LACLEDE
GAS COMPANY
(a
Missouri corporation)
First
Mortgage Bonds, 6.35% Series due October 15, 2038
PURCHASE
AGREEMENT
Dated:
September 18, 2008
LACLEDE
GAS COMPANY
(a
Missouri corporation)
$80,000,000
First
Mortgage Bonds, 6.35% Series due October 15, 2038
PURCHASE
AGREEMENT
September
18, 2008
EDWARD D.
JONES & CO., L.P.
as
Representative of the several Underwriters
12555
Manchester Road
St.
Louis, Missouri 63131
Ladies
and Gentlemen:
Laclede
Gas Company, a Missouri corporation (the “Company”), confirms its agreement with
Edward D. Jones & Co., L.P. (“Edward Jones”) and each of the other
Underwriters named in Schedule A hereto (collectively, the “Underwriters,” which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom Edward Jones is acting as representative (in such
capacity, the “Representative”), with respect to the issue and sale by the
Company and the purchase by the Underwriters, acting severally and not jointly,
of the respective principal amounts set forth in said Schedule A of $80,000,000
aggregate principal amount of the Company’s First Mortgage Bonds, 6.35% Series
due October 15, 2038 (the “Securities”). If there are no Underwriters set forth
in Schedule A hereto other than Edward Jones, then the terms “Underwriters” and
“Representative” shall each be deemed to refer to Edward Jones. The Securities
are to be issued pursuant to the Company’s Mortgage and Deed of Trust dated as
of February 1, 1945, as amended and supplemented and as it will be further
amended and supplemented by the Thirtieth Supplemental Indenture relating to the
Securities to be dated as of September 15, 2008 (such further supplemental
indenture, the “Supplemental Indenture”), with UMB Bank & Trust, n.a. (who
is now acting, under the terms of such Mortgage and Deed of Trust, in place of
Mississippi Valley Trust Company), as trustee (the “Trustee”). Such Mortgage and
Deed of Trust, as so supplemented and to be supplemented by the Supplemental
Indenture, is hereinafter referred to as the “Mortgage.”
The
Company understands that the Underwriters propose to make a public offering of
the Securities as soon as the Representative deems advisable after this
Agreement has been executed and delivered.
The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a shelf registration statement on Form S-3 (No. 333-141439), including the
related preliminary prospectus or prospectuses, which registration statement has
become effective under the Securities Act of 1933, as amended (the “1933 Act”).
Such registration statement covers the registration of the Securities under the
1933 Act. Promptly after execution and delivery of this Agreement, the Company
will prepare and file a prospectus in accordance with the provisions of Rule
430B (“Rule 430B”) of the rules and regulations of the Commission under the 1933
Act (the “1933 Act Regulations”) and paragraph (b) of Rule 424 (“Rule 424(b)”)
of the 1933 Act Regulations. Any information included in such prospectus that
was omitted from such registration statement at the time it became effective but
that is deemed to be part of and
included
in such registration statement pursuant to Rule 430B is referred to as “Rule
430B Information.” Each prospectus used in connection with the offering of the
Securities that omitted Rule 430B Information is herein called a “preliminary
prospectus.” Such registration statement, at any given time, including the
amendments thereto to such time, the exhibits and any schedules thereto at such
time, the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act at such time and the documents otherwise deemed to
be a part thereof or included therein by the 1933 Act Regulations, is herein
called the “Registration Statement.” The Registration Statement at the time it
originally became effective is herein called the “Original Registration
Statement.” The final prospectus in the form first furnished to the Underwriters
for use in connection with the offering of the Securities, including the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act at the time of the execution of this Agreement and any
preliminary prospectuses that form a part thereof, is herein called the
“Prospectus.” For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system (“EDGAR”).
All
references in this Agreement to financial statements and schedules and other
information which is “contained,” “included” or “stated” in the Registration
Statement, any preliminary prospectus or the Prospectus (or other references of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by reference in or
otherwise deemed by 1933 Act Regulations to be a part of or included in the
Registration Statement, any preliminary prospectus or the Prospectus, as the
case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, any preliminary prospectus or the Prospectus
shall be deemed to mean and include the filing of any document under the
Securities Exchange Act of 1934, as amended (the “1934 Act”), which is
incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a
part of or included in the Registration Statement, such preliminary prospectus
or the Prospectus, as the case may be.
SECTION
1.
Representations and
Warranties
.
(a)
Representations and Warranties by
the Company
. The Company represents and warrants to each Underwriter as
of the date hereof, the Applicable Time referred to in Section 1(a)(i) hereof
and as of the Closing Time referred to in Section 2(b) hereof, and agrees with
each Underwriter, as follows:
(i)
Registration Statement,
Prospectus and Disclosure at Time of Sale
. No stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
At the
respective times the Original Registration Statement and each amendment thereto
became effective, at each deemed effective date with respect to the Underwriters
pursuant to Rule 430B(f)(2) of the 1933 Act Regulations and at Closing Time, the
Registration Statement complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and the Trust
Indenture Act of 1939, as amended (the “1939 Act”), and the rules and
regulations of the Commission under the 1939 Act (the “1939 Act Regulations”),
and did not 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.
Neither
the Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued and at Closing Time,
included or
will
include an untrue statement of a material fact or omitted or will omit 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.
Each
preliminary prospectus (including the prospectus or prospectuses filed as part
of the Original Registration Statement or any amendment thereto) complied when
filed with the Commission in all material respects with the 1933 Act Regulations
and each preliminary prospectus and the Prospectus delivered to the Underwriters
for use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
As of the
Applicable Time, neither (x) any Issuer General Use Free Writing Prospectus (as
defined below) issued at or prior to the Applicable Time (as defined below) and
the Statutory Prospectus (as defined below), all considered together
(collectively, the “General Disclosure Package”), nor (y) any individual Issuer
Limited Use Free Writing Prospectus (as defined below), when considered together
with the General Disclosure Package, included any untrue statement of a material
fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
As of the
time of the filing with the Commission of the Final Term Sheet (as defined in
Section 3(b) hereof), the General Disclosure Package, when considered together
with the Final Term Sheet, will not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
As used
in this subsection and elsewhere in this Agreement:
“Applicable
Time” means 11:10 a.m. (Eastern time) on September 18, 2008 or such other time
as agreed by the Company and Edward Jones.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities
that (i) is required to be filed with the Commission by the Company, (ii) is a
“road show that is a written communication” within the meaning of Rule
433(d)(8)(i), whether or not required to be filed with the Commission, or (iii)
is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a
description of the Securities or of the offering that does not reflect the final
terms, in each case in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g).
“Issuer
General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced
by its being specified in Schedule C hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing Prospectus.
“Statutory
Prospectus” as of any time means the prospectus relating to the Securities that
is included in the Registration Statement immediately prior to that time,
including any document incorporated by reference therein and any preliminary or
other prospectus deemed to be a part thereof.
Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Securities or until
any earlier date that the issuer notified or notifies Edward Jones as described
in Section 3(e) hereof, did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information contained in
the Registration Statement or the Prospectus, including any document
incorporated by reference therein and any preliminary or other prospectus deemed
to be a part thereof that has not been superseded or modified.
The
representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement (or any amendment thereto),
including the Rule 430B Information, any preliminary prospectus, the Prospectus
or any Issuer Free Writing Prospectus (A) made in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Edward Jones expressly for use therein or (B) that constitutes the
Statement of Eligibility on Form T-1 of the Trustee filed pursuant to the 1939
Act and the 1939 Act Regulations (the “Form T-1”).
(ii)
Incorporated
Documents
. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder (the “1934 Act Regulations”), and, when
read together with the other information in the Prospectus, (A) at the time the
Original Registration Statement became effective, (B) at the earlier of time the
Prospectus was first used and the date and time of the first contract of sale of
Securities in this offering and (C) at Closing Time, did not 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.
(iii)
Independent
Accountants
. The Company has determined, based upon, without limitation,
communications with Deloitte & Touche LLP, the accountants who certified the
financial statements and supporting schedules included in the Registration
Statement, that such accountants are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv)
Financial Statements
.
The financial statements included in the Registration Statement, the General
Disclosure Package and the Prospectus, together with the related schedules and
notes, present fairly the financial position of the Company at the dates
indicated and the statement of operations, stockholder’s equity and cash flows
of the Company for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles (“GAAP”)
applied on a consistent basis throughout the periods involved, except as
otherwise set forth therein. The supporting schedules, if any, present fairly in
accordance with GAAP the information required to be stated therein. The selected
financial data and the summary financial information included in the Prospectus
present fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement.
(v)
No Material Adverse Change
in Business
. Since the respective dates as of which information is given
in the Registration Statement, the General Disclosure Package or 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, whether or not arising in the
ordinary course of business (a “Material Adverse Effect”), (B) there have been
no transactions entered into by the Company, other than those in the
ordinary
course of business, which are material with respect to the Company, and (C)
except for regular quarterly dividends on the common stock, par value $1.00 per
share, and preferred stock, par value $25.00 per share, of the Company 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 Company on
any class of its capital stock.
(vi)
Good Standing of the
Company
. The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Missouri and has
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing in each
other 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 so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(vii)
Subsidiaries
. The
Company has no subsidiaries.
(viii)
Capitalization
. The
Company’s authorized equity capitalization is as set forth in the Prospectus.
The shares of issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any securityholder of the
Company.
(ix)
Authorization of
Agreement
. This Agreement has been duly authorized, executed and
delivered by the Company. The Company has all requisite power and authority to
execute, deliver and perform its obligations under the Agreement.
(x)
Authorization of the
Mortgage
. The Mortgage has been duly and validly authorized by all
necessary corporate action of the Company and duly qualified under the 1939 Act
and, when duly executed and delivered by the Company and the Trustee, will
constitute a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement thereof may be
limited by certain laws and judicial decisions of the United States of America
and the State of Missouri (where the property covered thereby is located)
affecting the remedies for the enforcement of the security provided for therein,
which laws do not make inadequate the remedies necessary for the realization of
the benefits of such security, and subject to the effects of bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(xi)
Authorization of the
Securities
. The Securities have been duly authorized and, at Closing
Time, will have been duly executed by the Company and, when authenticated,
issued and delivered in the manner provided for in the Mortgage and delivered
against payment of the purchase price therefor as provided in this Agreement,
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors’ rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law), and will
be in the form contemplated by, and entitled to the benefit and
security
of, the Mortgage equally and ratably (except as set forth in the Securities)
with the bonds of other series now outstanding under the
Mortgage.
(xii)
Description of the
Securities and the Mortgage
. The Securities and the Mortgage will conform
in all material respects to the respective statements relating thereto contained
in the Prospectus and will be in substantially the respective forms filed or
incorporated by reference, as the case may be, as exhibits to the Registration
Statement.
(xiii)
Absence of Defaults and
Conflicts
. The Company is not in violation of its charter or by-laws or
in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or instrument to
which it is a party or by which it may be bound, or to which any of its property
or assets is subject (collectively, “Agreements and Instruments”), except for
such defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, the Mortgage and the
Securities and the consummation of the transactions contemplated herein and in
the Registration Statement (including the issuance and sale of the Securities
and the use of the proceeds from the sale of the Securities as described in the
Prospectus under the caption “Use of Proceeds”) and compliance by the Company
with its obligations hereunder and under the Mortgage and the Securities have
been duly authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien (other
than lien of the Mortgage), charge or encumbrance upon any property or assets of
the Company pursuant to, the Agreements and Instruments (except for such
conflicts, breaches, defaults or Repayment Events or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or by-laws of
the Company or any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any of its assets,
properties or operations. As used herein, a “Repayment Event” means any event or
condition which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness
by the Company.
(xiv)
Absence of Labor
Dispute
. No labor dispute with the employees of the Company exists or, to
the knowledge of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its principal
suppliers, manufacturers, customers or contractors, which, in either case, would
result in a Material Adverse Effect.
(xv)
Absence of
Proceedings
. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company, which is required to be disclosed
in the Registration Statement (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the properties or
assets thereof or the consummation of the transactions contemplated in this
Agreement or the performance by the Company of its obligations hereunder; the
aggregate of all pending legal or governmental proceedings to which the Company
is a party or of which any of its property or assets is the subject which are
not described in the Registration Statement, including ordinary routine
litigation
incidental to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(xvi)
Accuracy of Exhibits
.
There are no contracts or documents which are required to be described in the
Registration Statement, the Prospectus or the documents incorporated by
reference therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xvii)
Possession of Intellectual
Property
. The Company owns or possesses, or can acquire on reasonable
terms, adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks,
service marks, trade names or other intellectual property (collectively,
“Intellectual Property”) necessary to carry on the business now operated by it,
and the Company has not received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the
Company therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or
in the aggregate, would result in a Material Adverse Effect.
(xviii)
Absence of
Manipulation
. The Company has not taken and will not take, directly or
indirectly, any action which is designed to or which has constituted or which
would be expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities.
(xix)
Absence of Further
Requirements
. The Missouri Public Service Commission of the State of
Missouri (the “MPSC”) has issued orders authorizing the issuance and sale of the
Securities, which orders are in full force and effect; and no other filing with,
or authorization, approval, consent, license, order, registration, qualification
or decree of, any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the Securities hereunder or
the consummation of the transactions contemplated by this Agreement or for the
due execution, delivery or performance of the Mortgage by the Company, except
such as have been already obtained or as may be required under the 1933 Act or
the 1933 Act Regulations or state securities laws and except such as have been
already obtained for the qualification of the Mortgage under the 1939
Act.
(xx)
Possession of Licenses and
Permits
. The Company possesses such permits, licenses, approvals,
consents and other authorizations (collectively, “Governmental Licenses”) issued
by the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by it, except where the
failure so to possess would not, singly or in the aggregate, result in a
Material Adverse Effect; the Company is in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so to
comply would not, singly or in the aggregate, result in a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not, singly or in the
aggregate, result in a Material Adverse Effect; the Company has not received any
notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(xxi)
Title to Property
.
The Company has good and sufficient title to the properties described as owned
by it in and as subject to the lien of the Mortgage, subject only to excepted
encumbrances as defined in the Mortgage and all other restrictions, exceptions,
defects and limitations of title as permitted under the Mortgage to the extent
they do not materially impair the Company’s use of its properties in its
business (collectively, the “Exceptions”); subject to Section 1(a)(xxii) hereof,
the description of such properties set forth in the Mortgage is adequate to
constitute the Mortgage a lien thereon and the Mortgage, subject only to the
Exceptions, constitutes a valid, direct and first mortgage lien upon such
properties, which include substantially all of the permanent physical properties
and Franchises (as defined below) (other than those expressly excepted in the
Mortgage); all permanent physical properties and Franchises (other than those
expressly excepted in or released from the Mortgage) that have been or hereafter
may be acquired by the Company after the date of the Supplemental Indenture have
become or, upon such acquisition, will become subject to the lien of the
Mortgage, subject, however, to the Exceptions and except as limited by
bankruptcy law. As used herein, “Franchises” mean all franchises of the Company
in or relating to real estate or the occupancy of lands to the extent the
granting of a lien or mortgage thereon is permitted by applicable
law.
(xxii)
Status of Lien
. Upon
the recordation of the Supplemental Indenture in the office of the Secretary of
State of the State of Missouri pursuant to Section 443.451 of the Missouri
Revised Statutes, the lien created by the Supplemental Indenture will become
effective as to and enforceable against third parties; and all permanent
physical properties and Franchises (other than those expressly excepted in or
released from the Mortgage) presently owned by the Company are subject to the
lien of the Mortgage, subject to the Exceptions.
(xxiii)
Investment Company
Act
. The Company is not required, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be required, to register as an
“investment company” under the Investment Company Act of 1940, as amended (the
“1940 Act”).
(xxiv)
Environmental Laws
.
Except as described in the Registration Statement and except as would not,
singly or in the aggregate, result in a Material Adverse Effect, (A) the Company
is not in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products, asbestos-containing
materials or mold (collectively, “Hazardous Materials”) or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the
Company has all permits, authorizations and approvals required under any
applicable Environmental Laws and is in compliance with their requirements, (C)
there are no pending or threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of noncompliance
or violation, investigation or proceedings relating to any Environmental Law
against the Company and (D) there are no events or circumstances that would
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company relating to
Hazardous Materials or any Environmental Laws.
(xxv)
Accounting Controls and
Disclosure Controls
. The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management’s general or specific
authorization; (B) transactions are recorded as necessary to permit preparation
of financial statements in conformity with GAAP and to maintain accountability
for assets; (C) access to assets is permitted only in accordance with
management’s general or specific authorization; and (D) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
Except as described in the Prospectus, since the end of the Company’s most
recent audited fiscal year, (1) the Company has not identified any material
weakness in the Company’s internal control over financial reporting (whether or
not remediated) and (2) there has been no change in the Company’s internal
control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control over financial
reporting.
The
Company employs disclosure controls and procedures that are designed to ensure
that information required to be disclosed by the Company in the reports that it
files or submits under the 1934 Act is recorded, processed, summarized and
reported, within the time periods specified in the Commission’s rules and forms,
and is accumulated and communicated to the Company’s management, including its
principal executive officer or officers and principal financial officer or
officers, as appropriate, to allow timely decisions regarding
disclosure.
(xxvi)
Compliance with the
Sarbanes-Oxley Act
. There is and has been no failure on the part of the
Company or any of the Company’s directors or officers, in their capacities as
such, to comply in all material respects with any provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith, including Section 402 thereof related to loans and
Sections 302 and 906 thereof related to certifications.
(xxvii)
Pending Proceedings and
Examinations
. The Registration Statement is not the subject of a pending
proceeding or examination under Section 8(d) or 8(e) of the 1933 Act, and the
Company is not the subject of a pending proceeding under Section 8A of the 1933
Act in connection with the offering of the Securities.
(xxviii)
Taxes
. All material
United States federal income tax returns of the Company required by law to be
filed have been filed and all taxes shown by such returns or otherwise assessed,
which are due and payable, have been paid, except assessments against which
appeals have been or will be promptly taken and as to which adequate reserves
have been provided. The Company has filed all other tax returns that
are required to have been filed by it pursuant to applicable foreign, federal,
state, local or other law except insofar as the failure to file such returns
would not reasonably be expected to result in a Material Adverse Effect, and has
paid all taxes due pursuant to such returns or pursuant to any assessment
received by the Company, except for such taxes, if any, as are being contested
in good faith and by appropriate proceedings and as to which adequate reserves
have been provided. The charges, accruals and reserves on the books
of the Company in respect of all federal, state, local and foreign tax
liabilities of the Company for any years not finally determined are adequate to
meet any assessments or reassessments for additional income tax for any years
not finally determined, except to the extent of any inadequacy that would not
reasonably be expected to result in a Material Adverse Effect.
(xxix)
Insurance
. The
Company is insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as the Company reasonably believes is
prudent and customary in the business in which it is engaged; the Company has
not been refused any insurance coverage sought or applied for, except for any
such refusal that would
not
reasonably be expected to result in a Material Adverse Effect; and the Company
has no reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business at a
cost that would not reasonably be expected to result in a Material Adverse
Effect.
(b)
Officer’s Certificates
. Any
certificate signed by any officer of the Company delivered to the Representative
or to counsel for the Underwriters shall be deemed a representation and warranty
by the Company to each Underwriter as to the matters covered
thereby.
SECTION
2.
Sale and Delivery to
Underwriters; Closing
.
(a)
Securities
. 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 set forth in Schedule B, the
aggregate principal amount of Securities set forth in Schedule A opposite the
name of such Underwriter, plus any additional principal amount of Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b)
Payment
. Payment of the
purchase price for, and delivery of certificates for, the Securities shall be
made at the offices of Pillsbury Winthrop Shaw Pittman LLP, 1540 Broadway, New
York, New York 10036, or at such other place as shall be agreed upon by the
Representative and the Company, at 9:00 a.m. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 p.m. (Eastern time) on any given day)
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10 hereof), or such other time not later than ten business
days after such date as shall be agreed upon by the Representative and the
Company (such time and date of payment and delivery being herein called “Closing
Time”).
Payment
shall be made to the Company by wire transfer of immediately available funds to
a bank account designated by the Company, against delivery to the Representative
for the respective accounts of the Underwriters of certificates for the
Securities to be purchased by them. It is understood that each Underwriter has
authorized the Representative, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Securities which it has
agreed to purchase. Edward Jones, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Securities to be purchased by any Underwriter whose funds have not
been received by Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(c)
Denominations; Registration
.
Certificates for the Securities shall be in such denominations ($1,000 or
integral multiples thereof) and registered in such names as the Representative
may request in writing at least one full business day before Closing Time. The
Securities will be made available for examination and packaging by the
Representative in the City of New York not later than 10:00 a.m. (Eastern time)
on the business day prior to Closing Time.
SECTION
3.
Covenants of the
Company
. The Company covenants with each Underwriter as
follows:
(a)
Compliance with Securities
Regulations and Commission Requests; Payment of Filing Fees
. The Company,
subject to Section 3(b) hereof, will comply with the requirements of Rule 430B
and will notify the Representative immediately, and confirm the notice in
writing, (i) when any post-effective
amendment
to the Registration Statement or new registration statement relating to the
Securities shall become effective, or any supplement to the Prospectus or any
amended Prospectus shall have been filed, (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 the filing of a new registration statement or any
amendment or supplement to the Prospectus or any document incorporated by
reference therein or otherwise deemed to be a part thereof or for additional
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or such new registration
statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes or of any examination pursuant to Section
8(e) of the 1933 Act concerning the Registration Statement and (v) if the
Company becomes the subject of a proceeding under Section 8A of the 1933 Act in
connection with the offering of the Securities. The Company will effect the
filings required under Rule 424(b), in the manner and within the time period
required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such
steps as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company 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)
Filing of Amendments and 1934 Act
Documents; Preparation of Final Term Sheet
. The Company will give the
Representative notice of its intention to file or prepare any amendment to the
Registration Statement or new registration statement or any amendment,
supplement or revision to either any preliminary prospectus (including any
prospectus included in the Original Registration Statement or amendment thereto
at the time it became effective) or to the Prospectus, whether pursuant to the
1933 Act, the 1934 Act or otherwise, in each case relating to the Securities,
and the Company will furnish the Representative with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to which the
Representative or counsel for the Underwriters shall object. The Company has
given the Representative notice of any filings made pursuant to the 1934 Act or
1934 Act Regulations within 48 hours prior to the Applicable Time; the Company
will give the Representative notice of its intention to make any such filing
from the Applicable Time to Closing Time and will furnish the Representative
with copies of any such documents a reasonable amount of time prior to such
proposed filing and will not file or use any such document to which the
Representative or counsel for the Underwriters shall object. The Company will
prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms
of the Securities, substantially in the form attached as Schedule D hereto, and
shall file the Final Term Sheet as an “issuer free writing prospectus” pursuant
to Rule 433 prior to the close of business two business days after the date
hereof; provided that the Company shall furnish the Representative with copies
of any the Final Term Sheet a reasonable amount of time prior to such proposed
filing and will not use or file any such document to which the Representative or
counsel to the Underwriters shall object.
(c)
Delivery of Registration
Statements
. The Company has furnished or will deliver to the
Representative and counsel for the Underwriters, without charge, signed copies
of the Original Registration Statement 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 or otherwise
deemed to be a part thereof) and signed copies of all consents and certificates
of experts, and will also deliver to the Representative, without charge, a
conformed copy of the Original Registration Statement and of each amendment
thereto (without exhibits) for each of the Underwriters. The copies of the
Original Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(d)
Delivery of Prospectuses
. The
Company has delivered to each Underwriter, without charge, as many copies of
each preliminary prospectus as such Underwriter reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will furnish to each Underwriter, without charge, during
the period when the Prospectus is required to be delivered under the 1933 Act,
such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(e)
Continued Compliance with Securities
Laws
. The Company will comply with the 1933 Act and the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the
1939 Act Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Prospectus. If at any
time when a prospectus is required by the 1933 Act to be delivered in connection
with sales of the Securities, any event shall occur or condition shall exist as
a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or to file a new registration statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b) hereof, such amendment, supplement or
new registration statement as may be necessary to correct such statement or
omission or to comply with such requirements, the Company will use its best
efforts to have such amendment or new registration statement declared effective
as soon as practicable (if it is not an automatic shelf registration statement
with respect to the Securities) and the Company will furnish to the Underwriters
such number of copies of such amendment, supplement or new registration
statement as the Underwriters may reasonably request. If at any time following
issuance of an Issuer Free Writing Prospectus there occurred or occurs an event
or development as a result of which such Issuer Free Writing Prospectus
conflicted or would conflict with the information contained in the Registration
Statement (or any other registration statement relating to the Securities) or
the Statutory Prospectus or any preliminary prospectus or included or would
include an untrue statement of a material fact or omitted or would omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances prevailing at that subsequent time, not misleading, the
Company will promptly notify Edward Jones and will promptly amend or supplement,
at its own expense, such Issuer Free Writing Prospectus to eliminate or correct
such conflict, untrue statement or omission.
(f)
Blue Sky Qualifications
. The
Company will use its best efforts, in cooperation with the Underwriters, to
qualify the Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions as the Representative may designate
and to maintain such qualifications in effect for a period of not less than one
year from the date hereof; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or so subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. The
Company will also supply the Underwriters with such information as is necessary
for the determination of the legality of the Securities for investment under the
laws of such jurisdictions as the Underwriters may request.
(g)
Rule 158
. The Company will
timely file such reports pursuant to the 1934 Act as are necessary in order to
make generally available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide to the Underwriters the
benefits contemplated by, the last
paragraph
of Section 11(a) of the 1933 Act, including by complying with Rule 158 of the
1933 Act Regulations.
(h)
Use of Proceeds
. The Company
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)
Restriction on Sale of
Securities
. Until the earlier to occur of (i) Closing Time and (ii) the
date of the termination of the fixed price offering restrictions applicable to
the Underwriters, the Company will not, without the prior written consent of
Edward Jones, directly or indirectly, issue, sell, offer or contract to sell,
grant any option for the sale of, or otherwise transfer or dispose of, any debt
securities of the Company (other than commercial paper issuances made in the
ordinary course of the Company’s business).
(j)
Reporting Requirements
. The
Company, during the period when the Prospectus is required to be delivered under
the 1933 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
SECTION
3A.
Issuer Free Writing
Prospectuses
. The Company represents and agrees that, unless it obtains
the prior consent of the Representative, and each Underwriter represents and
agrees that, unless it obtains the prior consent of the Company and the
Representative, it has not made and will not make any offer relating to the
Securities that would constitute an “issuer free writing prospectus,” as defined
in Rule 433, or that would otherwise constitute a “free writing prospectus,” as
defined in Rule 405, required to be filed with the Commission; provided,
however, that prior to the preparation of the Final Term Sheet in accordance
with Section 3(b) hereof, the Underwriters are authorized to use the information
with respect to the final terms of the Securities in communications conveying
information relating to the offering to investors. Any such free writing
prospectus consented to by the Company and the Representative is hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Company represents
that it has treated or agrees that it will treat each Permitted Free Writing
Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and
has complied and will comply with the requirements of Rule 433 applicable to any
Permitted Free Writing Prospectus, including timely filing with the Commission
where required, legending and record keeping.
SECTION
4.
Payment of
Expenses
.
(a)
Expenses
. The Company will
pay all expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters, the Mortgage and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, (iv) the fees and disbursements of the
Company’s counsel, accountants and other advisors, (v) the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the reasonable fees, not to exceed
$3,500, and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey and any
supplement thereto, (vi) the printing and delivery to the Underwriters of copies
of each preliminary prospectus, any Permitted Free Writing Prospectus and of the
Prospectus and any amendments or supplements thereto and any costs associated
with electronic delivery of any of the foregoing by the Underwriters to
investors, (vii) the preparation, printing and delivery to the Underwriters of
copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee
in
connection with the Mortgage and the Securities, (ix) the costs and expenses of
the Company relating to investor presentations on any “road show” undertaken in
connection with the marketing of the Securities, including, without limitation,
expenses associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road show
presentations, travel and lodging expenses of the representatives and officers
of the Company and any such consultants, and the cost of aircraft and other
transportation chartered in connection with the road show and (x) any fees
payable in connection with the rating of the Securities. Except as set forth in
this Section 4(a) and Section 4(b) hereof, all fees and disbursements of counsel
for the Underwriters shall be paid by the Underwriters.
(b)
Termination of Agreement
. If
this Agreement is terminated by the Representative in accordance with the
provisions of Section 5 or Section 9(a)(i) hereof, the Company 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 several Underwriters hereunder are
subject to the accuracy of the representations and warranties of the Company
contained in Section 1 hereof or in certificates of any officer of the Company
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a)
Effectiveness of Registration
Statement; Filing of Prospectus; Payment of Filing Fee
. The Registration
Statement has become effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430B Information shall have been
filed with the Commission in the manner and within the time period required by
Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment
providing such information shall have been filed and become effective in
accordance with the requirements of Rule 430B).
(b)
Opinion of Counsel for
Company
. At Closing Time, the Representative shall have received the
favorable opinion, dated as of Closing Time, of Mark C. Darrell, Esq., Senior
Vice President and General Counsel of the Company, together with signed or
reproduced copies of such letter for each of the other Underwriters, in form and
substance to the effect set forth in Exhibit A hereto and to such further effect
as counsel to the Underwriters may reasonably request.
(c)
Opinion of Counsel for
Underwriters
. At Closing Time, the Representative shall have received the
favorable opinion, dated as of Closing Time, of Pillsbury Winthrop Shaw Pittman
LLP, counsel for the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters with respect to the matters set
forth in paragraphs 5, 6, 7, 8, 11 and 12 and in clauses (a)(i) and (b) of the
sixth to the last paragraph of Exhibit A hereto. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York and the federal law of the United States,
upon the opinions of counsel satisfactory to the Representative. Such counsel
may also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and certificates of public officials.
(d)
Officers’ Certificate
. 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 Prospectus or the
General Disclosure Package, any material adverse change in the condition,
financial or otherwise, or in the earnings, business
affairs
or business prospects of the Company, whether or not arising in the ordinary
course of business, and the Representative shall have received a certificate of
the President or a Vice President of the Company and of the chief financial or
chief accounting officer of the Company, 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(a) hereof are true and correct with
the same force and effect as though expressly made at and as of Closing Time,
(iii) the Company has complied with all agreements and satisfied all conditions
on its 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 instituted or are pending
or, to their knowledge, contemplated by the Commission.
(e)
Accountant’s Comfort Letter
.
At the time of the execution of this Agreement, the Representative shall have
received from Deloitte & Touche LLP a letter dated such date, in form and
substance satisfactory to the Representative, together with signed or reproduced
copies of such letter for each of the other Underwriters containing statements
and information of the type ordinarily included in accountants’ “comfort
letters” to underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus.
(f)
Bring-down Comfort Letter
. At
Closing Time, the Representative 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 Section 5(e) hereof, except
that the specified date referred to shall be a date not more than three business
days prior to Closing Time.
(g)
Maintenance of Rating
. At
Closing Time, the Securities shall be rated at least “A3” by Moody’s Investor’s
Service Inc., “A” by Standard & Poor’s Ratings Group, a division of
McGraw-Hill, Inc., and A+ by Fitch Ratings and the Company shall have delivered
to the Representative a letter dated as of Closing Time, from each such rating
agency, or other evidence satisfactory to the Representative, confirming that
the Securities have such ratings; and since the date of this Agreement, (i)
there shall not have occurred a downgrading in the rating assigned to the
Securities or any of the Company’s other debt securities by any “nationally
recognized statistical rating agency,” as that term is defined by the Commission
for purposes of Rule 436(g)(2) of the 1933 Act Regulations, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review its rating of the Securities or any of the Company’s other debt
securities.
(h)
Additional Documents
. 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, 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 in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to the
Representative and counsel for the Underwriters.
(i)
Termination of Agreement
. 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
Representative 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 hereof and except that Sections 1, 6, 7 and 8
hereof shall survive any such termination and remain in full force and
effect.
SECTION
6.
Indemnification
.
(a)
Indemnification of
Underwriters
. The Company agrees to indemnify and hold harmless each
Underwriter, its affiliates, as such term is defined in Rule 501(b) of the 1933
Act Regulations (each,
an
“Affiliate”), its selling agents and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 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 Rule 430B Information, 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, any Issuer Free Writing 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; provided that
(subject to Section 6(d) hereof) any such settlement is effected with the
written consent of the Company;
(iii)
against
any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by Edward Jones), 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 (A) made in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter through Edward Jones expressly for use in the Registration Statement
(or any amendment thereto), including the Rule 430B Information or any
preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or
any amendment or supplement thereto) or (B) that constitutes the Form
T-1.
(b)
Indemnification of Company,
Directors and Officers
. Each Underwriter severally, and not jointly,
agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, its affiliates and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section 6(a) hereof,
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), including the Rule 430B Information or any preliminary
prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Edward Jones
expressly for use therein.
(c)
Actions against Parties;
Notification
. 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 hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have
otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) hereof, counsel to the indemnified parties shall be
selected by Edward Jones, and, in the case of parties indemnified pursuant to
Section 6(b) hereof, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. 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. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d)
Settlement without Consent if
Failure to Reimburse
. If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 6(a)(ii) hereof effected
without its written consent if (i) such settlement is entered into more than 90
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 75 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such
settlement.
SECTION
7.
Contribution
. If the
indemnification provided for in Section 6 hereof is for any reason unavailable
to or insufficient to hold harmless an indemnified party in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Securities pursuant to
this Agreement shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of the Securities pursuant to this
Agreement (before deducting expenses) received by the Company and the total
underwriting discount received by the Underwriters, in each case as set forth on
the cover of the Prospectus bear to the aggregate initial public offering price
of the Securities as set forth on the cover of the Prospectus.
The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 7. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party 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 or alleged untrue
statement or omission or alleged omission.
Notwithstanding
the provisions of this Section 7, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
For
purposes of this Section 7, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
and each Underwriter’s Affiliates and selling agents shall have the same rights
to contribution as such Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company. The Underwriters’ respective obligations to contribute pursuant to
this Section 7 are several in proportion to the principal amount of Securities
set forth opposite their respective names in Schedule A hereto and not
joint.
SECTION
8.
Representations, Warranties
and Agreements to Survive
. All representations, warranties and agreements
contained in this Agreement or in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of any Underwriter or
its Affiliates or selling agents, any person controlling any Underwriter, its
officers or directors or any person controlling the Company and (ii) delivery of
and payment for the Securities.
SECTION
9.
Termination of
Agreement
.
(a)
Termination; General
. The
Representative may terminate this Agreement, by notice to the Company, at any
time at or prior to Closing Time (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus (exclusive of any supplement thereto) or
the General Disclosure Package, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company, 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 the international financial markets,
any outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representative,
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission, the New York
Stock Exchange or the American Stock Exchange, or if trading generally on
the New
York Stock Exchange, the American Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
Financial Industry Regulatory Authority or any other governmental authority, or
a material disruption has occurred in commercial banking or securities
settlement, or (iv) a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States, or (v) if a
banking moratorium has been declared by Federal, New York or Missouri
authorities.
(b)
Liabilities
. 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 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
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 Securities which it or they are obligated to
purchase under this Agreement (the “Defaulted Securities”), the Representative
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
Representative 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 aggregate principal
amount of the Securities to be purchased hereunder, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, 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 aggregate principal amount of
the Securities to be purchased hereunder, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the
Company.
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 Representative 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. As used herein, the term “Underwriter” includes any
person substituted for an Underwriter under this Section 10.
SECTION
11.
Tax Disclosure
.
Notwithstanding any other provision of this Agreement, immediately upon
commencement of discussions with respect to the transactions contemplated
hereby, the Company (and each employee, representative or other agent of the
Company) may disclose to any and all persons, without limitation of any kind,
the tax treatment and tax structure of the transactions contemplated by this
Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided to the Company relating to such tax treatment and
tax structure. For purposes of the foregoing, the term “tax treatment” is the
purported or claimed federal income tax treatment of the transactions
contemplated hereby, and the term “tax structure” includes any fact that may be
relevant to understanding the purported or claimed federal income tax treatment
of the transactions contemplated hereby.
SECTION
12.
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 the
Representative at 12555 Manchester Road, St. Louis, Missouri 63131, attention of
Kevin E. Sprouse, General Partner – Investment Banking; and notices to the
Company shall be directed to it at 720 Olive Street, St. Louis, Missouri 63101,
attention of Mark D. Waltermire, Senior Vice President and Chief Financial
Officer.
SECTION
13.
No Advisory or Fiduciary
Relationship
. The Company acknowledges and agrees that (a) the purchase
and sale of the Securities pursuant to this Agreement, including the
determination of the public offering price of the Securities and any related
discounts and commissions, is an arm’s-length commercial transaction between the
Company, on the one hand, and the several Underwriters, on the other hand, (b)
in connection with the offering contemplated hereby and the process leading to
such transaction each Underwriter is and has been acting solely as a principal
and is not the agent or fiduciary of the Company, or its stockholder, creditors,
employees or any other party, (c) no Underwriter has assumed or will assume an
advisory or fiduciary responsibility in favor of the Company with respect to the
offering contemplated hereby or the process leading thereto (irrespective of
whether such Underwriter has advised or is currently advising the Company on
other matters) and no Underwriter has any obligation to the Company with respect
to the offering contemplated hereby except the obligations expressly set forth
in this Agreement, (d) the Underwriters and their respective affiliates may be
engaged in a broad range of transactions that involve interests that differ from
those of the Company, and (e) the Underwriters have not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated
hereby and the Company has consulted its own legal, accounting, regulatory and
tax advisors to the extent it deemed appropriate.
SECTION
14.
Integration
. This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
SECTION
15.
Parties
. This
Agreement shall each inure to the benefit of and be binding upon the
Underwriters and the Company and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, 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 purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION
16.
GOVERNING LAW
. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
SECTION
17.
TIME
. TIME SHALL BE
OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN,
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION
18.
Counterparts
. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same Agreement.
SECTION
19.
Effect of Headings
.
The Section headings herein are for convenience only and shall not affect the
construction hereof.
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between the Underwriters
and the Company in accordance with its terms. It is understood that Edward Jones
is acting on behalf of each of the other Underwriters pursuant to the authority
set forth in a Master Agreement Among Underwriters, a copy of which has been
submitted to the Company, but without warranty on its part as to the authority
of the other signers thereof.
Very truly
yours,
LACLEDE GAS
COMPANY
|
|
Title:
Chairman of the Board, President
& Chief Executive Officer
|
CONFIRMED
AND ACCEPTED,
as of the
date first above written:
EDWARD D.
JONES & CO., L.P.
By
/s/ Kevin E.
Sprouse
Authorized
Signatory
For
itself and as Representative of the other Underwriters named in Schedule A
hereto.
Purchase
Agreement - Signature Page
SCHEDULE
A
Name of
Underwriter
|
|
Principal
Amount
of
Securities
|
|
|
|
|
|
Edward
D. Jones & Co.,
L.P.
|
|
$80,000,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$80,000,000
|
|
SCHEDULE
B
1.
The
purchase price to be paid by the Underwriters for the Securities shall be 96.85%
of the principal amount thereof.
2.
The
interest rate on the Securities shall be 6.35% per annum.
SCHEDULE
C
Final
Term Sheet dated September 18, 2008
SCHEDULE
D
September
18, 2008
LACLEDE
GAS COMPANY
$80,000,000
First Mortgage Bonds, 6.35% Series due October 15, 2038
Term
Sheet
|
Company:
|
Laclede
Gas Company
|
|
|
|
|
Security:
|
First
Mortgage Bonds
|
|
|
|
|
Maturity
Date:
|
October
15, 2038
|
|
|
|
|
Redemption at Company's
Option:
|
At
any time on or after October 15, 2013 at 100% of the principal amount plus
interest
|
|
|
|
|
Expected
Ratings*:
|
A3
by Moody’s/A by S&P/A+ by Fitch
|
|
|
|
|
Coupon:
|
6.35%
per annum, payable monthly
|
|
|
|
|
Size:
|
$80,000,000
|
|
|
|
|
Proceeds to
Company:
|
96.85%
of the principal amount ($968.50 per bond)
|
|
|
|
|
Expected Settlement
Date:
|
September
23, 2008
|
|
|
|
|
Underwriter:
|
Edward
D. Jones & Co., L.P.
|
The
Company has filed a registration statement (including a prospectus) with the SEC
for the offering to which this communication relates. Before you
invest, you should read the prospectus in that registration statement and other
documents the Company has filed with the SEC for more complete information about
the Issuer and this offering. You may get these documents for free by
visiting EDGAR on the SEC website at www.sec.gov. Alternatively,
Edward D. Jones & Co., L.P. will arrange to send you the prospectus if you
request it by calling Edward D. Jones & Co., L.P. toll-free at
1-800-441-2357.
*
|
A
securities rating is not a recommendation to buy, sell or hold securities
and should be evaluated independently of any other rating. The
rating is subject to revision or withdrawal at any time by the assigning
rating organization.
|
Exhibit
A
[Opinion
of Mark C. Darrell, Esq.]
[Letterhead
of the Company]
September
__, 2008
EDWARD D.
JONES & CO., L.P.
as
Representative of the several Underwriters
12555
Manchester Road
St.
Louis, Missouri 63131
Ladies
and Gentlemen:
I am
Senior Vice President and General Counsel of Laclede Gas Company (the “Company”)
and have acted in that capacity in connection with the issuance and sale by the
Company of $80,000,000 in aggregate principal amount of the Company’s First
Mortgage Bonds, 6.35% Series due October 15, 2038 (the “Securities”), pursuant
to the Purchase Agreement dated September 18, 2008 between the several
Underwriters named in Schedule A thereto (collectively, the “Underwriters”), for
whom you are acting as representative, and the Company (the “Purchase
Agreement”). The Securities are being issued under the Mortgage and Deed of
Trust dated as of February 1, 1945, as amended and supplemented by all
supplemental indentures thereto, the latest of which is the Thirtieth
Supplemental Indenture relating to the Securities dated as of September 15, 2008
(the “Supplemental Indenture”), between UMB Bank & Trust, n.a. (successor to
Mississippi Valley Trust Company), as trustee (the “Trustee”), and the Company
(as so amended and supplemented, the “Mortgage”). This letter is delivered to
you pursuant to Section 5(b) of the Purchase Agreement.
I am
familiar with the Restated Articles of Incorporation and the Bylaws, as
currently in effect, of the Company (the “Articles” and the “Bylaws,”
respectively) and the records of various corporate and other proceedings,
including the actions taken by the Company’s Board of Directors relating to the
authorization, issuance and sale of the Securities. I have reviewed: (a) the
Purchase Agreement; (b) the Mortgage, including the Supplemental Indenture; (c)
the Registration Statement on Form S-3 (File No. 333-141439) [describe any
amendment thereto, if applicable] (the “Registration Statement”) filed
by the
Company to register the Securities with the Securities and Exchange Commission
(the “Commission”) under the Securities Act of 1933, as amended (the “1933
Act”), which is deemed to incorporate by reference the 1934 Act Documents (as
defined below); (d) the Prospectus dated April 10, 2007, as supplemented by the
Prospectus Supplement dated September 18, 2008 [describe any amendment thereto,
if applicable], relating to the offer and sale of the Securities (as so
supplemented, the “Prospectus”) filed
by the
Company with the Commission pursuant to Rule 424(b) under the 1933 Act, which
also is deemed to incorporate by reference the 1934 Act Documents; (e) the final
term sheet reflecting the final terms of the Securities (the “Final Term Sheet”)
filed by the Company with the Commission as an “issuer free writing prospectus”
pursuant to Rule 433 under the 1933 Act; (f) the Statutory Prospectus (as
defined in the Purchase Agreement), together with the Final Term Sheet [insert
other applicable free writing prospectuses] (the “General Disclosure Package”);
and (g) the proceedings before the Missouri Public Service Commission (the
“MPSC”) for authority to issue and sell the Securities, including the orders
entered by the MPSC with respect thereto (the “MPSC Orders”).
I have
examined the Annual Report on Form 10-K of the Company for the fiscal year ended
September 30, 2007 (the “Annual Report”), the Quarterly Reports on Form 10-Q of
the Company for the quarterly periods ended December 31, 2007, March 31, 2008
and June 30, 2008 and the Current Reports on Form 8-K of the Company dated
December 5, 2007, February 11, 2008, February 15, 2008, March 10, 2008, March
24, 2008 and August 18, 2008 [describe any other current reports, if applicable]
(such Quarterly Reports and Current Report, together with the Annual Report, the
“1934 Act Documents”), each as filed with the Commission under the Securities
Exchange Act of 1934 (the “1934 Act”), and deemed to be incorporated by
reference in the Registration Statement and the Prospectus.
I have
examined such other documents and satisfied myself as to such other matters as I
have deemed necessary to render the opinions set forth in this letter. In the
course of such examination, I have assumed (without independent investigation,
verification or inquiry) the genuineness of all signatures, the legal capacity
of natural persons, the authenticity of all documents submitted to me as
originals, the conformity to original documents of all documents submitted to me
as certified or photostatic copies, and the authenticity of the originals of
such latter documents. I have also relied upon information submitted to me by
certain officers of the Company with respect to the existence or non-existence
of certain facts that form the basis for the opinions set forth herein. Although
I have not conducted any independent investigations of the accuracy of various
of the matters covered by such information supplied by officers of the Company,
I have no reason to believe that any of the matters covered thereby are
inaccurate. I have also relied on certain documents, instruments and
certificates of public officials.
I have not
examined the
Securities, except a specimen
thereof, and have relied upon a certificate of the Trustee as to th
e authentication thereof.
Upon the basis of my
familiarity with the foregoing and with the Company’s properties and affairs
generally, and as limited by the foregoing and subsequent qualifications and
limitations, I am of the opinion that:
1. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Missouri.
2. The
Company is a public utility” within the meaning of Section 386.020(42) of the
Missouri Revised Statutes, is duly authorized by the Articles to conduct the
utility business that it is described in the Prospectus as conducting, and, by
virtue of its possession of valid and subsisting licenses, franchises and
permits, and its compliance with the laws of the State of Missouri, is duly
authorized to conduct such business in that State.
3. The
Company has good and sufficient title to the properties described as owned by it
in and as subject to the lien of the Mortgage, subject only to excepted
encumbrances as defined in the Mortgage and all other restrictions, exceptions,
defects and limitations of title as permitted under the Mortgage to the extent
they do not materially impair the Company’s use of its properties in its
business (collectively, the “Exceptions”). Subject to paragraph 4 hereof, the
description of such properties set forth in the Mortgage is adequate to
constitute the Mortgage a lien thereon and the Mortgage, subject only to the
Exceptions, constitutes a valid, direct and first mortgage lien upon such
properties, which include substantially all of the permanent physical
properties
and Franchises (as defined below) (other than those expressly excepted in the
Mortgage). All permanent physical properties and Franchises (other than those
expressly excepted in or released from the Mortgage) that have been or hereafter
may be acquired by the Company after the date of the Supplemental Indenture have
become or, upon such acquisition, will become subject to the lien of the
Mortgage, subject, however, to the Exceptions and except as limited by
bankruptcy law. As used above, “Franchises” mean all franchises of the Company
in or relating to real estate or the occupancy of lands to the extent the
granting of a lien or mortgage thereon is permitted by applicable
law.
4. The
Supplemental Indenture has been recorded in the office of the Secretary of State
of the State of Missouri pursuant to Section 443.451 of the Missouri Revised
Statutes, and the liens created by the Supplemental Indentures have become
effective as to and enforceable against third parties. All permanent physical
properties and Franchises (other than those expressly excepted in or released
from the Mortgage) presently owned by the Company are subject to the lien of the
Mortgage, subject to the Exceptions.
5. The
Mortgage has been duly and validly authorized by all necessary corporate action
of the Company, has been duly and validly executed and delivered by the Company,
and is a valid and binding instrument enforceable against the Company in
accordance with its terms, assuming the due authorization, execution and
delivery thereof by the Trustee and except as the same may be limited by certain
laws and judicial decisions of the United States of America and the State of
Missouri (where the property covered thereby is located) affecting the remedies
for the enforcement of the security provided for therein, which laws do not, in
my opinion, make inadequate the remedies necessary for the realization of the
benefits of such security, and subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally, by general equitable
principles (whether considered in a proceeding in equity or at law) and by an
implied covenant of reasonableness, good faith and fair dealing; and the
Mortgage has been duly qualified under the Trust Indenture Act of 1939, as
amended.
6. The
Securities have been duly authorized by the Company and, assuming due
authentication thereof by the Trustee and upon payment therefor and delivery
thereof in accordance with the Purchase Agreement, subject to the qualifications
in paragraph 3 above, will constitute valid and legally binding obligations of
the Company enforceable against the Company in accordance with their terms and
entitled to the benefit and security of the Mortgage equally and ratably (except
as set forth in the Securities) with the bonds of other series now outstanding
under the Mortgage.
7. The
Purchase Agreement has been duly authorized, executed and delivered by the
Company.
8. The
MPSC has issued the MPSC Orders authorizing the issuance and sale by the Company
of the Securities; the issuance and sale of the Securities in accordance with
the Purchase Agreement are in conformity with the terms of the MPSC Orders; and
no further approval, authorization, consent or other order of any public board
or body (other than in connection or in compliance with the provisions of the
securities or blue sky laws of any jurisdiction) is legally required for the
issuance and sale of the Securities on the terms and conditions set forth in the
Purchase Agreement.
9. To
the best of my knowledge, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation, to which the Company is a party, or to
which the property of
the
Company is subject, before or brought by any court or governmental agency or
body, domestic or foreign, which would reasonably be expected to result in a
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company, whether or not
arising in the ordinary course of business, or which would reasonably be
expected to materially and adversely affect the properties or assets of the
Company or the consummation of the transactions contemplated in the Purchase
Agreement or the performance by the Company of its obligations
thereunder.
10. The
consummation of the transactions contemplated in the Purchase Agreement and the
fulfillment of the terms thereof will not result in a breach of any of the terms
or provisions of, or constitute a default under, (a) any indenture, mortgage,
deed of trust or other material agreement or instrument known to me to which the
Company is a party or by which it is bound or to which any of the property of
the Company is subject, (b) the Articles or the Bylaws or (c) any order, rule or
regulation of any court or other governmental body having jurisdiction over the
Company or any of its property, or any applicable law or statute, in each case
of the United States of America or the State of Missouri, or, to the best of my
knowledge, any order, rule or regulation of any other court or other
governmental body having jurisdiction over the Company or any of its property or
any other statute.
11. The
statements made in the Prospectus under the captions “Description of First
Mortgage Bonds” and “Description of New Bonds,” insofar as they purport to
constitute summaries of the terms of the Securities and the Mortgage and any
other documents referred to therein, constitute accurate summaries of the terms
of such documents in all material respects.
12. The
Registration Statement has become and is effective under the 1933 Act; any
required filing of each prospectus relating to the Securities (including the
Prospectus) pursuant to Rule 424(b) under the 1933 Act has been made in the
manner and within the time period required by Rule 424(b) thereunder (without
reference to Rule 424(b)(8) thereunder); any required filing of each Issuer Free
Writing Prospectus (as defined in the Purchase Agreement) pursuant to Rule 433
under the 1933 Act has been made in the manner and within the time period
required by Rule 433(d) thereunder; and, to the best of my knowledge, no stop
order suspending the effectiveness of the Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have been instituted or
are pending or threatened by the Commission.
13. The
Company is not required, and upon the issuance and sale of the Securities as
herein contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be required, to register as an “investment
company” under the Investment Company Act of 1940, as amended.
I have
not independently verified the accuracy, completeness or fairness of the
statements made or included in the Registration Statement, the Prospectus or the
1934 Act Documents and take no responsibility therefor, except insofar as such
statements relate to me and as and to the extent expressly set forth herein. In
the course of the preparation of the Registration Statement, the Prospectus and
the General Disclosure Package, I and other members of the Company’s legal
department (the “Legal Department”) have participated in conferences with
certain of the Company’s officers and employees, with representatives of
Deloitte & Touche LLP, the independent accountants for the Company, and with
your representatives and counsel. Based on my examination of the Registration
Statement, the Prospectus and the General Disclosure Package, and the
investigations made in connection with the preparation of the Registration
Statement and the Prospectus and the Legal Department’s participation in the
conferences referred to above, (a) I am of the opinion that (i) each of the
Registration Statement, including without limitation the Rule 430B Information
(as defined in the Purchase Agreement), and the
Prospectus,
excluding the documents incorporated by reference therein, as of their
respective effective or issue dates (including without limitation each deemed
effective date with respect to the Underwriters pursuant to Rule 430B(f)(2)
under the 1933 Act), other than the financial statements and supporting
schedules included therein or omitted therefrom, and the Trustee’s Statement of
Eligibility on Form T-1 (the “Form T-1”), as to which I need express no opinion,
complied as to form in all material respects with the requirements of the 1933
Act and the rules and regulations of the Commission thereunder and (ii) the 1934
Act Documents (other than the financial statements and supporting schedules
included therein or omitted therefrom, as to which I need express no opinion),
when they were filed with the Commission, complied as to form in all material
respects with the requirements of the 1934 Act and the rules and regulations of
the Commission thereunder and (b) nothing has come to my attention that would
lead me to believe that (i) the Registration Statement (except for financial
statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom and the Form T-1, as to which I need make
no statement), at the time the Annual Report was filed by the Company with the
Commission under the 1934 Act, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (ii) the Registration Statement,
including the Rule 430B Information (except for financial statements and
schedules and other financial data included or incorporated by reference therein
or omitted therefrom and the Form T-1, as to which I need make no statement), at
each deemed effective date with respect to the Underwriters pursuant to Rule
430B(f)(2) under the 1933 Act, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (iii) the Prospectus (except for
financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom and the Form T-1, as to
which I need make no statement), at the time the Prospectus was issued or as of
the date hereof, 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 or (iv) the General Disclosure Package, other than the
financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which I need make
no statement, as of the Applicable Time (as defined below), contained any untrue
statement of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of circumstances under which
they were made, not misleading. For purposes of this paragraph, the term
“Applicable Time” means 11:10 a.m. (Eastern time) on September 18, 2008. With
respect to statements contained in the General Disclosure Package, any statement
contained in any of the constituent documents shall be deemed to be modified or
superseded to the extent that any information contained in subsequent
constituent documents modifies or replaces such statement.
In
passing upon the form of the Registration Statement, the form of the Prospectus
and the form of the 1934 Act Documents, I necessarily assume the correctness and
completeness of the statements made by the Company and information included
therein and take no responsibility therefor, except insofar as such statements
relate to me or as otherwise stated in this letter.
I have
examined the portions of the information contained in the Registration Statement
that are stated therein to have been made on my authority and, upon my review
thereof, I believe such information to be correct.
I am a
member of the Bar of the State of Missouri and, except with respect to the
matters expressed in paragraphs 8, 9 and 10 above, I do not express any opinion
herein as to any matters governed by any laws other than the laws of the State
of Missouri and the Federal laws of the United States of America. Further, I
express no opinion with respect to any law, rule, regulation or matter
regarding: (i) any matters of local law (i.e., laws, rules and regulations of
counties, towns, municipalities or special political subdivisions); or (ii)
Federal or state antitrust or unfair competition laws.
I am also
delivering this letter to Pillsbury Winthrop Shaw Pittman LLP, who is entitled
to rely upon the opinions set forth in this letter to the same extent as if such
opinion were addressed to such firm. This letter is rendered to you and
Pillsbury Winthrop Shaw Pittman LLP in connection with the above-described
transaction. The opinions in this letter may not be relied upon by you or
Pillsbury Winthrop Shaw Pittman LLP for any other purpose, or relied upon by or
furnished to any other person, firm or corporation, without my prior written
consent.
The
opinions in this letter speak only as of its date. I have no obligation to you
or to Pillsbury Winthrop Shaw Pittman LLP to update such opinions for changes in
law or fact that occur after the date of this letter, even where such change may
affect the legal analysis, a legal conclusion or an informational confirmation
in this letter.
Very
truly yours,
LACLEDE
GAS COMPANY
TO
UMB BANK
& TRUST, N.A.
Trustee
Thirtieth
Supplemental Indenture
Dated as
of September 15, 2008
First
Mortgage Bonds
6.35%
Series due October 15, 2038
TABLE OF
CONTENTS
|
Page
|
Parties
|
1
|
Recitals
|
1
|
Previous
Indentures
|
1
|
Identity
of the Company
|
10
|
Identity
of Trustee
|
10
|
Outstanding
Bonds
|
10
|
Form
of Fully Registered Bond
|
11
|
Form
of Trustee's Certificate of Authentication.
|
14
|
Compliance
with legal requirements
|
14
|
Granting
Clause
|
14
|
Exception
Clause
|
16
|
Habendum
Clause
|
16
|
Exceptions,
Reservations, etc.
|
16
|
Grant
in trust
|
16
|
Covenant
Clause
|
17
|
ARTICLE
I
DEFINITIONS
Section
1.1 Terms defined by
reference
|
17
|
Section
1.2 Business Day
|
17
|
Section
1.3 Trustee
|
17
|
Section
1.4 Original Indenture
|
17
|
Section
1.5 First Supplemental
Indenture
|
18
|
Section
1.6 Second Supplemental
Indenture
|
18
|
Section
1.7 Third Supplemental
Indenture
|
18
|
Section
1.8 Fourth Supplemental
Indenture
|
18
|
Section
1.9 Fifth Supplemental
Indenture
|
18
|
Section
1.10 Sixth Supplemental Indenture
|
18
|
Section
1.11 Seventh Supplemental Indenture
|
18
|
Section
1.12 Eighth Supplemental Indenture
|
18
|
Section
1.13 Ninth Supplemental Indenture
|
18
|
Section
1.14 Tenth Supplemental Indenture
|
18
|
Section
1.15 Eleventh Supplemental Indenture
|
18
|
Section
1.16 Twelfth Supplemental Indenture
|
18
|
Section
1.17 Thirteenth Supplemental Indenture
|
18
|
Section
1.18 Fourteenth Supplemental Indenture
|
18
|
Section
1.19 Fifteenth Supplemental Indenture
|
18
|
Section
1.20 Sixteenth Supplemental Indenture
|
19
|
Section
1.21 Seventeenth Supplemental Indenture
|
19
|
Section
1.22 Eighteenth Supplemental Indenture
|
19
|
Section
1.23 Nineteenth Supplemental Indenture
|
19
|
Section
1.24 Twentieth Supplemental Indenture
|
19
|
Section
1.25 Twenty-First Supplemental Indenture
|
19
|
Section
1.26 Twenty-Second Supplemental Indenture
|
19
|
Section
1.27 Twenty-Third Supplemental Indenture
|
19
|
Section
1.28 Twenty-Fourth Supplemental Indenture
|
19
|
Section
1.29 Twenty-Fifth Supplemental Indenture
|
19
|
Section
1.30 Twenty-Sixth Supplemental Indenture
|
19
|
Section
1.31 Twenty-Seventh Supplemental
Indenture
|
19
|
Section
1.32 Twenty-Eighth Supplemental Indenture
|
19
|
Section
1.33 Twenty-Ninth Supplemental Indenture
|
19
|
Section
1.34 Mortgage
|
19
|
Section
1.35 Hereof, hereunder, etc
|
20
|
Section
1.36 2038 Series
|
20
|
ARTICLE
II
CREATION,
DESCRIPTION, REGISTRATION, TRANSFER AND EXCHANGE OF
THE 2038
SERIES OF BONDS
Section
2.1 Creation and principal amount of the 2038
Series
|
20
|
Section
2.2 Date of Bonds
|
20
|
Section
2.3 Denominations, etc.
|
20
|
Section
2.4 Exchange of Bonds
|
21
|
Section
2.5 Registration of Bonds
|
21
|
Section
2.6 Temporary Bonds
|
21
|
Section
2.7 Payment of Defaulted
Interest
|
21
|
Section
2.8 Transfers or Exchanges of Bonds called
for redemption
|
21
|
ARTICLE
III
REDEMPTION
OF BONDS OF THE 2038 SERIES
Section
3.1 Circumstances in which
redeemable
|
22
|
Section
3.2 Additional circumstances in which
redeemable
|
22
|
Section
3.3 Notice of intention to
redeem
|
22
|
ARTICLE
IV
PARTICULAR
COVENANTS OF THE COMPANY
Section
4.1 Restrictions as to
dividends
|
22
|
Section
4.2 Earnings requirements for additional
Bonds
|
23
|
Section
4.3 Postponement of interest
|
24
|
ARTICLE
V
COMPANY’S
RESERVATION OF RIGHTS
Section
5.1 Company’s Reservation of
Rights
|
25
|
ARTICLE
VI
MISCELLANEOUS
Section
6.1 Provisions required by Trust Indenture
Act of 1939 to control
|
26
|
Section
6.2 Acceptance of Trust
|
26
|
Section
6.3 This Indenture Part of Original
Indenture
|
26
|
Section
6.4 Execution in any number of
counterparts
|
26
|
Section
6.5 Date of execution
|
26
|
THIRTIETH
SUPPLEMENTAL INDENTURE, dated as of the 15th day of September, 2008
between LACLEDE GAS COMPANY, a corporation duly organized and existing
under the laws of the State of Missouri, having its principal place of
business at 720 Olive Street, St. Louis, Missouri 63101, hereinafter
sometimes called the "Company," party of the first part, and UMB BANK
& TRUST, N.A., a national banking association organized under the laws
of the United States, having its principal place of business and corporate
trust office at Two South Broadway, St. Louis, Missouri 63102,
hereinafter sometimes called the "Trustee," party of the second
part.
|
WHEREAS,
there have heretofore been duly executed and delivered the following four
indentures between the Company and Mississippi Valley Trust Company,
to-wit:
(a) An
indenture of mortgage and deed of trust, hereinafter sometimes called the
"Original Indenture," dated as of February 1, 1945, which is recorded in the
office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 6324
at Page 93 and in the office of the Recorder of Deeds of St. Louis County,
Missouri, in Book 2078 at Page 12 and in the office of the Recorder of Deeds of
Boone County, Missouri, in Book 294 at Page 399 and in the office of the
Recorder of Deeds of Jefferson County, Missouri, in Book 434 at Page 480 and in
the office of the Recorder of Deeds of St. Francois County, Missouri, in Book
551 at Page 593 and in the office of the Recorder of Deeds of Ste. Genevieve
County, Missouri, in Book 198 at Page 629 and in the office of the Recorder of
Deeds of Madison County, Missouri, in Book 77 at Page 1 and in the office of the
Recorder of Deeds of Iron County, Missouri, in Book 224 at Page 451 and in the
office of the Recorder of Deeds of Butler County, Missouri, in Book 503 at Page
606 and is filed in the office of the Secretary of State of Missouri under
filing number 26,557 and is filed in the office of the Secretary of State of
Missouri pursuant to R.S.Mo. 443.451 under filing number 2590088;
and
(b) A
supplemental indenture, hereinafter sometimes called the "First Supplemental
Indenture," dated as of December 1, 1946, which is recorded in the office of the
Recorder of Deeds of the City of St. Louis, Missouri, in Book 6562 at Page 528,
and in the office of the Recorder of Deeds of St. Louis County, Missouri, in
Book 2268 at Page 273; and
(c) A
supplemental indenture, hereinafter sometimes called the "Second Supple-mental
Indenture," dated as of March 15, 1948, which is recorded in the office of
the Recorder of Deeds of the City of St. Louis, Missouri, in Book 6687 at Page
467, and in the office of the Recorder of Deeds of St. Louis County, Missouri,
in Book 2327 at Page 357; and
(d) A
supplemental indenture, hereinafter sometimes called the "Third Supplemental
Indenture," dated as of April 1, 1951, which is recorded in the office of
the Recorder of Deeds of the City of St. Louis, Missouri, in Book 7079 at Page
125 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in
Book 2869 at Page 275; and
WHEREAS,
there have been heretofore duly executed and delivered four indentures between
the Company and Mercantile Trust Company, to-wit:
(a) A
supplemental indenture, hereinafter sometimes called the "Fourth Supple-mental
Indenture," dated as of December 1, 1954, which is recorded in the office of the
Recorder of
Deeds of
the City of St. Louis, Missouri, in Book 7458 at Page 400 and in the office of
the Recorder of Deeds of St. Louis County, Missouri, in Book 3342 at Page 34 and
in the office of the Recorder of Deeds of Boone County, Missouri, in Book 294 at
Page 477 and in the office of the Recorder of Deeds of Jefferson County,
Missouri, in Book 434 at Page 574 and in the office of the Recorder of Deeds of
St. Francois County, Missouri, in Book 552 at Page 1 and in the office of
the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 198 at
Page 721 and in the office of the Recorder of Deeds of Madison County, Missouri,
in Book 77 at Page 183 and in the office of the Recorder of Deeds of Iron
County, Missouri, in Book 224 at Page 632 and in the office of the Recorder of
Deeds of Butler County, Missouri, in Book 507 at Page 1 and is filed in the
office of the Secretary of State of Missouri under filing number 26,558;
and
(b) A
supplemental indenture, hereinafter sometimes called the "Fifth Supplemental
Indenture," dated as of May 1, 1957, which is recorded in the office of the
Recorder of Deeds of the City of St. Louis, Missouri, in Book 7731 at Page 152
and in the office of the Recorder of Deeds of St. Louis County, Missouri,
in Book 3766 at Page 1 and in the office of the Recorder of Deeds of Boone
County, Missouri, in Book 294 at Page 494 and in the office of the Recorder of
Deeds of Jefferson County, Missouri, in Book 434 at Page 611 and in the office
of the Recorder of Deeds of St. Francois County, Missouri, in Book 552 at
Page 38 and in the office of the Recorder of Deeds of Ste. Genevieve
County, Missouri, in Book 199 at Page 1 and in the office of the Recorder of
Deeds of Madison County, Missouri, in Book 77 at Page 220 and in the office of
the Recorder of Deeds of Iron County, Missouri, in Book 226 at Page 1 and in the
office of the Recorder of Deeds of Butler County, Missouri, in Book 507 at Page
38 and is filed in the office of the Secretary of State of Missouri under filing
number 26,559; and
(c) A
supplemental indenture, hereinafter sometimes called the "Sixth Supplemental
Indenture," dated as of July 1, 1960, which is recorded in the office of
the Recorder of Deeds of the City of St. Louis, Missouri, in Book 8087 at Page
55 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in
Book 4348 at Page 1 and in the office of the Recorder of Deeds of Boone County,
Missouri, in Book 294 at Page 535 and in the office of the Recorder of Deeds of
Jefferson County, Missouri, in Book 434 at Page 651 and in the office of the
Recorder of Deeds of St. Francois County, Missouri, in Book 552 at Page 78 and
in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in
Book 199 at Page 22 and in the office of the Recorder of Deeds of Madison
County, Missouri, in Book 77 at Page 260 and in the office of the Recorder of
Deeds of Iron County, Missouri, in Book 226 at Page 42 and in the office of the
Recorder of Deeds of Butler County, Missouri, in Book 507 at Page 62 and is
filed in the office of the Secretary of State of Missouri under filing number
26,560; and
(d) A
supplemental indenture, hereinafter sometimes called the "Seventh Supple-mental
Indenture," dated as of June 1, 1964, which is recorded in the office of
the Recorder of Deeds of the City of St. Louis, Missouri, in Book 8506 at Page
215 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in
Book 5410 at Page 399 and in the office of the Recorder of Deeds of Boone
County, Missouri, in Book 342 at Page 2 and in the office of the Recorder of
Deeds of Jefferson County, Missouri, in Book 434 at Page 697 and in the office
of the Recorder of Deeds of St. Francois County, Missouri, in Book 552 at Page
124 and in the office of the Recorder of Deeds of Ste. Genevieve County,
Missouri, in Book 199 at Page 46 and in the office of the
Recorder
of Deeds of Madison County, Missouri, in Book 77 at Page 306 and in the office
of the Recorder of Deeds of Iron County, Missouri, in Book 226 at Page 89 and in
the office of the Recorder of Deeds of Butler County, Missouri, in Book 507 at
Page 90 and is filed in the office of the Secretary of State of Missouri under
filing number 26,561; and
WHEREAS,
there have been heretofore duly executed and delivered eight indentures between
the Company and Mercantile Trust Company National Association,
to-wit:
(a) A
supplemental indenture, hereinafter sometimes called the "Eighth Supple-mental
Indenture," dated as of April 15, 1966, which is recorded in the office of
the Recorder of Deeds of the City of St. Louis, Missouri, in Book 8678 at Page 1
and in the office of the Recorder of Deeds of St. Louis County, Missouri, in
Book 5949 at Page 450 and in the office of the Recorder of Deeds of Boone
County, Missouri, in Book 361 at Page 148 and in the office of the Recorder of
Deeds of Jefferson County, Missouri, in Book 434 at Page 746 and in the office
of the Recorder of Deeds of St. Francois County, Missouri, in Book 552 at Page
172 and in the office of the Recorder of Deeds of Ste. Genevieve County,
Missouri, in Book 199 at Page 71 and in the office of the
Recorder
of Deeds of Madison County, Missouri, in Book 77 at Page 354 and in the office
of the Recorder of Deeds of Iron County, Missouri, in Book 226 at Page 138 and
in the office of the Recorder of Deeds of Butler County, Missouri, in Book 507
at Page 118 and is filed in the office of the Secretary of State of Missouri
under filing number 28,645; and
(b) A
supplemental indenture, hereinafter sometimes called the "Ninth Supplemental
Indenture," dated as of May 1, 1968, which is recorded in the office of the
Recorder of Deeds of the City of St. Louis, Missouri, in Book 8834 at Page 213
and in the office of the Recorder of Deeds of St. Louis County, Missouri, in
Book 6323 at Page 1904 and in the office of the Recorder of Deeds of Boone
County, Missouri, in Book 389 at Page 888 and in the office of the Recorder of
Deeds of St. Charles County, Missouri, in Book 498 at Page 408 and in the
office of the Recorder of Deeds of Jefferson County, Missouri, in Book 434 at
Page 790 and in the office of the Recorder of Deeds of St. Francois County,
Missouri, in Book 552 at Page 216 and in the office of the Recorder of Deeds of
Ste. Genevieve County, Missouri, in Book 199 at Page 94 and in the office of the
Recorder of Deeds of Madison County, Missouri, in Book 77 at Page 398 and in the
office of the Recorder of Deeds of Iron County, Missouri, in Book 226 at Page
183 and in the office of the Recorder of Deeds of Butler County, Missouri, in
Book 507 at Page 145 and is filed in the office of the Secretary of State of
Missouri under filing number 87,403; and
(c) A
supplemental indenture, hereinafter sometimes called the "Tenth Supplemental
Indenture," dated as of May 15, 1970, which is recorded in the office of the
Recorder of Deeds of the City of St. Louis, Missouri, in Book 8988 at Page 52
and in the office of the Recorder of Deeds of St. Louis County, Missouri, in
Book 6456 at Page 132 and in the office of the Recorder of Deeds of Boone
County, Missouri, in Book 396 at Page 560 and in the office of the Recorder of
Deeds of St. Charles County, Missouri, in Book 554 at Page 79 and in the
office of the Recorder of Deeds of Jefferson County, Missouri, in Book 434 at
Page 829 and in the office of the Recorder of Deeds of St. Francois County,
Missouri, in Book 552 at Page 255 and in the office of the Recorder of Deeds of
Ste. Genevieve County, Missouri, in Book 199 at Page 114 and in the office of
the Recorder of Deeds of Madison County, Missouri, in Book 77 at Page 436 and in
the
office of
the Recorder of Deeds of Iron County, Missouri, in Book 226 at Page 223 and in
the office of the Recorder of Deeds of Butler County, Missouri, in Book 507 at
Page 168 and is filed in the office of the Secretary of State of Missouri under
filing number 154,857; and
(d) A
supplemental indenture, hereinafter sometimes called the "Eleventh Supple-mental
Indenture," dated as of March 15, 1972, which is recorded in the office of the
Recorder of Deeds of the City of St. Louis, Missouri, in Book 9133 at Page 4 and
in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book
6577 at Page 1993 and in the office of the Recorder of Deeds of Boone County,
Missouri, in Book 401 at Page 706 and in the office of the Recorder of Deeds of
St. Charles County, Missouri, in Book 620 at Page 157 and in the office of the
Recorder of Deeds of Jefferson County, Missouri, in Book 435 at Page 23 and in
the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book
199 at Page 210 and in the office of the Recorder of Deeds of St. Francois
County, Missouri, in Book 552 at Page 640 and in the office of the Recorder of
Deeds of Iron County, Missouri, in Book 226 at Page 282 and in the office of the
Recorder of Deeds of Madison County, Missouri, in Book 78 at Page 1 and in the
office of the Recorder of Deeds of Butler County, Missouri, in Book 507 at Page
265 and is filed in the office of the Secretary of State of Missouri under
filing number 234,221; and
(e) A
supplemental indenture, hereinafter sometimes called the "Twelfth Supple-mental
Indenture," dated as of March 15, 1974, which is recorded in the office of
the Recorder of Deeds of the City of St. Louis, Missouri, in Book 40M at Page 1
and in the office of the Recorder of Deeds of St. Louis County, Missouri, in
Book 6721 at Page 91 and in the office of the Recorder of Deeds of Boone County,
Missouri, in Book 407 at Page 888 and in the office of the Recorder of Deeds of
St. Charles County, Missouri, in Book 677 at Page 1445 and in the office of the
Recorder of Deeds of Jefferson County, Missouri, in Book 465 at Page 976 and in
the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book
210 at Page 255 and in the office of the Recorder of Deeds of St. Francois
County, Missouri, in Book 598 at Page 683 and in the office of the Recorder of
Deeds of Iron County, Missouri, in Book 237 at Page 1 and in the office of the
Recorder of Deeds of Madison County, Missouri, in Book 84 at Page 117 and in the
office of the Recorder of Deeds of Butler County, Missouri, in Book 535 at Page
540 and in the office of the Recorder of Deeds of Beckham County, Oklahoma, in
Book 127 at Page 149 and in the office of the County Clerk of Wheeler County,
Texas, in Trust Vol. 58 at Page 731 and is filed in the office of the Secretary
of State of Missouri under filing number 333,360; and
(f) A
supplemental indenture, hereinafter sometimes called the "Thirteenth
Supple-mental Indenture," dated as of June 1, 1975, which is recorded in the
office of the Recorder of Deeds of the City of St. Louis, Missouri,
in Book 70M at Page 2061 and in the office of the Recorder of Deeds
of St. Louis County, Missouri, in Book 6796 at Page 1447 and in the office of
the Recorder of Deeds of Boone County, Missouri, in Book 411 at Page 9 and in
the office of the Recorder of Deeds of St. Charles County, Missouri, in Book 704
at Page 1739 and in the office of the Recorder of Deeds of Jefferson County,
Missouri, in Book 481 at Page 292 and in the office of the Recorder of Deeds of
Ste. Genevieve County, Missouri, in Book 124 at Page 225 and in the office of
the Recorder of Deeds of St. Francois County, Missouri, in Book 624 at Page 359
and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 242
at Page 234 and in the office of the Recorder of Deeds of Madison County,
Missouri, in Book 86 at Pages 483-532 and in
the
office of the Recorder of Deeds of Butler County, Missouri, in Book 547 at Page
300 and in the office of the Recorder of Deeds of Beckham County, Oklahoma, in
Book 130 at Page 416 and in the office of the County Clerk of Wheeler County,
Texas, in Trust Vol. 59 at Page 649 and in the office of the Clerk of Court for
Sabine Parish, Louisiana, under Registry No. 227328 in Mtg. Book 108 at Page 478
and in the office of the Clerk of Court for DeSoto Parish, Louisiana, under
Registry No. 378628 in Mtg. Book 115 at Page 803 and in the office of the Clerk
of Court for St. Mary Parish, Louisiana, under Registry No. 124894 in Mtg. Book
343 at Page 293 and in the office of the Clerk of Court for Red River Parish,
Louisiana, under Registry No. 128419 in Mtg. Book 75 at Page 546 and is filed in
the office of the Secretary of State of Missouri under filing number 397,857;
and
(g) A
supplemental indenture, hereinafter sometimes called the "Fourteenth
Supple-mental Indenture," dated as of October 26, 1976, which is recorded in the
office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 108M
at Page 131 and in the office of the Recorder of Deeds of St. Louis County,
Missouri, in Book 6907 at Page 1970 and in the office of the Recorder of Deeds
of Boone County, Missouri, in Book 416 at Page 192 and in the office of the
Recorder of Deeds of St. Charles County, Missouri, in Book 745 at Page 40 and in
the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 507
at Page 669 and in the office of the Recorder of Deeds of Ste. Genevieve County,
Missouri, in Book 241 at Page 279 and in the office of the Recorder of Deeds of
St. Francois County, Missouri, in Book 654 at Page 132 and in the office of the
Recorder of Deeds of Iron County, Missouri, in Book 248 at Page 795 and in the
office of the Recorder of Deeds of Madison County, Missouri, in Book 89 at Pages
694-700 and in the office of the Recorder of Deeds of Butler County, Missouri,
in Book 565 at Page 57 and in the office of the Recorder of Deeds of Beckham
County, Oklahoma, in Book 315 at Page 146 and in the office of the County Clerk
of Wheeler County, Texas, in the Deed Records Vol. 260 at Page 991 and in the
office of the Clerk of Court for Sabine Parish, Louisiana, under Registry No.
233001 in Mtg. Book 114 at Page 208 and in the office of the Clerk of Court for
DeSoto Parish, Louisiana, under Registry No. 389929 in Mtg. Book 122 at Page 15
and in the office of the Clerk of Court for St. Mary Parish, Louisiana, under
Registry No. 129850 in Mtg. Book 360 at Page 593 and in the office of the Clerk
of Court for Red River Parish, Louisiana, under Registry No. 131795 in Mtg. Book
79 at Page 21 and is filed in the office of the Secretary of State of Missouri
under filing number 479,397 and is filed in the office of the Secretary of State
of Missouri pursuant to R.S.Mo. 443.451 under filing number 2590089;
and
(h) A
supplemental indenture, hereinafter sometimes called the "Fifteenth
Supple-mental Indenture," dated as of July 15, 1979, which is recorded in the
office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 202M
at Page 1288 and in the office of the Recorder of Deeds of St. Louis County,
Missouri, in Book 7181 at Page 23 and in the office of the Recorder of Deeds of
Boone County, Missouri, in Book 430 at Page 273 and in the office of the
Recorder of Deeds of St. Charles County, Missouri, in Book 846 at Page 880 and
in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book
580 at Page 278 and in the office of the Recorder of Deeds of Ste. Genevieve
County, Missouri, in Book 285 at Page 93 and in the office of the Recorder of
Deeds of St. Francois County, Missouri, in Book 722 at Page 57 and in the office
of the Recorder of Deeds of Iron County, Missouri, in Book 262 at Pages 709-770
and in the office of the Recorder of Deeds of Madison County, Missouri, in Book
98 at Pages 720-781 and in the office of the Recorder of Deeds of Butler County,
Missouri, in Book 597 at Page 661 and in the office of
the
County Clerk of Beckham County, Oklahoma, in Misc. Record Book 385 at Page 230
and in the office of the County Clerk of Roger Mills County, Oklahoma, in Book
273 at Pages 54-116 and in the office of the County Clerk of Blaine County,
Oklahoma, in Book 325 Misc. Page 1 and in the office of the County Clerk of
Wheeler County, Texas, in Deed of Trust Records, Vol. 64 at Page 707 and in the
office of the County Clerk of Lipscomb County, Texas, in the Deed of Trust
Records, Vol. 196 at Page 607 and in the office of the County Clerk of Roberts
County, Texas, in the Deed of Trust Records, Vol. 30 at Page 45 and in the
office of the County Clerk of Hemphill County, Texas, in the Deed of Trust
Records, Vol. 59 at Page 428 and in the office of the Clerk of the Court for
St. Mary Parish, Louisiana, under Registry No. 141319 in Mtg. Book 402 at
Page 2 and in the office of the Clerk of the Court for the DeSoto Parish,
Louisiana, under Registry No. 417237 in Mtg. Book 136 at Page 524 and in the
office of the Clerk of the Court for Sabine Parish, Louisiana, under Registry
No. 246026 in Mtg. Book 128 at Page 86 and in the office of the Clerk of the
Court for Red River Parish, Louisiana, under Registry No. 141470 in Mtg. Book 87
at Page 619 and in the office of the Clerk of the Court for Terrebonne Parish,
Louisiana, under Registry No. 602396 and is filed in the office of the Secretary
of State of Missouri under Document Number 667303; and
WHEREAS,
there have been heretofore duly executed and delivered two indentures between
the Company and Mercantile Bank National Association, to-wit:
(a) A
supplemental indenture, hereinafter sometimes called the "Sixteenth
Supple-mental Indenture," dated as of May 1, 1986, which is recorded in the
office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book
M-529 at Page 655 and in the office of the Recorder of Deeds of St. Louis
County, Missouri, in Book 7902 at Page 1138 and in the office of the Recorder of
Deeds of Boone County, Missouri, in Book 573 at Page 2 and in the office of the
Recorder of Deeds of St. Charles County, Missouri, in Book 1080 at Page 1577 and
in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book
197 at Page 1 and in the office of the Recorder of Deeds of Ste. Genevieve
County, Missouri, in Book 407 at Page 137 and in the office of the Recorder of
Deeds of St. Francois County, Missouri, in Book 894 at Page 138 and in the
office of the Recorder of Deeds of Iron County, Missouri, in Book 293 at Page
797 and in the office of the Recorder of Deeds of Madison County, Missouri, in
Book 116 at Page 589 and in the office of the Recorder of Deeds of Butler
County, Missouri, in Book 669 at Page 228 and in the office of the County Clerk
of Roger Mills County, Oklahoma, in Book 807 at Page 120 and in the office of
the County Clerk of Wheeler County, Texas, in Deed of Trust Records, Vol. 91 at
Page 191, and in Deed Records, Vol. 348 at Page 69 and in the office of the
Secretary of State of Texas under Document Number 131214 and is filed in the
office of the Secretary of State of Missouri under Document Number 1322775;
and
(b) A
supplemental indenture, hereinafter sometimes called the "Seventeenth
Supplemental Indenture," dated as of May 15, 1988, which is recorded in the
office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book
M-669 at Page 258 and in the office of the Recorder of Deeds of St. Louis
County, Missouri, in Book 8315 at Page 902 and in the office of the Recorder of
Deeds of Boone County, Missouri, in Book 676 at Page 449 and in the office of
the Recorder of Deeds of St. Charles County, Missouri, in Book 1212 at Page 1948
and in the office of the Recorder of Deeds of Jefferson County, Missouri, in
Book 396 at Page 1987 and in the office of
the
Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 459 at Page 289
and in the office of the Recorder of Deeds of St. Francois County, Missouri, in
Book 962 at Page 8 and in the office of the Recorder of Deeds of Iron County,
Missouri, in Book 303 at Page 527 and in the office of the Recorder of Deeds of
Madison County, Missouri, in Book 123 at Page 243 and in the office of the
Recorder of Deeds of Butler County, Missouri, in Book 691 at Page 620 and in the
office of the County Clerk of Roger Mills County, Oklahoma, in Book 973 at Page
1 and in the office of the County Clerk of Wheeler County, Texas, in Deed of
Trust Records, Vol. 91 at Page 234, and in Deed Records, Vol. 369 at Page 386
and in the office of the Secretary of State of Texas under Document Number
86131214 and is filed in the office of the Secretary of State of Missouri under
Document Number 1596374 and is filed in the office of the Secretary of State of
Missouri pursuant to R.S.Mo. 443.451 under filing number 2590090;
and
WHEREAS,
there have been heretofore duly executed and delivered five indentures between
the Company and Mercantile Bank of St. Louis National Association,
to-wit:
(a) A
supplemental indenture, hereinafter sometimes called the "Eighteenth
Supple-mental Indenture," dated as of November 15, 1989, which is recorded
in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in
Book 762M at Page 1126 and in the office of the Recorder of Deeds of St. Louis
County, Missouri, in Book 8646 at Page 2196 and in the office of the Recorder of
Deeds of Boone County, Missouri, in Book 748 at Page 17 and in the office of the
Recorder of Deeds of St. Charles County, Missouri, in Book 1294 at Page 631 and
in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book
442 at Page 14 and in the office of the Recorder of Deeds of Ste. Genevieve
County, Missouri, in Book 498 at Page 13 and in the office of the Recorder of
Deeds of St. Francois County, Missouri, in Book 1012 at Page 36 and in the
office of the Recorder of Deeds of Iron County, Missouri, in Book 311 at Page
503 and in the office of the Recorder of Deeds of Madison County, Missouri, in
Book 127 at Page 682 and in the office of the Recorder of Deeds of Butler
County, Missouri, in Book 709 at Page 78 and in the office of the County Clerk
of Roger Mills County, Oklahoma, in Book 1094 at Page 263 and in the office of
the County Clerk of Wheeler County, Texas, in Deed of Trust Records, Vol. 93 at
Page 630 and in the office of the Secretary of State of Texas under Document
Number 252980 and is filed in the office of the Secretary of State of Missouri
under Document Number 1798065 and is filed in the office of the Secretary of
State of Missouri pursuant to R.S.Mo. 443.451 under filing number 2590091;
and
(b) A
supplemental indenture, hereinafter sometimes called the "Nineteenth
Supple-mental Indenture," dated as of May 15, 1991, which is recorded in
the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book
848 at Page 716 and in the office of the Recorder of Deeds of St. Louis County,
Missouri, in Book 8983 at Page 1095 and in the office of the Recorder of Deeds
of Boone County, Missouri, in Book 821 at Page 79 and in the office of the
Recorder of Deeds of St. Charles County, Missouri, in Book 1370 at Page 1846 and
in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book
483 at Page 1909 and in the office of the Recorder of Deeds of Ste. Genevieve
County, Missouri, in Book 541 at Page 82 and in the office of the Recorder of
Deeds of St. Francois County, Missouri, in Book 1060 at Page 253 and in the
office of the Recorder of Deeds of Iron County, Missouri, in Book 319 at Page
355 and in the office of the Recorder of Deeds of Madison County, Missouri, in
Book 132 at Page 44 and in the
office of
the Recorder of Deeds of Butler County, Missouri, in Book 725 at Page 442 and in
the office of the County Clerk of Roger Mills County, Oklahoma, in Book 1213 at
Page 105, UCC Filing No. 135, and in the office of the County Clerk of Oklahoma
County, Oklahoma, UCC Filing No. 023021, and in the office of the County Clerk
of Wheeler County, Texas, in Deed of Trust Records, Vol. 96 at Page 96 and in
Deed Records, Book 399 at Page 254, and in the office of the Secretary of State
of Texas under Document Number 088153 and is filed in the office of the
Secretary of State of Missouri under Document Number 1999268 and is filed in the
office of the Secretary of State of Missouri pursuant to R.S.Mo. 443.451 under
filing number 2590092; and
(c) A
supplemental indenture, hereinafter sometimes called the "Twentieth
Supple-mental Indenture," dated as of November 1, 1992, which is recorded
in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in
Book M945 at Page 1068 and in the office of the Recorder of Deeds of St. Louis
County, Missouri, in Book 9494 at Page 423 and in the office of the Recorder of
Deeds of Boone County, Missouri, in Book 937 at Page 144 and in the office of
the Recorder of Deeds of St. Charles County, Missouri, in Book 1491 at Page 1289
and in the office of the Recorder of Deeds of Jefferson County, Missouri, in
Book 543 at Page 2135 and in the office of the Recorder of Deeds of Ste.
Genevieve County, Missouri, in Book 594 at Page 10 and in the office of the
Recorder of Deeds of St. Francois County, Missouri, in Book 1121 at Page 458 and
in the office of the Recorder of Deeds of Iron County, Missouri, in Book 326 at
Page 888 and in the office of the Recorder of Deeds of Madison County, Missouri,
in Book 137 at Page 166 and in the office of the Recorder of Deeds of Butler
County, Missouri, in Book 747 at Page 72 and in the office of the Recorder of
Deeds of Franklin County, Missouri, in Book 712 at Page 889 and in the office of
the County Clerk of Roger Mills County, Oklahoma, in Book 1303 at Page 39, UCC
Filing No. 296, and in the office of the County Clerk of Oklahoma County,
Oklahoma, UCC Filing No. 056514, and in the office of the County Clerk of
Wheeler County, Texas, in Deed of Trust Records, Book 98 at Page 88 and in Deed
Records, Book 409 at Page 589, and in the office of the Secretary of State of
Texas under Document Number 212435 and is filed in the office of the Secretary
of State of Missouri under Document Number 2188520 and is filed in the office of
the Secretary of State of Missouri pursuant to R.S.Mo. 443.451 under filing
number 2590093; and
(d) A
supplemental indenture, hereinafter sometimes called the "Twenty-First
Supplemental Indenture," dated as of May 1, 1993, which is recorded in the
office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book M982
at Page 0356 and in the office of the Recorder of Deeds of St. Louis County,
Missouri, in Book 9701 at Page 797 and in the office of the Recorder of Deeds of
Boone County, Missouri, in Book 979 at Page 722 and in the office of the
Recorder of Deeds of St. Charles County, Missouri, in Book 1542 at Page 1449 and
in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book
567 at Page 2217 and in the office of the Recorder of Deeds of Ste. Genevieve
County, Missouri, in Book 610 at Page 136 and in the office of the Recorder of
Deeds of St. Francois County, Missouri, in Book 1142 at Page 84 and in the
office of the Recorder of Deeds of Iron County, Missouri, in Book 328 at Page
508 and in the office of the Recorder of Deeds of Madison County, Missouri, in
Book 139 at Page 361 and in the office of the Recorder of Deeds of Butler
County, Missouri, in Book 753 at Page 328 and in the office of the Recorder of
Deeds of Franklin County, Missouri, in Book 743 at Page 638 and in the office of
the County Clerk of Roger Mills County, Oklahoma, in Book 1337 at Page 10, UCC
Filing No. 109, and in the office of the County Clerk of Oklahoma County,
Oklahoma, UCC Filing No.
023874
and in the office of the County Clerk of Wheeler County, Texas, in Deed of Trust
Records, Book 98 at Page 804 and in Deed Records, Book 413 at Page 387, and in
the office of the Secretary of State of Texas under Document No. 086970 and is
filed in the office of the Secretary of State of Missouri under Document No.
2259648 and is filed in the office of the Secretary of State of Missouri
pursuant to R.S.Mo. 443.451 under filing number 2590094; and
(e) A
supplemental indenture, hereinafter sometimes called the "Twenty-Second
Supplemental Indenture," dated as of November 15, 1995, which is filed in the
office of the Secretary of State of Missouri pursuant to R.S.Mo. 443.451 under
filing number 2604323; and
WHEREAS,
there have been heretofore duly executed and delivered three indentures between
the Company and State Street Bank and Trust Company of Missouri, N.A.,
to-wit:
(a) A
supplemental indenture, hereinafter sometimes called the "Twenty-Third
Supplemental Indenture," dated as of October 15, 1997, which is filed in
the office of the Secretary of State of Missouri pursuant to R.S.Mo. 443.451
under filing number 2841222; and
(b) A
supplemental indenture, hereinafter sometimes called the “Twenty-Fourth
Supplemental Indenture,” dated as of June 1, 1999, which is filed in the office
of the Secretary of State of Missouri pursuant to R.S.Mo. 443.451 under filing
number 3039096; and
(c) A
supplemental indenture, hereinafter sometimes called the “Twenty-Fifth
Supplemental Indenture,” dated as of September 15, 2000, which is filed in the
office of the Secretary of the State of Missouri pursuant to R.S.Mo. 443.451
under filing number 4088953; and
WHEREAS,
there has been heretofore duly executed and delivered four supplemental
indentures between the Company and UMB Bank & Trust, N.A.,
to-wit:
(a) A
supplemental indenture, hereinafter sometimes called the “Twenty-Sixth
Supplemental Indenture,” dated as of June 15, 2001, which is filed in the office
of the Secretary of State of the State of Missouri pursuant to R.S.Mo. 443.451
under filing number 4178825; and
(b) A
supplemental indenture, hereinafter sometimes called the “Twenty-Seventh
Supplemental Indenture,” dated as of April 15, 2004, which is filed in the
office of the Secretary of State of the State of Missouri pursuant to R.S.Mo.
443.451 under filing number 20040045002J; and
(c) A
supplemental indenture, hereinafter sometimes called the “Twenty-Eighth
Supplemental Indenture,” dated as of April 15, 2004, which is filed in the
office of the Secretary of State of the State of Missouri pursuant to R.S.Mo.
443.451 under filing number 20040045001H; and
(d) A
supplemental indenture, hereinafter sometimes called the “Twenty-Ninth
Supplemental Indenture,” dated as of June 1, 2006, which is filed in the office
of the Secretary of State of the State of Missouri pursuant to R.S.Mo. 443.451
under filing number 20060063448E; and
WHEREAS,
the Company is the same corporation as is designated in the Original and First
and Second Supplemental Indentures as The Laclede Gas Light Company, which was
the Company's corporate name, but before the date of the Third Supplemental
Indenture its corporate name was duly changed to, and now is, Laclede Gas
Company; and
WHEREAS,
UMB Bank & Trust, n.a., the party of the second part to this Thirtieth
Supplemental Indenture, is the present Trustee under the Original Indenture,
being the successor to State Street Bank and Trust Company of Missouri, N. A.,
which was the successor to Mercantile Bank of St. Louis National
Association (from which State Street Bank and Trust Company of Missouri, N.A.,
acquired certain corporate trust assets), which was the successor to Mercantile
Bank National Association, which was the successor to Mercantile Trust Company
National Association, which was the successor to Mercantile Trust Company (which
in turn was the corporation resulting from a consolidation on August 31, 1951,
to which Mississippi Valley Trust Company, the original Trustee, was a party);
and
WHEREAS,
there are now outstanding under the Twenty-Second Supplemental Indenture, First
Mortgage Bonds of the 6 1/2% Series due November 15, 2010; under the
Twenty-Third Supplemental Indenture, First Mortgage Bonds of the 6 1/2% Series
due October 15, 2012; under the Twenty-Fourth Supplemental Indenture, First
Mortgage Bonds of the 7% Series due June 1, 2029; under the Twenty-Fifth
Supplemental Indenture, First Mortgage Bonds of the 7.90% Series due September
15, 2030; under the Twenty-Seventh Supplemental Indenture, First Mortgage Bonds
of the 5½% Series due May 1, 2019; under the Twenty-Eighth Supplemental
Indenture, First Mortgage Bonds of the 6% Series due May 1, 2034; and under the
Twenty-Ninth Supplemental Indenture, First Mortgage Bonds of the 6.15% Series
due June 1, 2036; but all bonds of the twenty-one series provided for
respectively by the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth,
Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fifteenth, Sixteenth, Seventeenth,
Eighteenth, Nineteenth, Twentieth, Twenty-First and Twenty-Sixth Supplemental
Indentures and the First Mortgage Bonds of the 3 1/2% Series issued under the
Original Indenture have ceased to be outstanding; and
WHEREAS,
the Company desires to create a new series of bonds under the Mortgage to be
designated as "First Mortgage Bonds, 6.35% Series due October 15, 2038"
(hereinafter sometimes referred to as the "2038 Series"), for an aggregate
principal amount of $80,000,000 to be issued as fully registered bonds without
coupons, the definitive bonds (certain of the provisions of which may be printed
on the reverse side thereof) and the Trustee's certificate of authentication
thereof to be substantially in the following forms, respectively:
(FORM OF
FULLY REGISTERED BOND)
UNLESS
THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (“DTC”), 55 WATER STREET, NEW YORK, NEW YORK, TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS
IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED
FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE
OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY
SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.
LACLEDE
GAS COMPANY
FIRST
MORTGAGE BOND,
6.35%
Series due October 15, 2038
No.
$
LACLEDE
GAS COMPANY, a corporation of the State of Missouri (hereinafter called "the
Company"), for value received hereby promises to pay to
or registered assigns, at the office or agency of the Company in the Borough of
Manhattan, The City of New York, or at the option of the registered owner hereof
at the office or agency of the Company in the City of St. Louis, State of
Missouri, Eighty Million Dollars on the 15th day of October, 2038 (or upon
earlier redemption), by check or draft in such coin or currency of the United
States of America as at the time of payment shall be legal tender for public and
private debts, and to pay to the registered owner hereof by check or draft
interest thereon from and including September 23, 2008, or from the fifteenth
day of any calendar month next preceding the date of this bond to which interest
has been paid or duly provided for, unless this bond is dated any date after the
record date for any interest payment date and on or before such interest payment
date, in which case from such interest payment date, at the rate of 6.35% per
annum, in like coin or currency at either of said offices or agencies at the
option of the registered owner hereof, monthly in arrears on the fifteenth day
of each calendar month until the Company's obligation with respect to the
payment of such principal shall have been discharged. If any interest
payment date or any date of maturity or redemption of principal of this bond
falls on a day that is not a Business Day, principal and/or interest payable on
such date will be paid on the succeeding Business Day with the same force and
effect as if it were paid on the date such payment was due, and no interest will
accrue on the amount so payable for the period from and after such date to such
succeeding Business Day. Business Day means any day other than a
Saturday, Sunday, or other day on which commercial banks are authorized or
required by law, regulation, or executive order to close in The City of New
York. The interest so payable on any
interest
payment date will, subject to certain exceptions provided in the Mortgage
hereinafter mentioned, be paid to the person in whose name this bond is
registered at the close of business on the record date, which shall be the
fifteenth day (whether or not a Business Day) preceding such interest payment
date. Notwithstanding the foregoing, so long as the holder is The
Depository Trust Company (“DTC”) or a nominee thereof, such payments of
principal and interest will be made in accordance with the Blanket Issuer Letter
of Representations dated April 20, 2004 between DTC and the Company (or
successor arrangement thereto). If a registered owner of an aggregate principal
amount in excess of $100,000 of the bonds so requests, payments of principal and
interest to that registered owner shall be made by electronic transfer to an
account at a commercial bank or savings institution located in the continental
United States designated in writing by such registered owner. Any
such request must be made in writing to the Company and UMB Bank & Trust,
n.a. (hereinafter sometimes referred to as the “Trustee”) at least 10 days in
advance of such payment and must specify the name and address of the receiving
bank, its ABA routing number, and the account name and number to receive the
electronic transfer.
This
bond is one of an issue of bonds of the Company, issuable in series, and is one
of a series known as its First Mortgage Bonds, 6.35% Series due October 15, 2038
(hereinafter referred to as the "2038 Series"), all bonds of all series issued
and to be issued under and equally secured (except in so far as any sinking or
other fund established in accordance with the provisions of the Mortgage
hereinafter mentioned may afford additional security for the bonds of any
particular series) by a Mortgage and Deed of Trust (hereinafter referred to as
the "Original Indenture") dated as of February 1, 1945, executed by the Company
to Mississippi Valley Trust Company, which was succeeded through consolidation
by Mercantile Trust Company, which was succeeded by Mercantile Trust Company
National Association, which was succeeded by Mercantile Bank National
Association, which was succeeded by Mercantile Bank of St. Louis National
Association, which was succeeded by State Street Bank and Trust Company of
Missouri, N.A., which in turn was succeeded by UMB Bank & Trust, n.a., as
Trustee, and indentures supplemental thereto, including the supplemental
indenture thereto dated as of September 15, 2008, said Mortgage and Deed of
Trust as supplemented being herein called the "Mortgage," to which reference is
made for a description of the property mortgaged and pledged, the nature and
extent of the security, the rights of the owners of the bonds in respect
thereof, the duties and immunities of the Trustee, and the terms and conditions
upon which the bonds are secured. With the consent of the Company and
to the extent permitted by and as provided in the Mortgage, the rights and
obligations of the Company and/or of the owners of the bonds and/or coupons
and/or the terms and provisions of the Mortgage and/or of any instruments
supplemental thereto may be modified or altered by the affirmative vote of the
owners of at least sixty-six and two-thirds percent (66 2/3%) in principal
amount of the bonds affected by such modification or alteration (including the
bonds of the 2038 Series, if so affected), then outstanding under the Mortgage
(excluding bonds disqualified from voting by reason of the Company's interest
therein as provided in the Mortgage); provided that no such modification or
alteration shall permit the extension of the maturity of the principal of this
bond or the reduction in the rate of interest hereon or any other modification
in the terms of payment of such principal or interest, or the creation of a lien
on the mortgaged and pledged property ranking prior to or on a parity with the
lien of the Mortgage or the deprivation of the owner hereof of a lien upon such
property without the consent of the owner hereof, except that the owners of not
less than seventy-five percent (75%) in principal amount of the bonds at any
time outstanding under the Mortgage
(including
a like percent of the principal amount of the bonds of the 2038 Series, if any
interest payment on bonds of the 2038 Series is to be affected) may consent on
behalf of the owners of all bonds at any time outstanding to the postponement of
any interest payment for a period not exceeding three years from its due
date.
The
bonds of the 2038 Series are redeemable, in whole or in part, upon the notice
referred to below, and otherwise subject to the provisions of the Mortgage,
prior to maturity: (i) pursuant to paragraph (B) of Section 13.06 of
the Original Indenture (having reference to the taking of all the mortgaged
property by eminent domain and certain comparable contingencies) at 100% of the
principal amount thereof, together with accrued interest thereon to the date
fixed for redemption; or (ii) pursuant to Section 3.2 of the supplemental
indenture dated as of September 15, 2008 to the Original Indenture on or after
October 15, 2013 at a redemption price equal to 100% of the principal amount of
the bonds of the 2038 Series being redeemed, together with accrued interest
thereon to the date fixed for redemption without premium; provided, however,
that interest payable with respect to an interest payment date that falls on or
before such redemption date shall be made to the holder thereof on the record
date related to such interest payment date. If the redemption date
falls on a day that is not a Business Day, principal and/or interest payable on
such date will be paid on the next succeeding Business Day with the same force
and effect as if it were paid on the redemption date and no interest will accrue
on the amount so payable for the period from and after the redemption date to
the next succeeding Business Day.
The
notice of redemption of bonds of the 2038 Series shall be given by mailing a
copy thereof to each registered owner, directed to his registered address not
less than thirty nor more than ninety days prior to the date fixed for
redemption, all as provided in, and subject to the applicable provisions of, the
Mortgage.
The
principal hereof may be declared or may become due on the conditions, in the
manner, and at the time set forth in the Mortgage, upon the occurrence of a
completed default as in the Mortgage provided.
At
the option of the registered owner, any bonds of the 2038 Series, upon surrender
thereof at the office or agency of the Company in the Borough of Manhattan, The
City of New York, or in the City of St. Louis, State of Missouri, together with
a written instrument of transfer in form approved by the Company duly executed
by the registered owner or his duly authorized attorney, shall, subject to the
provisions of Section 2.05 of the Original Indenture, be exchangeable for a like
aggregate amount of fully registered bonds of the same series of other
authorized denominations.
This
bond is transferable as prescribed in the Mortgage by the registered owner
hereof in person, or by his duly authorized attorney, at the office or agency of
the Company in the Borough of Manhattan, The City of New York, or in the City of
St. Louis, upon surrender and cancellation of this bond and upon presentation of
a written instrument of transfer, duly executed, with signature guaranteed by a
signature guarantor that is a participant in a nationally recognized signature
guaranty program, and upon payment, if the Company shall require it, of the
transfer charges prescribed in the Mortgage, and thereupon, a new fully
registered bond of the same series for a like principal amount will be issued to
the transferee in exchange herefor as provided in the
Mortgage.
The
Company and the Trustee may deem and treat the person in whose name this bond is
registered as the absolute owner hereof for the purpose of receiving payment and
for all other purposes.
No
recourse shall be had for the payment of the principal of or of interest on this
bond against any incorporator or any past, present or future subscriber to the
capital stock, stockholder, officer or director of the Company or of any
predecessor or successor corporation, as such, either directly or through the
Company or any predecessor or successor corporation, under any rule of law,
statute or constitution or by the enforcement of any assessment or otherwise,
all such liability of incorporators, subscribers, stockholders, officers and
directors, as such, being released by the owner hereof by the acceptance of this
bond and being likewise waived and released by the terms of the
Mortgage.
This
bond shall not become obligatory until UMB Bank & Trust, n.a., the Trustee
under the Mortgage, or its successor thereunder, shall have signed the form of
certificate endorsed hereon.
IN
WITNESS WHEREOF, LACLEDE GAS COMPANY has caused this instrument to be signed in
its name by its President or one of its Vice-Presidents, by his or her signature
or a facsimile thereof, and a facsimile of its corporate seal to be imprinted
hereon and attested by its Secretary or one of its Assistant Secretaries, by his
or her signature or a facsimile thereof.
LACLEDE GAS
COMPANY
Dated
By
_________________________
President
ATTEST:
________________________________
Secretary
(FORM
OF TRUSTEE'S CERTIFICATE)
This
bond is one of the bonds, of the Series herein designated, provided for in the
within-mentioned Mortgage.
UMB BANK & TRUST,
N.A.
Trustee
By
Authorized
Signatory
and
WHEREAS,
all conditions and requirements necessary to make this Thirtieth Supplemental
Indenture a valid, binding and legal instrument have been done, performed and
fulfilled, and the execution and delivery hereof have been in all respects duly
authorized;
NOW,
THEREFORE, THIS THIRTIETH SUPPLEMENTAL INDENTURE WITNESSETH: That
Laclede Gas Company, in consideration of the premises and of one dollar to it
duly paid by the Trustee at or before the ensealing and delivery of these
presents, the receipt whereof is hereby acknowledged, and in order to secure the
payment both of the principal of and interest and premium, if any, on the bonds
from time to time issued under the Mortgage, according to their tenor and effect
and the performance of all the provisions of the Mortgage and of said bonds,
hath granted, bargained and sold, released, conveyed, assigned, transferred,
mortgaged, pledged, set over and confirmed, and by these presents doth grant,
bargain and sell, release, convey, assign, transfer, mortgage, pledge, set over
and confirm unto UMB Bank & Trust, n.a., as Trustee, and to its successor or
successors in said trust and its and their assigns forever, all the following
described properties of the Company, that is to say:
All
several parcels of real estate more particularly described in the Original
Indenture as Parcels Nos. 1 to 14 inclusive, and in the First Supplemental
Indenture as Parcels (a) to (i) inclusive, and the Third Supplemental Indenture
as Parcels II to VI inclusive, and in the Fourth Supplemental Indenture in
paragraphs II to VII inclusive, beginning on page 13 and extending to page 15
thereof, and in the Fifth Supplemental Indenture in paragraphs II to X
inclusive, beginning on page 14 and extending to page 17 thereof, and in the
Sixth Supplemental Indenture in paragraphs II to XI inclusive, beginning on page
14 and extending to page 21 thereof, and in the Seventh Supplemental Indenture
in paragraphs II to XIII inclusive, beginning on page 16 and extending to page
24 thereof, and in the Eighth Supplemental Indenture in paragraphs II to VIII
inclusive, beginning on page 16 and extending to page 19 thereof, and in the
Ninth Supplemental Indenture in paragraphs II and III, beginning on page 11 and
extending to page 12 thereof, and in the Tenth Supplemental Indenture in
paragraphs II to VI inclusive, beginning on page 11 and extending to page 13
thereof, and in the Eleventh Supplemental Indenture in paragraphs II and III,
beginning on page 13 and extending to page 16 thereof, and in the Twelfth
Supplemental Indenture on page 15 thereof, and in the Thirteenth Supplemental
Indenture beginning on page 16 and extending to page 24 thereof, and in the
Fifteenth Supplemental Indenture beginning on page 15 and extending to page 39
thereof, and in the Sixteenth Supplemental Indenture beginning on page 16 and
extending to page 17 thereof, and in the Seventeenth Supplemental Indenture
beginning on page 17 and extending to page 19 thereof, and in the Eighteenth
Supplemental Indenture beginning on page 15 and extending to page 16 thereof,
and in the Nineteenth Supplemental Indenture beginning on page 16 and extending
to page 17 thereof, and in the Twentieth Supplemental Indenture beginning on
page 17 and extending to page 19 thereof, and in the Twenty-First Supplemental
Indenture beginning on page 17 and extending to page 19 thereof, and in the
Twenty-Second Supplemental Indenture beginning on page 10 and extending to page
11 thereof, and in the Twenty-Third Supplemental Indenture beginning on page 10
and extending to page 11 thereof, and in the Twenty-Fourth Supplemental
Indenture beginning on page 10 and extending to page 11 thereof, and in the
Twenty-Fifth Supplemental Indenture beginning on page 13 and extending to page
14 thereof, and in the Twenty-Sixth Supplemental Indenture beginning on page 13
and extending to page 15 thereof; and in the Twenty-Seventh Supplemental
Indenture beginning on page 14 and extending to page 15 thereof; and in the
Twenty-Eighth Supplemental Indenture beginning on page 14 and extending to page
15 thereof; and in the Twenty-Ninth Supplemental Indenture beginning on page 14
and extending to page 15 thereof; except any parcel or part of such real estate
heretofore released from the lien of the
Mortgage,
or to which the Company and the Trustee have heretofore disclaimed any right,
title, or interest.
TOGETHER
WITH all other property, whether real, personal or mixed (except any hereinafter
expressly excepted), and whether now owned or hereafter acquired by the Company
and wheresoever situated, including (without in anywise limiting or impairing by
the enumeration of the same the scope and intent of the foregoing or of any
general description contained in this Thirtieth Supplemental Indenture) all real
estate, lands, leases, leaseholds (except the last day of the term of any lease
or leasehold), easements, licenses, permits, franchises, privileges, rights of
way and other rights in or relating to real estate or the occupancy of lands,
all rights of way and roads, all gas plants, gas containers, buildings and other
structures and all offices, buildings and the contents thereof; all machinery,
engines, boilers, gas machines, purifiers, scrubbers, retorts, tanks, pumps,
regulators, meters, gas and mechanical appliances, conduits, gas or other pipes,
gas mains and pipes, service pipes, fittings, valves and connections, tools,
implements, apparatus, supplies, furniture and chattels; all federal, state,
municipal and other franchises, privileges and permits; all lines for the
distribution of gas for any purpose including pipes, conduits and all apparatus
for use in connection therewith; and (except as hereinafter expressly excepted)
all the right, title and interest of the Company in and to all other property of
any kind or nature appertaining to and/or used and/or occupied and/or enjoyed in
connection with any property hereinabove described or referred to;
AND
TOGETHER WITH all and singular the tenements, hereditaments and appurtenances
belonging or in anywise appertaining to the aforesaid property or any part
thereof, with the reversion and reversions, remainder and remainders, and
(subject to the provisions of Section 13.01 of the Original Indenture) the
tolls, rents, revenues, issues, earnings, income, product and profits thereof,
and all the estate, right, title and interest and claim whatsoever, at law as
well as in equity, which the Company now has or may hereafter acquire in and to
the aforesaid property and franchises and every part and parcel
thereof;
Provided
that all property of the kinds which by the terms of the Original Indenture are
expressly excepted from the lien and operation thereof is expressly excepted
herefrom with the same effect and to the same extent as in the Original
Indenture provided with respect to such property so expressly
excepted;
TO
HAVE AND TO HOLD all such properties, real, personal, and mixed, granted,
bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged,
set over or confirmed by the Company as aforesaid, or intended so to be, unto
the Trustee and its successors and assigns forever;
Subject,
however, as to all property embraced herein to all of the restrictions,
exceptions and reservations of easements, rights of way or otherwise, contained
in any and all deeds and/or other conveyances under or through which the Company
acquired or shall acquire and/or claims or shall claim title thereto, and to the
restrictions, exceptions, reservations and provisions in the Mortgage
specifically set forth; and
Subject
further, with respect to the premises, property, franchises and rights owned by
the Company at the date of execution hereof, to excepted encumbrances as defined
in Section 1.06 of the Original Indenture, and subject, with respect to property
acquired after the date of execution of the Original Indenture or hereafter
acquired, to all excepted encumbrances, all other defects and limitations of
title and to all other encumbrances existing at the time of such acquisition,
including any purchase money mortgage or lien upon such property created by the
Company at the time of the acquisition of such property.
IN
TRUST NEVERTHELESS, upon the terms and trusts in the Original Indenture and this
Thirtieth Supplemental Indenture set forth, for the benefit and security of
those who shall hold the bonds and coupons issued and to be issued under the
Mortgage, or any of them, in accordance with the terms of the Mortgage without
preference, priority or distinction as to lien of any of said bonds and coupons
over any other thereof by reason of priority in the time of the issue or
negotiation thereof or for any other reason whatsoever, subject, however, to the
provisions in reference to extended, transferred or pledged coupons and claims
for interest in the Original Indenture set forth; it being intended that the
lien and security of all of said bonds and coupons of all series issued or to be
issued hereunder shall take effect from the execution and delivery of the
Mortgage, and that the lien and security of the Mortgage shall take effect from
the date of execution and delivery of the Original Indenture as though all of
the said bonds of all series were actually authenticated and delivered and
issued upon such date.
And
the Company, for itself and its successors and assigns, does hereby covenant and
agree to and with the Trustee and its successor or successors in such trust, for
the benefit of those who shall hold the bonds of the 2038 Series, or any of such
bonds, as follows:
ARTICLE
I
DEFINITIONS
SECTION 1.1. For
all purposes of this Thirtieth Supplemental Indenture, except as herein
otherwise expressly provided or unless the context otherwise requires, the terms
defined in Sections 1.2 to 1.36 hereof shall have the meanings specified in such
Sections, and all other terms which are defined in the Original Indenture
(including those defined by reference to the Trust Indenture Act of 1939, as
amended, or the Securities Act of 1933, as amended) shall have the meanings
assigned to them in the Original Indenture.
SECTION 1.2. The
term “Business Day” shall mean a day other than a (i) Saturday, (ii) Sunday, or
(iii) day on which commercial banks are authorized or required by law,
regulation or executive order to close in the City of New York, New
York. If a payment date is not a Business Day at a place of payment,
payment may be made at that place on the next succeeding day that is a Business
Day, and no interest shall accrue for the intervening period.
SECTION 1.3. The
term "the Trustee" shall mean the party of the second part hereto, UMB Bank
& Trust, n.a., and, subject to the provisions of Article XVIII of the
Original Indenture, shall also include its successors and assigns.
SECTION 1.4. The
term "Original Indenture" shall mean the indenture of mortgage and deed of trust
dated as of February 1, 1945, hereinbefore referred to.
SECTION 1.5. The
term "First Supplemental Indenture" shall mean the supplemental indenture dated
as of December 1, 1946, hereinbefore referred to.
SECTION 1.6. The
term "Second Supplemental Indenture" shall mean the supplemental indenture dated
as of March 15, 1948, hereinbefore referred to.
SECTION 1.7. The
term "Third Supplemental Indenture" shall mean the supplemental indenture dated
as of April 1, 1951, hereinbefore referred to.
SECTION 1.8. The
term "Fourth Supplemental Indenture" shall mean the supplemental indenture dated
as of December 1, 1954, hereinbefore referred to.
SECTION 1.9. The
term "Fifth Supplemental Indenture" shall mean the supplemental indenture dated
as of May 1, 1957, hereinbefore referred to.
SECTION 1.10. The
term "Sixth Supplemental Indenture" shall mean the supplemental indenture dated
as of July 1, 1960, hereinbefore referred to.
SECTION 1.11. The
term "Seventh Supplemental Indenture" shall mean the supplemental indenture
dated as of June 1, 1964, hereinbefore referred to.
SECTION 1.12. The
term "Eighth Supplemental Indenture" shall mean the supplemental indenture dated
as of April 15, 1966, hereinbefore referred to.
SECTION 1.13. The
term "Ninth Supplemental Indenture" shall mean the supplemental indenture dated
as of May 1, 1968, hereinbefore referred to.
SECTION 1.14. The
term "Tenth Supplemental Indenture" shall mean the supplemental indenture dated
as of May 15, 1970, hereinbefore referred to.
SECTION 1.15. The
term "Eleventh Supplemental Indenture" shall mean the supplemental indenture
dated as of March 15, 1972, hereinbefore referred to.
SECTION 1.16. The
term "Twelfth Supplemental Indenture" shall mean the supplemental indenture
dated as of March 15, 1974, hereinbefore referred to.
SECTION 1.17 The
term "Thirteenth Supplemental Indenture" shall mean the supplemental indenture
dated as of June 1, 1975, hereinbefore referred to.
SECTION
1.18. The term "Fourteenth Supplemental Indenture" shall mean the
supplemental indenture dated as of October 26, 1976, hereinbefore referred
to.
SECTION 1.19. The
term "Fifteenth Supplemental Indenture" shall mean the supplemental indenture
dated as of July 15, 1979, hereinbefore referred to.
SECTION 1.20. The
term "Sixteenth Supplemental Indenture" shall mean the supplemental indenture
dated as of May 1, 1986, hereinbefore referred to.
SECTION
1.21. The term "Seventeenth Supplemental Indenture" shall mean the supplemental
indenture dated as of May 15, 1988, hereinbefore referred to.
SECTION
1.22. The term "Eighteenth Supplemental Indenture" shall mean the
supplemental indenture dated as of November 15, 1989, hereinbefore referred
to.
SECTION
1.23. The term "Nineteenth Supplemental Indenture" shall mean the supplemental
indenture dated as of May 15, 1991, hereinbefore referred to.
SECTION 1.24.
The term "Twentieth Supplemental Indenture" shall mean the supplemental
indenture dated as of November 1, 1992, hereinbefore referred
to.
SECTION
1.25. The term "Twenty-First Supplemental Indenture" shall mean the supplemental
indenture dated as of May 1, 1993, hereinbefore referred to.
SECTION 1.26.
The term "Twenty-Second Supplemental Indenture" shall mean the supplemental
indenture dated as of November 15, 1995, hereinbefore referred
to.
SECTION 1.27.
The term "Twenty-Third Supplemental Indenture" shall mean the supplemental
indenture dated as of October 15, 1997, hereinbefore referred to.
SECTION 1.28.
The term “Twenty-Fourth Supplemental Indenture” shall mean the supplemental
indenture dated as of June 1, 1999 hereinbefore referred to.
SECTION 1.29. The
term “Twenty-Fifth Supplemental Indenture” shall mean the supplemental indenture
dated as of September 15, 2000 hereinbefore referred to.
SECTION 1.30. The
term "Twenty-Sixth Supplemental Indenture" shall mean the supplemental indenture
dated as of June 15, 2001 hereinbefore referred to.
SECTION 1.31. The
term "Twenty-Seventh Supplemental Indenture" shall mean the supplemental
indenture dated as of April 15, 2004 hereinbefore referred to.
SECTION 1.32. The
term "Twenty-Eighth Supplemental Indenture" shall mean the supplemental
indenture dated as of April 15, 2004 hereinbefore referred to.
SECTION 1.33. The
term "Twenty-Ninth Supplemental Indenture" shall mean the supplemental indenture
dated as of June 1, 2006 hereinbefore referred to.
SECTION 1.34. The
term "Mortgage" shall mean the Original Indenture as supplemented by the First,
Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh,
Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth,
Nineteenth, Twentieth, Twenty-First, Twenty-Second, Twenty-Third, Twenty-Fourth,
Twenty-Fifth, Twenty-Sixth, Twenty-Seventh, Twenty-Eighth and Twenty-Ninth
Supplemental Indentures and hereby, or as the same may from time to time
hereafter be supplemented, modified, altered or amended by any supplemental
indenture entered into pursuant to the provisions of the Original
Indenture.
SECTION 1.35. The
term "hereof," "hereunder," "hereto," "hereby," "hereinbefore," and the like,
refer to this Thirtieth Supplemental Indenture.
SECTION 1.36. The
term "2038 Series" shall mean the series of First Mortgage Bonds created by this
Thirtieth Supplemental Indenture, as in Section 2.1 hereof
provided.
ARTICLE
II
CREATION,
DESCRIPTION, REGISTRATION, TRANSFER AND
EXCHANGE
OF THE 2038 SERIES OF BONDS
SECTION 2.1. The
Company hereby creates a new series of bonds that may be authenticated and
delivered, either before or after the filing or recording hereof, under any
applicable provisions of the Original Indenture, and may be issued under the
Mortgage, and each of which series shall be designated by the title "First
Mortgage Bonds, 6.35% Series due October 15, 2038". The aggregate
principal amount of bonds of the 2038 Series that may be executed by the Company
and authenticated is limited to Eighty Million Dollars ($80,000,000), except
bonds of such series authenticated and delivered pursuant to Section 2.4 or 2.6
hereof or Section 2.09 or Section 12.04 of the Original
Indenture. Interest on all bonds of the 2038 Series shall be paid
monthly in arrears on the 15th day of each calendar month commencing on October
15, 2008. If an interest payment date, October 15, 2038 or any date
of maturity or redemption of principal of the bonds of the 2038 Series falls on
a day that is not a Business Day, the required payment of principal and/or
interest payable on such date shall be made on the next succeeding Business Day
with the same force and effect as if made on the date the payment was due, and
no interest shall accrue with respect to such payment for the period from and
after such interest payment date, October 15, 2038, or redemption date, as the
case may be, to the date of such payment on the next succeeding Business
Day.
SECTION 2.2. All
bonds of the 2038 Series shall be dated as provided in Section 2.03 of the
Original Indenture.
SECTION 2.3. The
bonds of the 2038 Series shall be issuable only as fully registered bonds
without coupons, in the denomination of $1,000, and, at the option of the
Company, in any multiple or multiples of $1,000, and such bonds, and the
Trustee's certificate of authentication, shall, respectively, be substantially
of the tenor and purport in this Thirtieth
Supplemental
Indenture above recited, and they may have such letters, numbers or other marks
of identification, and such legends or endorsements, printed, lithographed or
engraved thereon as the Company may deem appropriate and as are not inconsistent
with the Mortgage, including any legend or legends permitted pursuant to Section
2.04 of the Original Indenture.
SECTION 2.4. At
the option of the registered owner, any bonds of the 2038 Series, upon surrender
thereof at the office or agency of the Company in the Borough of Manhattan, The
City of New York, or in the City of St. Louis, State of Missouri, together with
a written instrument of transfer in form approved by the Company duly executed
by the registered owner or his duly authorized attorney, shall, subject to the
provisions of Section 2.05 of the Original Indenture, be exchangeable for a like
aggregate amount of fully registered bonds of the same series of other
authorized denominations.
SECTION 2.5. The
bonds of the 2038 Series are transferable as prescribed in the Mortgage by the
registered owner thereof in person, or by his duly authorized attorney, at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, or in the City of St. Louis, State of Missouri, upon surrender and
cancellation of such bonds and upon presentation of a written instrument of
transfer, duly executed, with signature guaranteed by a signature guarantor that
is a participant in a nationally recognized signature guaranty program, and upon
payment, if the Company shall require it, of the transfer charges prescribed in
the Mortgage, and thereupon, new fully registered bonds of the same series for a
like principal amount will be issued to the transferee in exchange therefor as
provided in the Mortgage.
SECTION 2.6. Until
bonds of the 2038 Series in definitive form are ready for delivery, there may be
authenticated and delivered and issued, in lieu of any definitive bond or bonds
of said series, temporary bonds of said series as provided in Section 2.08 of
the Original Indenture. Such temporary bonds shall be substantially
in the form of the definitive bonds of the 2038 Series, but with such omissions,
insertions and variations as may be appropriate for temporary bonds, and may
contain such reference to any provisions of the Mortgage as may be appropriate,
all as determined by the Board of Directors.
SECTION 2.7. The
person in whose name any bond of the 2038 Series is registered at the close of
business on any record date (as hereinbelow defined) with respect to any
interest payment date shall be entitled to receive the interest payable on such
interest payment date notwithstanding the cancellation of such bond upon any
transfer or exchange thereof subsequent to the record date and prior to such
interest payment date, except if and to the extent the Company shall default in
the payment of the interest due on such interest payment date, in which case
such defaulted interest shall be paid to the person in whose name such bond is
registered on the date of payment of such defaulted interest. The
record date shall be the fifteenth day (whether or not a Business Day) preceding
such interest payment date.
SECTION 2.8. Anything
in this Thirtieth Supplemental Indenture to the contrary notwithstanding, the
Company shall not be required to make transfers or exchanges of bonds of the
2038 Series for a period of fifteen days next preceding any selection of bonds
of the 2038 Series to be redeemed, and the Company shall not be required to make
transfers or exchanges of the principal
amount of
any of such bonds called or selected for redemption except in the case of any
bond of the 2038 Series to be redeemed in part, the portion thereof not to be so
redeemed.
ARTICLE
III
REDEMPTION
OF BONDS OF THE 2038 SERIES
SECTION 3.1. Bonds
of the 2038 Series shall be redeemable, in whole or in part, at 100% of the
principal amount thereof, together with accrued interest thereon to the date
fixed for redemption at any time before maturity pursuant to the provisions of
paragraph (B) of Section 13.06 of the Original Indenture.
SECTION 3.2. Bonds
of the 2038 Series shall also be redeemable, at the option of the Company, in
whole at any time or in part from time to time, prior to maturity but on or
after October 15, 2013, at a redemption price equal to 100% of the principal
amount of the bonds of the 2038 Series being redeemed, together with accrued
interest thereon to the date fixed for redemption without premium; provided,
however, that interest payable with respect to an interest payment date that
falls on or before such redemption date shall be made to the holder thereof on
the record date related to such interest payment date.
SECTION .3. Article
XII of the Original Indenture is and shall be applicable to any redemption of
bonds of the 2038 Series. The notice of intention to redeem provided
for in Section 12.02 of the Original Indenture need not be published with
respect to bonds of the 2038 Series but shall be given by mailing a copy thereof
to each registered owner thereof, directed to his registered address, not less
than thirty nor more than ninety days prior to the date fixed for
redemption.
ARTICLE
IV
PARTICULAR
COVENANTS OF THE COMPANY
SECTION 4.1. So
long as any of the bonds of the 2038 Series are outstanding, the Company will
not (a) declare any dividends (other than dividends in common stock) on any
common stock, or order the making of any distribution on any shares of common
stock or to owners of common stock or (b) purchase, redeem or otherwise acquire
or retire for value any shares of common stock, if the aggregate net amount of
such declarations, distributions so ordered, purchases, redemptions,
acquisitions and retirements after September 30, 1953, would exceed the sum
of (y) the Net Income Available for Common Stock for the period beginning
October 1, 1953, and ending with the last day of the calendar quarter
immediately preceding the calendar quarter in which such dividend is declared,
distribution ordered, or purchase, redemption, acquisition or retirement made,
plus (z) Eight Million Dollars ($8,000,000).
The
aggregate net amount of the declarations, distributions ordered, purchases,
redemptions, acquisitions and retirements referred to in the first paragraph of
this Section 4.1 shall be determined by deducting from the aggregate amount
thereof the total amount of cash payments received by the Company after
September 30, 1953, for any shares of common stock sold by the Company
after September 30, 1953.
Net
Income Available for Common Stock, for the purpose of this Section 4.1, for any
period, means (1) the net income of the Company for such period computed
according to the applicable system of accounts prescribed by the Public Service
Commission of Missouri and any applicable orders of said Commission and (to the
extent not prescribed by such system of accounts or orders) according to
generally accepted accounting principles, less (2) an amount equal to the
dividends accrued (whether or not declared or paid) during such period on any
and all classes of stock having preference over the common stock as to assets or
dividends.
For
the purposes of the last preceding paragraph of this Section 4.1, the term
"Public Service Commission of Missouri" shall also apply, and be deemed to
refer, to any regulatory body which may (A) succeed said Commission with respect
to jurisdiction over the accounting of the Company,
or (B)
supersede said Commission with respect to such jurisdiction, or (C) have such
jurisdiction over phases of the Company's business or parts of its property over
which said Commission shall not have jurisdiction.
SECTION 4.2. So
long as any bonds of the 2038 Series are outstanding, the Company shall not be
entitled to have authenticated and delivered any bonds pursuant to Article VI,
Article VII or Article VIII of the Original Indenture, except bonds which may be
authenticated and delivered under Article VII of the Original Indenture, without
the receipt by the Trustee of a net earnings certificate showing the net
earnings to be as required by Section 6.05 of the Original Indenture, unless (in
addition to all other requirements for the authentication and delivery of such
bonds):
(a) net
earnings of the Company after provision for depreciation, depletion and
amortization of property, for any 12 consecutive calendar months within the 15
calendar months immediately preceding the date on which such additional bonds
are to be issued, shall have been not less than 2 1/4 times the amount of the
total annual interest charges upon the funded debt of the Company to be
outstanding immediately after the issue of such additional bonds;
and
(b) the
Trustee shall have received a certificate made, signed and verified by the same
persons (including an independent public accountant where required) as would be
required if such certificate were a net earnings certificate under the Original
Indenture, showing the net earnings of the Company to be as required by the
foregoing clause (a) of this Section 4.2. Such certificate shall show
the net earnings and total annual interest charges referred to in said clause
(a).
For
the purposes of this Section 4.2, "funded debt" shall mean all indebtedness
created or assumed by the Company maturing one year or more after the date of
the creation or assumption thereof.
For
the purposes of this Section 4.2, net earnings of the Company after provision
for depreciation, depletion and amortization of property shall mean the total
operating revenue and other income (net) of the Company less operating expenses
(including provision for depreciation, depletion and amortization of property)
and less taxes (excluding income and excess profits taxes or other taxes which
are imposed on or measured by income). In the determination of net
earnings of the Company the following additional requirements shall be
applicable:
(i) No
profits or losses from the sale or abandonment of capital assets or change in
value of securities or other investments shall be taken into account in making
such computations;
(ii) In
case the Company shall have sold any property for a consideration in excess of
$5,000,000, within or after the particular period for which the calculation is
made, then, in computing the net earnings of the Company so available, the net
earnings or net losses of such property for the whole of such period shall be
excluded to the extent practicable on the basis of actual earnings and expenses
of such property or on the basis of such estimates of the earnings and expenses
of such property as the signers of a Treasurer's certificate filed with the
Trustee shall deem proper;
(iii) In
case the Company shall, within or after the particular period for which the
calculation is made, have acquired (by purchase, merger, consolidation or
otherwise) any property which within six months prior to the date of acquisition
thereof by the Company has been used or operated by a person or persons other
than the Company in a business similar to that in which it has been or is to be
used or operated by the Company, then in computing the net earnings of the
Company so available for such purposes there shall be included, to the extent
that they may not have been otherwise included, the net earnings or net losses
of the property so acquired for the whole of such period to the extent
practicable on the basis of actual earnings and expenses of such property or on
the basis of such estimates of the earnings and expenses of such property as the
signers of a Treasurer's certificate filed with the Trustee shall deem
proper. The net earnings or net losses of such property for the
period preceding such acquisition shall in such case be ascertained and computed
as provided in this clause (iii) as if such acquired property had been owned by
the Company during the whole of such period; and
(iv) The
"net earnings of property" referred to in clauses (ii) and (iii) of this Section
4.2 shall mean the net earnings of such property computed in the manner provided
in this definition for the computation of net earnings of the Company available
for the pertinent purposes.
All
accounting determinations required by this Section 4.2 shall (except to the
extent, if any, to which the preceding provisions of this Section 4.2 may
conflict with this provision) be made according to the applicable system of
accounts prescribed by the Public Service Commission of Missouri and any
applicable orders of said Commission and (to the extent not prescribed by such
system of accounts or orders) according to generally accepted accounting
principles.
For
the purposes of this Section 4.2, the term "Public Service Commission of
Missouri" shall be applicable as provided in Section 4.1 of this Article
IV.
SECTION 4.3. So
long as any bonds of the 2038 Series are outstanding, in order that any interest
payment on the bonds of any of the Series may be postponed pursuant to clause
(2) of Section 20.07 of the Original Indenture, there shall be required, in
addition to all other prerequisites to such postponement provided in the
Original Indenture, the consent of the owners of not less than seventy-five
percent (75%) in principal amount of bonds of the 2038 Series at the time
outstanding,
such consent to be given at the same time as and in the same manner as the
consent of the owners of other bonds required by said clause (2) of Section
20.07 of the Original Indenture.
ARTICLE
V
COMPANY’S
RESERVATION OF RIGHTS
SECTION 5.1. The
Company reserves the right, without any consent, vote or other action by holders
of bonds of the 2038 Series, or of any other subsequent series, to amend the
Mortgage, as heretofore amended and supplemented, as follows:
To
amend Section 21.04 of the Mortgage to read substantially as
follows:
SECTION
21.04. Any power, privilege or right expressly or impliedly reserved
to or in any way conferred upon the Company by any provision of this Indenture,
whether such power, privilege or right is in any way restricted or is
unrestricted, may be in whole or in part waived or surrendered or subjected to
any restriction if at the time unrestricted or to additional restriction if
already restricted. Anything in this Indenture to the contrary
notwithstanding, the Company and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form satisfactory
to the Trustee, for any of the following purposes: (i) to enter into any further
covenants, limitations or restrictions for the benefit of any one or more series
of bonds issued hereunder and provide that a breach thereof shall be equivalent
to a default under this Indenture; (ii) to cure any ambiguity or correct or
supplement any defective or inconsistent provisions contained herein or in any
supplemental indenture; (iii) to correct or amplify the description of any
property at any time subject to the lien of the this Indenture, or better
assure, convey and confirm unto the Trustee any property subject or required to
be subjected to the lien of this Indenture, or subject to the lien of this
Indenture additional property; or (iv) to change or eliminate any provision of
this Indenture or to add any new provision to this Indenture provided that no
such change, elimination or addition shall adversely affect the interests of the
holders of bonds of any series. The Trustee is hereby authorized to
join with the Company in the execution of any such instrument or
instruments. Such instrument, executed and acknowledged as aforesaid,
shall be delivered to the Trustee and thereupon if such instrument shall have
been signed by the Trustee any modification of the provisions of these presents
therein set forth, authorized by this Section, shall be binding upon the parties
hereto, their successors and assigns, and the holders of the bonds and coupons
hereby secured. Anything to the contrary notwithstanding, this
Section shall not be construed to permit any act, waiver, surrender or
restriction adversely affecting any bonds then outstanding
hereunder.
Without
limiting the generality of the foregoing, if the Trust Indenture Act of 1939, as
in effect at any time and from time to time,
(i)
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shall require one or
more changes to any provisions hereof or the inclusion herein of any
additional provisions, or shall by operation of law be deemed to effect
such changes or incorporate such provisions by reference or
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otherwise,
this Indenture shall be deemed to have been amended so as to conform to
the Trust Indenture Act as then in effect, and the Company and the Trustee
may, without the consent of any holders of bonds, enter into an indenture
supplemental hereto to evidence such amendment hereof;
or
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(ii)
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shall
permit one or more changes to, or the elimination of, any provisions
hereof which shall theretofore have been required by the Trust Indenture
Act of 1939 to be contained herein or are contained herein to reflect any
provisions of the Trust Indenture Act of 1939, this Indenture shall be
deemed to have been amended to effect such changes or elimination, and the
Company and the Trustee may, without the consent of any holders of bonds,
enter into an indenture supplemental hereto to evidence such amendment
hereof.
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ARTICLE
VI
MISCELLANEOUS
SECTION 6.1. If
and to the extent that any provision hereof, or any other provision of the
Mortgage, limits, qualifies, or conflicts with another provision included in the
Mortgage which is required to be included in the Mortgage by any of Sections 310
to 317, inclusive, of the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990, through operation of Section 318(c) thereof, such
required provisions shall control.
SECTION 6.2. The
Trustee hereby accepts the trust hereby declared and provided and agrees to
perform the same upon the terms and conditions in the Original Indenture and in
this Thirtieth Supplemental Indenture set forth.
SECTION 6.3. This
Thirtieth Supplemental Indenture is executed and shall be construed as an
indenture supplemental to the Original Indenture and shall form a part
thereof.
SECTION 6.4. This
Thirtieth Supplemental Indenture may be simultaneously executed in any number of
counterparts, each of which, when so executed, shall be deemed to be an
original; such counterparts shall together constitute but one and the same
instrument.
SECTION 6.5. Although
this Thirtieth Supplemental Indenture is dated, for convenience and for purposes
of reference, as of September 15, 2008, the actual dates of execution by the
Company and by the Trustee are as indicated by their respective acknowledgements
hereto annexed.
IN
WITNESS WHEREOF, Laclede Gas Company, party of the first part, has caused its
corporate name to be hereunto affixed and this instrument to be signed and
sealed by its President, a Vice President, or Treasurer and its corporate seal
to be attested by its Secretary or an Assistant Secretary, for and in its
behalf; and UMB Bank & Trust, n.a., Trustee, party of the second part, in
token of its acceptance of the trust hereby created, has caused its name to be
hereunto affixed and this instrument to be signed and sealed by a Vice President
or an Assistant Vice President, and its seal to be attested by its Secretary or
an Assistant Secretary.
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LACLEDE
GAS COMPANY
By
/s/ D. H.
Yaeger
President
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ATTEST:
/s/
Mary C. Kullman
Secretary
(SEAL)
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UMB
BANK & TRUST, N.A.
Trustee
By
/s/ Victor
Zarrilli
Sr.
Vice President
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ATTEST:
/s/
Richard F. Novosak
Assistant
Secretary
(SEAL)
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State of
Missouri )
) ss.
City of
St. Louis )
On
this 18th day of September, 2008 before me appeared D. H. Yaeger, to me
personally known, who, being by me duly sworn did say that he is the President
of Laclede Gas Company, the corporation described in and which executed the
foregoing instrument, and that the seal affixed to the foregoing instrument is
the corporate seal of said corporation and that said instrument was signed and
sealed in behalf of said corporation by authority of its board of directors, and
said D. H. Yaeger acknowledged said instrument to be the free act and
deed of said corporation.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in my
office in the City of St. Louis, Missouri, the day and year last above
written.
My
commission
expires 2/18/2012 .
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/s/
Karen A. Zurliene
Notary
Public
State
of Missouri
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(SEAL)
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State of
Missouri )
) ss.
City of
St. Louis )
On
this 18th day of September, 2008 before me
appeared Victor Zarrilli to me personally known, who, being by me
duly sworn did say that (s)he is a Senior Vice President of UMB Bank &
Trust, n.a., the national banking association described in and which executed
the foregoing instrument, and that the seal affixed to the foregoing instrument
is the seal of said association and that said instrument was signed and sealed
in behalf of said association by authority of its board of directors, and
said Victor Zarrilli acknowledged said instrument to be the free act
and deed of said association.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in my
office in the City of St. Louis, Missouri, the day and year last above
written.
My commission
expires 2/18/2012 .
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/s/
Karen A. Zurliene
Notary
Public
State
of Missouri
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(SEAL)
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