SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report
LACLEDE GAS COMPANY
(Exact name of registrant as specified in its charter)
Missouri | 1-1822 | 43-0368139 | ||
(State or other jurisdiction | (Commission | (IRS Employer | ||
of incorporation) | File Number) | Identification No.) |
720 Olive Street St. Louis, Missouri | 63101 | |
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code (314) 342-0500
NONE
(Former name or former address, if changed since last report)
Item 5. | Other Events. |
Pursuant to an Underwriting Agreement dated April 21, 2004 (the Underwriting Agreement) between Laclede Gas Company (the Registrant), and Merrill, Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, A.G. Edwards & Sons, Inc., Piper Jaffray & Co., BNY Capital Markets, Inc. and Comerica Securities, Inc. (the Underwriters) on April 28, 2004, the Registrant sold to the Underwriters $50,000,000 aggregate principal amount of its First Mortgage Bonds, 5½% Series due May 1, 2019 and $100,000,000 aggregate principal amount of its First Mortgage Bonds, 6% Series due May 1, 2034 (collectively, the Bonds). The Bonds have been issued under a Mortgage and Deed of Trust, dated as of February 1, 1945, under which UMB Bank & Trust, n.a. is the present Trustee. Such Mortgage and Deed of Trust had previously been amended and supplemented and has been further supplemented by a Twenty-Seventh Supplemental Indenture and a Twenty-Eighth Supplemental Indenture relating to the Bonds, each dated as of April 15, 2004 (the Supplemental Indentures). The Registration Statement on Form S-3 with respect to the First Mortgage Bonds of the Registrant, including the Bonds (File No. 333-40362), was filed by the Registrant on June 29, 2000 and declared effective by the Securities and Exchange Commission on July 24, 2000. This Current Report on Form 8-K files the Underwriting Agreement, the Supplemental Indentures and the opinion as to the legality of the Bonds as Exhibits 1.01, 4.01, 4.02 and 5.01, respectively, to the Registration Statement.
Item 7. | Exhibits. |
Reference is made to the information contained in the Index to Exhibits filed as part of this Form 8-K.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
LACLEDE GAS COMPANY
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By: |
/ S / B ARRY C. C OOPER |
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Barry C. Cooper. Chief Financial Officer |
April 28, 2004
(Date)
Index to Exhibits
Exhibit No.
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1.01 | Underwriting Agreement dated April 21, 2004 between the Registrant and the Underwriters relating to the Bonds. | |
4.01 | Twenty-Seventh Supplemental Indenture dated as of April 15, 2004 to Registrants Mortgage and Deed of Trust, dated as of February 1, 1945. | |
4.02 | Twenty-Eighth Supplemental Indenture dated as of April 15, 2004 to Registrants Mortgage and Deed of Trust, dated as of February 1, 1945. | |
5.01 | Opinion as to legality of the Bonds. |
Execution Copy
Exhibit 1.01
UNDERWRITING AGREEMENT
LACLEDE GAS COMPANY
First Mortgage Bonds
April 21, 2004
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
PIPER JAFFRAY & CO.
BNY CAPITAL MARKETS, INC.
COMERICA SECURITIES, INC.
c/o | Merrill Lynch & Co. |
World Financial Center, North Tower
250 Vesey Street
New York, New York 10080
Ladies and Gentlemen:
Laclede Gas Company, a Missouri corporation (the Company), proposes, subject to the terms and conditions stated herein, to issue and sell severally to you and any other several Underwriters named in Schedule I hereto (collectively, including any underwriter substituted as hereinafter provided in Section 4 hereof, the Underwriters) (a) the Companys First Mortgage Bonds, 5½% Series due May 1, 2019 (the Series 2019 Bonds) and (b) the Companys First Mortgage Bonds, 6% Series due May 1, 2034 (the Series 2034 Bonds and, together with the Series 2019 Bonds, the Bonds), in each case in the aggregate principal amount set forth on Schedule I hereto. The Bonds will be issued under the Companys Mortgage and Deed of Trust dated as of February 1, 1945, as amended and supplemented and as it will be further amended supplemented by the Twenty-Seventh Supplemental Indenture relating to the Series 2019 Bonds and the Twenty-Eighth Supplemental Indenture relating to the Series 2034 Bonds each to be dated as of April 15, 2004 (such further supplemental indentures, collectively, the Supplemental Indentures), 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
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Trustee). Such Mortgage and Deed of Trust, as so supplemented and to be supplemented by the Supplemental Indentures, is hereinafter referred to as the Mortgage.
1. Representations and Warranties of the Company . The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-40362) with respect to the Bonds has been prepared by the Company in conformity in all material respects with the requirements of the Securities Act of 1933, as amended (the Securities Act), and the rules and regulations of the Securities and Exchange Commission (the Commission) under the Securities Act (the Securities Act Regulations), has been filed with the Commission and has become effective; the Company meets the requirements for the use of Form S-3 under the Securities Act; copies of such registration statement, together with all amendments, if any, and the prospectus contained therein, in the form in which it became effective, including the documents incorporated in such prospectus by reference, have heretofore been delivered to the Underwriters; such registration statement in the form in which it most recently became effective, including all exhibits thereto, is referred to hereinafter as the Registration Statement; the prospectus, including the documents incorporated therein by reference, contained in the Registration Statement is referred to hereinafter as the Prospectus; provided, however , that, as used in this Agreement (except in this Section 1), upon the initial filing of a supplement to the Prospectus for use in connection with the offering of the Bonds with the Commission pursuant to Rule 424(b) of the Securities Act Regulations and in accordance with Section 6(a) hereof, the term Prospectus shall mean the Prospectus as so supplemented (the Completed Prospectus); and all references in this Agreement to amendments or supplements to the Registration Statement, the Prospectus or the Completed Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934, as amended (the Exchange Act), after the date of this Agreement that is or is deemed to be incorporated by reference in the Prospectus; and all references to the Registration Statement, the Prospectus or the Completed 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).
(b) No stop order with respect to the Registration Statement has been issued by the Commission under the Securities Act and no proceeding therefor is pending before, or to the knowledge of the Company threatened by, the Commission; the Registration Statement, at the time it became effective, complied in all material respects with the requirements of the Securities Act and the Securities Act Regulations and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus, on the date hereof, and the Completed Prospectus, at the time it is filed with the Commission pursuant to Rule 424(b) of the Securities Act Regulations or first used and at the Time of Delivery (as defined in Section 4 hereof), as the case may be, complied and will comply in all material respects with the requirements of the Securities Act and the Securities Act Regulations and neither the Prospectus, on the date hereof, nor the Completed Prospectus, at any such times, contains or will contain an untrue statement of a material fact or omits or will omit to state a material fact required to be stated therein or necessary
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to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each document incorporated by reference in the Prospectus, at the time it was or will be filed with the Commission under the Exchange Act, conformed or will conform when so filed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder (the Exchange Act Regulations); provided, however , that the representations and warranties contained in this Section 1(b) shall not apply to (i) statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in conformity with information furnished in writing to the Company, through Merrill Lynch by any Underwriter, expressly for use in the Registration Statement or the Prospectus or (ii) that part of the Registration Statement that constitutes the Statement of Eligibility on Form T-1 of the Trustee filed pursuant to the Trust Indenture Act of 1939, as amended (the Trust Indenture Act), and the rules and regulations of the Commission thereunder (the Trust Indenture Act Regulations).
(c) Since the respective dates as of which information is given in the Prospectus, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company (a Material Adverse Change) and there has not been any material transaction entered into by the Company, other than transactions in the ordinary course of business and transactions referred to in, or contemplated by, the Prospectus; and the Company does not have any material contingent obligation that is not disclosed in the Prospectus.
(d) The Company is not, nor with the giving of notice or the lapse of time or both would be, in breach of any of the terms and provisions of, or in default under, the Restated Articles of Incorporation or Bylaws of the Company or any statute or other applicable law, indenture, mortgage, deed of trust or other agreement or instrument 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 or any order, rule or regulation applicable to the Company of any court or governmental agency or body having jurisdiction over the Company or any of its properties, except for such breaches or defaults as would not, singly or in the aggregate, result in a Material Adverse Change; neither the consummation by the Company of the transactions herein contemplated nor the fulfillment of the terms hereof will result in a breach of any of the terms or provisions of, or constitute a default under, the Restated Articles of Incorporation or Bylaws of the Company or any statute or other applicable law, indenture, mortgage, deed of trust or other agreement or instrument 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 or any order, rule or regulation applicable to the Company of any court or governmental agency or body having jurisdiction over the Company or any of its properties, nor will any such action result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any such agreement or instrument (other than lien of the Mortgage); the Missouri Public Service Commission of the State of Missouri (the MPSC) has issued orders authorizing the issuance and sale of the Bonds, which orders are in full force and effect; and no other approval, authorization, consent or order of any public board or body is legally required for the issuance and sale of the Bonds by the Company hereunder, except such as may be required under the Securities Act or state securities laws.
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(e) The financial statements, together with related notes, incorporated by reference in the Prospectus present fairly the financial position and the results of operations of the Company on the bases set forth in such statements and related notes at the dates or for the periods to which they apply; such statements and related notes have been prepared in accordance with generally accepted principles of accounting, consistently applied throughout the periods involved, except as otherwise stated therein; and the supporting schedule incorporated by reference in the Prospectus presents fairly the information required to be stated therein.
(f) The Company is a validly organized and existing corporation in good standing under the laws of the State of Missouri, with full power and authority to own or lease its properties and conduct its business as described in the Prospectus; the Company has no subsidiaries; and the Company is duly qualified to do business and is in good standing in each jurisdiction in which the character of the business conducted by it or the location of the properties owned or leased by it makes such qualification necessary, except where the failure to so qualify would not result in a Material Adverse Change.
(g) The Company has good and sufficient title to the properties described as owned by it in and as subject to the lien of the Mortgage, subject only to excepted encumbrances as defined in the Mortgage, and to minor defects and encumbrances customarily found in properties of like size and character that do not materially impair the use of such properties by the Company; subject to Section 1(h) hereof, the description of such properties set forth in the Mortgage is adequate to constitute the Mortgage a lien thereon and the Mortgage, subject only to minor defects and encumbrances and excepted encumbrances of the character aforesaid, constitutes a valid, direct and first mortgage lien upon such properties, which include substantially all of the permanent physical properties and Franchises (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 Indentures have become or, upon such acquisition, will become subject to the lien of the Mortgage, subject, however, to liens, defects and encumbrances, if any, existing or placed thereon at the time of the acquisition thereof by the Company, excepted encumbrances as defined in the Mortgage and minor defects and encumbrances customarily found in properties of like size and character that do not materially impair the use of such properties by the Company and except as limited by bankruptcy law; and the matters set forth in this Section 1(g) and Section 1(h) hereof are in all respects: (a) subject to the fact that the Companys leasehold interest in its general offices located at 720 Olive Street, St. Louis, Missouri may be subordinated to certain liens and deeds of trust; (b) subject to minor defects of title and to prior encumbrances of minor importance upon certain of the properties in which the Company has acquired gas storage easements, leases, and oil and other rights in the Companys underground gas storage area, which have no materially adverse effect on the Companys storage of gas; and (c) subject to defects of title with respect to certain real estate of minor importance acquired by the Company since February 1, 1945. 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.
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(h) Upon the recordation of the Supplemental Indentures in the office of the Secretary of State of the State of Missouri pursuant to Section 443.451 of the Missouri Revised Statutes, the liens created by the Supplemental Indentures 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 minor defects and encumbrances and excepted encumbrances of the character referred to in Section 1(g) hereof.
(i) The Mortgage has been duly and validly authorized by all necessary corporate action of the Company and, at or upon the Time of Delivery, shall be duly and validly executed and delivered by the Company and a valid and binding instrument enforceable against the Company in accordance with its terms, 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 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; the Mortgage has been duly qualified under the Trust Indenture Act.
(j) The Bonds have been duly authorized by the Company and, upon payment therefor and delivery thereof in accordance with this Agreement, subject to the qualifications in Section 1(i) hereof, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefit and security of the Mortgage equally and ratably (except as set forth in the Bonds) with the bonds of other series now outstanding under the Mortgage; and the Bonds conform in all material respects to the description thereof contained in the Prospectus.
(k) This Agreement has been duly authorized, executed and delivered by the Company.
(l) Other than as set forth in the Prospectus, no labor dispute with any 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 or contractors, which labor dispute or disturbance in each case might reasonably be expected to result in a Material Adverse Change.
(m) Other than as set forth in the Prospectus, there are no legal, governmental or administrative proceedings pending to which the Company is a party or of which any property of the Company is the subject, the outcome of which, singly or in the aggregate, might reasonably be expected to result in a Material Adverse Change; and, to the best of
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the Companys knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(n) The Company has all valid material franchises, licenses and permits as are required for the conduct of its business as now conducted, and no franchise, license or permit is subject to any deficiency, exception, restriction, condition or limitation, except deficiencies, exceptions, restrictions, conditions and limitations that do not materially adversely affect the conduct, business and operation of the Company; the Company has complied with such terms and provisions of franchises, licenses and permits the non-compliance with which would materially adversely affect the conduct, business and operation of the Company; and the Company has not received any notice of any proceedings relating to the revocation or modification of any such franchises, licenses and permits that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might reasonably be expected to result in a Material Adverse Effect.
(o) To the knowledge of the Company, no person or corporation that is a holding company or a subsidiary of a holding company within the meaning of the Public Utility Holding Company Act of 1935, as amended, directly or indirectly owns, controls or holds with power to vote 10% or more of the outstanding voting securities of the Company, other than The Laclede Group, Inc., which is such a holding company that is exempt from all provisions under such Act other than Section 9(a)(2) thereof.
(p) The Company maintains systems of internal controls and disclosure procedures sufficient to provide reasonable assurance that (i) transactions are executed in accordance with managements general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, (iii) access to assets is permitted only in accordance with managements general or specific authorization, (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences and (v) material information relating to the Company is made known to the Company by its officers and employees.
2. Purchase and Sale . 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 of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company the principal amount of Bonds set forth opposite the name of such Underwriter in Schedule I hereto, at a purchase price of (a) in the case of the Series 2019 Bonds, 98.835% of the principal amount of such Bonds and (b) in the case of the Series 2034 Bonds, 98.559% of the principal amount of such Bonds.
3. Offering . Subject to the terms and conditions herein set forth, the Underwriters will make a public offering of the Bonds upon the terms and conditions set forth in the Prospectus.
4. Payment and Delivery; Defaulting Underwriters . Delivery of the Bonds, against payment therefor in immediately available funds by wire transfer to an account designated in writing by the Company, shall be made at the offices of Pillsbury Winthrop LLP, 1540
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Broadway, New York, New York, at 10:00 A.M., New York City time, on the fifth Business Day after the date hereof, or at such other place, time and date as shall be agreed upon in writing by the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated (Merrill Lynch). The hour and date of such delivery and payment are herein called the Time of Delivery.
The Bonds shall be delivered to the Underwriters, for their respective accounts in fully registered form, in such authorized denominations and registered in such names as Merrill Lynch may reasonably request in writing not later than 2:00 P.M., New York City time, on the second Business Day after the date hereof, or to the extent not so requested, registered in the respective names of the Underwriters in such authorized denominations as the Company shall determine. The Company agrees to make the certificates for the Bonds available to Merrill Lynch for checking purposes not later than 2:00 P.M., New York City time, on the last full Business Day preceding the Time of Delivery, at the offices of The Depository Trust Company, New York, New York, or at such other place, time or date as may be agreed upon between the Company and Merrill Lynch.
If any one or more of the Underwriters shall default on its obligation or their obligations to purchase and pay for the Bonds that it has or they have agreed herein to purchase and pay for (such Underwriter or Underwriters that shall have so defaulted being referred to herein as the Defaulting Underwriters), the Company shall immediately give written notice of such default to Merrill Lynch and the Underwriters that shall not have so defaulted (the Non-defaulting Underwriters) shall have the right, within 24 hours after the receipt of such notice by Merrill Lynch, to determine to purchase or to procure one or more others, which shall be members of the National Association of Bonds Dealers, Inc. (the NASD) and reasonably satisfactory to the Company, to purchase, upon the terms herein set forth, all (but not less than all) of the Bonds that the Defaulting Underwriters so agreed to purchase (the Defaulted Bonds). If the Non-defaulting Underwriters shall determine to exercise such right, Merrill Lynch shall give notice to the Company of such determination within 24 hours after their receipt of notice from the Company of such default. If Merrill Lynch shall fail to give such notice or, within such 24-hour period, shall give notice to the Company that the Non-defaulting Underwriters will not exercise such right, then the Company shall have the right, within a further 24 hours after the failure of Merrill Lynch to give such notice or within 24 hours after its receipt of such notice from Merrill Lynch, to procure one or more others, which shall be members of the NASD and reasonably satisfactory to Merrill Lynch, to purchase, upon the terms herein set forth, all (but not less than all) of the Defaulted Bonds. In the event that the Non-defaulting Underwriters or the Company shall have arranged for the purchase of the Defaulted Bonds as provided above, then either the Company or Merrill Lynch shall have the right to postpone the Time of Delivery for such period, not exceeding three Business Days, in order that the required changes in the Registration Statement, the Prospectus and any other documents or arrangements may be effected. In the event that neither the Non-defaulting Underwriters nor the Company shall have arranged for the purchase of the Defaulted Bonds as provided above, then:
(a) if the Defaulted Bonds do not exceed 10% of the Bonds that the Non-defaulting Underwriters have otherwise agreed to purchase, the Non-defaulting Underwriters shall be obligated to purchase and pay for the respective amounts of the Bonds that they have severally agreed to purchase hereunder and, in addition, to purchase
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and pay for (in proportion to their respective obligations hereunder except as may be otherwise determined by the Non-defaulting Underwriters) the Defaulted Bonds; or
(b) if the Defaulted Bonds exceed 10% of the Bonds that the Non-defaulting Underwriters have otherwise agreed to purchase, this Agreement shall terminate.
Termination of this Agreement pursuant to this Section 4 shall not relieve any of the Defaulting Underwriters from liability in respect of its obligations under this Agreement, but shall be without liability on the part of the Company and the Non-defaulting Underwriters; provided, however , that such termination shall not affect the payment obligations set forth in Section 5 hereof.
5. Covenants of the Company . The Company agrees with each of the Underwriters that it will:
(a) Promptly deliver to Merrill Lynch a copy of each of the Registration Statement and all amendments thereto (in each case including copies of all documents (other than exhibits) incorporated in the Prospectus by reference and all exhibits filed therewith), either signed or certified by an officer of the Company, and including a copy of each consent and opinion included therein or filed as an exhibit thereto, either signed or certified by an officer of the Company, and as many unsigned copies of the Registration Statement and such amendments, as Merrill Lynch may reasonably request. The Company also will deliver to Merrill Lynch as soon as possible after the date of this Agreement and thereafter from time to time, during such period of time as a prospectus relating to the Bonds is required to be delivered under the Securities Act, as many copies of the Prospectus, including any amendments or supplements thereto, as Merrill Lynch may reasonably request for the purposes of the Securities Act. The copies of the Registration Statement and all amendments thereto, and the copies of the Prospectus, including any amendments or supplements thereto, that are furnished to Merrill Lynch 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.
(b) Promptly advise Merrill Lynch (i) when any amendment of the Registration Statement shall have become effective, (ii) of any request by the Commission for any amendment of the Registration Statement or the Prospectus and (iii) of the issuance of any stop order under the Securities Act with respect to the Registration Statement or the institution of any proceedings therefor of which the Company shall have received notice. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to secure the prompt removal thereof. The Company will neither file nor use any amendment or supplement to the Registration Statement or the Prospectus relating to the Bonds to which Merrill Lynch or counsel for the Underwriters shall object.
(c) Pay all expenses incident to the performance of its obligations under this Agreement (except as set forth in the last sentence of Section 5(d) hereof), including (i) the preparation and filing by it of the Registration Statement and the Prospectus, (ii) the preparation, execution and delivery of this Agreement, (iii) the preparation, execution, filing and recording of the Supplemental Indentures, (iv) the corporate and regulatory
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actions precedent to the issuance and delivery of the Bonds, (v) the issuance and delivery of the Bonds, (vi) the rating of the Bonds by one or more nationally recognized statistical rating organizations (as defined for purposes of Rule 436(g) of the Securities Act Regulations, (vii) the fees and disbursements of the Companys counsel and accountants, (viii) except as provided in Section 5(d) hereof, the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement, the Prospectus and any amendment or supplement thereto, (ix) the fees and expenses of the Trustee and (x) the qualification of the Bonds for offering and sale under state securities laws, including the fees, not to exceed $3,500, and disbursements of counsel for the Underwriters in connection with such qualification and blue sky surveys relating thereto.
(d) Forthwith, at its expense, prepare and furnish to Merrill Lynch, during such period of time (not exceeding nine months) after the date of this Agreement as a prospectus relating to the Bonds is required to be delivered under the Securities Act, if (i) any event shall occur as a result of which it is necessary, in the opinion of the Company and its counsel or Merrill Lynch and counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading, in the light of then existing circumstances, or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the Securities Act or the Securities Act Regulations or the Exchange Act or the Exchange Act Regulations, a reasonable number of copies of a supplement or an amendment to the Prospectus that will supplement or amend the Prospectus so that as so supplemented or amended it will not contain 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 then existing circumstances, not misleading or it will comply with the Securities Act or the Securities Act Regulations or the Exchange Act or the Exchange Act Regulations. In case any of the Underwriters shall be required to deliver a prospectus relating to the Bonds after the expiration of nine months from the date of this Agreement, the Company, upon the request of Merrill Lynch, will furnish to the Underwriters, at the expense of the Underwriters, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Prospectus, complying with Section 10(a) of the Securities Act.
(e) Make generally available to its security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of 12 months beginning on the first day of the Companys fiscal quarter next succeeding the effective date of the Registration Statement that will satisfy the provisions of Section 11(a) of the Securities Act (including Rule 158 of the Securities Act Regulations).
(f) Furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the securities or blue sky laws of such jurisdictions as Merrill Lynch may reasonably designate, and file and make such statements or reports as are or may be required by the laws of such jurisdictions; provided, however , that the Company shall not be required to qualify as a foreign corporation or dealer in securities or to file any consents to service of process under the laws of any jurisdiction.
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(g) Not to sell any additional First Mortgage Bonds without the consent of Merrill Lynch until the earlier to occur of (i) the Time of Delivery and (ii) the date of the termination of the fixed price offering restrictions applicable to the Underwriters. Merrill Lynch agrees to notify the Company of such termination if it occurs prior to the Time of Delivery.
All fees and disbursements of counsel for the Underwriters (exclusive of fees and expenses of such counsel that are to be paid by the Company as set forth in Section 5(c)(x) hereof) shall be paid by the Underwriters; provided, however , that if this Agreement shall be terminated in accordance with the provisions of Section 6, 7 or 9 hereof, the Company shall reimburse the Underwriters for their out-of-pocket costs and expenses, including the reasonable fees and disbursements of counsel for the Underwriters. The Company shall not be required to pay any amount for any expenses of the Underwriters except as provided in the preceding sentence. The Company shall not in any event be liable to any of the Underwriters for damages on account of the loss of anticipated profits.
6. Conditions of Obligations of the Underwriters to Purchase the Bonds . The several obligations of the Underwriters to purchase and pay for the Bonds shall be subject to the accuracy of the representations and warranties of the Company set forth in Section 1 hereof as of the date hereof, to the accuracy of the statements of officers of the Company made in any certificate given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder to be performed at or prior to the Time of Delivery, and to the following additional conditions:
(a) (i) No stop order suspending the effectiveness of the Registration Statement shall be in effect at the Time of Delivery and no order of the Commission directed to the adequacy or accuracy of any document incorporated by reference in the Prospectus shall be in effect at such date; no proceedings for any such purpose shall be pending before, or threatened by, the Commission at the Time of Delivery; the Completed Prospectus shall have been filed in the manner and within the time period required by Rule 424(b) of the Securities Act Regulations and the Company shall have provided evidence reasonably satisfactory to Merrill Lynch thereof; and Merrill Lynch shall have received a certificate dated the Time of Delivery and signed by an executive officer of the Company to the effect that no such order is in effect and that no proceedings for any such purpose are pending before, or to the knowledge of the Company threatened by, the Commission; (ii) there shall not have been any change in the matters described in the letter furnished pursuant to Section 6(d) hereof the effect of which would, in the opinion of Merrill Lynch, materially and adversely affect the market for the Bonds; (iii) there shall not have been, since the respective dates as of which information is given in the Registration Statement and the Prospectus (or any amendment or supplement thereto), except as may otherwise be stated in the Registration Statement and the Prospectus (or any amendment or supplement thereto), a Material Adverse Change; and (iv) the Company shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company, other than those reflected in the Registration Statement or the Prospectus (or any amendment or supplement thereto).
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(b) At the Time of Delivery, there shall be in full force and effect orders of the MPSC authorizing the issuance and sale of the Bonds on the terms and conditions herein set forth and containing no provisions unacceptable to Merrill Lynch by reason of the fact that they are materially adverse to the Company (it being understood that the MPSCs orders in effect on the date hereof contain no such unacceptable provisions).
(c) At the Time of Delivery, Merrill Lynch shall have received from (i) Mary C. Kullman, Esq., Associate General Counsel of the Company, (ii) Thompson Coburn LLP, counsel for the Company, and (iii) Pillsbury Winthrop LLP, counsel for the Underwriters, opinions, dated the Time of Delivery, in substantially the form and substance prescribed in Exhibits A, B and C, respectively, hereto.
(d) At the date of this Agreement, Deloitte & Touche LLP shall have furnished to Merrill Lynch a letter, dated the date of this Agreement, to the effect that:
(i) they are independent public accountants with respect to the Company within the meaning of the Securities Act and the Securities Act Regulations;
(ii) in their opinion, the consolidated financial statements audited by them and incorporated by reference in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations and the Exchange Act and the Exchange Act Regulations;
(iii) on the basis of limited procedures, not constituting an audit made in accordance with generally accepted auditing standards, including a reading of the unaudited consolidated financial information incorporated by reference in the Prospectus, the latest available interim financial statements of the Company, if any, a reading of the minute books of the shareholder and the Board of Directors of the Company since the close of the Companys most recent fiscal year through a specified date not more than five days prior to the date of such letter, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that (A) (1) any material modifications should be made to the unaudited consolidated financial statements incorporated by reference in the Prospectus for them to be in conformity with generally accepted accounting principles or (2) the unaudited consolidated financial statements incorporated by reference in the Prospectus do not comply with the applicable accounting requirements of the Exchange Act as it applies to Form 10-Q and the Exchange Act Regulations; (B) at the date of the latest available interim balance sheet of the Company and at a subsequent specified date not more than five days prior to the date of such letter, there has been any change in the capital stock, or any increase in the long-term debt, or any decrease in net assets, in each case of the Company and as compared with amounts shown in the balance sheet as of the date of the latest financial statements incorporated by reference in the Prospectus, except in each case for changes, increases or decreases that the Registration Statement discloses have occurred or may occur, that were occasioned by the declaration of dividends or that are described in such letter identifying the same and specifying the
11
amount thereof (in which case such letter shall be accompanied by an explanation of the Company as to the significance thereof unless such explanation is not deemed necessary by Merrill Lynch); or (C) for the period from the date of the latest consolidated financial statements incorporated by reference in the Prospectus to the date of the latest available unaudited financial statements, there were any decreases, as compared with the comparable period of the preceding year, in the Companys operating revenues, net income or earnings applicable to common stock, except in each case for decreases that the Registration Statement discloses have occurred or may occur, that were occasioned by the declaration of dividends or that are described in such letter identifying the same and specifying the amount thereof (in which case such letter shall be accompanied by an explanation of the Company as to the significance thereof unless such explanation is not deemed necessary by Merrill Lynch); and
(iv) they have performed certain other specified procedures with respect to certain amounts and percentages set forth in the Registration Statement or in the documents incorporated by reference in the Prospectus, as have been reasonably requested by Merrill Lynch or counsel for the Underwriters and approved by the Company, and have found them to be in agreement with the records of the Company and the computations to be arithmetically correct.
(e) At the Time of Delivery, Deloitte & Touche LLP shall have furnished to Merrill Lynch a letter, dated the Time of Delivery, to the effect that the statements set forth in the letter furnished pursuant to Section 6(d) hereof are reaffirmed, except that the specified date referred to therein shall be a date not more than five days prior to the Time of Delivery.
(f) At the Time of Delivery, Merrill Lynch shall have received a certificate, dated the Time of Delivery and signed by an executive officer of the Company, to the effect that (i) the Companys representations and warranties set forth in Section 1 hereof are true and correct at and as of the Time of Delivery with the same effect as if made at and as of the Time of Delivery (except that the Prospectus referred to in Sections 1(c), (e), (f), (j), (l) and (m) hereof shall be deemed, for the purposes of such certificate, to be the Completed Prospectus), (ii) the Company shall have performed all of its obligations hereunder to be performed at or prior to the Time of Delivery, (iii) the Company shall have filed the Completed Prospectus with the Commission pursuant to Rule 424(b) of the Securities Act Regulations and (iv) the orders described in Section 6(b) hereof shall be in full force and effect.
(g) All legal proceedings to be taken in connection with the issuance and sale of the Bonds shall be reasonably satisfactory in form and substance to counsel for the Underwriters.
(h) Subsequent to the date of this Agreement, there shall not have occurred (i) any material change in or affecting the business, properties, financial condition or results of operations of the Company not contemplated by the Prospectus or any amendment or supplement thereto (including the documents incorporated by reference therein at the date
12
thereof) that, in the opinion of Merrill Lynch, would materially and adversely affect the market for the Bonds or (ii) any event or development relating to or involving the Company or any officer or director of the Company that, in the opinion of the Company and its counsel or Merrill Lynch and counsel for the Underwriters, requires the making of any addition to or change in the Prospectus or any amendment or supplement thereto in order to state a material fact required by the Securities Act to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectus to reflect such event or development would, in the opinion of Merrill Lynch, adversely affect the market for the Bonds.
In case any of the conditions specified above in this Section 6 shall not have been fulfilled at the Time of Delivery, this Agreement may be terminated by Merrill Lynch upon notice thereof to the Company at any time at or prior to the Time of Delivery. Any such termination shall be without liability of any party to any other party hereunder, except as otherwise provided in Section 5 hereof and provided that the provisions of Sections 1, 5 and 8 hereof shall survive such termination and remain in full force and effect.
7. Conditions of Companys Obligation . The obligation of the Company to deliver the Bonds at the Time of Delivery shall be subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall be in effect at the Time of Delivery, and no order of the Commission directed to the adequacy or accuracy of any document incorporated by reference in the Prospectus shall be in effect at such date; and no proceedings for any such purpose shall be pending before, or threatened by, the Commission at the Time of Delivery.
(b) At the Time of Delivery, there shall be in full force and effect orders of the MPSC authorizing the issuance and sale of the Bonds on the terms and conditions herein set forth and containing no provisions unacceptable to the Company by reason of the fact that they are materially adverse to the Company (it being understood that the MPSCs orders in effect on the date hereof contain no such unacceptable provisions).
In case any of the conditions specified above in this Section 7 shall not have been fulfilled at the Time of Delivery, this Agreement may be terminated by the Company, upon notice thereof to Merrill Lynch. Any such termination shall be without liability of any party to any other party hereunder, except as otherwise provided in Section 5 hereof and provided that the provisions of Sections 1, 5 and 8 hereof shall survive such termination and remain in full force and effect.
8. Indemnification; Contribution . (a) The Company agrees to indemnify and hold harmless each of the Underwriters and each person, if any, who controls any of the Underwriters within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against (i) any and all losses, claims, damages, liabilities and expenses 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) 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
13
material fact contained in any preliminary prospectus relating to the Bonds or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) any and all losses, claims, damages, liabilities and expenses 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 the last sentence of Section 8(c) hereof) any such settlement is effected with the written consent of the Company; and (iii) any and all expense whatsoever, as incurred (including, subject to Section 8(c) hereof, the fees and disbursements of counsel chosen by Merrill Lynch), 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 untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clause (i) or (ii) above; provided, however , that the indemnity agreement contained in this Section 8(a) shall not (A) apply to any such losses, claims, damages, liabilities or expenses to the extent arising out of any such untrue statement or alleged untrue statement, or any such omission or alleged omission, (i) made in reliance upon and in conformity with information furnished in writing to the Company, through Merrill Lynch by any Underwriter, expressly for use in the Registration Statement (or any amendment thereto) or any preliminary prospectus relating to the Bonds or the Prospectus (or any amendment or supplement thereto) or (ii) from that part of the Registration Statement that constitutes the Statement of Eligibility on Form T-1 of the Trustee filed pursuant to the Trust Indenture Act and the Trust Indenture Act Regulations or (B) inure to the benefit of any Underwriter or any person who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act on account of any such losses, claims, damages, liabilities or expenses arising from the sale of any of the Bonds to any person if any amendment or supplement to the Prospectus (excluding any document incorporated or deemed to be incorporated by reference therein), furnished to Merrill Lynch by the Company prior to the sending or giving of written confirmation of such sale to such person, was not sent or given by or on behalf of such Underwriter to such person with or prior to such written confirmation and any such untrue statement or alleged untrue statement, or any such omission or alleged omission, was corrected in such amendment or supplement to the Prospectus.
(b) Each of the Underwriters, severally, agrees to indemnify and hold harmless the Company, its directors, each of its officers who shall have signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all losses, claims, damages, liabilities and expenses described in Section 8(a) hereof, as incurred, but only with respect to the untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or any preliminary prospectus relating to the Bonds or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company, through Merrill Lynch by such Underwriter, expressly for use in connection with the Registration Statement (or any amendment thereto) or any preliminary prospectus relating to the Bonds or the Prospectus (or any amendment or supplement thereto).
14
(c) Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability on account of this indemnity agreement except to the extent that such indemnifying party has been prejudiced in any material respect by such failure or from any liability that such indemnifying party may have to such indemnified party otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 8(a) hereof, counsel to the indemnified parties shall be selected by Merrill Lynch and, in the case of parties indemnified pursuant to Section 8(b) hereof, counsel to the indemnified parties shall be selected by the Company. An indemnifying party shall be entitled to 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 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 8 (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. 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 8(a)(ii) hereof effected without its written consent if (A) such settlement is entered into more than 90 days after receipt by such indemnifying party of the aforesaid request, (B) 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 (C) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(d) If the indemnification provided for in Section 8(a) or (b) hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, claims, damages, liabilities 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 Bonds pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, or if such indemnified party failed to give the notice required under Section 8(c) hereof and such indemnifying party was prejudiced in a material respect by such failure, 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 the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant
15
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 Bonds pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Bonds 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 Completed Prospectus bear to the aggregate initial public offering price of the Bonds as set forth on such cover. 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 8(d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to above in this Section 8(d). The aggregate amount of losses, claims, damages, liabilities and expenses incurred by an indemnified party and referred to above in this Section 8(d) 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 8(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Bonds underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that 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 Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8(d), each person, if any, who controls an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who shall have signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company. The Underwriters respective obligations to contribute pursuant to this Section 8(d) are several in proportion to the principal amount of the Bonds set forth opposite their respective names in Schedule I hereto and not joint.
9. Termination . (a) Merrill Lynch may terminate this Agreement at any time at or prior to the Time of Delivery by notice to the Company, if prior to the Time of Delivery, (i) there has been, since the date of this Agreement or since the respective dates as of which information is given in the Prospectus, a Material Adverse Change, whether or not arising in the ordinary course of business, or (ii) there has occurred, since the date of this Agreement, any material adverse change in the financial markets in the United States or the international financial markets
16
or any outbreak of hostilities or escalation of any existing hostilities or international 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 Merrill Lynch, impracticable or inadvisable to market the Bonds or to enforce contracts for the sale of the Bonds, or (iii) 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 trading generally on the New York Stock Exchange or 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 the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market System or by order of the Commission, the NASD or any other regulatory or self-regulatory authority, or (iv) a material disruption has occurred in commercial banking or settlement or clearance services in the United States, or (v) a banking moratorium has been declared by either Federal, New York or Missouri authorities, or (vi) there shall have been any downgrading in the rating of any debt securities of the Company by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading and no implication of a possible downgrading of such rating).
(b) Notwithstanding any termination of this Agreement pursuant to this Section 9, such termination will be without liability of any party to any other party hereunder, except as otherwise provided in Section 5 hereof and provided that the provisions of Sections 1, 5 and 8 hereof shall survive such termination and remain in full force and effect.
10. Notices . All statements, requests, notices and agreements hereunder shall be in writing or by telephone if confirmed in writing within 24 hours and, if to the Underwriters, shall be sufficient in all respects if delivered or sent by registered mail to Merrill Lynch at the address given on the last page hereof; and, if to the Company, shall be sufficient in all respects if delivered or sent by registered mail to the Company, c/o Barry C. Cooper, Chief Financial Officer, Laclede Gas Company, 720 Olive Street, St. Louis, Missouri 63101; provided, however , that any notice to any of the Underwriters pursuant to Section 8(c) hereof shall be delivered or sent by registered mail to such party at its principal executive offices.
11. Information for Use in Completed Prospectus . The information (a) with respect to the public offering price of the Bonds on, and in the last paragraph of, the cover page of the Completed Prospectus, (b) in the last sentence of the fourth paragraph under the caption UnderwritingGeneral in the Completed Prospectus, (c) in the first paragraph under the caption Underwriting Commissions and Discounts in the Completed Prospectus and (d) in the first and third paragraphs under the caption Underwriting Price Stabilization and Short Positions in the Completed Prospectus shall in each case be deemed to have been furnished in writing to the Company through Merrill Lynch by or on behalf of the Underwriters specifically for use therein.
12. Miscellaneous . (a) This Agreement shall be binding upon the Underwriters and the Company and shall inure solely to the benefit of the Underwriters, the Company and, to the extent provided in Section 8 hereof, the directors and officers of the Company and each
17
person who controls the Company or any of the Underwriters, and in each case their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Bonds from any of the Underwriters shall be deemed a successor or assign by reason merely of such purchase.
(b) This Agreement shall be construed in accordance with the laws of the State of New York applicable to contracts made and to be performed in the State of New York.
(c) This Agreement may be executed by any one or more of the parties hereto 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 instrument.
(d) All representations and warranties, at and as of the respective dates made, and all 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 any investigation made by or on behalf of any Underwriter or controlling person, or by or on behalf of the Company or any controlling person, and shall survive delivery of the Bonds to the Underwriters.
18
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the counterparts hereof enclosed, and upon the acceptance hereof by you, this letter and such acceptance hereof shall constitute a binding agreement between the several Underwriters and the Company.
Very truly yours, |
||
LACLEDE GAS COMPANY |
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By: |
/ S / D OUGLAS H. Y AEGER |
|
|
||
Name: Douglas H. Yaeger |
||
Title: Chairman of the Board, President and |
||
Chief Executive Officer |
Accepted at New York, New York
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
A.G. EDWARDS & SONS, INC.
PIPER JAFFRAY & CO.
BNY CAPITAL MARKETS, INC.
COMERICA SECURITIES, INC.
For itself and on behalf of the other Underwriters named in Schedule I to this Underwriting Agreement. | ||
By: |
Merrill Lynch, Pierce, Fenner & Smith Incorporated | |
By |
/ S / K ARL N EWLIN | |
|
||
Authorized Signatory |
Address: |
Merrill Lynch & Co. World Financial Center, North Tower 250 Vesey Street New York, New York 10080 |
19
SCHEDULE I
Underwriters |
Principal Amount of
Series 2019 Bonds to be Purchased |
Principal Amount of
Series 2034 Bonds to be Purchased |
||||
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
$ | 33,750,000 | $ | 67,500,000 | ||
A.G. Edwards & Sons, Inc. |
6,250,000 | 12,500,000 | ||||
Piper Jaffray & Co. |
6,250,000 | 12,500,000 | ||||
BNY Capital Markets, Inc. |
1,875,000 | 3,750,000 | ||||
Comerica Securities, Inc. |
1,875,000 | 3,750,000 | ||||
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|
|
|
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Total |
$ | 50,000,000 | $ | 100,000,000 | ||
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Exhibit A
[Opinion of Mary C. Kullman, Esq.]
[Letterhead of the Company]
April , 2004
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
A.G. Edwards & Sons, Inc.
Piper Jaffray & Co.
BNY Capital Markets, Inc.
Comerica Securities, Inc.
c/o | Merrill Lynch & Co. |
World Financial Center, North Tower |
250 Vesey Street |
New York, New York 10080 |
Ladies and Gentlemen:
I am Associate 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 (a) the Companys First Mortgage Bonds, % Series due May 1, 2019 (the Series 2019 Bonds) and (b) the Companys First Mortgage Bonds, % Series due May 1, 2034 (the Series 2034 Bonds and, together with the Series 2019 Bonds, the Bonds), in each case pursuant to the Underwriting Agreement dated April , 2004 between you and the Company (the Underwriting Agreement). The Bonds 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 are the Twenty-Seventh Supplemental Indenture relating to the Series 2019 Bonds and the Twenty-Eighth Supplemental Indenture relating to the Series 2034 Bonds each dated as of April 15, 2004 (such latest Supplemental Indentures, collectively, the Supplemental Indentures), 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 6(c)(i) of the Underwriting Agreement.
A-1
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 Companys Board of Directors relating to the authorization, issuance and sale of the Bonds. I have reviewed: (a) the Underwriting Agreement; (b) the Mortgage, including the Supplemental Indentures, (c) the Registration Statement on Form S-3 (File No. 333-40362) (the Registration Statement) filed by the Company to register the Bonds with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended (the Securities Act), which is deemed to incorporate by reference the Exchange Act Documents (as defined below), (d) the Prospectus dated July 24, 2000, as supplemented by the Prospectus Supplement dated April , 2004, relating to the offer and sale of the Bonds (as so supplemented, the Prospectus) filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act, which also is deemed to incorporate by reference the Exchange Act Documents; and (e) the proceedings before the Public Service Commission of the State of Missouri (the MPSC) for authority to issue and sell the Bonds, 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, 2003 (the Annual Report), the Quarterly Report on Form 10-Q of the Company for the quarterly period ended December 31, 2003 and the three Current Reports on Form 8-K of the Company each dated January 29, 2004 (such Quarterly Reports and Current Reports, together with the Annual Report, the Exchange Act Documents), each as filed with the Commission under the Securities Exchange Act of 1934, as amended (the Exchange Act), and deemed to be incorporated by reference in the 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 this opinion. In the course of such examination, I have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as certified or photostatic copies, and the authenticity of the originals of such latter documents. I have also relied upon information submitted to me by certain officers of the Company with respect to the existence or non-existence of certain facts that form the basis for the opinions set forth herein. Although I have not conducted any independent investigations of the accuracy of various of the matters covered by such information supplied by officers of the Company, I have no reason to believe that any of the matters covered thereby are inaccurate. I have also relied on certain documents, instruments and certificates of public officials. I have not examined the Bonds, except a specimen thereof, and have relied upon a certificate of the Trustee as to the authentication thereof. Upon the basis of my familiarity with the foregoing and with the Companys 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 and validly existing in good standing under the laws of the State of Missouri.
2. The Company is a public utility corporation, 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
A-2
and permits, and its compliance with the laws of the State of Missouri, is duly authorized to conduct such business in that State. In this regard, it should be noted that the Company has not renewed its franchise in Florissant, Missouri, which franchise expired in 1992; and that since that time the Company has continued to provide service in that community without a formal franchise.
3. The Company has good and sufficient title to the properties described as owned by it in and as subject to the lien of the Mortgage, subject only to excepted encumbrances as defined in the Mortgage, and to minor defects and encumbrances customarily found in properties of like size and character that do not materially impair the use of such properties by the Company. Subject to paragraph 4 hereof, the description of such properties set forth in the Mortgage is adequate to constitute the Mortgage a lien thereon and the Mortgage, subject only to minor defects and encumbrances and excepted encumbrances of the character aforesaid, constitutes a valid, direct and first mortgage lien upon such properties, which include substantially all of the permanent physical properties and Franchises (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 Indentures have become or, upon such acquisition, will become subject to the lien of the Mortgage, subject, however, to liens, defects and encumbrances, if any, existing or placed thereon at the time of the acquisition thereof by the Company and except as limited by bankruptcy law. This opinion, insofar as it relates to the matters set forth in this paragraph 3 and in paragraph 4 hereof, is, in addition to being subject to excepted encumbrances as defined in the Mortgage, in all respects: (a) subject to the fact that the Companys leasehold interest in its general offices located at 720 Olive Street, St. Louis, Missouri may be subordinated to certain liens and deeds of trust; (b) subject to minor defects of title and to prior encumbrances of minor importance upon certain of the properties in which the Company has acquired gas storage easements, leases, and oil and other rights in the Companys underground gas storage area, which have no materially adverse effect on the Companys storage of gas; and (c) subject to defects of title with respect to certain real estate of minor importance acquired by the Company since February 1, 1945. 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 Indentures have 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 minor defects and encumbrances, excepted encumbrances of the character referred to in paragraph 3 hereof, and subject to the last sentence of paragraph 3 hereof.
5. The Mortgage has been duly and validly authorized by all necessary corporate action of the Company, has been duly and validly executed and delivered by the Company, and is a valid and binding instrument enforceable against the Company in
A-3
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. The Mortgage has been duly qualified under the Trust Indenture Act.
6. The Bonds have been duly authorized by the Company and, assuming due authentication thereof by the Trustee and upon payment therefor and delivery thereof in accordance with the Underwriting Agreement, subject to the qualifications in paragraph 1 above, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefit and security of the Mortgage equally and ratably (except as set forth in the Bonds) with the bonds of other series now outstanding under the Mortgage.
7. The Underwriting 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 Bonds; the issuance and sale of the Bonds in accordance with the Underwriting 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 Bonds on the terms and conditions set forth in the Underwriting Agreement.
9. There are no legal, governmental or administrative proceedings pending to which the Company is a party or of which any property of the Company is the subject, other than as set forth in the Prospectus (including the Exchange Act Documents) and other than proceedings incident to the kind of business conducted by the Company, the outcome of which, singly or in the aggregate, might reasonably be expected to have a materially adverse effect on the financial position, shareholders equity or results of operations of the Company; and, to the best of my knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
10. The consummation of the transactions contemplated in the Underwriting 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
A-4
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.
I have not independently verified the accuracy, completeness or fairness of the statements made or included in the Registration Statement, the Prospectus or the Exchange Act Documents and take no responsibility therefor, except insofar as such statements relate to me and as and to the extent expressly set forth herein. In the course of the preparation of the Registration Statement and the Prospectus, I and other members of the Companys legal department (the Legal Department) and outside legal counsel for the Company have participated in conferences with certain of the Companys officers and employees, with representatives of Deloitte & Touche LLP, the independent accountants for the Company, and with your representatives and counsel. Based on my examination of the Registration Statement and the Prospectus, and the investigations made in connection with the preparation of the Registration Statement and the Prospectus and the Legal Departments participation in the conferences referred to above, (a) I am of the opinion that the Registration Statement, as of the date it was declared effective by the Commission, and the Prospectus, as of the date it was filed with the Commission pursuant to Rule 424(b) under the Securities Act, complied as to form in all material respects with the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended, and the applicable rules and regulations of the Commission thereunder and that the Exchange Act Documents complied as to form when filed in all material respects with the requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder, except that in each case I express no opinion with respect to the financial statements or schedules or other financial data contained or incorporated by reference in the Registration Statement, the Prospectus or the Exchange Act Documents, and (b) I have no reason to believe that the Registration Statement (including the Exchange Act Documents), at the time the Annual Report was filed by the Company with the Commission under the Exchange Act, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (including the Exchange Act Documents), as of the date it was filed with the Commission pursuant to Rule 424(b) under the Securities Act or as of the date hereof, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading, except that in each case I express no opinion or belief with respect to the financial statements or schedules or other financial data contained or incorporated by reference in the Registration Statement, the Prospectus or the Exchange Act Documents.
In passing upon the form of the Registration Statement, the form of the Prospectus and the forms of the Exchange Act Documents, I necessarily assume the correctness and completeness of the statements made by the Company and information included therein and take no responsibility therefor, except insofar as such statements relate to me.
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.
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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 opinion to Pillsbury Winthrop LLP, who is entitled to rely upon this opinion to the same extent as if such opinion were addressed to such firm. This opinion is rendered to you and Pillsbury Winthrop LLP in connection with the above-described transaction. This opinion may not be relied upon by you or Pillsbury Winthrop LLP for any other purpose, or relied upon by or furnished to any other person, firm or corporation, without my prior written consent.
This opinion speaks only as of its date. I have no obligation to you or to Pillsbury Winthrop LLP of changes in law or fact that occur after the date of this opinion, even where such change may affect the legal analysis, a legal conclusion or an informational confirmation in this opinion.
Very truly yours, |
|
Mary C. Kullman |
A-6
Exhibit B
[Opinion of Counsel for the Company]
April , 2004
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
A.G. Edwards & Sons, Inc.
Piper Jaffray & Co.
BNY Capital Markets, Inc.
Comerica Securities, Inc.
c/o | Merrill Lynch & Co. |
World Financial Center, North Tower |
250 Vesey Street |
New York, New York 10080 |
Ladies and Gentlemen:
We have acted as counsel for Laclede Gas Company (the Company) and have acted in that capacity in connection with the issuance and sale by the Company of (a) the Companys First Mortgage Bonds, % Series due May 1, 2019 (the Series 2019 Bonds) and (b) the Companys First Mortgage Bonds, % Series due May 1, 2034 (the Series 2034 Bonds and, together with the Series 2019 Bonds, the Bonds), in each case pursuant to the Underwriting Agreement dated April , 2004 between you and the Company (the Underwriting Agreement). The Bonds 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 are the Twenty-Seventh Supplemental Indenture relating to the Series 2019 Bonds and the Twenty-Eighth Supplemental Indenture relating to the Series 2034 Bonds each dated as of April 15, 2004, 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 6(c)(ii) of the Underwriting Agreement.
We have reviewed: (a) the Underwriting Agreement; (b) the Mortgage, (c) the Registration Statement on Form S-3 (File No. 333-40362) (the Registration Statement) filed by the Company to register the Bonds with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended (the Securities Act), and (d) the Prospectus dated July 24, 2000, as supplemented by the Prospectus Supplement dated April ,
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2004, relating to the offer and sale of the Bonds (as so supplemented, the Prospectus) filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act.
We have examined a copy of an Order dated July 24, 2000 from the Commission to the Company relating to the effectiveness of the Registration Statement under the Securities Act and the qualification of the Mortgage under the Trust Indenture Act of 1939, as amended (the Trust Indenture Act). We have also examined such other documents and satisfied ourselves as to such other matters as we have deemed necessary to render this opinion. In the course of such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies, and the authenticity of the originals of such latter documents. We have not examined the Bonds, except a specimen thereof, and have relied upon a certificate of the Trustee as to the authentication thereof.
In rendering our opinions, we have relied upon certificates of officials of the Company as to certain factual matters material to such opinion, and upon certificates of public officials, all of which certificates have been furnished or made available to you. Whenever our opinion is indicated to be based upon our knowledge, we are referring to the actual knowledge of the Thompson Coburn LLP attorneys who have represented the Company in matters that are the subject of this opinion. Except to the extent expressly set forth herein, we have not undertaken any independent investigation to determine the existence or absence of such facts and no inference as to our knowledge of the existence or absence of such facts should be drawn from our representation of the Company.
Upon the basis of our familiarity, and as limited by the foregoing and subsequent qualifications and limitations, we are of the opinion that:
1. 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 our 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. The Mortgage has been duly qualified under the Trust Indenture Act.
2. The Bonds have been duly authorized by the Company and, assuming due authentication thereof by the Trustee and upon payment therefor and delivery thereof in accordance with the Underwriting Agreement, subject to the qualifications in paragraph 1 above, will constitute valid and legally binding obligations of the Company enforceable
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against the Company in accordance with their terms and entitled to the benefit and security of the Mortgage equally and ratably (except as set forth in the Bonds) with the bonds of other series now outstanding under the Mortgage.
3. 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 documents referred to therein, constitute accurate summaries of the terms of such documents in all material respects.
4. The Registration Statement has become and is effective under the Securities Act; to the best of our knowledge, no proceedings for a stop order with respect thereto are pending or threatened under Section 8(d) of the Securities Act.
We are members of the Bar of the State of Missouri and we 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, we 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); (iii) Federal or state antitrust or unfair competition laws; or (iii) regulation of the Company by the Public Service Commission of the State of Missouri.
We are also delivering this opinion to Pillsbury Winthrop LLP, who is entitled to rely upon this opinion to the same extent as if such opinion were addressed to such firm. This opinion is rendered to you and Pillsbury Winthrop LLP in connection with the above-described transaction. This opinion may not be relied upon by you or Pillsbury Winthrop LLP for any other purpose, or relied upon by or furnished to any other person, firm or corporation, without our prior written consent.
This opinion speaks only as of its date. We have no obligation to you or to Pillsbury Winthrop LLP of changes in law or fact that occur after the date of this opinion, even where such change may affect the legal analysis, a legal conclusion or an informational confirmation in this opinion.
Very truly yours, |
|
Thompson Coburn LLP |
B-3
Exhibit C
[Letterhead of Counsel for the Underwriters]
April , 2004
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
A.G. Edwards & Sons, Inc.
Piper Jaffray & Co.
BNY Capital Markets, Inc.
Comerica Securities, Inc.
c/o | Merrill Lynch & Co. |
World Financial Center, North Tower |
250 Vesey Street |
New York, New York 10080 |
Ladies and Gentlemen:
We have acted as your counsel in connection with your several purchases from Laclede Gas Company, a Missouri corporation (the Company), of (a) the Companys First Mortgage Bonds, % Series due May 1, 2019 (the Series 2019 Bonds) and (b) the Companys First Mortgage Bonds, % Series due May 1, 2034 (the Series 2034 Bonds and, together with the Series 2019 Bonds, the Bonds), in each case pursuant to the Underwriting Agreement dated April , 2004 between you and the Company (the Underwriting Agreement). The Bonds 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 are the Twenty-Seventh Supplemental Indenture relating to the Series 2019 Bonds and the Twenty-Eighth Supplemental Indenture relating to the Series 2034 Bonds each dated as of April 15, 2004, 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 6(c)(iii) of the Underwriting Agreement.
We have reviewed (a) the Underwriting Agreement, (b) the Mortgage, (c) the Registration Statement on Form S-3 (File No. 333-40362) (the Registration Statement) filed by
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the Company to register the Bonds with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended (the Securities Act), which is deemed to incorporate by reference the Companys Annual Report on Form 10-K for the fiscal year ended September 30, 2003 (the Annual Report), the Companys Quarterly Report on Form 10-Q for the quarter ended December 31, 2003 and the Companys three Current Reports on Form 8-K each dated January 29, 2004 (such Quarterly Reports and Current Reports, together with the Annual Report, the Incorporated Documents), in each case filed by the Company with the Commission under the Securities Exchange Act of 1934, as amended (the Exchange Act), (d) the Prospectus dated July 24, 2000, as supplemented by the Prospectus Supplement dated April , 2004, relating to the offer and sale of the Bonds (as so supplemented, the Prospectus) filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act, which also is deemed to incorporate by reference the Incorporated Documents, and (e) the Incorporated Documents. We have not reviewed any certificates representing the Bonds, except a form thereof. We have also reviewed such other agreements, documents, records, certificates and other materials, and have satisfied ourselves as to such other matters, as we have considered relevant or necessary for purposes of this letter.
In such review, we have assumed the accuracy and completeness of all agreements, documents, records, certificates and other materials submitted to us, the conformity with the originals of all such materials submitted to us as copies (whether or not certified and including facsimiles), the authenticity of the originals of such materials and all materials submitted to us as originals, the genuineness of all signatures and the legal capacity of all natural persons. In delivering this letter, we have relied, without independent verification, as to factual matters, on certificates and other written or oral statements of governmental and other public officials and of officers and representatives of the Company, on representations made by the Company in the Underwriting Agreement and on statements in the Registration Statement, the Prospectus and the Incorporated Documents.
On the basis of the assumptions and subject to the qualifications and limitations set forth herein, we are of the opinion that:
1. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
2. The Company has the corporate power to execute and deliver the Mortgage; and the Mortgage has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms.
3. The Bonds have been duly authorized by the Company and, upon execution and authentication thereof in accordance with the Mortgage and delivery and payment therefor pursuant to the Underwriting Agreement, will constitute the valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and will be entitled to the benefit of the lien purported to be granted under the Mortgage equally and ratably (except as set forth in the Bonds) with the bonds of other series now outstanding under the Mortgage.
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4. The statements in the Prospectus set forth under the captions Description of New Bonds and Description of First Mortgage Bonds (other than under the caption Priority and Security, as to which we express no opinion), to the extent that such statements purport to constitute summaries of the terms of the Bonds and the Mortgage, are accurate in all material respects.
5. The Registration Statement has been declared effective by the Commission under the Securities Act; to our knowledge, no stop order with respect to the Registration Statement has been issued, and no proceedings therefor are pending or threatened, under Section 8 of the Securities Act; and the Mortgage has been qualified under the Trust Indenture Act of 1939, as amended (the Trust Indenture Act).
6. Except for compliance with the securities or blue sky laws of the State of New York, as to which we express no opinion, and except for registration of the Bonds under the Securities Act and qualification of the Mortgage under the Trust Indenture Act, no Governmental Approval or Governmental Registration (each as defined below) under the federal law of the United States of America or the law of the State of New York is required by the Company for (a) the valid execution and delivery by the Company of the Underwriting Agreement, the Mortgage or the Bonds, (b) the sale by the Company of the Bonds under the Underwriting Agreement or (c) the issuance by the Company of the Bonds under the Mortgage. As used in this letter, Governmental Approval means any authorization, consent, approval, license or exemption (or the like) of or from any governmental unit and Governmental Registration means any registration or filing (or the like) with, or report or notice (or the like) to, any governmental unit.
The matters set forth in paragraphs 2 and 3 above are subject to and limited by the effect of (a) the law of the State of Missouri (where the property covered by the Mortgage is located) affecting the remedies for the enforcement of the lien purported to be granted under the Mortgage, (b) applicable bankruptcy, insolvency, reorganization, fraudulent conveyance and other similar laws affecting creditors rights generally, (c) general equitable principles (whether considered in a proceeding in equity or at law) and (d) requirements of materiality, reasonableness, good faith and fair dealing. In addition, the matters set forth in paragraph 2 above are subject to and limited by, in the case of the provisions of the Mortgage relating to indemnification, the requirement that any facts known to the indemnified party but not the indemnifying party be disclosed to the indemnifying party if the existence of such facts at the time such provisions became effective would entitle the indemnified party to indemnification.
With respect to paragraphs 1, 2 and 3 above, we have assumed that (a) the Company is duly incorporated, validly existing and in good standing under the law of the State of Missouri, (b) the execution and delivery of, and the performance of the Companys obligations under, the Mortgage and the Bonds by the Company do not and will not require any Governmental Approval or Governmental Registration (other than the orders of the Public Service Commission of the State of Missouri authorizing the issuance and sale of the Bonds and except to the extent that such matters are the subject of paragraph 6 above) or violate or conflict with, result in a breach of, or constitute a default under, (i) the Restated Articles of Incorporation or the Bylaws of the Company or any other agreement or instrument to which the Company is a party or by
C-3
which the Company or any of its properties may be bound, (ii) any Governmental Approval or Governmental Registration that may be applicable to the Company or any of its properties or (iii) any order, decision, judgment or decree that may be applicable to the Company or any of its properties and (c) the Mortgage constitutes the valid and legally binding agreement of, and is enforceable in accordance with its terms against, the Trustee under all applicable law.
In passing on the compliance as to form of the Registration Statement and the Prospectus below, we necessarily assume the correctness and completeness of the statements made by the Company therein and in connection with its preparation thereof. In the course of the preparation by the Company of the Registration Statement and the Prospectus, we had conferences with certain officers and representatives of and counsel for the Company, with Deloitte & Touche LLP, the Companys independent public accountants who audited certain of the financial statements included or incorporated by reference in the Registration Statement or the Prospectus, and with your representatives, during which the contents of the Registration Statement and the Prospectus were discussed. We did not participate in the preparation by the Company of the Incorporated Documents or participate in the selection of information contained therein or omitted therefrom by the Company. Based on our review of the Registration Statement, the Prospectus and the Incorporated Documents and our discussions in the conferences as described above, (a) we are of the opinion that the Registration Statement, at the time it was declared effective by the Commission under the Securities Act, and the Prospectus, when it was transmitted for filing with the Commission pursuant to Rule 424(b) under the Securities Act, complied as to form in all material respects with the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and (b) although we have not independently verified the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement or the Prospectus and take no responsibility therefor (except to the extent that such statements relate to us and as set forth in paragraph 4 above), no facts have come to our attention that give us reason to believe that the Registration Statement, at the time the Annual Report was filed by the Company with the Commission under the Exchange Act and when read together with the Annual Report, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its issue date or at the date hereof and when read together with the Incorporated Documents, contained or contains any 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. Notwithstanding the foregoing, we express no opinion or belief in either clause (a) or (b) above as to (i) the financial statements and other financial and statistical data contained or incorporated by reference in or omitted from the Registration Statement or the Prospectus or (ii) the Trustees Statement of Eligibility under the Trust Indenture Act on Form T-1 filed as an exhibit to the Registration Statement.
The matters set forth in this letter are limited to the federal law of the United States of America, the law of the State of New York and, but only in the case of the matters involving the law of the State of Missouri specified in the next sentence, the law of the State of Missouri (including the sufficiency of the orders of the Public Service Commission of the State of Missouri authorizing the issuance and sale of the Bonds), in each case as in effect on the date hereof. With respect to the matters set forth in paragraphs 1, 2 and 3 above, all of which matters
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involve the law of the State of Missouri, we have, with your approval, relied on the opinions of Mary C. Kullman, Associate General Counsel of the Company, and Thompson Coburn LLP, counsel for the Company, each dated the date hereof and delivered to you pursuant to Sections 6(c)(i) and 6(c)(ii), respectively, of the Underwriting Agreement, and this letter is subject to the same assumptions, qualifications and limitations with respect to such matters as are contained in such opinion.
This letter is delivered to you solely for your benefit in connection with the transaction contemplated by the Underwriting Agreement and may not be relied on by you for any other purpose, or furnished or quoted to or relied on by any other person or entity (including by any person that acquires any of the Bonds from any of you) for any purpose, without our prior written consent.
Very truly yours, |
|
Pillsbury Winthrop LLP |
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Exhibit 4.01
LACLEDE GAS COMPANY
TO
UMB BANK & TRUST, N.A.
Trustee
Twenty-Seventh Supplemental Indenture
Dated as of April 15, 2004
First Mortgage Bonds
5½% Series due May 1, 2019
TABLE OF CONTENTS
Page
|
||||
Parties |
1 | |||
Recitals |
1 | |||
Previous Indentures |
1 | |||
Identity of the Company |
9 | |||
Identity of Trustee |
9 | |||
Outstanding Bonds |
9 | |||
Form of Fully Registered Bond |
10 | |||
Form of Trustees Certificate of Authentication. |
13 | |||
Compliance with legal requirements |
13 | |||
Granting Clause |
13 | |||
Exception Clause |
15 | |||
Habendum Clause |
15 | |||
Exceptions, Reservations, etc |
15 | |||
Grant in trust |
15 | |||
Covenant Clause |
16 | |||
ARTICLE I | ||||
DEFINITIONS | ||||
Section 1.1 |
Terms defined by reference |
16 | ||
Section 1.2 |
Trustee |
16 | ||
Section 1.3 |
Original Indenture |
16 | ||
Section 1.4 |
First Supplemental Indenture |
16 | ||
Section 1.5 |
Second Supplemental Indenture |
16 | ||
Section 1.6 |
Third Supplemental Indenture |
16 | ||
Section 1.7 |
Fourth Supplemental Indenture |
16 | ||
Section 1.8 |
Fifth Supplemental Indenture |
16 | ||
Section 1.9 |
Sixth Supplemental Indenture |
17 | ||
Section 1.10 |
Seventh Supplemental Indenture |
17 | ||
Section 1.11 |
Eighth Supplemental Indenture |
17 | ||
Section 1.12 |
Ninth Supplemental Indenture |
17 | ||
Section 1.13 |
Tenth Supplemental Indenture |
17 | ||
Section 1.14 |
Eleventh Supplemental Indenture |
17 | ||
Section 1.15 |
Twelfth Supplemental Indenture |
17 | ||
Section 1.16 |
Thirteenth Supplemental Indenture |
17 | ||
Section 1.17 |
Fourteenth Supplemental Indenture |
17 | ||
Section 1.18 |
Fifteenth Supplemental Indenture |
17 | ||
Section 1.19 |
Sixteenth Supplemental Indenture |
17 | ||
Section 1.20 |
Seventeenth Supplemental Indenture |
17 | ||
Section 1.21 |
Eighteenth Supplemental Indenture |
17 | ||
Section 1.22 |
Nineteenth Supplemental Indenture |
17 |
i
Page
|
||||
Section 1.23 |
Twentieth Supplemental Indenture |
17 | ||
Section 1.24 |
Twenty-First Supplemental Indenture |
18 | ||
Section 1.25 |
Twenty-Second Supplemental Indenture |
18 | ||
Section 1.26 |
Twenty-Third Supplemental Indenture |
18 | ||
Section 1.27 |
Twenty-Fourth Supplemental Indenture |
18 | ||
Section 1.28 |
Twenty-Fifth Supplemental Indenture |
18 | ||
Section 1.29 |
Twenty-Sixth Supplemental Indenture |
18 | ||
Section 1.30 |
The Mortgage |
18 | ||
Section 1.31 |
Hereof, hereunder, etc. |
18 | ||
Section 1.32 |
2019 Series |
18 | ||
ARTICLE II | ||||
CREATION, DESCRIPTION, REGISTRATION, TRANSFER AND EXCHANGE OF | ||||
THE 2019 SERIES OF BONDS | ||||
Section 2.1 |
Creation and principal amount of the 2019 Series |
18 | ||
Section 2.2 |
Date of Bonds |
19 | ||
Section 2.3 |
Denominations, etc. |
19 | ||
Section 2.4 |
Exchange of Bonds |
19 | ||
Section 2.5 |
Registration of Bonds |
19 | ||
Section 2.6 |
Temporary Bonds |
19 | ||
Section 2.7 |
Payment of Defaulted Interest |
19 | ||
Section 2.8 |
Transfers or Exchanges of Bonds called for redemption |
20 | ||
ARTICLE III | ||||
REDEMPTION OF BONDS OF THE 2019 SERIES | ||||
Section 3.1 |
Circumstances in which redeemable |
20 | ||
Section 3.2 |
Additional circumstances in which redeemable |
20 | ||
Section 3.3 |
Notice of intention to redeem |
21 | ||
ARTICLE IV | ||||
PARTICULAR COVENANTS OF THE COMPANY | ||||
Section 4.1 |
Maintenance and Improvement Fund |
22 | ||
Section 4.2 |
Restrictions as to dividends |
22 | ||
Section 4.3 |
Earnings requirements for additional Bonds |
23 | ||
Section 4.4 |
Postponement of interest |
24 | ||
ARTICLE V | ||||
MISCELLANEOUS | ||||
Section 5.1 |
Payments due on Sundays and holidays |
24 | ||
Section 5.2 |
Provisions required by Trust Indenture Act of 1939 to control |
25 |
ii
Section 5.3 |
Acceptance of Trust |
25 | ||
Section 5.4 |
This Indenture Part of Original Indenture |
25 | ||
Section 5.5 |
Execution in any number of counterparts |
25 | ||
Section 5.6 |
Date of execution |
25 |
iii
TWENTY-SEVENTH SUPPLEMENTAL INDENTURE, dated as of the 15th day of April 2004 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 Supplemental 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 Supplemental Indenture, dated as of December 1, 1954, which is recorded in the office of the Recorder of
1
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 Supplemental 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
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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 Supplemental 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
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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 Supplemental 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 Supplemental 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 Supplemental 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
4
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 Supplemental 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 Supplemental 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
5
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 Supplemental 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
6
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 Supplemental 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 Supplemental 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
7
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 Supplemental 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
8
(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 a supplemental indenture 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
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 Companys 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 Twenty-Seventh 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 Eighteenth Supplemental Indenture, First Mortgage Bonds of the 8 1/2% Series due November 15, 2004; under the Nineteenth Supplemental Indenture, First Mortgage Bonds of the 8 5/8% Series due May 15, 2006; under the Twentieth Supplemental Indenture, First Mortgage Bonds of the 7 1/2% Series due November 1, 2007; under the Twenty-Second Supplemental Indenture, First Mortgage Bonds of the 6 1/2% Series due
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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; and under the Twenty-Sixth Supplemental Indenture, First Mortgage Bonds of the 6-5/8% Series due June 15, 2016; but all bonds of the eighteen series provided for respectively by the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fifteenth, Sixteenth, Seventeenth and Twenty-First 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, 5½% Series due May 1, 2019 (hereinafter sometimes referred to as the 2019 Series), for an aggregate principal amount of $50,000,000 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 Trustees certificate of authentication thereof to be substantially in the following forms, respectively:
(FORM OF FULLY REGISTERED BOND)
LACLEDE GAS COMPANY
FIRST MORTGAGE BOND,
No. |
5½% Series due May 1, 2019 |
$ |
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, Dollars on the 1st day of May, 2019 (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 April 28, 2004 or from the 1st day of May or November next preceding the date of this bond to which date interest has been paid or duly provided for (or, if this bond is dated any date after the record date for any interest payment date and on or before such interest payment date, then from such interest payment date), at the rate of 5½% per annum, in like coin or currency at either of said offices or agencies at the option of the registered owner hereof, on May 1 and November 1 in each year, until the Companys obligation with respect to the payment of such principal shall have been discharged. The interest so payable on any May 1 or November 1 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 April 15 or October 15, as the case may be, next preceding such interest payment date, or, if such April 15 or October 15 shall be a legal holiday or a day on which banking institutions in the Borough of Manhattan, The City of New York, or in the City of St. Louis, State of Missouri, are authorized by law to close, the next preceding day which shall not be a legal holiday or a day on which such institutions are so authorized to close. 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 Letter of Representations among DTC,
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the Company and UMB Bank & Trust, n.a. (hereinafter sometimes referred to as the Trustee). 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 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, 5½% Series due May 1, 2019 (hereinafter referred to as the 2019 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 April 15, 2004, 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 2019 Series, if so affected), then outstanding under the Mortgage (excluding bonds disqualified from voting by reason of the Companys 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 2019 Series, if any interest payment on bonds of the 2019 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 2019 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) through operation of
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the maintenance and improvement fund or 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 to the date fixed for redemption; or (ii) pursuant to Section 3.2 of the supplemental indenture dated as of April 15, 2004 to the Original Indenture at a redemption price equal to the greater of: (A) 100% of the principal amount of the bonds of the 2019 Series being redeemed; or (B) as determined by the Independent Investment Banker (as defined in the supplemental indenture dated as of April 15, 2004 to the Original Indenture), the sum of the present values of the remaining scheduled payments of principal of and interest on the bonds of the 2019 Series being redeemed (excluding the portion of any such interest accrued to the date fixed for redemption), discounted (for purposes of determining such present values) to the date fixed for redemption on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate (as defined in the supplemental indenture dated as of May 1, 2004 to the Original Indenture) plus 0.20% plus, in each case, accrued interest thereon to the date fixed for redemption without premium. Except as set forth above, the bonds of the 2019 Series are not redeemable prior to May 1, 2019.
The notice of redemption of bonds of the 2019 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 2019 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
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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.
Dated
LACLEDE GAS COMPANY | ||
By | ||
|
||
President |
ATTEST: |
|
Secretary |
(FORM OF TRUSTEES 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 Twenty-Seventh 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 TWENTY-SEVENTH 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
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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; 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 Twenty-Seventh 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
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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 Twenty-Seventh 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
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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 2019 Series, or any of such bonds, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. For all purposes of this Twenty-Seventh Supplemental Indenture, except as herein otherwise expressly provided or unless the context otherwise requires, the terms defined in Sections 1.2 to 1.32 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 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 1.3. The term Original Indenture shall mean the indenture of mortgage and deed of trust dated as of February 1, 1945, hereinbefore referred to.
SECTION 1.4. The term First Supplemental Indenture shall mean the supplemental indenture dated as of December 1, 1946, hereinbefore referred to.
SECTION 1.5. The term Second Supplemental Indenture shall mean the supplemental indenture dated as of March 15, 1948, hereinbefore referred to.
SECTION 1.6. The term Third Supplemental Indenture shall mean the supplemental indenture dated as of April 1, 1951, hereinbefore referred to.
SECTION 1.7. The term Fourth Supplemental Indenture shall mean the supplemental indenture dated as of December 1, 1954, hereinbefore referred to.
SECTION 1.8. The term Fifth Supplemental Indenture shall mean the supplemental indenture dated as of May 1, 1957, hereinbefore referred to.
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SECTION 1.9. The term Sixth Supplemental Indenture shall mean the supplemental indenture dated as of July 1, 1960, hereinbefore referred to.
SECTION 1.10. The term Seventh Supplemental Indenture shall mean the supplemental indenture dated as of June 1, 1964, hereinbefore referred to.
SECTION 1.11. The term Eighth Supplemental Indenture shall mean the supplemental indenture dated as of April 15, 1966, hereinbefore referred to.
SECTION 1.12. The term Ninth Supplemental Indenture shall mean the supplemental indenture dated as of May 1, 1968, hereinbefore referred to.
SECTION 1.13. The term Tenth Supplemental Indenture shall mean the supplemental indenture dated as of May 15, 1970, hereinbefore referred to.
SECTION 1.14. The term Eleventh Supplemental Indenture shall mean the supplemental indenture dated as of March 15, 1972, hereinbefore referred to.
SECTION 1.15. The term Twelfth Supplemental Indenture shall mean the supplemental indenture dated as of March 15, 1974, hereinbefore referred to.
SECTION 1.16. The term Thirteenth Supplemental Indenture shall mean the supplemental indenture dated as of June 1, 1975, hereinbefore referred to.
SECTION 1.17. The term Fourteenth Supplemental Indenture shall mean the supplemental indenture dated as of October 26, 1976, hereinbefore referred to.
SECTION 1.18. The term Fifteenth Supplemental Indenture shall mean the supplemental indenture dated as of July 15, 1979, hereinbefore referred to.
SECTION 1.19. The term Sixteenth Supplemental Indenture shall mean the supplemental indenture dated as of May 1, 1986, hereinbefore referred to.
SECTION 1.20. The term Seventeenth Supplemental Indenture shall mean the supplemental indenture dated as of May 15, 1988, hereinbefore referred to.
SECTION 1.21. The term Eighteenth Supplemental Indenture shall mean the supplemental indenture dated as of November 15, 1989, hereinbefore referred to.
SECTION 1.22. The term Nineteenth Supplemental Indenture shall mean the supplemental indenture dated as of May 15, 1991, hereinbefore referred to.
SECTION 1.23. The term Twentieth Supplemental Indenture shall mean the supplemental indenture dated as of November 1, 1992, hereinbefore referred to.
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SECTION 1.24. The term Twenty-First Supplemental Indenture shall mean the supplemental indenture dated as of May 1, 1993, hereinbefore referred to.
SECTION 1.25. The term Twenty-Second Supplemental Indenture shall mean the supplemental indenture dated as of November 15, 1995, hereinbefore referred to.
SECTION 1.26. The term Twenty-Third Supplemental Indenture shall mean the supplemental indenture dated as of October 15, 1997, hereinbefore referred to.
SECTION 1.27 The term Twenty-Fourth Supplemental Indenture shall mean the supplemental indenture dated as of June 11, 1999 hereinbefore referred to.
SECTION 1.28 The term Twenty-Fifth Supplemental Indenture shall mean the supplemental indenture dated as of September 15, 2000 hereinbefore referred to.
SECTION 1.29 The term Twenty-Sixth Supplemental Indenture shall mean the supplemental indenture dated as of June 15, 2001 hereinbefore referred to.
SECTION 1.30. The term the 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 and Twenty-Sixth 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 1.31. The term hereof, hereunder, hereto, hereby, hereinbefore, and the like, refer to this Twenty-Seventh Supplemental Indenture.
SECTION 1.32. The term 2019 Series shall mean the series of First Mortgage Bonds created by this Twenty-Seventh Supplemental Indenture, as in Section 2.1 hereof provided.
ARTICLE II
CREATION, DESCRIPTION, REGISTRATION, TRANSFER AND
EXCHANGE OF THE 2019 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, 5½% Series due May 1, 2019. The aggregate principal amount of bonds of the 2019 Series that may be executed by the Company and authenticated is limited to Fifty Million Dollars ($50,000,000), 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.
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SECTION 2.2. All bonds of the 2019 Series shall be dated as provided in Section 2.03 of the Original Indenture.
SECTION 2.3. The bonds of the 2019 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 Trustees certificate of authentication, shall, respectively, be substantially of the tenor and purport in this Twenty-Seventh 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 2019 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 2019 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 2019 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 2019 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 2019 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 April 15 or October 15, as the case may be, next
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preceding such interest payment date, or, if such April 15 or October 15 shall be a legal holiday or a day on which banking institutions in the Borough of Manhattan, The City of New York, or in the City of St. Louis, State of Missouri, are authorized by law to close, the next preceding day which shall not be a legal holiday or a day on which such institutions are so authorized to close.
SECTION 2.8. Anything in this Twenty-Seventh Supplemental Indenture to the contrary notwithstanding, the Company shall not be required to make transfers or exchanges of bonds of the 2019 Series for a period of fifteen (15) days next preceding any selection of bonds of the 2019 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 2019 Series to be redeemed in part, the portion thereof not to be so redeemed.
ARTICLE III
REDEMPTION OF BONDS OF THE 2019 SERIES
SECTION 3.1. Bonds of the 2019 Series shall be redeemable, in whole or in part, at 100% of the principal amount thereof, together with accrued interest to the date fixed for redemption at any time before maturity by the application of cash deposited with the Trustee as the result of the operation of the Maintenance and Improvement Fund provided for in Section 9.07 of the Original Indenture or in Section 4.1 hereof, or pursuant to the provisions of paragraph (B) of Section 13.06 of the Original Indenture.
SECTION 3.2. Bonds of the 2019 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, at a redemption price equal to the greater of: (A) 100% of the principal amount of the bonds of the 2019 Series being redeemed; and (B) as determined by the Independent Investment Banker, as hereinafter defined, the sum of the present values of the remaining scheduled payments of principal of and interest on the bonds of the 2019 Series being redeemed (excluding the portion of any such interest accrued to the date fixed for redemption), discounted (for purposes of determining such present values) to the date fixed for redemption on a semi-annual basis (assuming a 360-day year of twelve 30-day months) at the Adjusted Treasury Rate, as hereinafter defined, plus 0.20% plus, in each case, accrued interest thereon to the date fixed for redemption without premium.
For purposes of this Section 3.2:
Adjusted Treasury Rate means, with respect to any date fixed for redemption:
(a) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated H.15(519) or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which reports yields on actively traded United States Treasury securities adjusted to constant maturity under the caption Treasury Constant Maturities, for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the remaining term of the bonds of the 2019 Series, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Adjusted
20
Treasury Rate shall be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month); or
(b) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such date fixed for redemption.
The Adjusted Treasury Rate shall be calculated on the third Business Day preceding the date fixed for redemption.
Business Day means any day other than a Saturday or a Sunday or a day on which banking institutions in The City of New York are authorized or required by law or executive order to remain closed or a day on which the corporate trust office of the Trustee is closed for business.
Comparable Treasury Issue means the United States Treasury security selected by the Independent Investment Banker as having a maturity comparable to the remaining term of the bonds of the 2019 Series that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the bonds of the 2019 Series.
Comparable Treasury Price means, with respect to any date fixed for redemption, (a) the average of five Reference Treasury Dealer Quotations for such date fixed for redemption after excluding the highest and the lowest such Reference Treasury Dealer Quotations or (b) if the Independent Investment Banker obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations.
Independent Investment Banker means Merrill Lynch Government Securities, Inc., or, if such firm is unwilling or unable to select the Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the Company.
Reference Treasury Dealer means a primary United States Government securities dealer selected by the Independent Investment Banker after consultation with the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any date fixed for redemption, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding such date fixed for redemption.
SECTION 3.3. Article XII of the Original Indenture is and shall be applicable to any redemption of bonds of the 2019 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 2019 Series but shall be given by mailing a copy thereof to each registered owner thereof, directed to his registered
21
address, not less than thirty (30) nor more than ninety (90) days prior to the date fixed for redemption.
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.1. So long as any bonds of the 2019 Series are outstanding, all covenants and provisions of Section 9.07 of the Original Indenture, which (under the terms of the Original Indenture and without regard to any provision of any supplemental indenture heretofore or hereafter executed) expired when all bonds of the 3 1/2% Series due 1965 ceased to be outstanding, shall continue in force and effect; provided, however, that the provisions of said Section 9.07 with reference to computing the Maintenance and Improvement Fund on the basis of 15% of the gross operating revenue of the Company (which had ceased to be applicable prior to the retirement of the 3 1/2% Series due 1965) shall remain inapplicable, and the provisions for such computation on the basis of 2 3/4% of the average amount of the gross property account of the Company shall continue to apply, so long as any bonds of the 2019 Series are outstanding.
SECTION 4.2. So long as any of the bonds of the 2019 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 4.2 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 4.2, 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 4.2, 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,
22
or (B) supersede said Commission with respect to such jurisdiction, or (C) have such jurisdiction over phases of the Companys business or parts of its property over which said Commission shall not have jurisdiction.
SECTION 4.3. So long as any bonds of the 2019 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 4.3. Such certificate shall show the net earnings and total annual interest charges referred to in said clause (a).
For the purposes of this Section 4.3, 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 4.3, 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 Treasurers certificate filed with the Trustee shall deem proper;
23
(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 Treasurers 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 4.3 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 4.3 shall (except to the extent, if any, to which the preceding provisions of this Section 4.3 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 4.3, the term Public Service Commission of Missouri shall be applicable as provided in Section 4.2 of this Article IV.
SECTION 4.4. So long as any bonds of the 2019 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 2019 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
MISCELLANEOUS
SECTION 5.1. In any case where the date of maturity of interest on or principal of bonds of the 2019 Series or the date fixed for redemption of any such bonds shall be in the Borough of Manhattan, The City of New York, or in the City of St. Louis, State of Missouri, a legal holiday or a day on which banking institutions are authorized by law to close, then payment of interest or principal need not be made on such date, but may be made on the next succeeding date not in The City of New York, or in the City of St. Louis, a legal holiday or a day on which banking institutions are authorized by law to close, with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date.
24
SECTION 5.2. 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 5.3. 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 Twenty-Seventh Supplemental Indenture set forth.
SECTION 5.4. This Twenty-Seventh Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Original Indenture and shall form a part thereof.
SECTION 5.5. This Twenty-Seventh 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 5.6. Although this Twenty-Seventh Supplemental Indenture is dated, for convenience and for purposes of reference, as of April 15, 2004, the actual dates of execution by the Company and by the Trustee are as indicated by their respective acknowledgements hereto annexed.
25
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 Chief Financial Officer 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, and its seal to be attested by its Assistant Secretary.
LACLEDE GAS COMPANY |
||
By |
/ S / D. H. Y AEGER |
|
|
||
President |
ATTEST: |
/ S / M. C. K ULLMAN |
|
Secretary (SEAL) |
UMB BANK & TRUST, N.A.
|
||
By |
/ S / R OBERT C LASQUIN |
|
|
||
Vice President |
ATTEST: |
/ S / K ARIE A. M YERS |
|
Assistant Secretary (SEAL) |
26
State of Missouri |
) |
|
) ss. |
||
City of St. Louis |
) |
On this 26th day of April, 2004 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 July 2, 2005.
/ S / J OYCE L. J ANSEN |
|
Notary Public State of Missouri |
(SEAL)
27
State of Missouri |
) |
|
) ss. |
||
City of St. Louis |
) |
On this 26th day of April, 2004 before me appeared Robert A. Clasquin to me personally known, who, being by me duly sworn did say that (s)he is a 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 Assistant Secretary 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 July 2, 2005.
/ S / J OYCE L. J ANSEN |
|
Notary Public State of Missouri |
(SEAL)
28
Exhibit 4.02
LACLEDE GAS COMPANY
TO
UMB BANK & TRUST, N.A.
Trustee
Twenty-Eighth Supplemental Indenture
Dated as of April 15, 2004
First Mortgage Bonds
6% Series due May 1, 2034
TABLE OF CONTENTS
Page
|
||||
Parties |
1 | |||
Recitals |
1 | |||
Previous Indentures |
1 | |||
Identity of the Company |
9 | |||
Identity of Trustee |
9 | |||
Outstanding Bonds |
10 | |||
Form of Fully Registered Bond |
10 | |||
Form of Trustees Certificate of Authentication |
13 | |||
Compliance with legal requirements |
14 | |||
Granting Clause |
14 | |||
Exception Clause |
15 | |||
Habendum Clause |
15 | |||
Exceptions, Reservations, etc. |
15 | |||
Grant in trust |
16 | |||
Covenant Clause |
16 | |||
ARTICLE I | ||||
DEFINITIONS | ||||
Section 1.1 |
Terms defined by reference |
16 | ||
Section 1.2 |
Trustee |
16 | ||
Section 1.3 |
Original Indenture |
16 | ||
Section 1.4 |
First Supplemental Indenture |
16 | ||
Section 1.5 |
Second Supplemental Indenture |
16 | ||
Section 1.6 |
Third Supplemental Indenture |
17 | ||
Section 1.7 |
Fourth Supplemental Indenture |
17 | ||
Section 1.8 |
Fifth Supplemental Indenture |
17 | ||
Section 1.9 |
Sixth Supplemental Indenture |
17 | ||
Section 1.10 |
Seventh Supplemental Indenture |
17 | ||
Section 1.11 |
Eighth Supplemental Indenture |
17 | ||
Section 1.12 |
Ninth Supplemental Indenture |
17 | ||
Section 1.13 |
Tenth Supplemental Indenture |
17 | ||
Section 1.14 |
Eleventh Supplemental Indenture |
17 | ||
Section 1.15 |
Twelfth Supplemental Indenture |
17 | ||
Section 1.16 |
Thirteenth Supplemental Indenture |
17 | ||
Section 1.17 |
Fourteenth Supplemental Indenture |
17 | ||
Section 1.18 |
Fifteenth Supplemental Indenture |
17 | ||
Section 1.19 |
Sixteenth Supplemental Indenture |
17 | ||
Section 1.20 |
Seventeenth Supplemental Indenture |
17 | ||
Section 1.21 |
Eighteenth Supplemental Indenture |
18 | ||
Section 1.22 |
Nineteenth Supplemental Indenture |
18 |
i
Page
|
||||
Section 1.23 |
Twentieth Supplemental Indenture |
18 | ||
Section 1.24 |
Twenty-First Supplemental Indenture |
18 | ||
Section 1.25 |
Twenty-Second Supplemental Indenture |
18 | ||
Section 1.26 |
Twenty-Third Supplemental Indenture |
18 | ||
Section 1.27 |
Twenty-Fourth Supplemental Indenture |
18 | ||
Section 1.28 |
Twenty-Fifth Supplemental Indenture |
18 | ||
Section 1.29 |
Twenty-Sixth Supplemental Indenture |
18 | ||
Section 1.30 |
Twenty-Seventh Supplemental Indenture |
18 | ||
Section 1.31 |
The Mortgage |
18 | ||
Section 1.32 |
Hereof, hereunder, etc. |
18 | ||
Section 1.33 |
2034 Series |
18 | ||
ARTICLE II | ||||
CREATION, DESCRIPTION, REGISTRATION, TRANSFER AND EXCHANGE OF THE 2034 SERIES OF BONDS |
||||
Section 2.1 |
Creation and principal amount of the 2034 Series |
19 | ||
Section 2.2 |
Date of Bonds |
19 | ||
Section 2.3 |
Denominations, etc. |
19 | ||
Section 2.4 |
Exchange of Bonds |
19 | ||
Section 2.5 |
Registration of Bonds |
19 | ||
Section 2.6 |
Temporary Bonds |
19 | ||
Section 2.7 |
Payment of Defaulted Interest |
20 | ||
Section 2.8 |
Transfers or Exchanges of Bonds called for redemption |
20 | ||
ARTICLE III | ||||
REDEMPTION OF BONDS OF THE 2034 SERIES | ||||
Section 3.1 |
Circumstances in which redeemable |
20 | ||
Section 3.2 |
Additional circumstances in which redeemable |
20 | ||
Section 3.3 |
Notice of intention to redeem |
22 | ||
ARTICLE IV | ||||
PARTICULAR COVENANTS OF THE COMPANY | ||||
Section 4.1 |
Maintenance and Improvement Fund |
22 | ||
Section 4.2 |
Restrictions as to dividends |
22 | ||
Section 4.3 |
Earnings requirements for additional Bonds |
23 | ||
Section 4.4 |
Postponement of interest |
24 | ||
ARTICLE V | ||||
MISCELLANEOUS | ||||
Section 5.1 |
Payments due on Sundays and holidays |
25 | ||
Section 5.2 |
Provisions required by Trust Indenture Act of 1939 to control |
25 |
ii
Section 5.3 |
Acceptance of Trust |
25 | ||
Section 5.4 |
This Indenture Part of Original Indenture |
25 | ||
Section 5.5 |
Execution in any number of counterparts |
25 | ||
Section 5.6 |
Date of execution |
25 |
iii
TWENTY-EIGHTH SUPPLEMENTAL INDENTURE, dated as of the 15th day of April 2004 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
1
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
2
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
3
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
4
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
5
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
6
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
7
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
8
(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 a supplemental indenture 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 to be executed and delivered contemporaneously with this Twenty-Eighth Supplemental Indenture; 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 Companys 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 Twenty-Eighth 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
9
WHEREAS, there are now outstanding under the Eighteenth Supplemental Indenture, First Mortgage Bonds of the 8 1/2% Series due November 15, 2004; under the Nineteenth Supplemental Indenture, First Mortgage Bonds of the 8 5/8% Series due May 15, 2006; under the Twentieth Supplemental Indenture, First Mortgage Bonds of the 7 1/2% Series due November 1, 2007; 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-Sixth Supplemental Indenture, First Mortgage Bonds of the 6-5/8% Series due June 15, 2016; and under the Twenty-Seventh Supplemental Indenture, First Mortgage Bonds of the % Series due April 15, 2019; but all bonds of the eighteen series provided for respectively by the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fifteenth, Sixteenth, Seventeenth and Twenty-First 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% Series due May 1, 2034 (hereinafter sometimes referred to as the 2034 Series), for an aggregate principal amount of $100,000,000 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 Trustees certificate of authentication thereof to be substantially in the following forms, respectively:
(FORM OF FULLY REGISTERED BOND)
LACLEDE GAS COMPANY
FIRST MORTGAGE BOND,
No. |
6% Series due May 1, 2034 |
$ |
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, Dollars on the 1st day of May, 2034 (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 April 28, 2004 or from the 15 th day of April or October next preceding the date of this bond to which date interest has been paid or duly provided for (or, if this bond is dated any date after the record date for any interest payment date and on or before such interest payment date, then from such interest payment date), at the rate of 6% per annum, in like coin or currency at either of said offices or agencies at the option of the registered owner hereof, on May 1 and November 1 in each year, until the Companys obligation with respect to the payment of such principal shall have been discharged. The interest so payable on any May 1 or November 1 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 April 15 or October 15, as the case may be, next preceding such interest
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payment date, or, if such April 15 or October 15 shall be a legal holiday or a day on which banking institutions in the Borough of Manhattan, The City of New York, or in the City of St. Louis, State of Missouri, are authorized by law to close, the next preceding day which shall not be a legal holiday or a day on which such institutions are so authorized to close. 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 Letter of Representations among DTC, the Company and UMB Bank & Trust, n.a. (hereinafter sometimes referred to as the Trustee). 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 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% Series due May 1, 2034 (hereinafter referred to as the 2034 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 April 15, 2004, 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 2034 Series, if so affected), then outstanding under the Mortgage (excluding bonds disqualified from voting by reason of the Companys 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 2034 Series, if any interest
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payment on bonds of the 2034 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 2034 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) through operation of the maintenance and improvement fund or 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 to the date fixed for redemption; or (ii) pursuant to Section 3.2 of the supplemental indenture dated as of April 15, 2004 to the Original Indenture at a redemption price equal to the greater of: (A) 100% of the principal amount of the bonds of the 2034 Series being redeemed; or (B) as determined by the Independent Investment Banker (as defined in the supplemental indenture dated as of April 15, 2004 to the Original Indenture), the sum of the present values of the remaining scheduled payments of principal of and interest on the bonds of the 2034 Series being redeemed (excluding the portion of any such interest accrued to the date fixed for redemption), discounted (for purposes of determining such present values) to the date fixed for redemption on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate (as defined in the supplemental indenture dated as of April 15, 2004 to the Original Indenture) plus 0.20% plus, in each case, accrued interest thereon to the date fixed for redemption without premium. Except as set forth above, the bonds of the 2034 Series are not redeemable prior to May 1, 2034.
The notice of redemption of bonds of the 2034 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 2034 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
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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.
Dated
LACLEDE GAS COMPANY |
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By | ||
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President |
ATTEST: |
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Secretary |
(FORM OF TRUSTEES 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 |
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By | ||
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Authorized Signatory |
and
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WHEREAS, all conditions and requirements necessary to make this Twenty-Eighth 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 TWENTY-EIGHTH 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; except any
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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 Twenty-Eighth 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
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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 Twenty-Eighth 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 2034 Series, or any of such bonds, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. For all purposes of this Twenty-Eighth Supplemental Indenture, except as herein otherwise expressly provided or unless the context otherwise requires, the terms defined in Sections 1.2 to 1.33 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 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 1.3. The term Original Indenture shall mean the indenture of mortgage and deed of trust dated as of February 1, 1945, hereinbefore referred to.
SECTION 1.4. The term First Supplemental Indenture shall mean the supplemental indenture dated as of December 1, 1946, hereinbefore referred to.
SECTION 1.5. The term Second Supplemental Indenture shall mean the supplemental indenture dated as of March 15, 1948, hereinbefore referred to.
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SECTION 1.6. The term Third Supplemental Indenture shall mean the supplemental indenture dated as of April 1, 1951, hereinbefore referred to.
SECTION 1.7. The term Fourth Supplemental Indenture shall mean the supplemental indenture dated as of December 1, 1954, hereinbefore referred to.
SECTION 1.8. The term Fifth Supplemental Indenture shall mean the supplemental indenture dated as of May 1, 1957, hereinbefore referred to.
SECTION 1.9. The term Sixth Supplemental Indenture shall mean the supplemental indenture dated as of July 1, 1960, hereinbefore referred to.
SECTION 1.10. The term Seventh Supplemental Indenture shall mean the supplemental indenture dated as of June 1, 1964, hereinbefore referred to.
SECTION 1.11. The term Eighth Supplemental Indenture shall mean the supplemental indenture dated as of April 15, 1966, hereinbefore referred to.
SECTION 1.12. The term Ninth Supplemental Indenture shall mean the supplemental indenture dated as of May 1, 1968, hereinbefore referred to.
SECTION 1.13. The term Tenth Supplemental Indenture shall mean the supplemental indenture dated as of May 15, 1970, hereinbefore referred to.
SECTION 1.14. The term Eleventh Supplemental Indenture shall mean the supplemental indenture dated as of March 15, 1972, hereinbefore referred to.
SECTION 1.15. The term Twelfth Supplemental Indenture shall mean the supplemental indenture dated as of March 15, 1974, hereinbefore referred to.
SECTION 1.16. The term Thirteenth Supplemental Indenture shall mean the supplemental indenture dated as of June 1, 1975, hereinbefore referred to.
SECTION 1.17. The term Fourteenth Supplemental Indenture shall mean the supplemental indenture dated as of October 26, 1976, hereinbefore referred to.
SECTION 1.18. The term Fifteenth Supplemental Indenture shall mean the supplemental indenture dated as of July 15, 1979, hereinbefore referred to.
SECTION 1.19. The term Sixteenth Supplemental Indenture shall mean the supplemental indenture dated as of May 1, 1986, hereinbefore referred to.
SECTION 1.20. The term Seventeenth Supplemental Indenture shall mean the supplemental indenture dated as of May 15, 1988, hereinbefore referred to.
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SECTION 1.21. The term Eighteenth Supplemental Indenture shall mean the supplemental indenture dated as of November 15, 1989, hereinbefore referred to.
SECTION 1.22. The term Nineteenth Supplemental Indenture shall mean the supplemental indenture dated as of May 15, 1991, hereinbefore referred to.
SECTION 1.23. The term Twentieth Supplemental Indenture shall mean the supplemental indenture dated as of November 1, 1992, hereinbefore referred to.
SECTION 1.24. The term Twenty-First Supplemental Indenture shall mean the supplemental indenture dated as of May 1, 1993, hereinbefore referred to.
SECTION 1.25. The term Twenty-Second Supplemental Indenture shall mean the supplemental indenture dated as of November 15, 1995, hereinbefore referred to.
SECTION 1.26. The term Twenty-Third Supplemental Indenture shall mean the supplemental indenture dated as of October 15, 1997, hereinbefore referred to.
SECTION 1.27 The term Twenty-Fourth Supplemental Indenture shall mean the supplemental indenture dated as of June 11, 1999 hereinbefore referred to.
SECTION 1.28 The term Twenty-Fifth Supplemental Indenture shall mean the supplemental indenture dated as of September 15, 2000 hereinbefore referred to.
SECTION 1.29 The term Twenty-Sixth Supplemental Indenture shall mean the supplemental indenture dated as of June 15, 2001 hereinbefore referred to.
SECTION 1.30 The term Twenty-Seventh Supplemental Indenture shall mean the supplemental indenture dated as of April 15, 2004 hereinbefore referred to.
SECTION 1.31. The term the 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 and Twenty-Seventh 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 1.32. The term hereof, hereunder, hereto, hereby, hereinbefore, and the like, refer to this Twenty-Eighth Supplemental Indenture.
SECTION 1.33. The term 2034 Series shall mean the series of First Mortgage Bonds created by this Twenty-Eighth Supplemental Indenture, as in Section 2.1 hereof provided.
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ARTICLE II
CREATION, DESCRIPTION, REGISTRATION, TRANSFER AND
EXCHANGE OF THE 2034 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% Series due May 1, 2034. The aggregate principal amount of bonds of the 2034 Series that may be executed by the Company and authenticated is limited to One Hundred Million Dollars ($100,000,000), 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.
SECTION 2.2. All bonds of the 2034 Series shall be dated as provided in Section 2.03 of the Original Indenture.
SECTION 2.3. The bonds of the 2034 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 Trustees certificate of authentication, shall, respectively, be substantially of the tenor and purport in this Twenty-Eighth 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 2034 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 2034 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 2034 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
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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 2034 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 2034 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 April 15 or October 15, as the case may be, next preceding such interest payment date, or, if such April 15 or October 15 shall be a legal holiday or a day on which banking institutions in the Borough of Manhattan, The City of New York, or in the City of St. Louis, State of Missouri, are authorized by law to close, the next preceding day which shall not be a legal holiday or a day on which such institutions are so authorized to close.
SECTION 2.8. Anything in this Twenty-Eighth Supplemental Indenture to the contrary notwithstanding, the Company shall not be required to make transfers or exchanges of bonds of the 2034 Series for a period of fifteen (15) days next preceding any selection of bonds of the 2034 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 2034 Series to be redeemed in part, the portion thereof not to be so redeemed.
ARTICLE III
REDEMPTION OF BONDS OF THE 2034 SERIES
SECTION 3.1. Bonds of the 2034 Series shall be redeemable, in whole or in part, at 100% of the principal amount thereof, together with accrued interest to the date fixed for redemption at any time before maturity by the application of cash deposited with the Trustee as the result of the operation of the Maintenance and Improvement Fund provided for in Section 9.07 of the Original Indenture or in Section 4.1 hereof, or pursuant to the provisions of paragraph (B) of Section 13.06 of the Original Indenture.
SECTION 3.2. Bonds of the 2034 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, at a redemption price equal to the greater of: (A) 100% of the principal amount of the bonds of the 2034 Series being redeemed; and (B) as determined by the Independent Investment Banker, as hereinafter defined, the sum of the present values of the remaining scheduled payments of principal of and interest on the bonds of the 2034 Series being redeemed (excluding the portion of any such interest accrued to the date fixed for redemption), discounted (for purposes of determining such present values) to the date fixed for redemption on a semi-annual basis (assuming a 360-day year of twelve 30-day months) at the Adjusted Treasury Rate, as hereinafter defined, plus 0.20% plus, in each case, accrued interest thereon to the date fixed for redemption without premium.
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For purposes of this Section 3.2:
Adjusted Treasury Rate means, with respect to any date fixed for redemption:
(a) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated H.15(519) or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which reports yields on actively traded United States Treasury securities adjusted to constant maturity under the caption Treasury Constant Maturities, for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the remaining term of the bonds of the 2034 Series, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Adjusted Treasury Rate shall be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month); or
(b) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such date fixed for redemption.
The Adjusted Treasury Rate shall be calculated on the third Business Day preceding the date fixed for redemption.
Business Day means any day other than a Saturday or a Sunday or a day on which banking institutions in The City of New York are authorized or required by law or executive order to remain closed or a day on which the corporate trust office of the Trustee is closed for business.
Comparable Treasury Issue means the United States Treasury security selected by the Independent Investment Banker as having a maturity comparable to the remaining term of the bonds of the 2034 Series that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the bonds of the 2034 Series.
Comparable Treasury Price means, with respect to any date fixed for redemption, (a) the average of five Reference Treasury Dealer Quotations for such date fixed for redemption after excluding the highest and the lowest such Reference Treasury Dealer Quotations or (b) if the Independent Investment Banker obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations.
Independent Investment Banker means Merrill Lynch Government Securities, Inc. or, if such firm is unwilling or unable to select the Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the Company.
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Reference Treasury Dealer means a primary United States Government securities dealer selected by the Independent Investment Banker after consultation with the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any date fixed for redemption, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding such date fixed for redemption.
SECTION 3.3 Article XII of the Original Indenture is and shall be applicable to any redemption of bonds of the 2034 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 2034 Series but shall be given by mailing a copy thereof to each registered owner thereof, directed to his registered address, not less than thirty (30) nor more than ninety (90) days prior to the date fixed for redemption.
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.1. So long as any bonds of the 2034 Series are outstanding, all covenants and provisions of Section 9.07 of the Original Indenture, which (under the terms of the Original Indenture and without regard to any provision of any supplemental indenture heretofore or hereafter executed) expired when all bonds of the 3 1/2% Series due 1965 ceased to be outstanding, shall continue in force and effect; provided, however, that the provisions of said Section 9.07 with reference to computing the Maintenance and Improvement Fund on the basis of 15% of the gross operating revenue of the Company (which had ceased to be applicable prior to the retirement of the 3 1/2% Series due 1965) shall remain inapplicable, and the provisions for such computation on the basis of 2 3/4% of the average amount of the gross property account of the Company shall continue to apply, so long as any bonds of the 2034 Series are outstanding.
SECTION 4.2. So long as any of the bonds of the 2034 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 4.2 shall be determined by deducting from the aggregate amount thereof the total amount of cash payments received by the
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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 4.2, 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 4.2, 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 Companys business or parts of its property over which said Commission shall not have jurisdiction.
SECTION 4.3. So long as any bonds of the 2034 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 4.3. Such certificate shall show the net earnings and total annual interest charges referred to in said clause (a).
For the purposes of this Section 4.3, 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 4.3, 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
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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 Treasurers 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 Treasurers 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 4.3 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 4.3 shall (except to the extent, if any, to which the preceding provisions of this Section 4.3 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 4.3, the term Public Service Commission of Missouri shall be applicable as provided in Section 4.2 of this Article IV.
SECTION 4.4. So long as any bonds of the 2034 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 2034 Series at the time outstanding,
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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
MISCELLANEOUS
SECTION 5.1. In any case where the date of maturity of interest on or principal of bonds of the 2034 Series or the date fixed for redemption of any such bonds shall be in the Borough of Manhattan, The City of New York, or in the City of St. Louis, State of Missouri, a legal holiday or a day on which banking institutions are authorized by law to close, then payment of interest or principal need not be made on such date, but may be made on the next succeeding date not in The City of New York, or in the City of St. Louis, a legal holiday or a day on which banking institutions are authorized by law to close, with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date.
SECTION 5.2. 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 5.3. 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 Twenty-Eighth Supplemental Indenture set forth.
SECTION 5.4. This Twenty-Eighth Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Original Indenture and shall form a part thereof.
SECTION 5.5. This Twenty-Eighth 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 5.6. Although this Twenty-Eighth Supplemental Indenture is dated, for convenience and for purposes of reference, as of April 15, 2004, the actual dates of execution by the Company and by the Trustee are as indicated by their respective acknowledgements hereto annexed.
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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 Chief Financial Officer 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, and its seal to be attested by its Assistant Secretary.
LACLEDE GAS COMPANY |
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By | / S / D. H. Y AEGER | |||||||
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President |
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ATTEST: |
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/ S / M. C. K ULLMAN | ||||||||
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Secretary (SEAL) |
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UMB BANK & TRUST, N.A.
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By | / S / R OBERT C LASQUIN | |||||||
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Vice President |
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ATTEST: |
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/ S / K ARIE A. M YERS | ||||||||
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Assistant Secretary (SEAL) |
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State of Missouri |
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) ss. | ||
City of St. Louis |
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On this 26th day of April, 2004 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 February 18, 2008.
/ S / K AREN A. Z URLIENE |
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Notary Public State of Missouri |
(SEAL)
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State of Missouri |
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) ss. |
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City of St. Louis |
) |
On this 26th day of April, 2004 before me appeared Robert A. Clasquin to me personally known, who, being by me duly sworn did say that (s)he is a 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 Robert A. Clasquin 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 February 18, 2008.
/ S / K AREN A. Z URLIENE |
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Notary Public State of Missouri |
(SEAL)
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Exhibit 5.01
April 28, 2004
Laclede Gas Company
720 Olive Street
St. Louis, Missouri 63101
Re: | SEC Registration Statement on Form S-3 (File No. 333-40362) |
Ladies and Gentlemen:
I am Associate General Counsel of Laclede Gas Company, a Missouri corporation (the Company), and have acted in that capacity in connection with the authorization of the possible issuance and sale from time to time by the Company of first mortgage bonds, as contemplated by the Companys Registration Statement on Form S-3 (File No. 333-40362) (the Registration Statement).
On April 28, 2004, the Company issued and sold: (a) the Companys First Mortgage Bonds, 5½% Series due May 1, 2019 (the Series 2019 Bonds); and (b) the Companys First Mortgage Bonds, 6% Series due May 1, 2034 (the Series 2034 Bonds and, together with the Series 2019 Bonds, the Bonds). The Bonds were 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 are the Twenty-Seventh Supplemental Indenture relating to the Series 2019 Bonds and the Twenty-Eighth Supplemental Indenture relating to the Series 2034 Bonds, each dated as of April 15, 2004, between UMB Bank & Trust, n.a. (successor to Mississippi Valley Trust Company), as trustee, and the Company.
I advise you that in my opinion the Bonds have been duly authorized and legally issued and, under Missouri law, constitute binding obligations of the Company.
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement. I also consent to the use of my name and the making of the statements with respect to me in the Registration Statement and the related Prospectus Supplement, dated April 21, 2004.
Very truly yours,
/ S / M. C. K ULLMAN