EXHIBIT 1.01
UNDERWRITING AGREEMENT
For the Purchase of
$25,000,000 Aggregate Principal Amount of
First Mortgage Bonds, 6 1/2% Series due October 15, 2012
of Laclede Gas Company
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 and
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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", as
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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 sell
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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
October 9, 1997, to prospective underwriters of the Bonds.
Section 4. Representations and Warranties of the Company. The Company
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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 theQS
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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 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
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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
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 Underwriting
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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 The Chase Manhattan
Bank, New York, New York, 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
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than 2:30 P.M., New York time, on the last business day preceding the Closing
Date at the offices of The Chase Manhattan 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, if any, 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 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
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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 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
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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 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 of
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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:
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(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 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 Xxxx X. Xxxxxxx, Esq., Associate Counsel 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
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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 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.
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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 the
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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 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
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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 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,
11
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 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
12
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 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.
13
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 Laclede Gas
Company, 000 Xxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, 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,
By __________________________
As Representative of the
Underwriters
By __________________________
By __________________________
Address of Representative:
The foregoing Underwriting Agreement is
hereby accepted as of the date set
forth below.
LACLEDE GAS COMPANY
By __________________
Dated: October 16, 1997
15
SCHEDULE I
Principal
Amount
Name of Underwriter of Bonds
------------------- ---------
ABN AMRO Chicago Corporation.........................................$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,
6 1/2% Series due October 15, 2012
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): 98.356% of the principal
amount of the Bonds plus accrued interest from October 15, 1997.
EXHIBIT A
---------
[Opinion of Xxxx X. Xxxxxxx, Esq.]
[Letterhead of the Company]
October __, 1997
[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 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 October 16, 1997 (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, 6 1/2% Series due October 15, 2012 (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-Third Supplemental
Indenture, dated as of October 15, 1997 (the "Twenty-Third 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-Third
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
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, 1996 (the "Annual Report") and the Quarterly
Reports on Form 10-Q of the Company for the quarterly periods ended December 31,
1996, March 31, 1997, and June 30, 1997 (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
will seek to renew its franchise in Florissant, Missouri, which franchise
expired in 1992; and that, 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
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-Third 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; 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-Third 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-
Third 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.
3
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 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, 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, and with your representatives and counsel. 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
4
or other financial or statistical data contained or 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, 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, 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.
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 (except for the other several Underwriters),
without my prior written consent.
Very truly yours,
5
EXHIBIT B
---------
[Letterhead of Counsel for the Underwriters]
October __, 1997
[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, 6 1/2% Series due October 15, 2012 (the
"Bonds"), which have been issued under the Company's Mortgage and Deed of Trust,
dated as of February 1, 0000, Xxxxx Xxxxxx 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-Third Supplemental Indenture dated as of October 15, 1997 (such Mortgage
and Deed of Trust, as so amended and supplemented, being hereinafter referred to
as the "Mortgage"), pursuant to the Underwriting Agreement dated October 16,
1997 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 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, 1996 (the
"Annual Report") and the Quarterly Reports on Form 10-Q of the Company for the
quarterly periods ended December 31, 1996, March 31, 1997, and June 30, 1997
(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 Xxxx X.
Xxxxxxx, Esq., 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 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 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 (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 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 examined certain of the Exchange Act
Documents, and with your representatives. We did not prepare 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
3
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 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.
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 (except
for the other several Underwriters), without our prior written consent.
Very truly yours,
4
