SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (date of earliest event reported): October 26,
1994
MCN Corporation
(Exact name of registrant as specified in its charter)
Michigan 1-10070 38-2820658
(State or Other (Commission (IRS Employer
Jurisdiction File Number) Identification No.)
of Incorporation)
500 Griswold, Detroit, MI 48226
(Address of Principal (zip code)
Executive Offices)
Registrant's telephone number, including area code (313) 256-5500
Item 5. Other Events.
The registrant is filing herewith the following in
connection with the offering by MCN Michigan Limited Partnership
of its 9 3/8% Cumulative Preferred Securities, Series A
(liquidation preference $25 per Preferred Security) , pursuant to
the registration statement of the registrant and MCN Michigan
Limited Partnership on Form S-3, as amended, (No. 33-55665) filed
with the Securities and Exchange Commission under the Securities
Act of 1933, as described in the Prospectus Supplement to
Prospectus dated October 18, 1994 (the "Prospectus Supplement")
dated October 26, 1994, filed with the Securities and Exchange
Commission pursuant to Rule 424(b) under the Securities Act of
1933:
1.1 Purchase Agreement dated October 26, 1994 among the
registrant, MCN Michigan Limited Partnership, Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Smith Barney Inc., Robert W. Baird & Co.
Incorporated, Dean Witter Reynolds Inc., Donaldson,
Lufkin & Jenrette Securities Corporation and A.G.
Edwards & Sons, Inc., as representatives of the several
Underwriters named therein.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
MCN CORPORATION
Dated: November 2, 1994 By /s/
______________________
Name: Patrick Zurlinden
Title: Vice-President,
Controller and Chief
Accounting Officer
INDEX TO EXHIBITS
Exhibit
Number Exhibit
1.1 Purchase Agreement dated October 26, 1994 among the
registrant, MCN Michigan Limited Partnership, Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Smith Barney Inc., Robert W. Baird & Co.
Incorporated, Dean Witter Reynolds Inc., Donaldson,
Lufkin & Jenrette Securities Corporation and A.G.
Edwards & Sons, Inc., as representatives of the several
Underwriters named therein.
Exhibit 1.1
4,000,000 PREFERRED SECURITIES
MCN MICHIGAN LIMITED PARTNERSHIP
(A MICHIGAN LIMITED PARTNERSHIP)
9 3/8% CUMULATIVE PREFERRED SECURITIES, SERIES A
(LIQUIDATION PREFERENCE $25 PER PREFERRED SECURITY)
GUARANTEED BY
MCN CORPORATION
(A MICHIGAN CORPORATION)
PURCHASE AGREEMENT
October 26, 1994
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SMITH BARNEY INC.
ROBERT W. BAIRD & CO. INCORPORATED
DEAN WITTER REYNOLDS INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
A.G. EDWARDS & SONS, INC.
as the Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
World Financial Center
North Tower
New York, New York 10281-1209
Dear Sirs:
MCN Michigan Limited Partnership, a limited partnership
formed under the laws of the State of Michigan (the "Company"),
and MCN Corporation, a Michigan corporation, as guarantor and
provider of certain backup undertakings (the "Guarantor" or
"MCN") confirm their agreement with each of the Underwriters
named in Schedule A hereto (collectively, the "Underwriters",
which term shall also include any underwriter substituted as
hereinafter provided in Section 10), for whom Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Smith
Barney Inc., Robert W. Baird & Co. Incorporated, Dean Witter
Reynolds Inc., Donaldson, Lufkin & Jenrette Securities
Corporation and A.G. Edwards & Sons, Inc. are acting as the
representatives (in such capacity, such firms shall hereinafter
be referred to as the "Representatives"), with respect to the
sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of an aggregate of 4,000,000 shares of
9 3/8% Cumulative Preferred Securities, Series A (liquidation
preference $25 per Preferred Security) (the "Preferred
Securities") of the Company guaranteed to the extent set forth in
the Registration Statement referred to below (the "Guarantee") by
the Guarantor as to the payment of dividends and as to payments
on liquidation or redemption and entitled to the benefits of
certain backup undertakings described in the Prospectus (as
defined herein) (the "Undertakings") provided by the Guarantor
(the Undertakings together with the Guarantee being referred to
collectively as the "Backup Undertakings") (the Preferred
Securities and the related Backup Undertakings being referred to
collectively as the "Securities").
Prior to the purchase and public offering of the
Preferred Securities by the Underwriters, the Company, the
Guarantor and the Representatives, acting on behalf of the
several Underwriters, shall enter into an agreement substantially
in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any
standard form of written telecommunication between the Company
and the Guarantor, on the one hand, and the Representatives, on
the other, and shall specify such applicable information as is
indicated in Exhibit A hereto. The offering of the Preferred
Securities will be governed by this Agreement, as supplemented by
the Pricing Agreement. From and after the date of the execution
and delivery of the Pricing Agreement, this Agreement shall be
deemed to incorporate the Pricing Agreement.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form
S-3 (No. 33-55665) and a related preliminary prospectus for the
registration of the Securities under the Securities Act of 1933,
as amended (the "1933 Act"), has filed such amendments thereto,
if any, and such amended preliminary prospectuses as may have
been required to the date hereof, and will file such additional
amendments thereto and such amended prospectuses as may hereafter
be required. Such registration statement (as amended, if appli-
cable) and the prospectus constituting a part thereof (including
in each case all documents, if any, incorporated by reference
therein and the information, if any, deemed to be part thereof
pursuant to Rule 430A(b) of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations")), as
from time to time amended or supplemented pursuant to the 1933
Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or otherwise, are hereinafter referred to as the
"Registration Statement" and the "Prospectus", respectively,
except that if any revised prospectus shall be provided to the
Underwriters by the Company for use in connection with the
offering of the Securities which differs from the Prospectus on
file at the Commission at the time the Registration Statement
becomes effective (whether or not such revised prospectus is
required to be filed by the Company pursuant to Rule 424(b) of
the 1933 Act Regulations), the term "Prospectus" shall refer to
such revised prospectus from and after the time it is first
provided to the Underwriters for such use. All references in
this Agreement to financial statements and schedules and other
information which is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (and all other
references of like import) shall be deemed to mean and include
all such financial statements and schedules and other information
which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be; and
all references in this Agreement to amendments or supplements to
the Registration Statement or the Prospectus shall be deemed to
mean and include without limitation the filing of any document
under the Exchange Act which is or is deemed to be incorporated
by reference in the Registration Statement or the Prospectus, as
the case may be.
The Company understands that the Underwriters propose
to make a public offering of the Securities as soon as the
Representatives deem advisable after the Registration Statement
becomes effective and the Pricing Agreement has been executed and
delivered and the Indenture (as defined herein) has been
qualified under the Trust Indenture Act of 1939, as amended (the
"1939 Act"). The proceeds from the sale of the Securities will
be used by the Company to purchase Series A Subordinated
Deferrable Interest Debt Securities (the "Debt Securities")
issued by the Guarantor pursuant to the Subordinated Debt
Securities Indenture (the "Indenture") dated as of September 1,
1994 between the Guarantor and NBD Bank, N.A., as Trustee (the
"Trustee").
SECTION 1. Representations and Warranties. (a) Each of
the Company and the Guarantor jointly and severally represents
and warrants to, and agrees with, each of the Underwriters as of
the date hereof and as of the date of the Pricing Agreement (such
latter date being hereinafter referred to as the "Representation
Date") as follows:
(i) This Agreement and the Pricing Agreement
have been duly authorized, executed and delivered by each of
the Company and the Guarantor.
(ii) At the time the Registration Statement
becomes effective and at the Representation Date, the
Registration Statement will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act
Regulations, the 1939 Act and the rules and regulations of
the Commission under the 1939 Act (the "1939 Act
Regulations"), and will not contain an untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading. The Prospectus, at the time the
Registration Statement becomes effective (unless the term
"Prospectus" refers to a prospectus which has been provided
to the Underwriters by the Company for use in connection
with the offering of the Securities which differs from the
Prospectus on file at the Commission at the time the
Registration Statement becomes effective, in which case at
the time it is first provided to the Underwriters for such
use) and at the Closing Time referred to in Section 2
hereof, will comply in all material respects with the
applicable requirements of the 1933 Act and the 1933 Act
Regulations and will not include an untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements therein not misleading;
provided, however, that the representations and warranties
in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made
in reliance upon and in conformity with information
furnished to the Company or the Guarantor in writing by any
Underwriter through the Representatives expressly for use in
the Registration Statement or Prospectus.
(iii) The documents incorporated or deemed to
be incorporated by reference in the Registration Statement
or the Prospectus, at the time they were or hereafter are
filed or last amended, as the case may be, with the
Commission, complied and will comply in all material
respects with the requirements of the 1933 Act, the 1933 Act
Regulations or the Exchange Act and the rules and
regulations of the Commission thereunder (the "Exchange Act
Regulations"), as applicable, 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 Registration Statement or the Prospectus will, if and
when such documents are filed with the Commission, or when
amended, as the case may be, comply in all material respects
to the requirements of the 1933 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; 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 or the Guarantor by an Underwriter through the
Representatives expressly for use in the Registration
Statement or the Prospectus.
(iv) The accountants who certified the
financial statements and supporting schedules included in
the Registration Statement are independent public
accountants as required by the 1933 Act and the 1933 Act
Regulations.
(v) The financial statements included or
incorporated by reference in the Registration Statement and
the Prospectus present fairly the financial position of the
Guarantor and its consolidated subsidiaries as at the dates
indicated and the results of their operations for the
periods specified; except as otherwise stated in the
Registration Statement, said financial statements have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis; and the supporting
schedules included in the Registration Statement present
fairly the information required to be stated therein.
(vi) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there
has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs
or business prospects of the Company or the Guarantor and
its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, (B) there
have been no transactions entered into by the Company or the
Guarantor or any of its subsidiaries, other than those in
the ordinary course of business, which are material with
respect to the Company or the Guarantor and its subsidiaries
considered as one enterprise, (C) there has not been any
change in the partners' interests or long-term debt of the
Company and (D) except for regular quarterly dividends on
common stock of the Guarantor in amounts per share that are
consistent with past practice, there has been no dividend or
distribution of any kind declared, paid or made by the
Guarantor on any class of its capital stock.
(vii) The Guarantor has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the State of Michigan, with corporate
power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus;
the Company has been duly formed and is validly existing as
a limited partnership in good standing under the laws of the
State of Michigan, with partnership power and authority to
own, lease and operate its properties and to conduct its
business as described in the Prospectus; and each of the
Company and the Guarantor has been duly qualified as a
foreign limited partnership and foreign corporation,
respectively, to transact business and is in good standing
under the laws of each jurisdiction in which such
qualification is required, whether by reason of the owner-
ship or leasing of property or the conduct of business,
except where the failure to so qualify would not have a
material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business
prospects of the Company or the Guarantor and its
subsidiaries considered as one enterprise.
(viii) Each subsidiary of the Guarantor has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Registration
Statement and the Prospectus, and is duly qualified as a
foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the
Company or the Guarantor and its subsidiaries considered as
one enterprise; all of the issued and outstanding capital
stock of each such subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is
owned by the Guarantor, directly or through its
subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity with
the exception of Saginaw Bay Pipeline Company whose stock is
pledged under a certain project financing agreement.
(ix) The Guarantor had, as of the date
indicated in the Prospectus, an authorized capitalization as
set forth in the Prospectus; since such date there has been
no change in the consolidated capitalization of the
Guarantor and its subsidiaries (other than changes in
outstanding common stock resulting from employee benefit
plan or dividend reinvestment plan transactions or the
exercise of convertible securities and purchases pursuant to
the Guarantor's stock purchase program or changes in long
term debt resulting from the issuance on September 26, 1994,
of $80,000,000 aggregate principal amount of first mortgage
bonds by Michigan Consolidated Gas Company); all of the
issued limited partner interests in the Company have been
duly authorized and validly issued, are fully paid and non-
assessable and conform to the descriptions thereof contained
in the Prospectus; and all of the issued shares of capital
stock of the Guarantor have been duly authorized and validly
issued, are fully paid and non-assessable and conform to the
descriptions thereof contained in the Prospectus.
(x) The Preferred Securities have been duly
authorized by the Company, and when issued and delivered
against payment therefor as provided herein, will be validly
issued and fully paid and, assuming that the limited
partners of the Company do not participate in the control of
the business of the Company, non-assessable and will conform
to the descriptions thereof contained in the Prospectus.
(xi) The Guarantee and the Amended and
Restated Agreement of Limited Partnership, dated as of
October 26, 1994 (the "Partnership Agreement"), among the
Guarantor, as general partner, the Class A Limited Partner
(as defined in the Partnership Agreement) and the holders
from time to time of the Preferred Securities, as limited
partners (the Guarantee and the Partnership Agreement being
collectively referred to as the "Guarantor Agreements") have
each been duly authorized and when validly executed and
delivered by the Guarantor will constitute legal, valid and
binding obligations of the Guarantor, enforceable in
accordance with their respective terms; the Guarantor
Agreements conform to the descriptions thereof in the
Prospectus; and the Guarantor Agreements are the only
instruments comprising the Backup Undertakings relating to
the Preferred Securities.
(xii) All of the issued general and limited
partner interests in the Company (other than the Preferred
Securities) are owned by the Guarantor and the Class A
Limited Partner (as defined in the Partnership Agreement),
respectively, and have been duly authorized and validly
issued, free and clear of all liens, encumbrances, equities
or claims; and the Company is not a party to or otherwise
bound by any agreement other than those described in the
Prospectus.
(xiii) The Indenture has been duly authorized
and qualified under the 1939 Act and, at the Closing Time,
will have been duly executed and delivered and will
constitute a legal, valid and binding agreement of the
Guarantor, enforceable against the Guarantor in accordance
with its terms.
(xiv) The Debt Securities will be in the form
contemplated by the Indenture and have been duly authorized,
and, when duly executed and authenticated in the manner
provided for in the Indenture, and issued and delivered
against payment of the purchase price therefor will
constitute legal, valid and binding obligations of the
Guarantor, enforceable against the Guarantor in accordance
with their terms and will be entitled to the benefits of the
Indenture.
(xv) The Indenture conforms and the Debt
Securities when duly executed, authenticated, issued and
delivered, will conform to the respective statements
relating thereto contained in the Prospectus; the Indenture
and the Debt Securities will be in substantially the
respective forms filed or incorporated by reference, as the
case may be, as exhibits to the Registration Statement.
(xvi) Neither the Guarantor nor any of its
subsidiaries is in violation of its charter or in default in
the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or any
other instrument to which the Guarantor or any of its
subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the
Guarantor or any of its subsidiaries is subject.
(xvii) The Company is not in violation of its
Certificate of Limited Partnership or the Partnership
Agreement or in default in the performance or observance of
any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or any other instrument to which the
Company is a party or by which it may be bound, or to which
any of the property or assets of the Company is subject.
(xviii) The issue and sale of the Preferred
Securities by the Company; the execution, delivery and
performance by the Company and the Guarantor of this
Agreement and the Pricing Agreement; the execution, delivery
and performance by the Company of the Partnership Agreement;
the execution, delivery and performance by the Guarantor of
the Guarantor Agreements; the execution, delivery and
performance by the Guarantor of the Indenture and the
issuance and delivery by the Guarantor of the Debt
Securities; the performance by the Guarantor of the other
Backup Undertakings; the consummation of the transactions
herein and therein contemplated; and the compliance by the
Company and the Guarantor with their obligations hereunder
and thereunder have been duly authorized by all necessary
actions of the Company and the Guarantor and will not
conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or
the Guarantor or any of its subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which the Company or the Guarantor or
any of its subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets
of the Company or the Guarantor or any of its subsidiaries
is subject, nor will such action result in any violation of
the provisions of the charter or by-laws of the Guarantor,
the charter or by-laws of any of its subsidiaries, the
Certificate of Limited Partnership of the Company or the
Partnership Agreement, or any applicable law, administrative
regulation or administrative or court decree.
(xix) No labor dispute with the employees of
the Company or the Guarantor or any of its subsidiaries
exists or, to the knowledge of the Company or the Guarantor,
is imminent; and neither the Company nor the Guarantor is
aware of any existing or imminent labor disturbance by the
employees of any of its principal suppliers, manufacturers
or contractors which might be expected to result in any
material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company or the Guarantor and its
subsidiaries considered as one enterprise.
(xx) There is no action, suit or proceeding
before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of
the Company or the Guarantor, threatened, against or
affecting the Company or the Guarantor or any of its
subsidiaries, which is required to be disclosed in the
Registration Statement or the Prospectus (other than as
disclosed therein), or which might result in any material
adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of
the Company or of the Guarantor and its subsidiaries
considered as one enterprise, or which might materially and
adversely affect the properties or assets thereof or which
might materially and adversely affect the consummation of
this Agreement; all pending legal or governmental
proceedings to which the Company or the Guarantor or any
subsidiary of the Guarantor is a party or of which any of
their respective property or assets is the subject which are
not described in the Registration Statement or the
Prospectus, including ordinary routine litigation incidental
to the business of the Company or the Guarantor or any of
its subsidiaries, are, considered in the aggregate, not
material; and there are no contracts or documents of the
Company or the Guarantor or any of its subsidiaries which
are required to be filed as exhibits to the Registration
Statement, or to any documents incorporated by reference
therein, by the 1933 Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder,
which have not been so filed.
(xxi) The Company and the Guarantor and its
subsidiaries have good and marketable title to all material
real and personal property owned by them, in each case free
and clear of all liens, encumbrances and defects except such
as are described in the Prospectus or such as do not
materially affect the value of such property and do not
materially interfere with the use made and proposed to be
made of such property by the Company and the Guarantor and
its subsidiaries; and any material real property and
buildings held under lease by the Company and the Guarantor
and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as
are not material and do not materially interfere with the
use made and proposed to be made of such property and
buildings by the Company and the Guarantor and its
subsidiaries; the pipeline, distribution main and
underground gas storage easements enjoyed by the Guarantor
are valid, subsisting and enforceable easements with such
exceptions as are not material and do not materially
interfere with the conduct of the business of the Company
and the Guarantor and its subsidiaries; the Company and the
Guarantor and its subsidiaries possess all licenses,
franchises, indeterminate permits, certificates, other
permits, authorizations, approvals, consents and orders of
all governmental authorities or agencies necessary for the
ownership or lease of the material properties owned or
leased by each of them and for the operation of the business
now operated by each of them with such exceptions which,
singly or in the aggregate, are not material and do not
materially interfere with the conduct of the business of the
Company and the Guarantor and its subsidiaries considered as
one enterprise; all such licenses, franchises, indeterminate
permits, certificates, other permits, orders,
authorizations, approvals and consents are in full force and
effect and contain no unduly burdensome provisions that
would interfere with the conduct of the business of the
Company and the Guarantor and its subsidiaries considered as
one enterprise and, except as otherwise set forth in the
Prospectus, there are no legal or governmental proceedings
pending or threatened that would result in a material
modification, suspension or revocation thereof.
(xxii) No authorization, approval, consent,
order, registration or qualification of or with any court or
governmental authority or agency is required in connection
with the issue and sale of the Securities hereunder, the
issuance of the Guarantee, the issuance of the Debt
Securities or the consummation by the Company and the
Guarantor of any other transactions contemplated hereby,
except such as may be required under the 1933 Act and the
1933 Act Regulations, the 1939 Act or state securities or
Blue Sky laws.
(xxiii) This Agreement has been, and, at the
Representation Date, the Pricing Agreement will have been,
duly executed and delivered by the Company and the Guarantor
and constitute the legal, valid and binding obligations of
the Company and the Guarantor enforceable in accordance with
their respective terms.
(xxiv) There are no contracts, agreements or
understandings between the Company or the Guarantor and any
person granting such person the right to require the Company
or the Guarantor to file a registration statement under the
1933 Act with respect to any partnership interests in the
Company or any preferred stock or guarantees thereof of the
Guarantor owned or to be owned by such person or to require
the Company or the Guarantor to include such securities in
the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to
any other registration statement filed by the Company or the
Guarantor under the 1933 Act.
(xxv) None of the Company, the Guarantor or
any of its subsidiaries is an "investment company" or under
the "control" of an "investment company" as such terms are
defined under the Investment Company Act of 1940, as amended
(the "1940 Act").
(xxvi) The Guarantor is presently exempt from
the provisions of the Public Utility Holding Company Act of
1935 (except Section 9 thereof) which would otherwise
require it to register thereunder.
(xxvii) The Company and the Guarantor are in
compliance with all provisions of Section 1 of the Laws of
Florida, Chapter 92-198, An Act Relating to Disclosure of
Doing Business with Cuba.
(b) Any certificate signed by any officer of the
Company or the Guarantor and delivered to the Representatives or
to counsel for the Underwriters shall be deemed a representation
and warranty by the Company or the Guarantor, as the case may be,
to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally
and not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Company, at the price per Preferred
Security set forth in the Pricing Agreement, the number of
Preferred Securities set forth in Schedule A opposite the name of
such Underwriter (except as otherwise provided in the Pricing
Agreement), plus any additional number of Preferred Securities
which such Underwriter may become obligated to purchase pursuant
to the provisions of Section 10 hereof. As compensation to the
Underwriters for their commitments hereunder, and in view of the
fact that the proceeds of the sale of the Preferred Securities
will be used to purchase Debt Securities of the Guarantor, the
Guarantor hereby agrees to pay at Closing Time (as defined below)
to the Representatives, for the accounts of the several
Underwriters, an amount per Preferred Security determined by
agreement between the Representatives and the Guarantor for the
Preferred Securities to be delivered by the Company hereunder at
Closing Time.
(1) If the Company and the Guarantor have elected
not to rely upon Rule 430A under the 1933 Act Regulations, the
initial public offering price and the purchase price per
Preferred Security to be paid by the several Underwriters for the
Preferred Securities have each been determined and set forth in
the Pricing Agreement, dated the date hereof, and an amendment to
the Registration Statement and the Prospectus will be filed
before the Registration Statement becomes effective.
(2) If the Company and the Guarantor have elected
to rely upon Rule 430A under the 1933 Act Regulations, the
purchase price per Preferred Security to be paid by the several
Underwriters for the Preferred Securities shall be an amount
equal to the initial public offering price, less an amount per
Preferred Security to be determined by agreement between the
Representatives and the Guarantor. The initial public offering
price per Preferred Security shall be a fixed price to be
determined by agreement between the Representatives and the
Guarantor. The initial public offering price and the purchase
price, when so determined, shall be set forth in the Pricing
Agreement. In the event that such prices have not been agreed
upon and the Pricing Agreement has not been executed and
delivered by all parties thereto by the close of business on the
fourth business day following the date of this Agreement, this
Agreement shall terminate forthwith, without liability of any
party to any other party, unless otherwise agreed to by the
Guarantor and the Representatives.
(b) Payment of the purchase price for, and delivery of
certificates for, the Preferred Securities shall be made at the
office of LeBoeuf, Lamb, Greene & MacRae, L.L.P., New York, New
York, or at such other place as shall be agreed upon by the
Representatives and the Company, at 10:00 A.M., New York time, on
the fifth business day (unless postponed in accordance with the
provisions of Section 10) following the date the Registration
Statement becomes effective (or, if the Company has elected to
rely upon Rule 430A of the 1933 Act Regulations, the fifth
business day after execution of the Pricing Agreement), or such
other time not later than ten business days after such date as
shall be agreed upon by the Representatives and the Company (such
time and date of payment and delivery being herein called
"Closing Time"). Payment shall be made to the Company by
certified or official bank check or checks, or by wire transfer
of New York Clearing House or other similar next day funds to an
account designated in writing by the Company, against delivery to
the Representatives for the respective accounts of the
Underwriters of certificates for the Preferred Securities to be
purchased by them. Certificates for the Preferred Securities
shall be in such denominations and registered in such names as
the Representatives may request in writing at least five business
days before Closing Time. It is understood that each Underwriter
has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price
for, the Preferred Securities which it has agreed to purchase.
The Representatives, individually and not as the representatives
of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Preferred Securities to be
purchased by any Underwriter whose check or funds have not been
received by Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder. The certificates for
the Preferred Securities will be made available for examination
and packaging by the Representatives not later than 10:00 A.M.,
New York time, on the last business day prior to Closing Time.
(c) At Closing Time, the Guarantor will pay or cause
to be paid, the compensation payable at closing time to the
Underwriters under Section 2(a) by certified or official bank
check or checks payable to the order of, or by wire transfer of
New York Clearing House or other similar next day funds to an
account designated in writing by Merrill Lynch, Pierce, Fenner &
Smith Incorporated.
SECTION 3. Covenants of the Company and the Guarantor.
Each of the Company and the Guarantor jointly and severally
agrees with each Underwriter as follows:
(a) The Company and the Guarantor will notify the
Representatives immediately, and confirm the notice in writing,
(i) of the effectiveness of the Registration Statement and any
amendment thereto (including any post-effective amendment),
(ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. The Company and the Guarantor
will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) The Company and the Guarantor will give the
Representatives notice of its intention to file or prepare any
amendment to the Registration Statement (including any
post-effective amendment) or any amendment or supplement to the
Prospectus (including any revised prospectus which the Company
and the Guarantor propose for use by the Underwriters in
connection with the offering of the Securities which differs from
the prospectus on file at the Commission at the time the
Registration Statement becomes effective, whether or not such
revised prospectus is required to be filed pursuant to
Rule 424(b) of the 1933 Act Regulations), whether pursuant to the
1933 Act, the Exchange Act or otherwise, will furnish the
Representatives with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which the
Representatives or counsel for the Underwriters shall object.
(c) The Company and the Guarantor will deliver to the
Representatives as many signed copies of the Registration
Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated
by reference therein) as the Representatives may reasonably
request and will also deliver to the Representatives a conformed
copy of the Registration Statement as originally filed and of
each amendment thereto (without exhibits) for each of the Under-
writers.
(d) The Company and the Guarantor will furnish to each
Underwriter, from time to time during the period when the
Prospectus is required to be delivered under the 1933 Act or the
Exchange Act, such number of copies of the Prospectus (as amended
or supplemented) as such Underwriter may reasonably request for
the purposes contemplated by the 1933 Act or the Exchange Act or
the respective applicable rules and regulations of the Commission
thereunder.
(e) If any event shall occur as a result of which it
is necessary, in the opinion of counsel for the Underwriters, to
amend or supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus in
order to make the Prospectus not misleading in the light of the
circumstances existing at the time it is delivered to a
purchaser, the Company and the Guarantor will forthwith amend or
supplement the Prospectus or file such document (in form and
substance satisfactory to counsel for the Underwriters) so that,
as so amended or supplemented, the Prospectus will not include an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered
to a purchaser, not misleading, and the Company and the Guarantor
will furnish to the Underwriters a reasonable number of copies of
such amendment or supplement.
(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale
under the applicable securities laws of such states and other
jurisdictions of the United States as the Representatives may
designate; provided, however, that neither the Company nor the
Guarantor shall be obligated to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified. In each
jurisdiction in which the Securities have been so qualified, the
Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification
in effect for a period of not less than one year from the
effective date of the Registration Statement.
(g) The Guarantor will make generally available to its
security holders as soon as practicable, but not later than 45
days (or 90 days, in the case of a period that is also the
Guarantor's fiscal year) after the close of the period covered
thereby, an earnings statement of the Guarantor and its
subsidiaries (in form complying with the provisions of Rule 158
of the 1933 Act Regulations) covering a twelve-month period
beginning not later than the first day of the Guarantor's fiscal
quarter next following the "effective date" (as defined in said
Rule 158) of the Registration Statement.
(h) The Company and the Guarantor will use the net
proceeds received by it from the sale of the Securities in the
manner specified in the Prospectus under "Use of Proceeds".
(i) If, at the time that the Registration Statement
becomes effective, any information shall have been omitted
therefrom in reliance upon Rule 430A of the 1933 Act Regulations,
then immediately following the execution of the Pricing
Agreement, the Company and the Guarantor will prepare, and file
or transmit for filing with the Commission in accordance with
such Rule 430A and Rule 424(b) of the 1933 Act Regulations,
copies of an amended Prospectus, or, if required by such Rule
430A, a post-effective amendment to the Registration Statement
(including an amended Prospectus), containing all information so
omitted.
(j) The Company and the Guarantor, during the period
when the Prospectus is required to be delivered under the 1933
Act or the Exchange Act, will file all documents required to be
filed with the Commission pursuant to Section 13, 14 or 15 of the
Exchange Act within the time periods required by the Exchange Act
and the Exchange Act Regulations.
(k) The Company and the Guarantor will use its best
efforts to effect the listing of the Preferred Securities on the
New York Stock Exchange and to cause the Preferred Securities to
be registered under the Exchange Act; if the Preferred Securities
are exchanged for the Debt Securities, the Guarantor will use its
best efforts to effect the listing of the Debt Securities on the
same exchange.
(l) The Company and the Guarantor have agreed, during
the period beginning from the date hereof and continuing to and
including the earlier of (i) the date after the Closing Date on
which the distribution of the Series A Preferred Securities and
the Guarantee ceases, as determined by the Underwriters, or
(ii) 90 days after the closing date, not to offer, sell, contract
to sell, or otherwise dispose of any Series A Preferred
Securities, any limited partnership interests of the Company, or
any preferred stock or any other securities of the Company or the
Guarantor which are substantially similar to the Series A
Preferred Securities including the Guarantee, or any securities
convertible into or exchangeable for Series A Preferred
Securities, limited partnership interests, preferred stock or
such substantially similar securities of either the Company or
the Guarantor, without the prior written consent of the
Underwriters.
SECTION 4. Payment of Expenses. The Company and the
Guarantor jointly and severally agree with the several
Underwriters to pay all expenses incident to the performance of
their obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally
filed and of each amendment thereto, (ii) the printing of this
Agreement and the Pricing Agreement, (iii) the preparation,
issuance and delivery of the certificates for the Preferred
Securities to the Underwriters, (iv) the fees and disbursements
of the Company's and the Guarantor's counsel and accountants, (v)
the qualification of the Preferred Securities under securities
laws in accordance with the provisions of Section 3(f), including
filing fees and the fee and disbursements of counsel for the
Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any Legal Investment
Survey, (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of
each amendment thereto, of each preliminary prospectus, and of
the Prospectus and any amendments or supplements thereto, (vii)
the printing and delivery to the Underwriters of copies of the
Blue Sky Survey and any Legal Investment Survey, (viii) the fees
and expenses of the Trustee, including the fees and disbursements
of counsel for the Trustee in connection with the Indenture and
Debt Securities, (ix) any fees payable in connection with the
rating of the Securities and the Debt Securities, (x) the fee of
the National Association of Securities Dealers, Inc., (xi) the
fees and expenses incurred in connection with the listing of the
Preferred Securities on the New York Stock Exchange, (xii) the
cost and charges of any transfer agent or registrar and (xiii)
the cost of qualifying the Preferred Securities with The
Depository Trust Company.
If this Agreement is terminated by the Representatives
in accordance with the provisions of Section 5 or Sec-
tion 9(a)(i), the Company and the Guarantor shall reimburse the
Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company and
the Guarantor herein contained, to the performance by the Company
and the Guarantor of their obligations hereunder, and to the
following further conditions:
(a) The Registration Statement shall have become
effective not later than 5:30 P.M. on the date hereof, or with
the consent of the Representatives, at a later time and date, not
later, however, than 5:30 P.M. on the first business day
following the date hereof, or at such later time and date as may
be approved by a majority in interest of the Underwriters; and at
Closing Time no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued
under the 1933 Act or proceedings therefor initiated or
threatened by the Commission. If the Company has elected to rely
upon Rule 430A of the 1933 Act Regulations, the price of the
Securities and any price-related information previously omitted
from the effective Registration Statement pursuant to such Rule
430A shall have been transmitted to the Commission for filing
pursuant to Rule 424(b) of the 1933 Act Regulations within the
prescribed time period, and prior to Closing Time the Company
shall have provided evidence satisfactory to the Representatives
of such timely filing, or a post-effective amendment providing
such information shall have been promptly filed and declared
effective in accordance with the requirements of Rule 430A of the
1933 Act Regulations.
(b) At Closing Time the Representatives shall have
received:
(1) The favorable opinion, dated as of Closing
Time, of Daniel L. Schiffer, Esq., Vice President, General
Counsel and Secretary of the Guarantor, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Guarantor has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the State of Michigan with corporate power
and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus, and
is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in
which such qualification is required.
(ii) The authorized, issued and outstanding
capital stock of the Guarantor is as set forth in the
Prospectus (except for subsequent issuances, if any,
pursuant to employee benefit plan or dividend reinvestment
plan transactions or the exercise of convertible securities
and purchases pursuant to the Guarantor's stock purchase
program), and the shares of issued and outstanding common
stock of the Guarantor have been duly authorized and validly
issued and are fully paid and non-assessable; and all of the
issued general partner interests in the Company have been
duly authorized and validly issued and are owned by the
Guarantor, free and clear of all liens, encumbrances,
equities or claims.
(iii) The Partnership Agreement has been duly
authorized, executed and delivered by the Guarantor and
constitutes a legal, valid and binding obligation of the
Guarantor, enforceable in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws of general applicability
relating to or affecting creditors' rights or by general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(iv) The Guarantor Agreements have been duly
authorized, executed and delivered by the Guarantor, and the
Guarantor Agreements constitute legal, valid and binding
obligations of the Guarantor, enforceable in accordance with
their respective terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws
of general applicability relating to or affecting creditors'
rights or by general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity
or at law); the Guarantor Agreements conform to the
descriptions thereof in the Prospectus; and the Guarantor
Agreements are the only instruments comprising the Backup
Undertakings relating to the Preferred Securities.
(v) The Indenture has been duly authorized,
executed and qualified under the 1939 Act and, at the
Closing Time will have been duly executed and delivered and
will constitute a legal, valid and binding agreement of the
Guarantor, enforceable against the Guarantor in accordance
with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws of general
applicability relating to or affecting creditors' rights or
by general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law).
(vi) The Debt Securities are in the form
contemplated by the Indenture and have been duly authorized,
and, when executed and authenticated in the manner provided
in the Indenture, and issued and delivered against payment
of the purchase price therefor, will constitute legal, valid
and binding obligations of the Guarantor, enforceable
against the Guarantor in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws of general applicability
relating to or affecting creditors' rights or by general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and will be
entitled to the benefits of the Indenture.
(vii) The Indenture conforms and the Debt
Securities, when duly executed, authenticated, issued and
delivered, will conform to the descriptions thereof
contained in the Prospectus.
(viii) Each subsidiary of the Guarantor has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Registration
Statement and the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the
Company or the Guarantor and its subsidiaries considered as
one enterprise; all of the issued and outstanding capital
stock of each such subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, to the
best of such counsel's knowledge and information, is owned
by the Guarantor, directly or through its subsidiaries, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity with the exception of Saginaw
Bay Pipeline Company whose stock is pledged under a certain
project finance agreement.
(ix) This Agreement and the Pricing Agreement
have been duly authorized, executed and delivered by the
Company and the Guarantor.
(x) The Registration Statement is effective
under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement has been issued
under the 1933 Act or proceedings therefor initiated or, to
the best of such counsel's knowledge, threatened by the
Commission.
(xi) At the time the Registration Statement
became effective and at the Representation Date, the
Registration Statement (other than the financial statements
and supporting schedules and other financial or statistical
data included or incorporated by reference therein, as to
which no opinion need be rendered) complied as to form in
all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations.
(xii) The documents incorporated by reference
in the Prospectus at the time it was filed or last amended
(other than the financial statements and related schedules
and other financial or statistical data included or
incorporated by reference therein, as to which such counsel
need express no opinion), complied as to form in all
material respects with the requirements of the 1933 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
such documents became effective or were so filed, as the
case may be, contained, in the case of a registration
statement which became effective under the 1933 Act, an
untrue statement of a material fact, or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and, in the case
of other documents which were filed under the 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 not misleading.
(xiii) To the best of such counsel's knowledge
and information, there are no actions, suits or proceedings
before or by any court or governmental agency or body,
domestic or foreign, pending or threatened which are
required to be disclosed in the Registration Statement,
other than those disclosed therein, and all pending legal or
governmental proceedings to which the Company, the Guarantor
or any of the Guarantor's subsidiaries is a party or to
which any of their property is subject which are not
described in the Registration Statement, including ordinary
routine litigation incidental to the business, are,
considered in the aggregate, not material.
(xiv) The information in the Prospectus under
"MCN Corporation", "MCN Michigan Limited Partnership", "Use
of Proceeds", "Description of MCN Debt Securities",
"Description of MCN Capital Stock", "Description of the MCN
Michigan Preferred Securities", "Description of the
Guarantee", "Capitalization of MCN at June 30, 1994",
"Description of the Series A Preferred Securities",
"Description of the Series A Subordinated Debt Securities",
and "Effects of Obligations Under the Series A Subordinated
Debt Securities and the Guarantee", to the extent that they
constitute matters of law, summaries of legal matters,
documents or proceedings, or legal conclusions, have been
reviewed by such counsel and is correct in all material
respects.
(xv) To the best of such counsel's knowledge
and information, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to or
incorporated by reference in the Registration Statement or
to be filed as exhibits thereto other than those described
or referred to or incorporated by reference therein or filed
or incorporated by reference as exhibits thereto, the
descriptions thereof or references thereto are correct, and
no default exists in the due performance or observance of
any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument so described,
referred to, filed or incorporated by reference.
(xvi) No authorization, approval, consent,
order, registration or qualification of or with any court or
governmental authority or agency is required in connection
with the issuance and sale of the Securities, the issuance
of the Guarantee, the issuance of the Debt Securities or the
consummation by the Company and the Guarantor of any
transactions contemplated hereby, except such as have been
obtained and made under the 1933 Act and the 1933 Act
Regulations, the 1939 Act or such as may be required under
state securities or Blue Sky laws.
(xvii) The issuance and sale by the Company of
the Preferred Securities; the execution, delivery and
performance by the Company and the Guarantor of this Agree-
ment and the Pricing Agreement; the execution, delivery and
performance by the Guarantor of the Guarantor Agreements;
the execution, delivery and performance by the Guarantor of
the Indenture and the issuance and delivery by the Guarantor
of the Debt Securities; the performance by the Guarantor of
the other Backup Undertakings; the consummation of the
transactions contemplated herein and therein; and compliance
by the Company and the Guarantor with its obligations
hereunder and thereunder have been duly authorized by all
necessary actions of the Company and the Guarantor and will
not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company or the Guarantor or any of its subsidiaries pursuant
to, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or the
Guarantor or any of its subsidiaries is a party or by which
it or any of them may be bound, or to which any of the
property or assets of the Company or the Guarantor or any of
its subsidiaries is subject, nor will such action result in
any violation of the provisions of the charter or by-laws of
the Guarantor or any of its subsidiaries, the Certificate of
Limited Partnership of the Company or the Partnership
Agreement, or any applicable law, administrative regulation
or administrative or court decree.
(xviii) The Company and the Guarantor and its
subsidiaries possess all licenses, franchises, indeterminate
permits, certificates, other permits, authorizations,
approvals, consents and orders of all governmental
authorities or agencies necessary for the ownership or lease
of the material properties owned or leased by each of them
and for the operation of the business carried on by each of
them as described in the Registration Statement and
Prospectus with such exceptions as are not material and do
not materially interfere with the conduct of the business of
the Company and the Guarantor and its subsidiaries
considered as one enterprise; all such licenses, franchises,
indeterminate permits, certificates, other permits,
authorizations, approvals, and consents are in full force
and effect and contain no unduly burdensome provisions that
would interfere with the conduct of the business of the
Company and the Guarantor and its subsidiaries considered as
one enterprise and, except as otherwise set forth in the
Registration Statement and Prospectus, there are no legal or
governmental proceedings pending or threatened that would
result in a material modification, suspension or revocation
thereof.
(xix) None of the Company, the Guarantor or
any of its subsidiaries is an "investment company" or under
the "control" of an "investment company" as such terms are
defined under the 1940 Act.
(xx) The Guarantor is presently exempt from
the provisions of the Public Utility Holding Company Act of
1935 (except Section 9 thereof) which would otherwise
require it to register thereunder.
(xxi) The Company and the Guarantor are in
compliance with all provisions of Section 1 of the Laws of
Florida, Chapter 92-198, An Act Relating to Disclosure of
Doing Business with Cuba.
(2) The favorable opinion, dated as of Closing
Time, of Dickinson, Wright, Moon, Van Dusen & Freeman, special
Michigan counsel to the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly formed and is
validly existing as a limited partnership in good standing
under the laws of the State of Michigan; all filings
required under the laws of the State of Michigan with
respect to the formation and valid existence of the Company
as a limited partnership have been made; and the Company has
all necessary partnership power and authority to own, lease
and operate its properties and to conduct its business as
described in the Prospectus and to execute, deliver and to
perform its obligations under this Agreement and the Pricing
Agreement.
(ii) The Company is duly qualified as a
foreign limited partnership to transact business and is in
good standing in each jurisdiction in which such
qualification is required.
(iii) The general and limited partner
interests in the Company issued to the Guarantor and the
Class A Limited Partner (as defined in the Partnership
Agreement) have been duly authorized and validly issued.
(iv) The Preferred Securities issued to the
limited partners of the Company who hold the Preferred
Securities (the "Preferred Security Holders") have been duly
authorized for issuance and sale to the Underwriters
pursuant to this Agreement and, when issued and delivered by
the Company pursuant to this Agreement against payment of
the consideration set forth in the Pricing Agreement, will
be validly issued and, assuming that the Preferred Security
Holders, as limited partners of the Company, do not
participate in the control of the business of the Company,
are fully paid and non-assessable limited partnership
interests in the Company as to which the Preferred Security
Holders, as limited partners of the Company, will have no
liability in excess of their obligations to make payments
provided for in the Partnership Agreement and their share of
the Company's assets and undistributed profits; and the
Preferred Securities conform to the description thereof
contained in the Prospectus.
(v) There are no provisions in the
Partnership Agreement the inclusion of which, subject to the
terms and conditions therein, or, assuming that the
Preferred Security Holders, as limited partners of the
Company, take no action other than actions permitted by the
Partnership Agreement, the exercise of which, in accordance
with the terms and conditions therein, would cause the
Preferred Security Holders, as limited partners of the
Company, to be deemed to be participating in the control of
the business of the Company.
(vi) This Agreement and the Pricing Agreement
have been duly authorized, executed and delivered on behalf
of the Company by the Guarantor, as general partner of the
Company.
(vii) The issuance and sale by the Company
of the Preferred Securities pursuant to this Agreement and
the Pricing Agreement, and the execution, delivery and
performance by the Company of this Agreement and the Pricing
Agreement will not violate any Michigan statute, rule or
regulation, the Certificate of Limited Partnership of the
Company or the Partnership Agreement.
(viii) No authorization, approval,
consent, order, registration or qualification of or with any
Michigan court or Michigan governmental agency or body is
required as a result of the issuance and sale by the Company
of the Preferred Securities pursuant to this Agreement and
the Pricing Agreement, the execution, delivery and
performance by the Company of this Agreement and the Pricing
Agreement or the consummation of the transactions
contemplated in this Agreement.
(ix) The information under "MCN Michigan
Limited Partnership", to the extent that it constitutes
matters of law, summaries of legal matters, documents or
proceedings, or legal conclusions, have been reviewed by
such counsel and is correct in all material respects.
(x) The Preferred Securities conform to
the description thereof contained in the Prospectus, and the
form of certificate used to evidence the Preferred
Securities is in proper form and complies with all
applicable statutory requirements.
(3) The favorable opinion, dated as of Closing
Time, of Sidley & Austin, special tax counsel to the Company and
the Guarantor, in form and substance satisfactory to counsel for
the Underwriters, to the effect that the statements in the
Prospectus under the captions "Investment Considerations -- Tax
Event Redemption or Distribution" and "United States Federal
Income Taxation" have been reviewed by such counsel and, insofar
as they constitute legal conclusions or matters of law, fairly
summarize the matters referred to therein.
(4) The favorable opinion, dated as of Closing
Time, of LeBoeuf, Lamb, Greene & MacRae, L.L.P., counsel for the
Underwriters, with respect to the incorporation of the Guarantor,
the organization of the Company, the validity of the Preferred
Securities and the related Backup Undertakings, the Registration
Statement, the Prospectus and other related matters as you may
reasonably require, and the Company and the Guarantor shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(5) In giving their opinions required by
subsections (b)(1) and (b)(4), respectively, of this Section
Daniel L. Schiffer, Esq. and LeBoeuf, Lamb, Greene & MacRae,
L.L.P. shall each additionally state that nothing has come to
their attention that would lead them to believe that the
Registration Statement (other than the financial statements and
related schedules and other financial or statistical data
included or incorporated by reference therein, as to which
counsel need express no opinion), at the time it became effective
or at the Representation Date, 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 (other than the financial
statements and related schedules and other financial or
statistical data included or incorporated by reference therein,
as to which counsel need express no opinion), at the
Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriters by the
Company for use in connection with the offering of the Securities
which differs from the Prospectus on file at the Commission at
the time the Registration Statement becomes effective, in which
case at the time it is first provided to the Underwriters for
such use) or at Closing Time, included (or includes) an untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. In giving their opinion, LeBoeuf, Lamb, Greene &
MacRae L.L.P. may rely as to matters of Michigan law upon the
opinions of Daniel L. Schiffer, Esq. and Dickinson, Wright, Moon,
Van Dusen & Freeman, which opinions shall be in form and
substance satisfactory to counsel for the Underwriters.
(c) At Closing Time there shall not have been, since
the date hereof or since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company or of the Guarantor and its
subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, and the Representatives shall
have received a certificate of the President or a Vice President
of the Guarantor and of the chief financial or chief accounting
officer of the Guarantor, dated as of Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 are true and correct
with the same force and effect as though expressly made at and as
of Closing Time, (iii) the Company and the Guarantor have
complied with all agreements and satisfied all conditions on
their part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been initiated or threatened by the Commission.
(d) At the time of the execution of this Agreement,
the Representatives shall have received from Deloitte & Touche
LLP a letter dated the Closing Date in form and substance
satisfactory to the Representatives, to the effect set forth
below and as to such other matters as the Representatives may
reasonably request, that:
(i) They are independent certified public
accountants with respect to the Guarantor and its
subsidiaries within the meaning of the 1933 Act and the
1933 Act Regulations;
(ii) In their opinion, the consolidated financial
statements and any supplementary financial information
and schedules audited (and, if applicable, prospective
financial statements and/or pro forma financial
information examined) by them and included or
incorporated by reference in the Registration Statement
or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of
the 1933 Act or the Exchange Act and the related
published rules and regulations thereunder; and if
applicable, they have made a review in accordance with
standards established by the American Institute of
Certified Public Accountants of the consolidated
interim financial statements, selected financial data,
pro forma financial information, prospective financial
statements and/or condensed financial statements
derived from audited financial statements of the
Guarantor for the periods specified in such letter, as
indicated in their reports thereon, copies of which
have been furnished to the Representatives;
(iii) The unaudited selected financial information
with respect to the consolidated results of operations
and financial position of the Guarantor for the five
most recent fiscal years included in the Prospectus and
included or incorporated by reference in the
Guarantor's Annual Report on Form 10-K for the most
recent fiscal year agrees with the corresponding
amounts (after restatement where applicable) in the
audited consolidated financial statements for such five
fiscal years which were included or incorporated by
reference in the Guarantor's Annual Reports on Form 10-
K for such fiscal years;
(iv) On the basis of limited procedures, not
constituting an audit in accordance with generally
accepted auditing standards, including a reading of the
unaudited consolidated financial statements and other
information referred to below, a reading of the latest
available unaudited interim consolidated financial
statements of the Guarantor and its subsidiaries,
inspection of the minute books of the Guarantor and its
subsidiaries since the audited consolidated financial
statements set forth in the Guarantor's Annual Report
on Form 10-K for the most recent year, inquiries of
officials of the Guarantor and its subsidiaries
responsible for financial and accounting matters and
such other inquiries and procedures as may be specified
in such letter, nothing came to their attention that
caused them to believe that:
(A) The unaudited consolidated financial
statements set forth in the Guarantor's Quarterly
Reports on Form 10-Q incorporated by reference in
the Registration Statement and the Prospectus as
amended or supplemented do not comply as to form
in all material respects with the applicable
accounting requirements of the Exchange Act as
they apply to Form 10-Q and the Exchange Act
Regulations or are not in conformity with
generally accepted accounting principles applied
on a basis substantially consistent with that of
the audited consolidated financial statements set
forth in the Guarantor's Annual Report on Form 10-
K for the most recent year ended incorporated by
reference in the Registration Statement and the
Prospectus as amended or supplemented;
(B) any other unaudited income statement
data and balance sheet items included in the
Prospectus do not agree with the corresponding
items in the unaudited consolidated financial
statements from which such data and items were
derived, and any such unaudited data and items
were not determined on a basis substantially
consistent with the basis for the corresponding
amounts in the audited consolidated financial
statements included or incorporated by reference
in the Registration Statement and the Prospectus
as amended or supplemented;
(C) any unaudited pro forma consolidated
condensed financial statements included or
incorporated by reference in the Prospectus do not
comply as to form in all material respects with
the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations or the pro forma
adjustments have not been properly applied to the
historical amounts in the compilation of those
statements;
(D) As of a specified date not more than
five days prior to the date of delivery of such
letter, there has been any change in the capital
stock or long-term debt including capital lease
obligations (except for sinking fund and
installment requirements under their long-term
debt agreement, terms of the preferred stock of
the Company and purchases in the open market in
anticipation thereof) or any increase in short-
term debt, or any decrease in consolidated common
shareholder's equity (other than quarterly
dividends declared to stockholders) of the
Guarantor and its consolidated subsidiaries, in
each case as compared with the corresponding
amounts shown in the latest consolidated statement
of financial position incorporated by reference in
the Registration Statement and the Prospectus as
amended or supplemented, except in each case for
changes, increases or decreases which the
Prospectus as amended or supplemented, including
financial information incorporated by reference,
discloses have occurred or may occur or which are
described in such letter; and
(E) for the period from the date of the
latest consolidated financial statements included
or incorporated by reference in the Prospectus to
the end of the latest period for which
consolidated financial statements are available
there were any decreases in consolidated operating
revenues, operating income, net income or earnings
available for common stock of the Guarantor and
its consolidated subsidiaries, or any increases in
any items specified by the Representatives, in
each case as compared with the corresponding
period in the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases
or decreases which the Prospectus as amended or
supplemented, including financial information
incorporated by reference, discloses have occurred
or may occur or which are described in such
letter.
(F) The unaudited consolidated financial
statements referred to in Clause (E) are not
stated on a basis substantially consistent with
the audited consolidated financial statements
incorporated by reference in the Registration
Statement and the Prospectus as amended or
supplemented.
(v) In addition to the limited procedures,
inspection of minute books, inquiries and other
procedures referred to in clause (iii) and (iv) above,
they have carried out certain other specified
procedures, not constituting an audit in accordance
with generally accepted auditing standards, with
respect to certain amounts, percentages and financial
information which are derived from the general
accounting records of the Guarantor and its
subsidiaries, which appear in the Prospectus as amended
or supplemented and the Registration Statement, in the
Guarantor's Annual Report on Form 10-K for the latest
year ended and in the Guarantor's Quarterly Reports on
Form 10-Q since the latest Annual Report on Form 10-K
and which are specified by the Representatives, and
have compared certain of such amounts, percentages and
financial information with the accounting records of
the Guarantor and its subsidiaries and have found them
to be in agreement.
(e) At Closing Time the Representatives shall have
received from Deloitte & Touche LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (d) of this Section,
except that the specified date referred to shall be a date not
more than five days prior to Closing Time.
(f) At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon
the issuance and sale of the Securities as herein contemplated
and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings
taken by the Company and the Guarantor in connection with the
issuance and sale of the Securities as herein contemplated shall
be satisfactory in form and substance to the Representatives and
counsel for the Underwriters.
(g) On or after the date hereof (i) no downgrading
shall have occurred in the rating accorded the Preferred
Securities or any of the Guarantor's debt securities or preferred
stock (including the Guarantee or any other Backup Undertakings
in respect of the Preferred Securities) by any "nationally
recognized statistical rating organization," as that term is
defined by the Commission for purpose of Rule 436(g)(2) under the
1933 Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of the Securities or any of the
Guarantor's debt securities or preferred stock (including the
Guarantee or any other Backup Undertakings in respect of the
Preferred Securities).
(h) At the Closing time, the Securities shall have
been approved for listing on the New York Stock Exchange upon
notice of issuance.
If any condition specified in this Section shall not
have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to
the Company at any time at or prior to Closing Time, and such
termination shall be without liability of any party to any other
party except as provided in Section 4.
SECTION 6. Indemnification. (a) The Company and the
Guarantor jointly and severally agree to indemnify and hold
harmless each Underwriter and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the 1933 Act
as follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising
out of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or
any amendment thereto), including the information deemed to
be part of the Registration Statement pursuant to Rule
430A(b) of the 1933 Act Regulations, if applicable, or the
omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the
statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission,
if such settlement is effected with the written consent of
the Company and the Guarantor; and
(iii) against any and all expense whatsoever,
as incurred (including, subject to Section 6(c) hereof, the
fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating,
preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity
with written information furnished to the Company or to the
Guarantor by any Underwriter through the Representatives
expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto). The foregoing indemnity with
respect to any untrue statement contained in or omission from a
preliminary prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, liability, claim, damage
or expense purchased any of the Preferred Securities that are the
subject thereof if such person was not sent or given a copy of
the Prospectus (or the Prospectus as amended or supplemented) (in
each case exclusive of the documents from which information is
incorporated by reference) at or prior to the written
confirmation of the sale of such Preferred Securities to such
person and the untrue statement contained in or omission from
such preliminary prospectus was corrected in the Prospectus (or
the Prospectus as amended or supplemented).
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, the Guarantor, their directors, each
of their officers who signed the Registration Statement, and each
person, if any, who controls the Company or the Guarantor within
the meaning of Section 15 of the 1933 Act against any and all
loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with
written information furnished to the Company or to the Guarantor
by such Underwriter through the Representatives expressly for use
in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may
be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at
its own expense in the defense of any such action. In no event
shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection
with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations
or circumstances.
SECTION 7. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity
agreement provided for in Section 6 is for any reason held to be
unenforceable by the indemnified parties although applicable in
accordance with its terms, the Company and the Guarantor, on the
one hand, and the Underwriters, on the other hand, shall
contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by said indemnity agree-
ment incurred by the Company and Guarantor, on the one hand, and
one or more of the Underwriters, on the other hand, as incurred,
in such proportions that the Underwriters are responsible for
that portion represented by the percentage that the underwriting
compensation paid by the Guarantor appearing on the cover page of
the Prospectus bears to the initial public offering price
appearing thereon and the Company and the Guarantor are
responsible for the balance; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if
any, who controls an Underwriter within the meaning of Section 15
of the 1933 Act shall have the same rights to contribution as
such Underwriter, and the general partner of the Company, each
director of the Guarantor, each officer of the Guarantor who
signed the Registration Statement, and each person, if any, who
controls the Company or the Guarantor within the meaning of
Section 15 of the 1933 Act shall have the same rights to
contribution as the Company and the Guarantor.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements
contained in this Agreement and the Pricing Agreement, or con-
tained in certificates of officers of the Company and the
Guarantor submitted pursuant hereto, shall remain operative and
in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or
on behalf of the Company or the Guarantor, and shall survive
delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement. (a) The Representa-
tives may terminate this Agreement, by notice to the Company and
the Guarantor, at any time at or prior to Closing Time (i) if
there has been, since the date of this Agreement or since the
respective dates as of which information is given in the
Registration Statement, any material adverse change in the
business or the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company
or of the Guarantor and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or any
outbreak of hostilities or escalation of hostilities or calamity
or crisis, the effect of which is such as to make it, in the
judgment of the Representatives, impracticable to market the
Securities or to enforce contracts for the sale of the
Securities, or (iii) if trading in the Securities has been
suspended by the Commission, or if trading generally on either
the American Stock Exchange or the New York Stock Exchange has
been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been
required, by either of said Exchanges or by order of the
Commission or any other governmental authority, or if a banking
moratorium has been declared by either Federal, New York or
Michigan authorities.
(b) If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party
to any other party except as provided in Section 4.
SECTION 10. Default by One or More of the Underwriters. If
one or more of the Underwriters shall fail at Closing Time to
purchase the Preferred Securities which it or they are obligated
to purchase under this Agreement and the Pricing Agreement (the
"Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Representatives
shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not
exceed 10% of the total number of Preferred Securities, the
non-defaulting Underwriters shall be obligated to purchase the
full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10%
of the Preferred Securities, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve
any defaulting Underwriter from liability in respect of its
default.
In the event of any such default which does not result
in a termination of this Agreement, either the Representatives or
the Company shall have the right to postpone Closing Time for a
period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any
other documents or arrangements.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed
to c/o Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated at Merrill Lynch World Headquarters, World
Financial Center, North Tower, New York, New York 10281-1201,
attention of Anthony V. Leness, Managing Director; notices to the
Company or the Guarantor shall be directed to them at MCN
Corporation, 500 Griswold Street, Detroit, Michigan 48226,
attention of Daniel L. Schiffer, Vice President, General Counsel
and Secretary.
SECTION 12. Parties. This Agreement and the Pricing Agree-
ment shall each inure to the benefit of and be binding upon the
Underwriters, the Company and the Guarantor and their respective
successors. Nothing expressed or mentioned in this Agreement or
the Pricing Agreement is intended or shall be construed to give
any person, firm or corporation, other than the Underwriters, the
Company and the Guarantor and their respective successors and the
controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of
this Agreement or the Pricing Agreement or any provision herein
or therein contained. This Agreement and the Pricing Agreement
and all conditions and provisions hereof and thereof are intended
to be for the sole and exclusive benefit of the Underwriters, the
Company and the Guarantor and their respective successors and
legal representatives, and said controlling persons and officers
and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No pur-
chaser of Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. Governing Law and Time. This Agreement and the
Pricing Agreement shall be governed by and construed in accord-
ance with the laws of the State of New York applicable to agree-
ments made and to be performed in said State. Specified times of
day refer to New York City time unless otherwise indicated.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us a
counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the
Underwriters, the Company and the Guarantor in accordance with
its terms.
Very truly yours,
MCN MICHIGAN LIMITED
PARTNERSHIP
By: MCN Corporation,
as general partner
By
___________________________
Name:
Title:
MCN CORPORATION
By
___________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SMITH BARNEY INC.
ROBERT W. BAIRD & CO. INCORPORATED
DEAN WITTER REYNOLDS INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
A.G. EDWARDS & SONS, INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: _____________________________
Authorized Signatory:
For themselves and as the Representatives of the
several Underwriters named in Schedule A hereto.
SCHEDULE A
Name of Underwriter Number of Shares
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . 525,000
Smith Barney Inc.. . . . . . . . . . 525,000
Robert W. Baird & Co. Incorporated . 525,000
Dean Witter Reynolds Inc. . . . . . . 525,000
Donaldson, Lufkin & Jenrette
Securities Corporation . . . . . 525,000
A.G. Edwards & Sons, Inc. . . . . . . 525,000
Bear, Stearns & Co. Inc. . . . . . . 50,000
Cowen & Company . . . . . . . . . . . 50,000
CS First Boston Corporation . . . . . 50,000
Dillon, Read & Co. Inc. . . . . . . . 50,000
First of Michigan Corporation . . . . 50,000
Kidder, Peabody & Co. Incorporated . 50,000
Ladenburg, Thalmann & Co. Inc. . . . 50,000
Legg Mason Wood Walker,
Incorporated . . . . . . . . . . 50,000
Lehman Brothers Inc. . . . . . . . . 50,000
Oppenheimer & Co., Inc. . . . . . . . 50,000
PaineWebber Incorporated . . . . . . 50,000
Piper Jaffray Inc. . . . . . . . . . 50,000
Prudential Securities Incorporated . 50,000
Raymond James & Associates, Inc. . . 50,000
Roney & Co. . . . . . . . . . . . . . 50,000
Salomon Brothers Inc. . . . . . . . . 50,000
Wertheim Schroder & Co.
Incorporated . . . . . . . . . . 50,000
_________
Total . . . . . . . . . . . . . . . . 4,000,000
_________
Exhibit A
4,000,000 PREFERRED SECURITIES
MCN MICHIGAN LIMITED PARTNERSHIP
(A MICHIGAN LIMITED PARTNERSHIP)
9 3/8% CUMULATIVE PREFERRED SECURITIES, SERIES A
(LIQUIDATION PREFERENCE $25 PER PREFERRED SECURITY)
GUARANTEED BY
MCN CORPORATION
(A MICHIGAN CORPORATION)
PRICING AGREEMENT
October 26, 1994
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SMITH BARNEY INC.
ROBERT W. BAIRD & CO. INCORPORATED
DEAN WITTER REYNOLDS INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
A.G. EDWARDS & SONS, INC.
as the Representatives of the several Underwriters
c/o MERRILL LYNCH & CO.
Merrill Lynch, Pierce Fenner & Smith Incorporated
Merrill Lynch World Headquarters
World Financial Center
New York, New York 10281-1209
Dear Sirs:
Reference is made to the Purchase Agreement, dated
October 26, 1994 (the "Purchase Agreement"), relating to the
purchase by the several Underwriters named in Schedule A thereto
of the above 9 3/8% Cumulative Preferred Securities, Series A
(liquidation preference $25 per Preferred Security) (the
"Preferred Securities"), of MCN Michigan Limited Partnership (the
"Company").
Pursuant to Section 2 of the Purchase Agreement, the
Company and the Guarantor agree with each Underwriter as follows:
1. The initial public offering price per Preferred
Security shall be $25.00.
2. The purchase price per Preferred Security to be
paid by the several Underwriters shall be $25.00, being an
amount equal to the initial public offering price set forth
above.
3. The compensation per Preferred Security to be paid
by the Guarantor to the several Underwriters in respect of
their commitments hereunder shall be $.7875; provided,
however, that the compensation per Preferred Security for
sales of 10,000 or more Preferred Securities to a single
purchaser shall be $.50.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us a
counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the
Underwriters and us in accordance with its terms.
Very truly yours,
MCN MICHIGAN LIMITED PARTNERSHIP
By: MCN Corporation, as general partner
By: __________________________________
Name:
Title:
MCN CORPORATION
By: __________________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SMITH BARNEY INC.
ROBERT W. BAIRD & CO. INCORPORATED
DEAN WITTER REYNOLDS INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
A.G. EDWARDS & SONS, INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: _______________________________________________
Authorized Signatory:
For themselves and as the Representatives of the
several Underwriters named in the Purchase Agreement.
