UNDERWRITING AGREEMENT
For the Purchase of
$25,000,000 Aggregate Principal Amount of
First Mortgage Bonds, 6 1/2% Series due November 15, 2010
of Laclede Gas Company
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Laclede Gas Company
x/x Xxxxxxxx, Xxxxxxx, Xxxxxx & Xxxxxxx
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
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 fifteenth 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 fifteenth 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 November
9, 1995, 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 as an amendment 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, Xxxxxx & Xxxxxxx ("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.
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(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 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 the 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
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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.
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) Delivery of the Bonds shall be made to the Representative for the
accounts of the respective Underwriters at the offices of Chemical Bank,
New York, N.Y., and payment therefor by check or checks, payable to the
Company or its order in The City of New York in Federal Reserve Funds or
by written evidence satisfactory to Company in other immediately
available funds, shall be made at the offices of Winthrop, Stimson, Xxxxxx
& Xxxxxxx, One Battery Park Plaza, New York, New York, in each case at
10:00 A.M., New York time, on a date that is three Business Days after the
date of this Underwriting Agreement, or at such other place, time and/or
earlier date as the Representative and the Company may agree upon in
writing. The hour and date of such delivery and payment are herein called
the "Closing Date". The Bonds shall be delivered to the Representative at
the Closing Date for the respective accounts of the Underwriters in
registered form in such authorized denominations and registered in such
names as the Representative may reasonably request in writing at least
three Business Days (as defined below) prior to the Closing Date, or, to
the extent not so requested, in the names of the respective Underwriters
in such denominations as the Company shall determine. The Company agrees
to make the Bonds available to the Representative for checking not later
than 2:30 P.M., New York time, on the last business day preceding the
Closing Date at the offices of Chemical Bank, New York, New York, or at
such other place, time and/or date as may be agreed upon between the
Company and the Representative. If the Representative shall request that
any Bond be registered in a name other than that of an Underwriter, such
Underwriter shall pay the transfer taxes resulting from such issuance.
"Business Day" shall mean any day on which the Commission and banks in The
City of New York are open.
(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
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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.
(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
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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 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
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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 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 day after the
date of this Underwriting Agreement, or such later time and date as may
be approved in writing from
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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 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
Xxxxxx X. Xxxxxxx, Esq., Senior Vice President, General Counsel and
Secretary of the Company, and from Winthrop, Stimson, Xxxxxx & Xxxxxxx,
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 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
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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; (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 and (v)
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 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.
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(c) Prior to 5:00 P.M., New York time, on the first 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 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
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
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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, 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
-11-
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 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
-12-
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 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 x/x
Xxxxxxxx, Xxxxxxx, Xxxxxx & Xxxxxxx, Xxx Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xxxx X. Xxxxxxx, Esq., with a copy to Xxxxxx X. Xxxxxxx,
Esq., Senior Vice President, General Counsel and Secretary, Laclede Gas
Company, 000 Xxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000.
-13-
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,
By CS First Boston Corporation
-----------------------------
As Representative of the
Underwriters
By XXXXXX X. XXXXXX
-----------------------------
Xxxxxx X. Xxxxxx
Vice President
By
-----------------------------
Address of Representative:
Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
The foregoing Underwriting Agreement is
hereby accepted as of the date set
forth below.
LACLEDE GAS COMPANY
By XXXXXX X. XXXXXXXXX
--------------------
Xxxxxx X. Xxxxxxxxx
Vice-President, Treasurer
Dated: 11/16/95
-----------------
-14-
SCHEDULE I
Principal
Amount
Name of Underwriter of Bonds
------------------- --------
CS First Boston Corporation $12,500,000
ABN ARMO Securities (USA) Inc. $12,500,000
-----------
Total . . . . . . . . . . . . . . . . . . . . . . . $25,000,000
SCHEDULE II
Form of Proposal
for the Purchase of
$25,000,000 Aggregate Principal Amount of
First Mortgage Bonds,
6 1/2% Series due November 15, 2010
Laclede Gas Company (the "Company")
______________________
Stated interest rate (a multiple of
1/8th of 1%): 6 1/2% per annum
Price to the Company (must be within range
designated by the Company in its letter to the
prospective Underwriters): 99.487% of the principal
amount of the Bonds plus accrued interest from November 15, 1995.
Exhibit A
---------
[Opinion of Xxxxxx X. Xxxxxxx, Esq]
[Letterhead of the Company]
November 21, 1995
CS First Boston Corporation
ABN AMRO Securities (USA) Inc.
c/o CS First Boston Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
As the Underwriters referred to in
the Underwriting Agreement
defined below
Ladies and Gentlemen:
I am Senior Vice President, General Counsel and Secretary 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
November 16, 1995 (the "Underwriting Agreement") between the Company and you
of $25,000,000 aggregate principal amount of its First Mortgage Bonds, 6 1/2%
Series due November 15, 2010 (the "Bonds") issued under the Company's Mortgage
and Deed of Trust, dated as of February 1, 1945, to Mercantile Bank of St.
Louis National Association (formerly Mississippi Valley Trust Company), as
trustee (the "Trustee"), as supplemented and amended by all indentures
supplemental thereto, including the Twenty-Second Supplemental Indenture, dated
as of November 15, 1995 (the "Twenty-Second 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-
Second Supplemental Indenture; (b) the Underwriting Agreement; and (c) the
Registration Statement and the Prospectus (such terms having the same meaning
herein as in the Underwriting Agreement) filed under the Securities 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, 1994 (the "Annual Report") and the Quarterly
Reports on Form 10-Q of the Company for the quarterly periods ended December
31, 1994, March 31, 1995 and June 30, 1995 (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
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
is presently seeking to renew its franchise in Florissant, Missouri, which
expired in 1992.
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 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
-2-
(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-Second 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
000 Xxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx is 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 or production of oil; 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-Second 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-
Second 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, 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 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, 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 equitable 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.
6. The statements made in the Prospectus under the captions "Description
of New Bonds" and "Supplemental Description of New 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
-3-
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 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 participated in conferences with
certain of the Company's officers and employees, with representatives of
Deloitte & Touche LLP, the independent accountants for the Company, and with
your representatives and counsel. Based on my examination of the Registration
Statement and the Prospectus, and my investigations made in connection with the
preparation of the Registration Statement and the Prospectus and my
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 other financial or statistical data contained or
incorporated by reference in the Registration Statement, the Prospectus or the
Exchange Act Documents, or with respect to the portion of the Prospectus
bearing the caption "Notice to Canadian Residents"; and (ii) I have no reason
to believe that the Registration Statement, 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 to make the statements therein not misleading
or that the Prospectus, as of the date hereof, includes any untrue statement
of a material fact 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 other financial or
statistical data contained or incorporated by reference in the Registration
Statement, the Prospectus or the Exchange Act Documents, or with respect to the
portion of the Prospectus bearing the caption "Notice to Canadian Residents".
-4-
In passing upon the form of the Registration Statement, the form of the
Prospectus and the form 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, Xxxxxx & Xxxxxxx, 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, Xxxxxx & Xxxxxxx,
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,
Xxxxxx & Xxxxxxx and you in connection with the above-described transaction.
This opinion may not be relied upon by Winthrop, Stimson, Xxxxxx & Xxxxxxx or
you for any other purpose, or relied upon by or furnished to any other person,
firm or corporation, without my prior written consent.
Very truly yours,
Xxxxxx X. Xxxxxxx
-5-
Exhibit B
---------
[Letterhead of Counsel for the Underwriters]
November 21, 1995
CS First Boston Corporation
ABN AMRO Securities (USA) Inc.
c/o CS First Boston Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
As the Underwriters referred to in the
Underwriting Agreement defined 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, 6 1/2% Series due November 15, 2010 (the
"Bonds"), which have been issued under the Company's Mortgage and Deed of
Trust, dated as of February 1, 1945, to Mercantile Bank of St. Louis National
Association (formerly Mississippi Valley Trust Company), as trustee (the
"Trustee"), as amended and supplemented by all indentures supplemental thereto,
including the Twenty-Second Supplemental Indenture dated as of November 15,
1995 (such Mortgage and Deed of Trust, as so amended and supplemented, being
hereinafter referred to as the "Mortgage"), pursuant to the Underwriting
Agreement dated November 16, 1995 among you 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 examined the Registration Statement and the Prospectus, which pursuant
to Form S-3 under the Securities Act of 1933, as amended (the "Securities
Act"), is deemed to
incorporate by reference the Annual Report on Form 10-K of the Company for the
fiscal year ended September 30, 1994 (the "Annual Report") and the Quarterly
Reports on Form 10-Q of the Company for the quarterly periods ended December
31, 1994, March 31, and June 30, 1995 (the "Exchange Act Documents"), each as
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). In addition,
we have examined, and have relied as to matters of fact upon, the documents
delivered to you at the closing (except the Bonds, of which we have examined
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.
With respect to legal matters governed by the laws of the State of
Missouri, we understand that you are relying upon the opinion of Xxxxxx X.
Xxxxxxx, Esq., Senior Vice President, General Counsel and Secretary 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 or the recordation
or filing of the Mortgage, as to which we understand you are relying upon the
aforesaid opinion of Xx. Xxxxxxx.
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, as amended (the
"Trust Indenture Act"), and, assuming due authorization, execution and delivery
thereof by the Trustee, constitutes a valid and legally binding instrument
enforceable against the Company in accordance with its terms, except as the
same may be limited by the laws of the State of Missouri (where the property
covered thereby is located) affecting the remedies for the enforcement of the
security provided for therein, or as the same may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, by general equitable
principles (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-
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 New 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
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 set
forth in paragraph 2 above. 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 examined certain of the Exchange
Act Documents, and with your representatives. We did not participate in the
preparation of 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 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 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, as of the date the Annual Report
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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 to make the statements therein not misleading
or that the Prospectus, as of the date hereof, includes any untrue statement
of a material fact 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 other financial or
statistical data contained or incorporated by reference in the Registration
Statement, the Prospectus or the Exchange Act Documents or with respect to the
portion of the prospectus bearing the caption "Notice to Canadian Residents".
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 information contained or incorporated by
reference therein and take no responsibility therefor, except insofar as such
statements relate to us and as set forth in paragraph 2 above.
We are members of the Bar of the State of New York and we do not express
any opinion herein concerning any law other than the law of the State of New
York, the Federal laws of the United States and, to the extent set forth
herein, the law of the State of Missouri.
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 without
our prior written consent.
Very truly yours,
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