the close of the most recent audited
fiscal year to a specified date not more than five days prior to the
Closing Date, and inquiries of officers of the Company who have
responsibility for financial and accounting matters (it being understood
that the foregoing procedures do not constitute an examination made in
accordance with generally accepted auditing standards and they
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would not necessarily reveal matters of significance with respect to the
comments made in such letter, and accordingly that Deloitte & Touche LLP
makes no representations as to the sufficiency of such procedures for the
several Underwriters' purposes), nothing has come to their attention that
caused them to believe that (A) any material modifications should be made
to the unaudited consolidated financial statements included or incorporated
by reference in the Prospectus for them to be in conformity with generally
accepted accounting principles or any such consolidated financial
statements do not comply with the applicable accounting requirements of the
Securities Act or the Exchange Act or in each case the rules and
regulations of the Commission thereunder and (B) during the period (1) from
the date of the most recent consolidated balance sheet of the Company and
its subsidiaries included or incorporated by reference in the Prospectus to
a specified date not more than five days prior to the Closing Date, there
was any change in the capital stock or long-term debt of the Company, or
decrease in its net assets or (2) consisting of the twelve months ended as
of the date of the Company's most recently available unaudited financial
statements, there were any decreases as compared with the comparable period
of the preceding year, in the Company's operating revenues, net income and
earnings available for common stock, except in all instances for changes or
decreases that the Prospectus discloses have occurred or may occur, for
declarations of dividends, for the repayment of long-term debt, for the
amortization of premium or discount on long-term debt, for the redemption
or purchase of preferred stock for sinking fund purposes, or for changes or
decreases as set forth in such letter, identifying the same and specifying
the amount thereof; and (iv) they have read the unaudited ratios of
earnings to fixed charges and the most recent earnings coverage ratios
included or incorporated by reference in the Prospectus containing such
ratios and have found such ratios to be in agreement with the appropriate
records of the Company and the computations to be arithmetically correct.
Such letter shall also cover such other matters as the Representative may
reasonably request are in form and substance reasonably satisfactory to the
Representative.
(f) At the Closing Date, the Representative shall have received a
certificate, dated the Closing Date and signed by an officer of the
Company, to the effect that since the most recent date as of which
information is given in the Prospectus, there has not been any change in
the business, properties or condition (financial or otherwise) of the
Company except changes arising from transactions in the ordinary course of
business, none of which alone or in the aggregate has had a material
adverse effect on the business, properties or condition (financial or
otherwise) of the Company, in each case other than as referred to in, or
contemplated by, the Prospectus.
(g) All legal proceedings to be taken in connection with the issuance
and sale of the Bonds shall have been satisfactory in form and substance to
Counsel for the Underwriters.
If any of the conditions specified in this Section 8 shall not have
been fulfilled, this Underwriting Agreement may be terminated by the
Representative with the consent of the Underwriters, who may include the
Representative, which have agreed to purchase in the
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aggregate 50% or more of the principal amount of the Bonds, upon notice thereof
to the Company. Any such termination shall be without liability of any party to
any other party, except as otherwise provided in Section 7(h) hereof.
Section 9. Conditions of Company's Obligations. The obligations of
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the Company hereunder shall be subject to the following conditions:
(a) The Prospectus, and any amendments or supplements thereto, shall
have been filed with the Commission pursuant to Rule 424 prior to 5:30
P.M., New York time, on the first Business Day after the date of this
Underwriting Agreement, or such later time and date as may be approved by
the Company.
(b) No stop order suspending the effectiveness of the Registration
Statement shall be in effect at or prior to the Closing Date, and no
proceedings for that purpose shall be pending before, or threatened by, the
Commission on the Closing Date.
(c) Prior to 5:00 P.M., New York time, on the first Business Day after
the date of this Underwriting Agreement, or such later time and date as may
be approved from time to time by the Company, there shall have been issued,
and on the Closing Date there shall be in full force and effect, an
appropriate order or orders of the Missouri Public Service Commission
authorizing the issuance and sale of the Bonds on the terms herein set
forth or contemplated and containing no provision unacceptable to the
Company by reason of the fact that it is, in the judgment of the Company,
materially adverse to the Company, it being understood that no order
heretofore issued contains any such unacceptable provision.
In case any of the conditions specified in this Section 9 shall not
have been fulfilled, this Underwriting Agreement may be terminated by the
Company upon notice thereof to the Representative. Any such termination shall be
without liability of any party to any other party, except as otherwise provided
in Section 7(h) hereof.
Section 10. Indemnification.
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(a) The Company shall indemnify, defend and hold harmless each
Underwriter and each person who controls any Underwriter within the meaning
of Section 15 of the Securities Act from and against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them may become subject under the Securities Act or any other statute or
common law and shall reimburse each such Underwriter and controlling person
for any legal or other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or liabilities or in
connection with defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in a preliminary prospectus relating to the Bonds, or in the
Basic Prospectus (if used prior to the date the Prospectus is filed with
the Commission pursuant to Rule 424), or in the
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Registration Statement or the Prospectus, as amended or supplemented (if
any amendments or supplements thereto shall have been furnished), or in the
Company's latest available Annual Report to Shareholders, to the extent
portions thereof are incorporated by reference, directly or indirectly, in
a preliminary prospectus relating to the Bonds, or in the Basic Prospectus
(if used prior to the date the Prospectus is filed with the Commission
pursuant to Rule 424), or in the Registration Statement or the Prospectus,
or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
in the light of the circumstances under which they were made not
misleading; provided, however, that the indemnity agreement contained in
this Section 10(a) shall not apply to any such losses, claims, damages,
liabilities, expenses or actions arising out of, or based upon, any such
untrue statement or alleged untrue statement, or any such omission or
alleged omission, if such statement or omission was made in reliance upon
and in conformity with written information furnished to the Company by or
through the Representative on behalf of any Underwriter for use in
connection with the preparation of the Registration Statement or the
Prospectus or any amendment or supplement to either thereof, or arising out
of, or based upon, statements in or omissions from that part of the
Registration Statement that shall constitute the Statement of Eligibility
on Form T-1 under the Trust Indenture Act of the trustee under the
Mortgage; provided further, however, that the indemnity agreement contained
in this Section 10(a) shall not inure to the benefit of any Underwriter or
of any person controlling any Underwriter on account of any such losses,
claims, damages, liabilities, expenses or actions arising from the sale of
Bonds to any person if there shall not have been given or sent to such
person on behalf of such Underwriter (i) with or prior to the written
confirmation of the sale to such person, a copy of the Prospectus as then
amended or supplemented (exclusive for this purpose of any amendment or
supplement relating to any offering of First Mortgage Bonds that are not
included in the Bonds and of any document incorporated by reference
pursuant to Item 12 of Form S-3 under the Securities Act), unless the
failure to so give or send resulted from the Company's failure to comply
with Section 7(b) hereof, and (ii) as soon as available after such written
confirmation, a copy of any amendment or supplement to the Prospectus
(exclusive for this purpose of any document incorporated by reference
pursuant to Item 12 of Form S-3 under the Securities Act) that the Company
shall thereafter furnish, pursuant to Section 7(d) hereof, relating to an
event occurring prior to the payment for and delivery to such person of the
Bonds involved in such sale. The indemnity agreement of the Company
contained in this section and the representations and warranties of the
Company contained in Section 4 hereof shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of
any Underwriter or any such controlling person, and shall survive the
delivery of the Bonds.
(b) Each Underwriter shall indemnify, defend and hold harmless the
Company, its directors and officers, and each person who controls any of
the foregoing within the meaning of Section 15 of the Securities Act, from
and against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the
Securities Act or any other statute or common law and shall reimburse each
of them for any legal or other expenses (including, to the extent
hereinafter provided,
11
reasonable counsel fees) incurred by them in connection with investigating
any such losses, claims, damages or liabilities or in connection with
defending any action, insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus, as amended or supplemented (if any amendments
or supplements thereto shall have been furnished), or the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, if such
statement or omission was made in reliance upon and in conformity with
written information furnished to the Company by or through the
Representative on behalf of such Underwriter for use in connection with the
preparation of the Registration Statement or the Prospectus or any
amendment or supplement to either thereof. The indemnity agreement of the
respective Underwriters contained in this Section 10(b) shall remain
operative and in full force and effect regardless of any investigation made
by or on behalf of the Company, its directors or officers, any such
Underwriter, or any such controlling person, and shall survive the delivery
of the Bonds.
(c) The Company and the several Underwriters each shall, upon the
receipt of notice of the commencement of any action against it or any
person controlling it as aforesaid, in respect of which indemnity may be
sought on account of any indemnity agreement contained herein, promptly
give written notice of the commencement thereof to the party or parties
against whom indemnity shall be sought hereunder, but the omission so to
notify the indemnifying party or parties of any such action shall not
relieve such indemnifying party or parties from any liability that it or
they may have to the indemnified party under such indemnity agreement
except to the extent that it has or they have been prejudiced in any
material respect by such omission or from any liability that it or they may
have to such indemnified party otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so given, any
such indemnifying party shall be entitled to participate at its own expense
in the defense or, if it so elects, to assume (in conjunction with any of
such other indemnifying parties) the defense of such action, in which event
such defense shall be conducted by counsel chosen by such indemnifying
party or parties and satisfactory to the indemnified party or parties, in
its or their reasonable judgment, who shall be defendant or defendants in
such action, and such indemnified party or parties shall bear the fees and
expenses of any additional counsel retained by it or them; provided,
however, that if any such indemnifying party shall elect not to assume the
defense of such action, such indemnifying party will reimburse such
indemnified party or parties for the reasonable fees and expenses of any
counsel retained by such indemnified party or parties; provided further,
however, that if the defendants in any such action include both such
indemnifying party or parties and such indemnified party or parties, then,
at the request of such indemnified party or parties, such indemnifying and
indemnified party or parties shall mutually select special counsel (whose
fees and disbursements shall be shared equally by such indemnifying and
indemnified party or parties) for the sole purpose of determining if a
conflict of interest is or may be involved if the same counsel were to
represent both such indemnifying party or parties and such indemnified
party or parties and, if such special counsel determines that
12
such a conflict does or may exist, such indemnified party or parties shall
have the right to select separate counsel satisfactory to such indemnifying
party or parties to participate in the defense of such action on behalf of
such indemnified party or parties (it being understood, however, that such
indemnifying party or parties shall not be liable for the expenses of more
than one separate counsel representing such indemnified party or parties
who are parties to such action plus any local counsel retained by such
indemnified party or parties in its or their reasonable judgment).
Notwithstanding the foregoing, such indemnifying party or parties shall not
be liable for any settlement of any action or claim effected without its or
their consent, which consent shall not be unreasonably withheld.
Section 11. Termination. This Underwriting Agreement may be
-----------
terminated at any time prior to the Closing Date by the Representative with the
consent of Underwriters, who may include the Representative, which have agreed
to purchase in the aggregate 50% or more of the principal amount of the Bonds,
if, prior to such time, (i) trading in securities on the New York Stock Exchange
shall have been generally suspended, (ii) minimum or maximum ranges for prices
shall have been generally established on the New York Stock Exchange by the New
York Stock Exchange, the Commission or other governmental authority, (iii) a
general banking moratorium shall have been declared by federal or New York State
authorities, (iv) there shall have been any downgrading in the rating of any
debt securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities Act),
or any public announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading and no
implication of a possible downgrading of such rating), (v) there shall have
occurred any outbreak of hostilities, or escalation thereof, or other national
or international calamity or crisis, the effect of which on the financial
markets of the United States shall be such as to make it impracticable or
inadvisable for the Underwriters in the reasonable judgment of the
Representative to proceed with the public offering or the delivery of the Bonds
on the terms and in the manner contemplated by the Prospectus, (vi) there shall
have occurred any change, or any development involving a prospective change, in
or affecting the business or properties of the Company the effect of which is,
in the reasonable judgment of the Representative, so material and adverse as to
make it impractical or inadvisable to proceed with the delivery of the Bonds or
(vii) in the reasonable judgment of the Representative, the subject matter of
any amendment or supplement (prepared by the Company) to the registration
statement relating to the Bonds, the Basic Prospectus, the Registration
Statement or the Prospectus (except for information relating to the public
offering of the Bonds or to the activity of any Underwriter or Underwriters)
filed or issued after the effectiveness of this Underwriting Agreement by the
Company shall have materially impaired the marketability of the Bonds. Any
termination hereof pursuant to this Section 11 shall be without liability of any
party to any other party, except as otherwise provided in Section 7(h) hereof.
Section 12. Miscellaneous. This Underwriting Agreement shall be a
-------------
New York contract and its validity and interpretation shall be governed by the
law of the State of New York. This Underwriting Agreement shall inure to the
benefit of the Company, the Underwriters (including any parties referred to in
Section 6(b) hereof) and, with respect to the provisions of
13
Section 10 hereof, such parties and each director, officer and controlling
person described in Section 10 hereof, and their respective successors. Nothing
herein is intended or shall be construed to give to any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
any provision in this Underwriting Agreement. The term "successor" as used in
this Underwriting Agreement shall not include any purchaser, as such purchaser,
of any of the Bonds from any of the Underwriters.
Section 13. Notices. All communications hereunder shall be in
-------
writing and, if to the Underwriters, shall be mailed or delivered, or sent by
telex or facsimile transmission confirmed in writing, to the Representative at
the address set forth below, or, if to the Company, shall be mailed or
delivered, or sent by telex or facsimile transmission confirmed in writing, to
it c/o Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York,
New York 10004-1490, Attention: Todd W. Eckland, Esq., with a copy to Laclede
Gas Company, 720 Olive Street, St. Louis, Missouri 63101, Attention: Office of
the General Counsel.
14
If this Underwriting Agreement, and the interest rate to be borne by
the Bonds and the price to be paid to the Company (as set forth in Schedule II
hereto), are in accordance with your understanding of our agreement, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter and your acceptance shall constitute a binding agreement
between the Company and the several Underwriters in accordance with its terms.
We have submitted this Underwriting Agreement in duplicate with
Schedules I and II filled in.
Very truly yours,
ABN AMRO INCORPORATED
By /s/ Linda A. Dawson
----------------------
Linda A. Dawson
Managing Director
Address of Representative:
1325 Avenue of the Americas
New York, New York 10019-6026
The foregoing Underwriting Agreement is
hereby accepted as of the date set
forth below.
LACLEDE GAS COMPANY
By /s/ D.H. Yaeger
-----------------
Dated: May 27, 1999
15
SCHEDULE I
Principal
Amount
Name of Underwriter of Bonds
- ------------------- --------
ABN AMRO Incorporated.....................................$25,000,000
-----------
Total................................................$25,000,000
===========
SCHEDULE II
Form of Proposal
for the Purchase of
$25,000,000 Aggregate Principal Amount of
First Mortgage Bonds,
7% Series due June 1, 2029
Laclede Gas Company (the "Company")
______________________
Stated interest rate (a multiple of
1/8th of 1%): 7% per annum
Price to the Company (must be within range
designated by the Company in its letter to the
prospective Underwriters): 99.502% of the principal
amount of the Bonds plus accrued interest from June 1, 1999.
Exhibit A
---------
[Opinion of Mary C. Kullman, Esq.]
[Letterhead of the Company]
June __, 1999
[Name and address of Representative]
As representative of the several Underwriters
(as defined in the Underwriting Agreement
referred to below)
Ladies and Gentlemen:
I am Secretary and Associate Counsel of Laclede Gas Company (the
"Company") and have acted in that capacity in connection with the issuance and
sale by the Company pursuant to the Underwriting Agreement dated May 27, 1999
(the "Underwriting Agreement") between the Company and the several Underwriters,
for whom you are designated as representative, of $25,000,000 aggregate
principal amount of its First Mortgage Bonds, __% Series due June 1, 2029 (the
"Bonds") issued under the Company's Mortgage and Deed of Trust, dated as of
February 1, 1945, to State Street Bank and Trust Company of Missouri, N.A. (who
is now acting, under the terms of said Mortgage and Deed of Trust, in place of
Mississippi Valley Trust Company), as trustee (the "Trustee"), as supplemented
and amended by all indentures supplemental thereto, including the Twenty-Fourth
Supplemental Indenture, dated as of June 1, 1999 (the "Twenty-Fourth
Supplemental Indenture") (the Mortgage and Deed of Trust as so supplemented and
amended being hereinafter referred to as the "Mortgage").
I am familiar with the Articles of Incorporation, as amended, and the
By-Laws, as currently in effect, of the Company and the records of various
corporate and other proceedings relating to the authorization, issuance and sale
of the Bonds. I have participated in the preparation of (a) the Twenty-Fourth
Supplemental Indenture and (b) the Underwriting Agreement; and I am familiar
with the Registration Statement and the Prospectus (such terms having the same
meaning herein as in the Underwriting Agreement) filed under the Securities
A-1
Act of 1933, as amended (the "Securities Act"), with the Securities and Exchange
Commission (the "Commission") with respect to the issuance and sale of the
Bonds.
I have examined the Annual Report on Form 10-K of the Company for the
fiscal year ended September 30, 1998 (the "Annual Report"), the Quarterly
Reports on Form 10-Q of the Company for the quarterly periods ended December 31,
1998 and March 31, 1999 and the Current Reports on Form 8-K dated January 28,
1999 and May 6, 1999 (together with the Annual Report, the "Exchange Act
Documents"), each as filed with the Commission under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and deemed to be incorporated by
reference in the Prospectus.
I have examined a copy of an order dated April 21, 1993, from the
Commission to the Company relating to the effectiveness of the Registration
Statement and the qualification of the Mortgage under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). I have also examined such other
documents and satisfied myself as to such other matters as I have deemed
necessary to render this opinion. In the course of such examination, I have
assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to me as originals, the
conformity to original documents of all documents submitted to me as certified
or photostatic copies, and the authenticity of the originals of such latter
documents. I have also relied upon information submitted to me by certain
officers of the Company with respect to the existence or non-existence of
certain facts that form the basis for the opinions set forth herein. Although I
have not conducted any independent investigations of the accuracy of various of
the matters covered by such information supplied by officers of the Company, I
have no reason to believe that any of the matters covered thereby are
inaccurate. I have also relied on certain documents, instruments and
certificates of public officials. I have not examined the Bonds, except a
specimen thereof, and have relied upon a certificate of the Trustee as to the
authentication thereof. Upon the basis of my familiarity with the foregoing and
with the Company's properties and affairs generally, and as limited by the
foregoing qualifications and limitations, I am of the opinion that:
1. The Company is a corporation duly organized and validly existing
under the laws of the State of Missouri.
2. The Company is a public utility corporation, is duly authorized by
its Articles of Incorporation, as amended, to conduct the utility business that
it is described in the Prospectus as conducting, and, by virtue of its
possession of valid and subsisting licenses, franchises and permits, and its
compliance with the laws of the State of Missouri, is duly authorized to conduct
such business in that State. In this regard, it should be noted that the
Company has not renewed its franchise in Florissant, Missouri, which franchise
expired in 1992; since that time, the Company has continued to provide service
in that community without a formal franchise.
3. The Company has good and sufficient title to the properties
described as owned by it in and as subject to the lien of the Mortgage, subject
only to excepted encumbrances as defined in the Mortgage, and to minor defects
and encumbrances customarily found in properties of like size and character that
do not materially impair the use of such properties by
A-2
the Company. Subject to paragraph 4 hereof, the description of such properties
set forth in the Mortgage is adequate to constitute the Mortgage a lien thereon
and the Mortgage, subject only to minor defects and encumbrances and excepted
encumbrances of the character aforesaid, constitutes a valid, direct and first
mortgage lien upon such properties, which include substantially all of the
permanent physical properties and franchises of the Company (other than those
expressly excepted in the Mortgage). All permanent physical properties and
franchises (other than those expressly excepted in or released from the
Mortgage) that have been or hereafter may be acquired by the Company after the
date of the Twenty-Fourth Supplemental Indenture have become or, upon such
acquisition, will become subject to the lien of the Mortgage, subject, however,
to liens, defects and encumbrances, if any, existing or placed thereon at the
time of the acquisition thereof by the Company and except as limited by
bankruptcy law. This opinion, insofar as it relates to the matters set forth in
this paragraph 3 and in paragraph 4 hereof, is, in addition to being subject to
excepted encumbrances as defined in the Mortgage, in all respects: (a) subject
to the fact that the Company's leasehold interest in its general offices located
at 720 Olive Street, St. Louis, Missouri may be subordinated to certain liens
and deeds of trust; (b) subject to minor defects of title and to prior
encumbrances of minor importance upon certain of the properties in which the
Company has acquired gas storage easements, leases, and oil and other rights in
the Company's underground gas storage area, which have no materially adverse
effect on the Company's storage of gas; and (c) subject to defects of title with
respect to certain real estate of minor importance acquired by the Company since
February 1, 1945.
4. The Twenty-Fourth Supplemental Indenture has been recorded in the
office of the Secretary of State of the State of Missouri pursuant to Section
443.451 of the Missouri Revised Statutes, and the liens created by the Twenty-
Fourth Supplemental Indenture have become effective as to and enforceable
against third parties. All permanent physical properties and franchises of the
Company (other than those expressly excepted in or released from the Mortgage)
presently owned by the Company are subject to the lien of the Mortgage, subject
to minor defects and encumbrances, excepted encumbrances of the character
referred to in paragraph 3 hereof, and subject to the last sentence of paragraph
3 hereof.
5. The Mortgage has been duly and validly authorized by all necessary
corporate action of the Company, has been duly and validly executed and
delivered by the Company, and is a valid and binding instrument enforceable
against the Company in accordance with its terms, assuming the due
authorization, execution and delivery thereof by the Trustee and except as the
same may be limited by certain laws and judicial decisions of the United States
of America and the State of Missouri (where the property covered thereby is
located) affecting the remedies for the enforcement of the security provided for
therein, which laws do not, in my opinion, make inadequate the remedies
necessary for the realization of the benefits of such security, and subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equity principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing. The
Mortgage has been duly qualified under the Trust Indenture Act.
A-3
6. The statements made in the Prospectus under the captions
"Description of New Bonds" and "Supplemental Description of Bonds," insofar as
they purport to constitute summaries of the terms of documents referred to
therein, constitute accurate summaries of the terms of such documents in all
material respects.
7. The Bonds have been duly authorized by the Company and, assuming
due authentication thereof by the Trustee and upon payment therefor and delivery
thereof in accordance with the Underwriting Agreement, subject to the
qualifications in paragraph 5 above, will constitute valid and legally binding
obligations of the Company enforceable against the Company in accordance with
their terms and entitled to the benefit and security of the Mortgage equally and
ratably (except as set forth in the Bonds) with the bonds of other series now
outstanding under the Mortgage.
8. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
9. The Registration Statement has become and is effective under the
Securities Act; and, to the best of my knowledge, no proceedings for a stop
order with respect thereto are pending or threatened under Section 8(d) of the
Securities Act.
10. The Missouri Public Service Commission has issued an appropriate
order or orders authorizing, to the extent, in my opinion, such authorization is
necessary, the execution and delivery of the Underwriting Agreement by the
Company and no other approval or consent of any governmental body (other than in
connection or compliance with the provisions of the securities or blue-sky laws
of any jurisdiction) is required for the execution and delivery of the
Underwriting Agreement by the Company.
I have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Prospectus or the Exchange Act Documents and take no responsibility therefor,
except insofar as such statements relate to me and as and to the extent
expressly set forth herein. In the course of the preparation of the Registration
Statement and the Prospectus, I and other members of the Company's legal
department (the "Legal Department") participated in conferences with certain of
the Company's officers and employees, with representatives of Deloitte & Touche
LLP, the independent accountants for the Company, with your representatives and
with counsel for the Underwriters. Based on my examination of the Registration
Statement and the Prospectus, and the investigations made in connection with the
preparation of the Registration Statement and the Prospectus and the Legal
Department's participation in the conferences referred to above, (i) I am of the
opinion that the Registration Statement, as of the date it was declared
effective by the Commission, and the Prospectus, as of the date it was filed
with the Commission pursuant to Rule 424(b) under the Securities Act, complied
as to form in all material respects with the requirements of the Securities Act
and the Trust Indenture Act and in each case the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents
complied as to form when filed in all material respects with the requirements of
the Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case I express no opinion with respect to the
financial statements or schedules or other financial or statistical data
contained or
A-4
incorporated by reference in the Registration Statement, the Prospectus or the
Exchange Act Documents, and (ii) I have no reason to believe that the
Registration Statement (including the Annual Report), as of the date the Annual
Report was filed with the Commission under the Exchange Act, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading or that the Prospectus (including the Exchange Act Documents), as of
the date it was filed with the Commission pursuant to Rule 424(b) under the
Securities Act or as of the date hereof, included or includes any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading, except that in each
case I express no opinion or belief with respect to the financial statements or
schedules or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Prospectus or the Exchange Act
Documents.
In passing upon the form of the Registration Statement, the form of
the Prospectus and the forms of the Exchange Act Documents, I necessarily assume
the correctness and completeness of the statements made by the Company and
information included therein and take no responsibility therefor, except insofar
as such statements relate to me and as set forth in paragraph 6 above.
I have examined the portions of the information contained in the
Registration Statement that are stated therein to have been made on my authority
and, upon my review thereof, I believe such information to be correct. I have
also examined the opinion of even date herewith rendered to you by Winthrop,
Stimson, Putnam & Roberts, and I concur in the conclusions expressed therein
insofar as they involve questions of Missouri law.
I am also delivering this opinion to Winthrop, Stimson, Putnam &
Roberts, who is entitled to rely upon this opinion to the same extent as if such
opinion were addressed to such firm. This opinion is rendered to Winthrop,
Stimson, Putnam & Roberts and you in connection with the above-described
transaction. This opinion may not be relied upon by Winthrop, Stimson, Putnam &
Roberts or you for any other purpose, or relied upon by or furnished to any
other person, firm or corporation (except for the other several Underwriters),
without my prior written consent.
Very truly yours,
A-5
Exhibit B
---------
[Letterhead of Counsel for the Underwriters]
June __, 1999
[Name and address of Representative]
As representative of the several Underwriters
(as defined in the Underwriting Agreement
referred to below)
Ladies and Gentlemen:
We have acted as your counsel in connection with the issuance and sale
by Laclede Gas Company (the "Company") of $25,000,000 aggregate principal amount
of the Company's First Mortgage Bonds, __% Series due June 1, 2029 (the
"Bonds"), which have been issued under the Company's Mortgage and Deed of Trust,
dated as of February 1, 1945, to State Street Bank and Trust Company of
Missouri, N.A. (formerly Mississippi Valley Trust Company), as trustee (the
"Trustee"), as supplemented and amended by all indentures supplemental thereto,
including the Twenty-Fourth Supplemental Indenture dated as of June 1, 1999
(such Mortgage and Deed of Trust, as so amended and supplemented, being
hereinafter referred to as the "Mortgage"), pursuant to the Underwriting
Agreement dated May 27, 1999 between the several Underwriters and the Company
(the "Underwriting Agreement"). The terms "Registration Statement" and
"Prospectus" as used herein have the same meanings as when used in the
Underwriting Agreement.
We have reviewed the Registration Statement and the Prospectus, which
pursuant to Form S-3 under the Securities Act of 1933 (the "Securities Act"), is
deemed to incorporate by
B-1
reference the Annual Report on Form 10-K of the Company for the fiscal year
ended September 30, 1998 (the "Annual Report"), the Quarterly Reports on Form
10-Q of the Company for the quarterly periods ended December 31, 1998 and March
31, 1999 and the Current Reports on Form 8-K dated January 28, 1999 and May 6,
1999 (together with the Annual Report, the "Exchange Act Documents"), each as
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Exchange Act of 1934 (the "Exchange Act"). In addition, we have
reviewed, and have relied as to matters of fact upon, the documents delivered to
you at the closing (except the Bonds, of which we have reviewed a specimen), and
upon originals or copies, certified or otherwise identified to our satisfaction,
of such corporate records, agreements, documents and other instruments and such
certificates or comparable documents of public officials and of officers and
representatives of the Company, and have made such other and further
investigations as we have deemed relevant and necessary as a basis for this
opinion.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
We are members of the Bar of the State of New York and we do not
express any opinion herein as to any matters governed by any laws other than the
laws of the State of New York, the Federal laws of the United States of America
and, to the extent set forth herein, the laws of the State of Missouri. With
respect to legal matters governed by the law of the State of Missouri, we
understand that you are relying upon the opinion of Mary C. Kullman, Esq.,
Secretary and Associate Counsel of the Company, of even date, addressed to you.
We believe that such opinion is satisfactory in form and that you are justified
in relying thereon and we, on our part, have relied solely on said opinion as to
such matters. We do not pass upon legal matters regarding title to the
properties of the Company, franchises and permits of the Company, the
description of such properties in the Mortgage, the nature and extent of the
lien of the Mortgage, the absence of liens and encumbrances prior to the lien of
the Mortgage, the recordation or filing of the Mortgage, the incorporation of
the Company or its qualification to do business in any jurisdiction, as to which
we understand you are relying upon the aforesaid opinion of Ms. Kullman.
Based upon the foregoing and subject to the qualifications and
limitations stated herein, we hereby advise you that in our opinion:
1. The Company had full power and authority to execute the Mortgage,
and the Mortgage has been duly authorized, executed and delivered by the
Company, has been qualified under the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and, assuming due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company enforceable against the Company in accordance with its terms, except as
the same may be limited by the law of the State of Missouri (where the property
covered thereby is located) affecting the remedies for the enforcement of the
security provided for therein, by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, by general equity principles
B-2
(regardless of whether enforceability is considered in a proceeding in equity or
at law) and by an implied covenant of good faith and fair dealing.
2. The statements made in the Prospectus under the captions
"Description of New Bonds" (other than under the heading "Priority and
Security," as to which we express no opinion) and "Supplemental Description of
Bonds," insofar as they purport to constitute summaries of the terms of
documents referred to therein, constitute accurate summaries of the terms of
such documents in all material respects.
3. The Bonds have been duly authorized by the Company and, assuming
due authentication by the Trustee and upon payment and delivery in accordance
with the Underwriting Agreement, subject to the qualifications in paragraph 1
above, will constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms and entitled to
the benefit and security of the Mortgage equally and ratably (except as set
forth in the Bonds) with the bonds of other series now outstanding under the
Mortgage.
4. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
5. The Registration Statement has become and is effective under the
Securities Act; and, to the best of our knowledge, no proceedings for a stop
order with respect thereto are pending or threatened under Section 8(d) of the
Securities Act.
6. The Missouri Public Service Commission has issued an appropriate
order or orders authorizing, to the extent, in our opinion, such authorization
is necessary, the execution and delivery of the Underwriting Agreement by the
Company and no other approval or consent of any Federal or Missouri governmental
body is required for the execution and delivery of the Underwriting Agreement by
the Company.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Prospectus or the Exchange Act Documents and take no responsibility therefor,
except insofar as such statements relate to us and as and to the extent
expressly set forth herein. In the course of the preparation by the Company of
the Registration Statement and the Prospectus (excluding the Exchange Act
Documents), we participated in conferences with certain of its officers and
employees, with counsel for the Company, with representatives of Deloitte &
Touche LLP, the independent accountants who audited certain of the financial
statements included in the Exchange Act Documents, and with your
representatives. We did not participate in the preparation of, or in the
selection by the Company of the information included or excluded from, the
Exchange Act Documents. Based on our examination of the Registration Statement,
the Prospectus and the Exchange Act Documents, our investigations made in
connection with the preparation of the Registration Statement and the Prospectus
(excluding the Exchange Act Documents) and our participation in the conferences
referred to above, (i) we are of the opinion that the Registration Statement, as
of the date it was declared effective by the Commission, and the Prospectus, as
of the date it was filed with the Commission pursuant to Rule 424(b) under the
Securities Act, complied as to form
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in all material respects with the requirements of the Securities Act and the
Trust Indenture Act and in each case the applicable rules and regulations of the
Commission thereunder, except that in each case we express no opinion with
respect to the financial statements or schedules or other financial or
statistical data contained or incorporated by reference in the Registration
Statement, the Prospectus or the Exchange Act Documents, and (ii) we have no
reason to believe that the Registration Statement (including the Annual Report),
as of the date the Annual Report was filed with the Commission under the
Exchange Act, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading or that the Prospectus (including the
Exchange Act Documents), as of the date it was filed with the Commission
pursuant to Rule 424(b) under the Securities Act or as of the date hereof,
included or includes any untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not misleading,
except that in each case we express no opinion or belief with respect to the
financial statements or schedules or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the
Prospectus or the Exchange Act Documents.
In passing upon the form of the Registration Statement and the form of
the Prospectus, we necessarily assume the correctness and completeness of the
statements made by the Company and the information included or incorporated by
reference in the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate to us and as
set forth in paragraph 2 above.
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other purpose,
or relied upon by or furnished to any other person, firm or corporation (except
for the other several Underwriters), without our prior written consent.
Very truly yours,
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