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EXHIBIT 1.1
MICHIGAN CONSOLIDATED GAS COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT
[ ]
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time the Michigan Consolidated Gas Company, a Michigan
corporation (the "Company"), proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and, subject to
the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its debt securities (the "Securities")
to be issued under the Senior Indenture, dated as of June 1, 1998, between the
Company and Citibank, N.A., as trustee (in such capacity, the "Indenture
Trustee"), as amended and supplemented by various supplemental indentures
including the supplemental indenture (a "Supplemental Indenture") creating the
Designated Securities (the "Indenture"), as specified in Schedule II to such
Pricing Agreement (with respect to such Pricing Agreement, the "Designated
Securities").
Payment of the principal of, premium, if any, and interest on each series
of Securities is to be secured by the pledge by the Company to the Indenture
Trustee of a First Mortgage Bond (each, a "Collateral Bond"), issued under and
ratably secured by the Indenture of Mortgage and Deed of Trust, dated as of
March 1, 1944 (the "Original Mortgage"), as supplemented and amended, including
specifically by the Twenty-ninth Supplemental Indenture and the Thirty-fifth
Supplemental Indenture creating the series in which the Collateral Bonds are to
be issued and the supplemental indenture establishing the issue of Collateral
Bonds relating to the Designated Securities (the "Mortgage").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the Indenture and the Supplemental Indenture thereto identified in
such Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the
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Underwriters of such Securities in the Pricing Agreement relating thereto will
act as representatives (the "Representatives"). The term "Representatives" also
refers to a single firm acting as sole representative of the Underwriters and to
an Underwriter or Underwriters who act without any firm being designated as its
or their representative. This underwriting agreement (the "Agreement") shall not
be construed as an obligation of the Company to sell any of the Securities or as
an obligation of any of the Underwriters to purchase the Securities. The
obligation of the Company to issue and sell any of the Securities and the
obligation of any of the Underwriters to purchase any of the Securities shall be
evidenced by the Pricing Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall specify the aggregate principal
amount of such Designated Securities, the initial public offering price of such
Designated Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the Indenture, and the Registration Statement (as defined below)
and prospectus with respect thereto) the terms of such Designated Securities. A
Pricing Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic
communications, facsimile or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) Registration statements on Form S-3 (Nos. 333-56333 and 333-[ ]) in
respect of the Securities has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statements and any
post-effective amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such registration
statements, but including all documents incorporated by reference in the
prospectus contained therein, to the Representatives for each of the other
Underwriters have been declared effective by the Commission in such form; no
other document with respect to such registration statements or any
post-effective amendment thereto or document incorporated by reference therein
(other than prospectuses relating to the offering of securities other than the
Designated Securities) has heretofore been filed or transmitted for filing with
the Commission; and no stop order suspending the effectiveness of such
registration statements or any post-effective amendment thereto has been issued
and no proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration statement
or any post-effective amendment thereto or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the Securities
Act of 1933, as amended (the "Act"), being hereinafter called a "Preliminary
Prospectus"; the various parts of such registration statements or any
post-effective amendment thereto, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
registration statements at the time such part of the registration statements
became effective, excluding the Statements of Eligibility and Qualification on
Form T-1 of the Mortgage Trustee and Indenture Trustee (the "Forms T-1"), each
as amended at the time such part of the registration statements became
effective, being hereinafter called the "Registration Statement";
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the prospectus relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on or prior
to the date of this Agreement, being hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to the applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to and include
any annual report of the Company filed pursuant to Sections 13(a) or 15(d) of
the Exchange Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any reference to
the Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable Designated
Securities in the form in which it is filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
(c) The Registration Statement and the Prospectus conform, and any further
amendments or supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
respective rules and regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to the Registration Statement
and any amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or supplemented
relating to the Designated Securities;
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(d) Neither the Company nor any of its Significant Subsidiaries (as
defined below) has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
not been any material change in the capital stock or long-term debt of the
Company or any of its Significant Subsidiaries or any material adverse change,
or any development involving a prospective material adverse change (in either
case not in the ordinary course of business), in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, otherwise than
as set forth or contemplated in the Prospectus; "Significant Subsidiary" shall
mean each subsidiary listed on Schedule III to the Pricing Agreement; the only
subsidiaries of the Company are (i) those subsidiaries listed on Schedule III
and (ii) certain other subsidiaries which, considered in the aggregate as a
single subsidiary, do not constitute a "significant subsidiary" as defined in
Rule 1-02 of Regulation S-X of the rules and regulations under the Act;
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole; and, except as described in the
Registration Statement and the Prospectus, the Company holds all material
licenses, certificates and permits (or has applications pending) from
governmental authorities necessary for the conduct of its business;
(f) Each Significant Subsidiary, if any, of the Company has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the power and authority
(corporate and other) to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole;
and, except as described in the Registration Statement and the Prospectus, each
Significant Subsidiary of the Company holds all material licenses, certificates
and permits (or has applications pending) from governmental authorities
necessary for the conduct of its business;
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable;
(h) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered by the
Company;
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(i) The Company has good and marketable title to the properties
specifically described in and conveyed by the Mortgage (except such property as
may have been disposed of or released from the lien thereof in accordance with
the terms thereof) subject only to the lien of the Mortgage, to permissible
encumbrances, as defined in the Mortgage, as to property acquired by the Company
subsequent to the execution of liens placed thereon at the time of such
acquisition as permitted by the Mortgage, and to certain other reservations,
rights of grantors under revocable permits, easements, licenses, zoning laws and
ordinances and restrictions and minor defects or irregularities of title which
do not materially impair the use of the property affected thereby in the
operation of the business of the Company; the Company and its subsidiaries have
good and marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except the liens of the
Mortgage and such liens, encumbrances and defects as do not materially affect
the value of such property and do not interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases with such exceptions
as do not interfere with the use made and proposed to be made of such property
and buildings by the Company and its subsidiaries; the pipeline, distribution
main and underground gas storage easements enjoyed by the Company and its
subsidiaries are valid, subsisting and enforceable easements with such
exceptions as do not materially interfere with the conduct of the business of
the Company and its subsidiaries;
(j) The Mortgage is a first lien (subject to no prior liens, charges,
encumbrances or security interests, except current taxes and assessments not yet
due and minor encumbrances which do not materially impair the use of such
property for the purpose for which it is held by the Company) duly filed and
recorded, on substantially all of the Company's tangible properties and
franchises (other than items purchased for resale in the ordinary course of
business) and (subject to the necessity for particular filings and recordings in
the case of certain personal property) will constitute a like lien on any such
properties hereafter acquired by the Company except that any such after-acquired
property will be subject to prior liens and encumbrances, if any, existing when
acquired by the Company, except that the Mortgage will not become a lien upon
after-acquired real property in a new county until it has been duly filed and
recorded and except that the Mortgage may not be effective as to property
acquired subsequent to the filing of a case with respect to the Company under
the Bankruptcy Code (defined as Xxxxx 00, Xxxxxx Xxxxxx Code, Sections 1 et
seq., as amended);
(k) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the Pricing
Agreement with respect to such Designated Securities, such Designated Securities
will have been duly executed, authenticated, issued and delivered, will be
entitled to the benefits of the Indenture, and will constitute valid and legally
binding obligations of the Company enforceable in accordance with their terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability; the
Indenture and the Mortgage have been duly authorized and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), each of the Indenture and the
Mortgage will constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to
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bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles; and
each of the Indenture and the Mortgage conforms, and the Designated Securities
will conform, to the descriptions thereof contained in the Prospectus as amended
or supplemented with respect to such Designated Securities;
(l) The Collateral Bond has been duly authorized and established in
conformity with the provisions of the Mortgage and, when the Collateral Bond has
been executed and authenticated in accordance with the provisions of the
Mortgage and pledged to the Indenture Trustee as contemplated by the Indenture,
the Collateral Bond will be entitled to the benefits of the Mortgage and will be
a valid and binding obligation of the Company, enforceable in accordance with
its terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability; the payments of the principal of,
premium, if any, and interest on the Designated Securities to which a Pricing
Agreement relates are secured by the related Collateral Bond; assuming that the
Indenture Trustee holds the Collateral Bond as provided in the Indenture, the
Indenture creates a valid and perfected first priority security interest in the
Collateral Bond; and the Collateral Bond will conform to the descriptions
thereof contained in the Prospectus as amended or supplemented;
(m) The issue and sale of the Designated Securities and the compliance by
the Company with all of the provisions of the Designated Securities, the
Collateral Bond, the Mortgage, the Indenture, this Agreement and any Pricing
Agreement, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company is a party or by which the Company is bound or to which any of
the property or assets of the Company is subject, nor will such action result in
any violation of the provisions of the Restated Articles of Incorporation, as
amended, or By-laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Designated Securities
or the consummation by the Company of the transactions contemplated by this
Agreement or any Pricing Agreement, the Mortgage, or the Indenture except such
as have been, or will have been prior to the Time of Delivery, obtained under
the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Designated Securities by the Underwriters;
(n) The statements set forth in the Prospectus, as supplemented with
respect to the Designated Securities, under the captions "Securities",
"Description of the Senior Debt Securities" and "Description of the First
Mortgage Bonds" (or similar captions), insofar as they purport to constitute a
summary of the terms of the Designated Securities and, if applicable, under the
caption "Taxation" (or similar caption), and under the captions "Plan of
Distribution" and "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate, complete
and fair;
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(o) Neither the Company nor any of its Significant Subsidiaries is in
violation of its Restated Articles of Incorporation, or, as the case may be,
articles of incorporation or other equivalent document, or By-laws or in default
in the performance or observance of any material obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound;
(p) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material adverse
effect on the current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries; and, other
than as set forth in the Prospectus, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(q) The Company is not and, after giving effect to the offering and sale
of the Securities, will not be an "investment company", as such term is defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act");
(r) Deloitte & Touche LLP, who certified the financial statements and
supporting schedules of the Company and its consolidated subsidiaries included
or incorporated by reference in the Registration Statement and the Prospectus,
are independent public accountants with respect to the Company and its
consolidated subsidiaries as required by the Act and the rules and regulations
thereunder;
(s) The financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration Statement
and the Prospectus, together with the related schedules and notes, present
fairly the financial position of the Company and its consolidated subsidiaries
at the dates indicated and the statement of operations, stockholders' equity and
cash flows of the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The Company has no material contingent
obligation which is not disclosed in the Registration Statement and the
Prospectus. The supporting schedules, if any, included in the Registration
Statement and the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. If applicable, the pro forma
financial statements of the Company and its consolidated subsidiaries and the
related notes thereto included in the Registration Statement and the Prospectus
present fairly the information shown therein, have been prepared in accordance
with the Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described therein, and
the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions and
circumstances referred to therein;
(t) Other than as set forth in the Prospectus, the Company and its
Significant Subsidiaries are (i) in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or
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hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received (or have pending) all permits,
licenses or other approvals required of them under applicable Environmental Laws
to conduct their respective businesses and (iii) are in compliance with all
terms and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken as a
whole; and
(u) The Company is not a "holding company" but is an "affiliate" of a
"holding company" (within the meaning of the Public Utility Holding Company Act
of 1935, as amended (the "1935 Act")), which holding company is exempt from the
provisions of the 1935 Act, other than Section 9(a)(2) thereof, pursuant to
Section 3(a)(1) thereof.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in the Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor in the manner
specified in the Pricing Agreement relating thereto, payable to the order of the
Company, all at the place and time and date specified in such Pricing Agreement
or at such other place and time and date as the Representatives and the Company
may agree upon in writing, such time and date being herein called the "Time of
Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in relation to
the applicable Designated Securities in a form approved by the Representatives
and to file such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission's close of business on the second business day following the
execution and delivery of the Pricing Agreement relating to the applicable
Designated Securities or, if applicable, such earlier time as may be required by
Rule 424(b); to make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of the Pricing
Agreement relating to such Securities and prior to the Time of Delivery for such
Securities which shall be disapproved by the Representatives for such Securities
promptly after reasonable notice thereof; to advise the Representatives promptly
of any such amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Securities, and during such same
period to advise the Representatives, promptly after it receives notice thereof,
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of the time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended Prospectus
has been filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any prospectus
relating to the Securities, of the suspension of the qualification of such
Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance of
any such stop order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such qualification, to
promptly use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the Representatives
may reasonably request to qualify such Securities for offering and sale under
the securities laws of such jurisdictions as the Representatives may request and
to comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as amended
or supplemented in such quantities as the Representatives may reasonably
request, and, if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Securities and if at such time any
event shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act, to
notify the Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11 (a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158); and
(e) During the period beginning from the date of the Pricing Agreement for
such Designated Securities and continuing to and including the later of (i) the
termination of trading restrictions for such Designated Securities, as notified
to the Company by the Representatives and (ii) the Time of Delivery for such
Designated Securities, not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company which mature more than one year after
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such Time of Delivery and which are substantially similar to such Designated
Securities, without the prior written consent of the Representatives.
(f) At the Time of Delivery, the Company will issue and deliver the
related Collateral Bond to the Indenture Trustee as security for the Designated
Securities.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the reasonable fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
reasonable expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, the
Mortgage, any Indenture, any Blue Sky and legal investment memoranda, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iii) all reasonable expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky and legal investment surveys; (iv) any fees charged by
securities rating services for rating the Securities; (v) the cost of preparing
the Securities; (vi) the reasonable fees and expenses of any Trustee and any
agent of any Trustee and the reasonable fees and disbursements of counsel for
any Trustee in connection with the Mortgage, the Indenture and the Securities;
(vii) any filing fees incident to, and the reasonable fees and disbursements of
counsel for the Underwriters in connection with, any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Securities and (viii) all other reasonable costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section; it being acknowledged and agreed that the
Underwriters shall have no responsibility for payment of any of the foregoing
costs, fees, disbursements and expenses, whether reasonable or not. It is
understood, however, that, except as provided in this Section, and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424 (b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; no stop order suspending the effectiveness of the
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Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for such
Designated Securities, with respect to this Agreement, the validity of the
Mortgage, the Indenture, the Designated Securities and the Collateral Bonds, the
Registration Statement, the Prospectus as amended or supplemented and other
related matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably request
to enable them to pass upon such matters;
(c) Xxxxxx X. Xxxxxx, Esq., Associate General Counsel to the Company,
shall have furnished to the Representatives his written opinion, dated the Time
of Delivery for such Designated Securities, in form and substance satisfactory
to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus as
amended or supplemented and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; and, except as described in the
Registration Statement and the Prospectus, the Company holds all material
licenses, certificates and permits (or has applications pending) from
governmental authorities necessary for the conduct of its business;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus as amended or supplemented and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable;
(iii) Each Significant Subsidiary, if any, of the Company has been
duly incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the power and
authority (corporate and other) to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole; and, except as described
in the Registration Statement and the Prospectus, each Significant
Subsidiary of the Company holds all material licenses, certificates and
permits (or has applications pending) from governmental authorities
necessary for the conduct of its business;
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(iv) To the best of such counsel's knowledge after due inquiry and
other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would, individually or in the
aggregate, have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(v) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered by
the Company;
(vi) The Company has good and marketable title to the properties
specifically described in and conveyed by the Mortgage (except such
property as may have been disposed of or released from the lien thereof in
accordance with the terms thereof) subject only to the lien of the
Mortgage, to permissible encumbrances, as defined in the Mortgage, as to
property acquired by the Company subsequent to the execution of liens
placed thereon at the time of such acquisition as permitted by the
Mortgage, and to certain other reservations, rights of grantors under
revocable permits, easements, licenses, zoning laws and ordinances and
restrictions and minor defects or irregularities of title which do not
materially impair the use of the property affected thereby in the
operation of the business of the Company; the Company and its subsidiaries
have good and marketable title to all personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except the
liens of the Mortgage and such liens, encumbrances and defects as do not
materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as do not interfere with the use
made and proposed to be made of such property and buildings by the Company
and its subsidiaries; the pipeline, distribution main and underground gas
storage easements enjoyed by the Company and its subsidiaries are valid,
subsisting and enforceable easements with such exceptions as do not
materially interfere with the conduct of the business of the Company and
its subsidiaries;
(vii) The Designated Securities have been duly authorized and
established in conformity with the provisions of the Indenture, and, when
such Designated Securities are executed by the Company and authenticated
by the Indenture Trustee in accordance with the provisions of the
Indenture, such Designated Securities will be entitled to the benefits of
the Indenture, and will be valid and legally binding obligations of the
Company, enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability; and the Designated Securities, the Indenture and the
Mortgage conform in all material
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respects to the descriptions thereof in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(viii) Each of the Indenture and the Mortgage has been duly
authorized, executed and delivered by the Company and constitutes a valid
and legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
fraudulent conveyance and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and each
of the Indenture and the Mortgage has been duly qualified under the Trust
Indenture Act;
(ix) The Mortgage is a first lien (subject to no prior liens,
charges, encumbrances or security interests, except current taxes and
assessments not yet due and minor encumbrances which, in such counsel's
opinion, do not materially impair the use of such property for the purpose
for which it is held by the Company) duly filed and recorded, on
substantially all of the Company's tangible properties and franchises
(other than items purchased for resale in the ordinary course of business)
and (subject to the necessity for particular filings and recordings in the
case of certain personal property) will constitute a like lien on any such
properties hereafter acquired by the Company except that any such
after-acquired property will be subject to prior liens and encumbrances,
if any, existing when acquired by the Company, except that the Mortgage
will not become a lien upon after-acquired real property in a new county
until it has been duly filed and recorded and except that the Mortgage may
not be effective as to property acquired subsequent to the filing of a
case with respect to the Company under the Bankruptcy Code;
(x) The Collateral Bond has been duly authorized and established in
conformity with the provisions of the Mortgage and, when the Collateral
Bond has been executed and authenticated in accordance with the provisions
of the Mortgage and pledged to the Indenture Trustee as contemplated by
the Indenture, the Collateral Bond will be entitled to the benefits of the
Mortgage and will be a valid and binding obligation of the Company,
enforceable in accordance with its terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability; the payments of the principal of, premium, if
any, and interest on the Designated Securities to which a Pricing
Agreement relates are secured by the related Collateral Bond; assuming
that the Indenture Trustee holds the Collateral Bond as provided in the
Indenture, the Indenture creates a valid and perfected first priority
security interest in the Collateral Bond; and the Collateral Bond conforms
to the description thereof contained in the Prospectus as amended or
supplemented;
(xi) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Collateral Bond, the Mortgage, the Indenture, this
Agreement and the Pricing Agreement with respect to the Designated
Securities and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms
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or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known to
such counsel, after due inquiry, to which the Company is a party or by
which the Company is bound or to which any of the property or assets of
the Company is subject, nor will such actions result in any violation of
the provisions of the Restated Articles of Incorporation, as amended, or
By-laws of the Company or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency, including,
without limitation, the Michigan Public Service Commission, or any body
having jurisdiction over the Company or any of its properties, except that
such counsel need express no opinion as to rights to indemnity which may
be limited by applicable law;
(xii) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency, including,
without limitation, the Michigan Public Service Commission, or any other
body is required for the issue and sale of the Designated Securities or
the consummation by the Company of the transactions contemplated by this
Agreement or such Pricing Agreement or the Mortgage, or the Indenture
except such as have been obtained under the Act and the Trust Indenture
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Designated
Securities by the Underwriters;
(xiii) The statements set forth in the Prospectus, as supplemented
with respect to the Designated Securities, under the captions
"Securities", "Description of the Senior Debt Securities" and "Description
of the First Mortgage Bonds" (or similar captions), insofar as they
purport to constitute a summary of the terms of the Designated Securities
and, if applicable, under the caption "Taxation" (or similar caption), and
under the captions "Plan of Distribution" and "Underwriting", insofar as
they purport to describe the provisions of the laws and documents referred
to therein, are accurate, complete and fair;
(xiv) Neither the Company nor any of its Significant Subsidiaries is
in violation of its Restated Articles of Incorporation, or, as the case
may be, articles of incorporation or other equivalent document, or By-laws
or in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be bound;
(xv) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company", as such term
is defined in the Investment Company Act;
(xvi) The Company is not a "holding company" but is an "affiliate"
of a "holding company" (within the meaning of the Public Utility Holding
Company Act of 1935, as amended (the "1935 Act")), which holding company
is exempt from the provisions of the 1935 Act, other than Section 9(a)(2)
thereof, pursuant to Section 3(a)(1) thereof;
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(xvii) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules and financial data therein and except for those parts of the
Registration Statement which constitute the Forms T-1, as to which such
counsel need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder;
and such counsel has no reason to believe that any of such documents, when
they became effective or were so filed, as the case may be, contained, in
the case of a registration statement which became effective under the Act,
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, or, in the case of other documents which were filed under
the Act or the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made when such documents were so filed, not misleading; and
(xviii) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by
the Company prior to the Time of Delivery for the Designated Securities
(other than the financial statements and related schedules and other
financial data therein and except for those parts of the Registration
Statement which constitute the Forms T-1, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder; although such counsel does not
assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the Prospectus,
except for those referred to in the opinion in subsection (xiii) of this
Section 7(c); such counsel has no reason to believe that, as of its
effective date, the Registration Statement or any further amendment
thereto (including the filing of the Company's most recent Annual Report
on Form 10-K with the Commission) made by the Company prior to the Time of
Delivery (other than the financial statements and related schedules and
other financial data therein and except for those parts of the
Registration Statement which constitute the Forms T-1, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that, as of its date, the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Company prior to the
Time of Delivery (other than the financial statements and related
schedules and other financial data therein and except for those parts of
the Registration Statement which constitute the Forms T-1, as to which
such counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Company prior to the
Time of Delivery (other than the financial statements and related
schedules and other financial data therein and except for those parts of
the Registration Statement which constitute the Forms T-1, as to which
such counsel need express no
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opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading; and
such counsel does not know of any amendment to the Registration Statement
required to be filed or any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement or
the Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required;
(d) Except as otherwise agreed, on the date of the Pricing Agreement
relating to the Designated Securities, the independent accountants of the
Company who have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement
shall have furnished to the Representatives a letter or letters dated the date
of the Pricing Agreement, each in a form satisfactory to you;
(e) At the Time of Delivery for such Designated Securities, the
independent accountants of the Company who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to the
Representatives a "bring down" letter or letters dated at the Time of Delivery,
each in a form satisfactory to you or, if no letter has been previously
delivered pursuant to paragraph (d) above, a letter to the effect specified
pursuant to such paragraph (d), but dated at the Time of Delivery;
(f) (i) Neither the Company nor any of its Significant Subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented prior to the date of the Pricing Agreement relating to the
Designated Securities any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Agreement relating to the
Designated Securities, and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented prior to the
date of the Pricing Agreement relating to the Designated Securities there shall
not have been any material change in the capital stock or long-term debt of the
Company or any of its Significant Subsidiaries or any material adverse change,
or any development involving a prospective material adverse change (other than
such as may have occurred in the ordinary course of business), in or affecting
the general affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of the Representatives so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities by any "nationally recognized statistical
rating organization," as that term is defined by the
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Commission for purposes of Rule 436(g) (2) under the Act and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange; (ii) a suspension or material limitation in trading in the
Company's securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New York State
authorities; or (iv) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency or
war if the effect of any such event specified in this clause (iv) in the
judgment of the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus as first amended or
supplemented relating to the Designated Securities; and
(i) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of the
Company herein at and as of such Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a) and (f) of this
Section and as to such other matters as the Representatives may reasonably
request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any reasonable legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or
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actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof)
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relates. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the Underwriters
of the Designated Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and such Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions
received by such Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11 (f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
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not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of Delivery for such Designated Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any
20
21
officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
21
22
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
Very truly yours,
Michigan Consolidated Gas Company
By:
--------------------------------
Name:
Title:
Accepted as of the date hereof:
[Underwriters]
By: [ ]
By:
--------------------------------
Name:
Title:
22
23
ANNEX I
PRICING AGREEMENT
[Underwriters]
[ ]
Dear Sirs:
The Michigan Consolidated Gas Company, a Michigan corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated [ ] (the "Underwriting Agreement"), between
the Company on the one hand and [Underwriters] to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement
24
incorporated herein by reference, shall constitute a binding agreement between
each of the Underwriters and the Company. It is understood that your acceptance
of this letter on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
Michigan Consolidated Gas Company
By:
---------------------------------
Name:
Title:
Accepted as of the date hereof:
[Underwriters]
By: [ ]
By:
--------------------------------
Name:
Title:
2
25
SCHEDULE I
Principal Amount
of Designated
Securities to be
Underwriter Purchased
----------- ------------------
$
Total $
===========
Sch. II-1
26
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
AGGREGATE PRINCIPAL AMOUNT:
$[ ]
PRICE TO PUBLIC:
PURCHASE PRICE BY UNDERWRITERS:
FORM OF DESIGNATED SECURITIES:
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE: Same day funds.
INDENTURE OF MORTGAGE AND DEED OF TRUST:
Indenture of Mortgage and Deed of Trust dated as of March 1, 1944, as
supplemented and amended, including specifically by the Twenty-ninth
Supplemental Indenture dated as of July 15, 1989, the Thirty-fifth
Supplemental Indenture dated as of June 18, 1998, and the Supplemental
Indenture, dated as of [ ], between the Company and Citibank, N.A., as
Mortgage Trustee, and Xxxxxx X. Xxxxxxxx, as Individual Trustee.
INDENTURE:
Senior Indenture dated as of June 1, 1998, as amended and supplemented by
and through a Supplemental Indenture, dated as of [ ] between the Company
and Citibank, N.A.
MATURITY:
INTEREST RATE:
DAY COUNT:
360-day year of twelve 30-day months
Sch. II-1
27
INTEREST PAYMENT DATES:
[ ] and [ ], of each year
REDEMPTION PROVISIONS:
As set forth in the Designated Securities
SINKING FUND PROVISIONS:
No sinking fund provisions.
TIME OF DELIVERY:
CLOSING LOCATION FOR DELIVERY OF SECURITIES:
Sidley Xxxxxx Xxxxx & Xxxx LLP
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
NAMES AND ADDRESSES OF REPRESENTATIVES:
Sch. II-2
28
SCHEDULE III
SIGNIFICANT SUBSIDIARIES
Sch. III-1
